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Jharkhand High Court · body

2013 DIGILAW 793 (JHR)

V. N. Jha @ Viveka Nand Jha v. State of Jharkhand

2013-07-04

N.N.TIWARI

body2013
Order : The petitioners have prayed for quashing Clause 12(iii) as well as Clause 16 of the resolution, contained in Memo No.5/U1-06/20091188 dated 20th November, 2010 (Annexure10) issued by the Human Resources Development Department, Government of Jharkhand. 2. However, at the time of hearing, learned counsel or the petitioners submitted that the petitioners are not pressing for quashing of Clause 16 of the said resolution. 3. Clause 12(iii) of the said resolution imposes a condition for payment of annual increment to the teachers given promotion to the post of Reader under Time Bound Promotion Scheme on acquiring Ph.D. Degree and other eligibility prescribed by University Grant Commission (for short 'UGC'). 4. The petitioners have assailed the said Clause 12(iii) on the ground that the same is discriminatory, arbitrary and illegal and is violative of Article 22 of the Statutes, framed under the provisions of Bihar State Universities Act, 1976, which has force of law. The said condition cannot be imposed on the petitioners, who were given promotion to the post of Reader under Time Bound Promotion Scheme approved by the UGC. 5. The petitioners are teachers of St. Xavier's College, Ranchi. They were initially appointed on the post of Lecturer in different departments. The petitioners, after getting suitable eligibility for promotion to the post of Readers, under Time Bound Promotion Scheme, were given promotion to the post of Reader. Their promotions were approved by the competent authority of the University. After promotion to the post of Reader, they were placed in the scale of Rs.12,000-18,300/- in terms of 5th Pay Revision. Some of the petitioners are at the verge of retirement. The petitioners were getting annual increments, in accordance with the provision of 5th Pay Revision so far. By resolution dated 20th November, 2010 the State Government accepted and implemented the 6th Pay Revision package as recommended by the UGC to the Central Government. In the recommendation, there is no such condition for giving annual increment. But the State Government added Clause 12(iii), whereby imposing condition of acquisition of Ph.D. degree for giving annual increment to the teachers, given promotion to the post of Reader under the Time Bound promotion Scheme. 6. It has been submitted that the increment is payable under the provisions of Article 22 of the Statutes, framed under Bihar State universities Act, 1976, which has been approved by the Chancellor. 6. It has been submitted that the increment is payable under the provisions of Article 22 of the Statutes, framed under Bihar State universities Act, 1976, which has been approved by the Chancellor. The said provision of the Statutes does not prescribe any such condition for giving annual increment. Under the said provision, annual increment can be withheld only by way of punishment. 7. Learned counsel for the petitioners submitted that the restriction imposed in Clause 12(iii) of the resolution is patently illegal and violative of the provisions of Article 22 of the Statutes as well as the same offends Article 14 of the Constitution of India. Some of the Readers who got promotion on merit-cum-seniority basis have been given increment, whereas the same is to be denied to the Readers who have been given promotion under the Time Bound Promotion Scheme. By introducing Clause 12(iii), the respondents have created a class within the case of Readers, which is violative of Article 14 of the Constitution and Article 22 of the University Statutes. Both the schemes of promotion are approved by the UGC and no distinction can be made between the Readers promoted under the approved modes. The said Clause 12(iii) negates the right of equality by creating unreasonable classification and is ultra vires. 8. The respondents opposed the writ petition by filing counter affidavit. It has been stated, inter alia, that the promotion of the teachers of the Universities and Colleges are regulated by the scheme framed by the UGC. The petitioners were given promotion to the post of Reader under Time Bound Promotion Scheme and they were also given increments, in accordance with the provisions of 5th Pay Revision. The scheme of Time Bound Promotion has been subsequently abolished. Under the new provision of the regulation framed by the UGC, promotion to the post of Reader and further increments are to be given only to the Readers, who have Ph.D. Degree. The said resolution has been accepted and implemented by the State Government by notification dated 13th November, 2001. Under the said provision, Ph.D. Degree is a condition precedent for granting replacement scale and increment after 1st January, 1996. 9. Learned J.C. to G.P. IV, referring to the said letter of the State Government, submitted that there is a clear provision of withholding the increment and the replacement scale of those Readers, who have not obtained Ph.D. Degree. Under the said provision, Ph.D. Degree is a condition precedent for granting replacement scale and increment after 1st January, 1996. 9. Learned J.C. to G.P. IV, referring to the said letter of the State Government, submitted that there is a clear provision of withholding the increment and the replacement scale of those Readers, who have not obtained Ph.D. Degree. 10. Having heard learned counsel for the parties and considered the facts and materials on record, I find that it is an admitted fact that all the petitioners, after acquiring eligibility under the Time Bound Promotion Scheme, were given promotion to the post of Reader. It is also not in dispute that the petitioners were given the prescribed pay scale of Reader, including replacement scale of 5th Pay Revision. They were given annual increments all along without any demur. The petitioners were also given replacement pay scale of 6th Pay Revision. 11. But by Clause 12(iii), they have been denied their increment. 12. The increment is payable to the employees under the provisions of Article 22 of the Statutes, framed under the provisions of Bihar State Universities Act and approved by the Chancellor. 13. According to the said Article, increment is payable to the University servant as a matter of course, unless it is withheld by the authority empowered to appoint him, as a measure of punishment. 14. Article 22(1) of the Statutes reads thus: “22. (1) An increment shall ordinarily be drawn by the University servant as a matter of course, unless it is withheld by the authority empowered to appoint him, as a measure of punishment. ......................” 15. On plain reading of the said provision, it is clear that the increment is payable to an employee of the University as a matter of course and the same can be withheld only as a measure of punishment. 16. The said statutory provision has not been amended so far. The impugned resolution dated 20th November, 2010 issued by the Department of Human Resources Development has no overriding effect over the said provision of Article 22 of the Statutes. The said condition has been laid down without any legislative approval. 17. The impugned resolution is said to have been issued in terms of the UGC Scheme. The respondents have not brought any resolution of the UGC on record imposing such condition for payment of annual increment. 18. The said condition has been laid down without any legislative approval. 17. The impugned resolution is said to have been issued in terms of the UGC Scheme. The respondents have not brought any resolution of the UGC on record imposing such condition for payment of annual increment. 18. Since the petitioners are entitled to get annual increment under the provisions of Article 22 of the Statutes, the said Clause 12(iii), imposing a condition contrary to the said provision, is wholly arbitrary, discriminatory and violative of Article 14 of the Constitution of India. 19. For the reasons aforesaid, Clause 12(iii) of the impugned resolution dated 20th November, 2010 is quashed. 20. The Respondents are directed to release the increment to the petitioners with effect from 1st January, 2006, if not already released, and pay the arrears of difference of pay within six weeks from the date of receipt/production of a copy of this order. 21. The writ petition and I.A. No.1225 of 2013 are, accordingly, disposed of.