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Jharkhand High Court · body

2010 DIGILAW 45 (JHR)

Abhijit Dutta v. State of Jharkhand

2010-01-08

D.G.R.PATNAIK

body2010
Judgment Heard counsel for the parties. 2. The grievance of the petitioners, as expressed in this writ application, is against the pay slip (Annexure-1/1) issued to them, whereby the provisional pay fixation in the revised 1996 UGC Scale has been fixed for the petitioners at a lower scale by treating their appointment from the date of confirmation of their initial posting instead of the date of their initial appointment. 3. The undisputed facts of the case of the petitioners is as follows: In response to an advertisement issued by Ranchi University on 4.8.1976 inviting applications for appointment as Lecturers on temporary basis, the petitioners had submitted their respective applications. The petitioners 1 to 4 were appointed on temporary basis for a period of six months in November 1976. The period was extended from time to time by official orders. In response to a similar advertisement issued by the University on 27.12.1977, the petitioners 5 to 16 had also submitted their respective applications and they were appointed in the month of November 1977 on temporary basis for six months. The period was however extended from time to time. By virtue of the extension of the period, the petitioners remained in continuous service. 4. Continuation of the petitioners in service on the sanctioned posts of Lecturers, was notified by the respondent University vide Annexure-5, declaring therein that temporary Lecturers who had completed less than two years as on 31.7.1977 are allowed to continue on sanctioned posts as per Government letter dated 2.5.1977, till those posts are filled up on the recommendations of the Bihar Public Service Commission in due course. 5. On 18.11.1980, a statute was introduced with the approval of the Chancellor of the University for regularization of the services of the purely temporary Lecturers. Under the Statute, such temporary teachers who have remained in continuous service for the last 24 months were to be regularized with effect from 1.1.1981 and later, another notification dated 27.4.1984, issued by the University, their services were confirmed. 6. By notification dated 22.12.1986 issued with the approval of the Chancellor of the University, another Statute was introduced regarding Merit Promotions of Lecturers as Readers under which, Lecturers who have completed eight years of continuous service, were granted promotion to the post of Readers. 7. 6. By notification dated 22.12.1986 issued with the approval of the Chancellor of the University, another Statute was introduced regarding Merit Promotions of Lecturers as Readers under which, Lecturers who have completed eight years of continuous service, were granted promotion to the post of Readers. 7. By another notification dated 24.12.1986, the University introduced another Statute known as “ten years time bound promotion statute” under which a teacher who had completed 10 years of continuous service as Lecturer, was entitled for promotion to the post of Reader irrespective of merit. 8. By a notification dated 2.12.1995 (Annexure-11), the petitioners 1 to 4 were promoted to the post of Reader after completing 10 years of service with effect from November 1986,while the rest of the petitioners were granted such promotion with effect from November 1988. By a subsequent notification dated 16.2.2001 (Annexure-12), the petitioners 13, 14 and 15 were promoted to the post of Professor with effect from 20.11.1994 counting 16 years of continuous service with effect from 1978 and later, by another notification, they were confirmed as University Professor with effect from 2.11.1994. 9. On the basis of the above undisputed facts, the petitioners have claimed that since they stood promoted with effect from 1986/1988 i.e. prior to 1.3.1989, they were entitled for the Senior Reader Scale of Rs. 12000-18300/-. Their grievance is that instead of fixing their pay scales applicable for the Senior Reader, the respondent University by the impugned order / pay fixation slip, has fixed the pay scale of the petitioners in the revised 1996 UGC Scale of Rs. 10,000-15,200/-which is a scale applicable to the Junior Reader who were promoted after 1.3.1989, by wrongly applying the admissible date of appointment as 1.1.1981, which was the date on which their services were regularized and excluding thereby the period they had rendered as temporary Lecturers. 10. Shri Anil Kumar Sinha, learned Senior Advocate, would argue on behalf of the petitioners that the period which the petitioners had rendered as temporary Lecturers continuously, cannot be excluded while computing the period of continuous service and the petitioners cannot be deprived of the benefit of the Statute under which they are entitled to the scale of Senior Reader. 10. Shri Anil Kumar Sinha, learned Senior Advocate, would argue on behalf of the petitioners that the period which the petitioners had rendered as temporary Lecturers continuously, cannot be excluded while computing the period of continuous service and the petitioners cannot be deprived of the benefit of the Statute under which they are entitled to the scale of Senior Reader. Learned counsel submits that since the petitioners have been confirmed in the post of Lecturer on the recommendation of the Service Commission, their total length of service should be counted from the date of initial appointment and not from the date of confirmation / regularization in service. Learned counsel adds that since none of the orders by which the petitioners were granted promotion (Annexure-11 and 12), have either been altered or cancelled, the respondents have no authority to fix the petitioners' pay in the relatively lower pay scale, contrary to the post held by the petitioners. 11. Per Contra, the stand taken by the respondents, as per their counter-affidavit, is that the services of the petitioners, who were temporarily appointed, were regularized in the University Service in the light of the provisions of 24 months Statute and they were absorbed in the regular service on the prescribed scale of Lecturer on the date of absorption on 1.1.1981 and they were entitled to draw their next increment after completion of one year of service from the date of their absorption. The services of the petitioners were therefore confirmed with effect from 1.1.1981. Treating the date of confirmation as the substantive date of appointment, the petitioners, according to the respondents, are entitled for promotion under the eight years Merit Promotion Scheme by computing the period from 1.1.1981 and under the ten years time bound scheme, by computing their service from 1.1.1981. Accordingly, vide the impugned pay fixation order, scales applicable to the petitioners has rightly been fixed. 12. Learned counsel for the respondents would argue that the date of promotion which were fixed for the petitioners by the University, is not valid since it is contrary to the provisions of section 57 and 58 of Jharkhand University Act, 2000 as well as the Regularization Statute. 12. Learned counsel for the respondents would argue that the date of promotion which were fixed for the petitioners by the University, is not valid since it is contrary to the provisions of section 57 and 58 of Jharkhand University Act, 2000 as well as the Regularization Statute. Learned counsel argues further that the issue as to whether the temporary Lecturers who were absorbed in service under the three absorption Statutes, would be entitled to the benefit of their past services, prior to the date of issuance of the respective absorption Statutes under which their services were absorbed, has been settled by the Patna High Court in the case of B.R. Ambedkar Teachers Association vs. The State of Bihar reported in 2000(2) PLJR 867 in which the court had held that the benefit of past services is not to be extended to the teachers who were not holding any post in a regular manner prior to the date of their absorption. Learned counsel argues further that for giving the benefit of past services, it would be imperative to assess as to whether the services prior to the absorption, was legal and valid in terms of the relevant provisions of the Act and the Statutes. 13. As it appears from the rival submissions, the controversy in the present case depends upon the interpretation of the term ‘continuous service’ and whether it would include the regular appointment or temporary appointment. 14. It further appears that notwithstanding the fact that this controversy was earlier raised and decided in the case of B.R. Ambedkar Teachers Association (Supra), the same was raised once again before the Single Judge of this court in the case of Dr. Rafat Ara vs. Ranchi University vide W.P.(S) No. 1811 of 2003. The learned Single Judge, upon obtaining support from the judgment of the Supreme Court in the case of Direct Recruit Class II Engineering Officers Association vs. State of Maharashtra reported in AIR 1990 SC 1627 and judgment in the case of Dr. Rafat Ara vs. Ranchi University vide W.P.(S) No. 1811 of 2003. The learned Single Judge, upon obtaining support from the judgment of the Supreme Court in the case of Direct Recruit Class II Engineering Officers Association vs. State of Maharashtra reported in AIR 1990 SC 1627 and judgment in the case of Dr. Ratneshwar Mishra vs. the Chancellor, L.N.M. University (Civil Appeal No. 1196 of 1995) and after going through the University Statute relating to the time bound promotion scheme, has observed that applying the ratio laid down in the case of Direct Recruit Class II Engineering Officers Association (Supra), the period of service rendered as temporary Lecturer cannot be excluded and the date of initial appointment would be the date for the purpose of computing the period of continuous service. 15. The ratio and the observation as contained in the judgment passed in the case of Dr. Rafat Ara (Supra) has been accepted and held to be applicable by another Single Judge of this court in the case of Dr. Akhaury Brajesh Kumar vs. Vinoba Bhave University and others vide W.P. (S) No. 4683 of 2006. 16. The respondents cannot argue that the services of the petitioners prior to the date of their absorption was invalid or illegal or contrary to any of the provisions of the Bihar State Universities Act. The petitioners though appointed initially on temporary basis, but the temporary periods having been extended from time to time by the University, petitioners had rendered continuous service from the date of their initial appointment and considering the case of such teachers, the University had introduced a Statute whereby the benefit of absorption in service of such teachers who had rendered 24 months of continuous service as temporary Lecturers, was extended and thereafter the services of the petitioners were absorbed on permanent basis. The facts of the case in B.R. Ambedkar Teachers Association (Supra), would not therefore apply to the facts of the case of the present petitioners. On the contrary, the facts of the case of the petitioners are identical to the facts of the case of Dr. Akhaury Brajesh Kumar (Supra) and the earlier case of Dr. (Mrs.) Rafat Ara (Supra). The facts of the case in B.R. Ambedkar Teachers Association (Supra), would not therefore apply to the facts of the case of the present petitioners. On the contrary, the facts of the case of the petitioners are identical to the facts of the case of Dr. Akhaury Brajesh Kumar (Supra) and the earlier case of Dr. (Mrs.) Rafat Ara (Supra). Even otherwise, in the light of the ratio decided by the judgment of the Supreme Court in the case of Direct Recruit Class II Engineering Officers Association (Supra), judgment in the case of B.R. Ambedkar Teachers Association (Supra) cannot be held binding upon the present petitioners. 17. The impugned order whereby the period of continuous service of the petitioners has been computed from the date of their confirmation in service, is therefore incorrect and cannot be sustained. The petitioners cannot be deprived of the benefit of service rendered by them on temporary appointment while computing the period of their continuous service. In the circumstances, the impugned order (Annexure-1/1), is hereby quashed. 18. The matter is remanded back to the concerned authorities of the respondents to re-examine the matter and pass an appropriate order in accordance with law, within two months from the date of receipt / production of a copy of this order and effectively communicate to the petitioners the decision taken on their prayer. This writ application is accordingly disposed of. Let a copy of this order be given to the learned counsel for the respondents.