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2011 DIGILAW 154 (GAU)

Tiatoshi Jamir v. Nagaland University

2011-02-24

BIPLAB KUMAR SHARMA

body2011
JUDGMENT and ORDER B.K. Sharma, J. 1. By means of this writ petition, the petitioner has challenged the Annexures-B, F, H and L notification/order/letter resolution by which the claim of the petitioner for benefits of increment during his contractual period of service has been negatived. 2. Annexure-B is the notification dated 21.08.2000 issued by the Registrar of Nagaland University notifying that the contractual employees of Nagaland University who are not rendering 1 years of continuous service are not entitled to annual increments. The said notification further provides that reappointment of service of the employees under this category with one day break in service will not entitle them to annual increment. 3. Annexure-F is the order dated 01.02.07 issued by the Registrar of the University fixing the pay of the petitioner at the stage of Rs. 8275/- in the scale of pay of Rs. 8000-13500/-w.e.f. 22.07.03 with DNI of 01.07.04. The petitioner is aggrieved because by this order he was provided with only one increment as against his claim for 4 (four) increments for his contractual period of service from 1999 to 2003. Annexure-H is letter dated 23.11.07 issued by the Deputy Registrar of the University informing the petitioner about fixation of his pay in the above manner. The letter also mentions the aforesaid order dated 22.08.2000 issued by the Registrar. 4. Annexure-L is the resolution dated 05.09.08 adopted by the Executive Council of the University holding that the petitioner is not entitled to increments for the contractual period of service and that the single increment granted to him will hold the field. 5. It appears that the petitioner had earlier approached this Court by filing W.P. (C) No. 290(K)/07 making the aforesaid grievance. The writ petition was disposed of by judgment and order dated 30.04.08 directing the respondent University to take further steps towards placing the matter before the Executive Council for a fresh consideration of the case of the petitioner. It appears that the petitioner being not satisfied with the said judgment and order had preferred an appeal registered and numbered as W.A. No. 3(K)/ 08 which was disposed of by order dated 05.03.09 granting liberty to the petitioner to challenge the aforesaid orders dated 22.08.2000 and 01.10.07. 6. It appears that the petitioner being not satisfied with the said judgment and order had preferred an appeal registered and numbered as W.A. No. 3(K)/ 08 which was disposed of by order dated 05.03.09 granting liberty to the petitioner to challenge the aforesaid orders dated 22.08.2000 and 01.10.07. 6. Pursuant to the aforesaid proceeding, the Executive Council in its 17th meeting held on 05.09.08 took the aforesaid Annexure-L resolution rejecting the claim of the petitioner for grant of three increments for the period during which he was in contractual employment of the respondent University as Lecturer. Be it stated here that after rendering initial period of contractual service the petitioner has been regularly appointed by order dated 27.07.03. 7. I have heard Mr. Yanger Wati, learned counsel for the petitioner as well as Mr. I. Longjem, learned counsel for the respondent University. While Mr. Yanger Wati submits that the petitioner is entitled to grant of three increments for the contractual period of service ignoring the artificial break of one day in between, Mr. Longjem, learned counsel for the respondent University upon reference to the nature of the appointments copies of which have been annexed to the counter affidavit, submits that the petitioner is not entitled to grant of three increments for the period of contractual service. 8. Mr. Yanger Wati, learned counsel for the petitioner has placed reliance on the decision of the Apex Court reported in (1992) 2 SCC 29 : Karnataka State Private Colleges Stop-gap Lecturers Association Vs. State of Karnataka & Ors. to bring home his point of argument that the artificial break of one day with the view to deprive the petitioner from service benefits cannot be justified. 9. I have considered the rival submissions made by the learned counsel for the parties as well as the materials on record. The petitioner was initially appointed on contractual basis as Lecturer for the period of four months by order dated 25.02.99. The order was modified by order dated 06.03.99 appointing the petitioner for a period of six months. Thereafter by various orders ranging from 15.05.99 to 11.03.03, the contractual service of the petitioner was extended from time to time. However, the various orders annexed to the counter affidavit speak of reappointment of the petitioner as Lecturer on contractual basis for a period of six months at a time. Thereafter by various orders ranging from 15.05.99 to 11.03.03, the contractual service of the petitioner was extended from time to time. However, the various orders annexed to the counter affidavit speak of reappointment of the petitioner as Lecturer on contractual basis for a period of six months at a time. On perusal of the orders towards contractual appointment of the petitioner annexed to the counter affidavit what is seen is that there was a break of one day as certain occasions and at times there was no such break. 10. If the aforesaid orders are taken into consideration there is no manner of doubt that the respondent University was in need of the service of the petitioner and accordingly his service was utilised with one day's artificial break. As noted, on a total reading of the appointment orders it is also seen that at times there was no such artificial break, but the petitioner was shown reappointed. 11. The Apex Court in the case of Karnataka State Private Colleges Stop-gap Lecturers Association (supra) noticing similar fact situation deprecated the practice of giving artificial break in service for a day or two. In the said decision, the particular provision providing for one day break was stuck down as ultra vires. 12. In the instant case, Annexure-B notification dated 21.08.2000 was issued by the Registrar of the University. Mr. Yanger Wati, learned counsel for the petitioner has submitted that the Registrar was not authorised to issue the said notification permitting artificial break in the matter of granting annual increment. In this connection, he has referred to the Statute of the University framed under Nagaland University Act, 1989. He submits that under the said clause the Registrar is not empowered to issue the said notification. In this connection he has specifically referred to the powers and functions of the Registrar as enumerated in Clause-5. Clause-5 empowers the Registrar to perform such duties as may be specified in the Statutes, the ordinances or the Regulations or as may be required, from time to time, by Executive Council or the Vice-Chancellor. 13. Mr. Longjem, learned counsel for the respondent University however, disputes the submission made by the learned counsel for the petitioner. According to him the aforesaid notification dated 21.08.00 having been ratified by the University authority, same cannot be said to be inapplicable to the case of the petitioner. 14. 13. Mr. Longjem, learned counsel for the respondent University however, disputes the submission made by the learned counsel for the petitioner. According to him the aforesaid notification dated 21.08.00 having been ratified by the University authority, same cannot be said to be inapplicable to the case of the petitioner. 14. By Annexure-E resolution dated 27.07.07, the Executive Council of the University adequately considered the case of the petitioner along with another incumbent and had resolved as follows: Protection of Pay The Executive Council took into consideration the various factors regarding the contract appointment of Mrs. Thungehanbeni Kithan and Dr. Tiatoshi Jamir as Lecturer in the Department of History & Archaeology w.e.f. 25.06.1998 and 25.02.1999 respectively, and their subsequent regular appoint in the University in the same post. The Council resolved to approve as a special case for incorporation of the increments earned by the two teachers during their contract service to their regular pay scale. 15. However, the petitioner was granted only one increment on his regular appointment pursuant to which his pay was fixed by the aforementioned Annexure-F order dated 01.10.07. 16. After the aforesaid proceedings before this Court the Executive Council in its meeting dated 05.09.08 (Annexure-L) took the impugned resolution which is as follows: Court case in respect of Mrs. Thungehanbeni Kithan and Dr. Tiatoshi Jamir versus Nagaland University. The Executive Council examined the directive issued by the Hon'ble Gauhati High Court, Kohima Bench vide its judgment and order dated 30.04.2008 in W.P.(C) No. 290 (K)/2007 filed by Mrs. Thungehanbeni Kithan and Dr. Tiatoshi Jamir, both Lecturers in the Department of History & Archaeology, Nagaland University vs. The Nagaland University and ors. The Executive Council observed that the decision of the 14th Executive Council was to give the two teachers, the benefit the increments that they had earned during their contract service prior to issue of notification No. NU-50/GENL-ESTT/97-1423 dated 21.08.2000 (i.e. two increments in respect of Mrs. Thungehanbeni Kithan and one increment in respect of Dr. Tiatoshi Jamir). The Executive Council further resolved that, consequent upon issue of the abovementioned notification, the two teachers are not entitled to any further increments for the contract service, which were extended with one day break. 17. Thungehanbeni Kithan and one increment in respect of Dr. Tiatoshi Jamir). The Executive Council further resolved that, consequent upon issue of the abovementioned notification, the two teachers are not entitled to any further increments for the contract service, which were extended with one day break. 17. On perusal of the aforesaid resolution, what is seen is that the Executive Council was guided by the aforesaid Annexure-B notification dated 28.08.2000 and the fact that there was break of one day in between contractual service of the petitioner. 18. There is no dispute that as per the decision of the University authority contractual employee in case of his continued service is entitled to get annual increment. In the instant case, the petitioner continued in contractual service for four years, however, with one day artificial break. It is on this artificial break on which the respondent University has hammered to dislodge the petitioner from the claim of getting the benefits of increments for the period of contractual service. The records having revealed that the petitioner was in continuous employment as his service was required by the respondent University and that on a few occasions the artificial break of one day was actuated with the sole purpose of depriving the petitioner from the otherwise entitled annual increments, it will be iniquitous to accord the seal of approval to the same. 19. For all the aforesaid reasons, I find sufficient force in the submissions made by the learned counsel for the petitioner and accordingly the writ petition is allowed by setting aside and quashing the impugned notification/order/letter/resolution referred to above and challenged in the writ petition so far as the same relate to deprivation of entitled annual increment to the petitioner for the period he had rendered the contractual service to the University. Now the respondents shall carry out necessary pay fixation of the petitioner taking into account the increments he would earn for the contractual period of service. Let follow up action be taken as expeditiously as possible preferably within two months from today. 20. Before parting with the case records, it is made clear that the relief to the petitioner has been granted considering the particular facts and circumstance involved in this case and the same will not be a precedent. 21. The writ petition is allowed with the above direction. There shall be no order as to costs. Petition allowed