Kameshwar Singh vs State Of Jharkhand

Deepak Roshan, J

Heard learned counsel for the parties.

The  instant  writ  application  has been  preferred by the petitioner for the following reliefs;

For issuance of an appropriate writ/writs, order/orders, direction/or a direction in the nature of  mandamus commanding upon the respondents to confirm the absorption made by the Ranchi University after due diligence and verification of the records in the Department of Sociology and therefore to hold that non-acceptance by the State is not legal and valid.

II. To hold and declare that the claim of the petitioner in the light of order passed by the Hon'ble Apex Court of India in Civil Appeal No. 2703/17 read with the order passed in SLP No. 12591/2010,  the  claim of  the  petitioner  can  be  adjudicated  and if found genuine petitioner is entitled for confirmation of the absorption in the Department of Sociology and not in History.

III. To hold and declare that the absorption of the petitioner already declared by the University under section 4 (1) (14) under the Jharkhand Universities Act is genuine, legal and valid and be confirmed by the State Government.

IV. For issuance of  an appropriate  writ/order/direction directing the Respondents, particularly Respondent No.1 to forthwith grant approval to the revised pay-scale of the petitioner in 5th University Grant Commission (hereinafter referred as U.G.C.) revised pay-scale in the grade of Lecturer, being pay-scale of Rs.8000-13,500/- w.e.f. 01.01.1996 and 6th revised U.G.C. pay- scale  with  effect from 01.01.2006 i.e., date from which similarly situated persons to that of the petitioner have been given the benefit of 6th revised U.G.C. pay-scale

V. For issuance of further appropriate writ/order/direction, including writ of mandamus, directing and commanding upon Respondents  No.4  Nilambar  Pitambar  University to  pay arrears of salary  to  the  petitioner  according  to  revised  U.G.C.  pay-scale along with the interest @ 18% per annum.

VI. For issuance of further appropriate writ/order/direction, including writ of declaration, declaring that dismissal of the claim of  the petitioner vide order dated 08.05.2015 (Annexure-8) passed by Hon'ble Mr. Justice S.B. Sinha (Retd.) Commission, New Delhi shall not adversely affect the case of  the petitioner  in the  matter  of payment  of 5th  and  6th  revised  U.G.C.  pay-scale, especially  because services of the petitioner have already  been absorbed and also especially in view of the fact that the Petitioner,  till today,  has  been  discharging  his  duties  under the Respondent-University.

VII. For issuance of any other appropriate writ(s)/order(s)/direction(s) as Your Lordships  may deem fit and proper in the facts and circumstances of the case.

The  brief  facts  of  the  case  as  per  the  pleadings  are  as follows:

(i) The petitioner was appointed as a Lecturer in the Department of Sociology in Shri Sadguru Jagit Singh Namdhari  College,  Garhwa,  on  12.02.1987.  Thereafter, the said College which was earlier affiliated to Ranchi University, was converted into a constituent college of Ranchi University w.e.f. 30.04.1988 pursuant to a Bihar Government decision.

(ii) Disputes arose regarding absorption of teachers in converted constituent colleges, including those against  sanctioned  posts  or  posts  recommended  by  the University to the State Government. Pursuant to the order passed by the Patna High Court in CWJC No. 4021 of 1995, the services of the petitioner were regularized/absorbed by the Ranchi University vide notification dated 06.10.1998.

(iii) Thereafter, the matter of absorption of teachers of newly converted constituent colleges was examined by Justice  S.C.  Aggarwal  Commission.  In  Annexure-IVA  of its report, the Commission identified teachers eligible for absorption and duly recommended the petitioner for absorption under the subject Sociology. Pursuant thereto, Ranchi University issued notification dated 29.11.2005 absorbing the services of the petitioner; however,  such  absorption  was shown  against  a vacant post in the Department of History instead of the Department of Sociology.

(iv) Subsequently, once again one-man commission was  appointed  under  Justice  S.B.  Sinha  to  re-examine such issues and he held that absorption of the petitioner in the Department of History instead of the Department of Sociology was illegal and rejected his claim.

Aggrieved by the decision of Justice S.B. Sinha Commission, the petitioner filed I.A. No. 352 of 2016 in SLP (Civil) No. 12591 of 2010 before the Hon’ble Supreme Court. The Hon’ble Supreme Court, while disposing of  the matter as Civil Appeal No. 2704 of 2017 vide judgment dated 22.11.2017, granted liberty to those whose cases  were not accepted by the Commission to approach the concerned High Court for redressal of their grievances. In the aforesaid background, the petitioner has approached this Court by filing the present writ application.

It has been submitted by Ld. Counsel for the petitioner that the report of Justice S.C. Aggarwal Commission clearly records the name of the petitioner which finds place in Annexure-IIIA, being the list of teachers working on the date of  conversion  of  SSJN  College,  Garhwa.  He  further  submits that Annexure-IVA of the said report contains the list of teachers eligible for absorption and the name of the petitioner duly appears therein under the subject Sociology.

Ld. Counsel had further submitted that Justice S.B. Commission was constituted by the Hon’ble Supreme Court only in respect of those teaching and non-teaching staffs whose services were not absorbed, whereas in the present case the services of the petitioner were already absorbed by the S.C. Aggarwal Commission report but erroneously in the Department of History instead of Department of Sociology.

It has been contended that the report of Justice S.C. Aggarwal  Commission  having  been  accepted  by  the  Hon’ble Apex Court in the case of State of Bihar vs. Bihar Rajya MSESKK Mahasangh, (2005) 9 SCC 129, wherein it has been categorically held that in view of Section 4(1)(14) of the Bihar State Universities Act, 1976, the matter relating to absorption of employees of newly converted constituent colleges lies within the exclusive domain of the University concerned and that the State Government has no role to play in the matter.

It has lastly been submitted by Ld. Counsel that Justice S.B. Sinha Commission rejected the claim of the petitioner solely on the ground that his absorption had been shown in the Department of History instead of the Department of Sociology, holding such absorption to be illegal.

In opposition, Ld. Counsel for the respondents had submitted that in its report, Justice S.C.Agrawal Commission has clearly held that there is only one sanctioned post in the Department of Sociology in S.S.J.S.N. College, Garhwa and that there was no recommendation made by the University upto the cutoff date,  i.e.,  31.03.1987  for  creation  of  any  additional  post  in the Department of Sociology.

He had further submitted that the claim filed by the petitioner before Justice S.B. Sinha Commission has also been rejected vide Annexure-8 (Refer page no. 94 to 97 of the instant Writ Petition). Justice S.B. Sinha Commission has  rejected  the  claim  of  the petitioner  on  the ground  that the University had not sent any recommendation for creation of an additional post in the Department of Sociology, which was pending consideration before the State Government before the cutoff date that is 31.03.1987.

Ld.  Counsel  for  the  respondents  lastly  submitted  that since there is no post available in the Department of Sociology in the entire Nilamber Pitamber University, the University to which the petitioner’s current college has been currently affiliated, it is not possible to absorb the petitioner against any sanctioned post at present.

Having  heard  learned  counsel  for the  parties and  after going through the documents available on record it appears that the main grievance of the petitioner is that Justice S.B. Sinha Commission has wrongly rejected the claim of the petitioner.

Learned Counsel for the petitioner has heavily relied upon Annexure-2 annexed to the writ petition which provides a list of teachers eligible for absorption; however, Justice S.C. Agrawal commission in its report has categorically held that there was only one sanctioned post in  the  department  of  Sociology  in  the  said  college  and  that no recommendation was made by  the University up  to the cut-off date i.e. 31.03.1987 for creation of any additional post in the department of Sociology.

It further appears that when the petitioner applied before Justice S.B. Sinha Commission, the commission found that the petitioner submitted a letter of University dated 27.03.1987 recommending two more posts in Sociology in the claim petition before S.C. Agarwal Commission;  however,  on  minute  examination  Justice  S.B. Sinha Commission found that the letter was forged and fabricated and was intended to mislead the commission.

On  this  ground  alone,  the  order  rejecting  the  claim  of petitioner can be sustained.

Learned  Counsel  for  the  petitioner  has  also  contended that  as  per  the  provision  contained  under  Section  4 (1)  (14) of the Jharkhand State Universities Act, 2000, power of regularization of an employee has been vested in the University  only and  State Government  has no role  to play. In this regard it is observed that; though by the provision of Jharkhand State Universities Act only university is vested with the power of regularization of an employee; however, the exercise of such power must be according to the procedure  established  by  law  and  not  to  be  used  arbitrarily and illegally.

As stated  hereinabove,  the  absorption  of  the  petitioner was as a lecturer in the department of history as no sanctioned post were available in department of sociology. The conditional regularization of the petitioner by the University in the subject of history cannot be said to be legal  and the  same  is out  rightly illegal and arbitrary use of power; as such, order  dated 08.05.2015 passed by Justice S.B.  Sinha  Commission  (Annexure-8);  wherein  the  claim  of petitioner has been rejected and the conditional regularization of petitioner in subject of history has been held to be illegal, is correct in fact as well as in law and cannot be set aside.

Now  coming on  the  issue  to  confirm  the  absorption of the service of the petitioner; as discussed above; the conditional regularization of petitioner by university was itself illegal and confirming the absorption of service of petitioner will lead to perpetuating the illegality which will be against the principle that illegality should not be allowed to be perpetuated.  In this regard,  it would be profitable to refer  para-4  of  the judgment  rendered in  the case  of State of Karnataka v. Umadevi reported in (2006) 4 SCC 1.

For  brevity  para-4  of  the  aforesaid  judgment  is  quoted as under :-

“4......Whether the wide powers under Article 226 of the Constitution are intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject  to  affirmative  action  in  the matter  of  public  employment as recognised by our Constitution, has to be seriously pondered over. It is time, that the courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of  orders for continuance  tends  to defeat  the very constitutional scheme of public employment. It has to be emphasised that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article 226 of the Constitution are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.”

Further, this court refrains from passing any order directing the respondent to make fixation of pay scale in the light of 5th and 6th Pay Revision Committee Report as once the conditional regularization of petitioner itself is held to be illegal; no such order of pay fixation can be passed.

From the above discussion and by following the law laid down by the Hon'ble Apex Court it can be concluded that Justice S.B. Sinha Commission has rightly rejected the claim  of  petitioner.  Accordingly,  no  relief  can  be  granted  to this petitioner and consequently, this writ petition stands dismissed. Pending I.A.s, if any, also stands closed.