Vijay Singh vs State of Jharkhand

Heard learned counsel for the petitioner and learned counsel for the respondents.

Petitioner has approached this Court with following prayers:-

(I) For a direction upon the respondents to consider the case of the petitioner for promotion from the post of Lecturer to the post of Reader treating

the initial appointment of the petitioner as 20.07.1981 (and not 08.03.1995) and grant all consequential benefits to the petitioner.

(II) To hold and declare that the petitioner is entitled for counting his services from the initial date of his appointment on 20.07.1981, in view of law laid

by this Hon’ble Court in case of Dr. Anant Kumar Akhouri Vs. Vice-Chancellor, Ranchi University & Ors., reported in 2012 (2) JCR 153 (Jhr.).

The factual exposition as has been delineated in the writ petition is that the petitioner having the requisite qualification for appointment to the post of

Lecturer in the Markham College of Commerce, Hazaribagh appeared before the governing body in view of letter No. 3 dated 26.06.1981. After

perusal of the documents of the petitioner, the governing body selected the petitioner for his appointment and letter to that effect also issued by the

Principal of the said College. On receipt of the letter of appointment dated 19.07.1981, the petitioner joined the post of temporary lecturer on

20.07.1981 and has been continuing on the said post uninterruptedly without any break in service. It has been stated that Markham College of

Commerce was a part of the Ranchi University and as such, the Deputy Registrar of the Ranchi University vide its letter dated 10.04.1986 contained

in letter No. 2004-18 directed all the Principals of the affiliated Colleges including the said Markham College to send the cases of temporary lecturers,

if any, who fulfilled the requirement of the statutes in the proforma annexed along with all relevant documents/ papers to the undersigned on or before

31.05.1986. The same was done in view of the provisions enshrined in the “Statutes for Regularization of the Services of Purely Temporary

Lecturers Appointed on or Before 28th February, 1982â€, as approved by the Chancellor vide letter No. BSU/25/85-282-GS(1) dated 29.01.1986. The

said Statute was also applicable in the case of petitioner in view of the fact that petitioner was appointed on 20.07.1981 i.e. prior to 28.02.1982. It has

been further stated that the issue of regularization fell for consideration before the Hon’ble Patna High Court in case of Bihar Rajya

M.S.E.S.K.K. Mahasangh Vs. the State of Bihar & Ors., reported in 1997 (1) PLJR 533 and the Hon’ble Court disposed of the writ petitioner

with certain observations and directions to the Universities for taking steps in accordance with the communication of the State Govt. In the meantime,

Vinoba Bhave University came into existence and the said University issued notification dated 04.08.1998, in which the name of the petitioner appears

at Sl. No. 25 and the date of regularization of the petitioner was shown as 08.03.1995. Aggrieved by the date of fixation of regularization in case of

the petitioner, the petitioner represented before the University and the same was corrected and the date of initial appointment i.e. 20.07.1981 was

notified to be the date of regularization.Â

 Subsequently, the order/judgment rendered by the Hon’ble Patna High Court in case Bihar Rajya Bihar Rajya M.S.E.S.K.K. Mahasangh Vs.

the State of Bihar & Ors. (supra) was challenged before the Hon’ble Apex Court and the Hon’ble Apex Court appointed a Committee and

pursuant thereto, a judgment was delivered by the Hon’ble Supreme Court in case of State of Bihar & Ors. Vs. Bihar Rajya Bihar Rajya

M.S.E.S.K.K. Mahasangh & Anr., reported in (2005) 9 SCC 129. In view of the report of Agarwal Commission, Vinoba Bhave University issued a

notification showing the date of regularization of the petitioner to be 08.03.1995. However, the services rendered by the petitioner on the date of his

initial appointment i.e. 20.07.1981 was not taken into consideration for regularization neither the said period was declared to be illegal. Though the

petitioner is entitled for consideration of his case counting his period of initial date of appointment from 20.07.1981 and not 08.03.1995 but the same

was not done by the respondents and hence, he represented before the respondent-authorities for consideration of his case for promotion from the

post of lecturer to the post of reader taking into consideration the initial date of appointment but no order has been passed neither any decision has

been taken in this regard. Hence, the petitioner has approached this Hon’ble Court for redressal of his grievances.

Mr. Manoj Tandon, learned counsel appearing for the petitioner strenuously urges that petitioner is entitled for consideration of his case for

promotion to the post of reader from the date of his initial appointment. It has been further argued that till date the services rendered by the petitioner

from the date of his initial appointment to the date of regularization has not been declared illegal and as such, petitioner is entitled for consideration of

his case counting the period of his initial date of appointment from 20.07.1981 and not from 08.03.1995. To buttress his arguments, learned counsel

places heavy reliance on the following judgments:-

(I) In case of Dr. Anant Kumar Akhouri Vs. Vice-Chancellor, Ranchi University, Ranchi & Ors., reported in 2012 (2) JCR 153, which has been

affirmed upto the Hon’ble Supreme Court in S.L.P.(C). No. 11707 of 2012.

(II) In case of Dr. (Mrs.) Rafat Ara Vs. Ranchi University & Ors., reported in 2009 (1) JCR 380 (Jhr.).

 Learned counsel further argued that the case of the petitioner is squarely covered by the aforesaid two judgments and as such, he is entitled for

promotion to the post of reader from the post of lecturer counting the services of the petitioner from his initial date of appointment i.e. from 20.07.1981

and not from 08.03.1995.

Per contra, counter-affidavit has been filed. Dr. A.K. Singh, learned counsel appearing for the respondent-University, vehemently opposes the

contention of the learned counsel for the petitioner and by drawing the attention of the Court towards Annexure-B, argues that the services of the

petitioner has been observed by the respondent-Vinoba Bhave University w.e.f. 08.03.1995 as per the recommendation and report of the Agarwal

Commission, which has been affirmed by the Hon’ble Apex Court. Learned counsel further argues that it has been categorically observed in the

recommendation of the Agarwal Commission that, “Vijay Singh appointed as a lecturer in English by order dated 20.07.1981 and on the date of his

appointment, he did not have the high second class Post Graduate qualification having secured 48.5% marks. He obtained Ph.D. on March 8, 1995

and as such, became eligible for consideration of his case on March 8, 1995â€. Admittedly, the petitioner did not have the requisite qualification for

appointment as a lecturer in the University. He became eligible for consideration after obtaining his Ph.D. degree on March 8, 1995. Thus, the period

rendered by the petitioner as a temporary lecturer from 20.07.1981 to 08.03.1995 cannot be counted for the purpose of regularization or promotion.

Dr. Singh further argues that if the said period is considered for promotion, it will be against the spirit of the observations made by the Hon’ble

Supreme Court affirming the report of the Agarwal Commission. It has further been argued that the case of Dr. Anant Akhouri and Dr. (Mrs.) Rafat

Ara is not identical to that of the present writ petitioner as the present writ petitioner did not have the requisite qualification on the date of his initial

appointment unlike Dr. Anant Akhouri and Dr. (Mrs.) Rafat Ara.

Be that as it may, having gone through the rival submissions of the learned counsel for the parties, this Court is of the considered opinion that no

case is made out for interference in the present writ petition on the following grounds:-

(I) The date of regularization of the petitioner has been fixed as  08.03.1995 as observed and recommended by the Agarwal Commission which has

been affirmed by the Hon’ble Apex Court.

(II) The petitioner did not have the requisite qualification for appointment as a lecturer in University at the time of his initial joining, which is reflected

from the observation made by the Agarwal Commission holding therein that the petitioner did not have the high second class post graduate

qualification having secured 48.5% marks. He obtained Ph.D. degree on 08.03.1995 and as such, be became eligible for consideration of his case

from March 08, 1995.

(III) The case laws relied upon by the petitioner does not come for his rescue as the aforesaid cases are based on different premises and the services

rendered by the petitioners in those cases were not illegal and as such, the period was taken into consideration for promotion. It is settled principle of

law that only legal services of the employee can be considered for regularization or promotion and services rendered by the employee which are not

legal cannot be taken for consideration for any purposes. The same view has been reiterated in the aforesaid judgments relied upon by the present

petitioner.

(IV) Where the person did not possess the prescribed minimum qualification, the appointments will be considered to be illegal. This view has also been

reiterated in the State of Karnataka & Ors. Vs. M.L. Kesri & Ors., reported in (2010) 9 SCC 247. The services rendered by the petitioner from the

date of his initial appointment till date of regularization was not legal in view of the fact that the petitioner did not fulfill the requisite qualification

criteria and only after obtaining the Ph.D. degree in the year 1995, his services were regularized.Â

(V) The petitioner cannot take benefits of the services rendered by him prior to his regularization which was not valid and the said period cannot be

taken into consideration for counting his length of service. It has been clearly held in case of the Direct Recruit Class-II Engineering Officers’

Association & Ors. Vs. State of Maharashtra & Ors., reported in AIR 1990 SC 1607 that the services rendered by an employee prior to his

regularization, if not declared illegal, has to be accepted as a legal service and the period shall be counted as valid service rendered but in the instant

case, the services rendered during the said period has termed to be illegal on the ground that petitioner did not fulfill the requisite qualification which

has been affirmed by the Hon’ble Apex Court in view of the observation of the Hon’ble Agarwal Commission.Â

In view of the aforesaid discussions and observations, I do not find any force in the submissions of the learned counsel for the petitioner. As a

cumulative effect of the aforesaid observations, rules, guidelines and the judicial pronouncements, I am of the view that the services rendered by the

petitioner prior to the date of his regularization cannot be taken into consideration for counting the length of services as the petitioner did not fulfill the

requisite qualification for appointment as a lecturer on the date of his initial appointment.

Resultantly, the writ petition is devoid of any merit and is hereby dismissed.

However, the respondents may consider the case of the petitioner for promotion from the date of regularization of his services i.e. from 08.03.1995.