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2012 DIGILAW 1522 (PAT)

Uma Sahay v. State of Bihar

2012-11-05

RAVI RANJAN

body2012
ORDER I have heard learned counsel for the petitioner, the State of Bihar as well as the respondent Tilka Manjhi Bhagalpur University, Bhagalpur and its official respondents. 2. Through this writ application petitioner seeks direction to the respondents for payment of arrears of difference of salary considering him University Professor which was being paid regularly since the date of notification as University Professor dated 11.11.1987 till the date of retirement and, thereafter, consequential retiral benefit was also being paid, however, the same has been stopped and 100 % pension has been revised and fixed considering the petitioner as Reader w.e.f. 1.4.1997 vide letter dated 13.4.2010 issued by the Finance Officer as contained in Annexure 3, without granting any opportunity of hearing or issuing any show cause notice to the petitioner. 3. The petitioner claims to had been appointed on the post of Lecturer on 1.11.1960. Thereafter, upon completion of tenure she had been promoted on the post of Reader and after completion of 25 years of service she was promoted as University Professor w.e.f. 1.11.1985 vide Notification No. 138/87 dated 11.11.1987 issued by the Bhagalpur University as contained in Annexure 2. It has been submitted on behalf of the petitioner that, thereafter, she all along had worked as University Professor and superannuated from service as University Professor of Home Science Department, S.M. College, Bhagalpur on 31.7.1992. Thereafter, her pension and other retiral benefits had been fixed on the scale of University Professor which was being paid also to her till 13.4.2010 on unrevised U.G.C. scale. Thus, the petitioner was entitled for difference of arrears arising out of difference of salary and pension on the scale of University Professor as per revised UGC Scale but suddenly the respondents issued Annexure 3 fixing 100% pension considering her as Reader and made deductions from the arrears of the difference of salary accordingly and fixed pension of the petitioner as Rs. 5819/- w.e.f. 1.4.1997 in the scale of Reader. Thus, it is contended that the benefit which has been accrued to the petitioner could not have been taken away without granting opportunity to her of showing cause or without granting opportunity of hearing to her. That apart, it is submitted that since no dispute had arisen on any earlier occasion regarding her promotion as University Professor, the Annexure 3 is fit to be set aside. That apart, it is submitted that since no dispute had arisen on any earlier occasion regarding her promotion as University Professor, the Annexure 3 is fit to be set aside. The petitioner has also stated that upon inquiry she had come to know that the salary of the petitioner has been reduced considering the direction of the State Government as contained in letter No. 14/43-90/2001/1391 dated 6.3.2006 wherein it has been mentioned that the benefit of promotion should be given to only those teachers regarding whom concurrence has been given by the Bihar Service Commission under the provisions of sub Section 10 of Section 58 of the Bihar Universities act, 1976 (hereinafter referred to as the Act). It has further been stated that on 4.10.1997 the Bihar State University (Constituent College) Commission, Patna issued a letter making certain query from the University with respect to the promotion of the petitioner along with one Smt. Kusum Kumari Saha. However, the University had adopted pick and chose policy to harass the petitioner and the benefit has been granted to aforesaid Smt. Kusum Kumari Saha and the petitioner’s case has been left out and in her case Reader’s scale has wrongly been fixed. The petitioner had also represented before the University on 12.6.2010 vide Annexure 6. 4. A counter affidavit has been filed on behalf of the University as well as the State. The University has taken a stand in the counter affidavit that the petitioner was conditionally promoted to the post of University Professor subject to concurrence of Bihar State (Constituent College) University Service Commission and had retired on 31.7.1992 but till her date of retirement concurrence regarding the promotion of the petitioner was not given by the Bihar State (Constituent College) University Service Commission. However, it has categorically been stated in paragraph 6 of the counter affidavit that so far Sub Section 10 of Section 58 of the Act it would be effective from 1993. A passage from an order of the Hon’ble Supreme Court has also quoted in the aforesaid paragraph holding that Sub Section 10 of Section 58 of the Act is prospective in nature and promotion given prior to insertion of the provision will not be subject to Sub section 10 of Section 58 of the Act. A passage from an order of the Hon’ble Supreme Court has also quoted in the aforesaid paragraph holding that Sub Section 10 of Section 58 of the Act is prospective in nature and promotion given prior to insertion of the provision will not be subject to Sub section 10 of Section 58 of the Act. It has further been stated that though the request for concurrence regarding the promotion of petitioner was sent to the Commission but the Commission vide Annexure 4 had directed for re-screening. Thereafter, the University is silent on the point as to whether some re-screening was done, then the matter was again referred to the Commission and, since the same lacuna was there in case of Smt. Kusum Kumari Saha also, then how she has been confirmed as University Professor and the petitioner has been left out. From the Annexure 4 it appears that the Commission has directed for re-screening of the cases of Smt. Kusum Kumari Saha as well as the petitioner on the ground that only one expert was present in the Interview Board whereas the requirement was of two experts but, thereafter, it is not clear as to what was the result of re-screening and there is no reply to the petitioner’s claim that in the University though has proceeded and ultimately confirmed the promotion of Smt. Kusum Kumari Saha, it is not clear why and on what ground the petitioner was left out. It is also not denied in the counter affidavit that till the date of retirement the petitioner was being given scale of University Professor. However, she claims that the difference of arrears of salary on account of revision of pay scale was not given. However, even after her retirement pension etc. was fixed earlier at the scale of University Professor. It is also not denied that without giving any show cause notice, her pension has been re-fixed on the scale of Reader vide Annexure 3 and it is also not denied that the same has been done w.e.f. 1.4.1997 in compliance of some letter written by the State Government. 5. A counter affidavit has also been filed on behalf of the State making statement regarding general difficulties and U.G.C. Rules/Regulations/Guidelines and directives of the University Grant Commission as well as Central Government. 5. A counter affidavit has also been filed on behalf of the State making statement regarding general difficulties and U.G.C. Rules/Regulations/Guidelines and directives of the University Grant Commission as well as Central Government. However, so far the specific case of the petitioner is concerned a statement has been made that the same cannot be granted to the petitioner in view of the certain decision of the University Grant Commission. It has been stated in paragraph 25 that in the backdrop of the University Grant Commission package and the scheme of career advancement the Chancellor has framed statute superseding the earlier Time Bound Promotion Statute by letter No. BSU 20/95-2132/GS-1 dated 23.9.1995 and as such the earlier statute of Time Bound Promotions was given a goby and it was replaced by career advancement scheme as a whole. However, not a single document, either showing such University Grant Commission directive or any statute formed or replaced has been appended or described in the counter affidavit which is of prior to 11.11.1987, i.e., the date on which the petitioner was granted promotion at the post of University Professor w.e.f. 1.11.1985. Though promotion was temporary and it was stated that it would be seized immediately if concurrence regarding promotion of the petitioner is not granted by the Bihar State (Constituent College) University Service Commission, it has not been stated any where in the counter affidavit that in response to the query made by the Bihar State (Constituent College) University Service Commission vide Annexure 4 dated 4.10.1997 again some re-screening was done which was sent to the Bihar State (Constituent College) University Service Commission and thereafter, the Commission has refused to grant any concurrence. It is surprising that in case of Smt. Kusum Kumari Saha some steps were taken by the University and she was ultimately granted scale of University Professor but the petitioner was left out as the University has taken no step further for getting concurrence from the Commission in her case. In view of any specific denial on behalf of the University, and in the absence of any statement that even after Annexure 4 some re-screening was done in the petitioner’s case and the matter was again sent for concurrence and the Commission has refused to do so, it would have to be accepted that the University had failed to perform its duty in case of the petitioner. The petitioner continued as University Professor and retired as University Professor, thereafter, pension etc. was also fixed considering the scale of University Professor and suddenly vide Annexure 3 she had been informed that since 1.4.1997 her 100 % pension has been re-fixed considering her to be wrongly as Reader. There is no formal order withdrawing such benefit which has already been granted to the petitioner and admittedly there was no show cause notice also issued to the petitioner before taking away such benefit. So far the guidelines etc. of University Service Commission and Statute are concerned, that have been appended in counter affidavit filed on behalf of the State. However, all of them are of the dates after grant of promotion to the petitioner vide Annexure 2 and even on that basis the petitioner was not reverted back to the post of Reader till the date of her retirement. The University itself has stated in its counter affidavit in paragraph 6 that even the Apex Court has already held that sub Section 10 of Section 58 of the Act is prospective in nature and promotion given prior to induction of the new provision cannot be taken away on that basis. Petitioner has also placed reliance upon a decision dated 5.12.2007 of this Court passed in C.W.J.C. No. 10344 of 2006 [Dr. Neelam Verma Vs. Tilka Manjhi Bhagalpur University & Ors.] as contained in Annexure 5. In that case also salary of the petitioner on the post of University Professor, which was being paid regularly since 1991, was suddenly stopped since August 2005 without any notice to show cause or without assigning any opportunity of hearing. This Court has held that since Section 58(10) of the Act has been inserted in the year 1993 it would be in effect prospective. The promotion of the petitioner of that case was also notified on 3.7.1992 w.e.f. 13.1.1991, therefore, the mandatory requirement for obtaining concurrence of Bihar University Act was not there before the insertion of the aforesaid provision. The learned Single Judge in the aforesaid decision has also considered the decision of the Hon’ble Supreme Court rendered in Civil Appeal Nos. 6246 of 1999 and 6347 of 1999. 6. The learned Single Judge in the aforesaid decision has also considered the decision of the Hon’ble Supreme Court rendered in Civil Appeal Nos. 6246 of 1999 and 6347 of 1999. 6. In above view of the matter, in my opinion, the University was at fault in not getting the petitioner’s case re-screened and not sending the report of re-screening to the Commission and, thus, it could not acquire the concurrence of the Commission though petitioner claims that vide same letter, as contained in Annexure 4, similar query was made in the case of Smt. Kusum Kumari Saha also but steps were taken eventually in her case and promotion was granted to her. The petitioner, however, had been left out without any rhyme and reason. 7. It appears that the petitioner was granted promotion w.e.f. 1.11.1985 vide notification dated 11.11.1987 (Annexure 2) itself and the Commission had made certain query after ten years on 4.10.1997 vide letter as contained in Annexure 4 and, however, the University did not take any steps with regard to the petitioner even thereafter. Thus, in my opinion, there has been laches on the part of University. In such case, for the laches and failure on the part of the University, the petitioner cannot be held responsible and allowed to suffer . It is also held that sub Section 10 of Section 58 of the Act being prospective in nature having been inserted in the year 1993 while promotion was given to the petitioner on the post of University Professor in the year 1987 itself, thus, the respondents could not have taken a decision of reducing the pension of the petitioner under the garb of aforesaid provision. 8. Accordingly, Annexure 3, whereby the 100 % pension of the petitioner has re-fixed on Reader’s scale is set aside and the University is directed to re-fix the petitioner’s pension in the scale of University Professor and as a consequence, the difference of salary in the revised scale as well as the difference of pension from the date of the benefit having been withdrawn vide Annexure 3, i.e., from 1.4.1997 should also be paid to the petitioner as the promotion given to the petitioner on the post of University Professor cannot be treated as temporary as the same continued till her date of retirement. Even if the promotion was subject to the concurrence of the Commission, however, since it could not be obtained due to the fault on part of the University, that cannot be treated to have lapsed. The entire arrears of difference of salary on revision as well as the difference of the pension from the date it has been revised in the Reader’s scale, should be re-calculated considering the petitioner on scale of University Professor and due amount should be paid to her within two months from the date of receipt or production of a certified copy of the order by the petitioner before the Registrar of the Respondent - University. The current pension should also be immediately fixed and paid to the petitioner in the scale of the University Professor. Accordingly, this writ application stands allowed.