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2014 DIGILAW 353 (JHR)

Kanhaiya Mishra v. Ranchi University

2014-03-06

APARESH KUMAR SINGH

body2014
JUDGMENT By Court:––Heard counsel for the parties. 2. These seven petitioners are aggrieved by the order dated 30.6.2003 contained in memo no. B/1994/2032 issued by the Registrar, Ranchi University, where under the designation of these petitioners as Sectional Officer (General and Accounts) has been withdrawn. This apparently has been done in view of the order of the Hon'ble Chancellor of the Ranchi University dated 16.9.2002 which is contained at Annexure-15 to the writ petition. 3. The background of the facts which are relevant for un-curtaining the controversy raised herein are as follows:- These petitioners were working against the sanctioned post of Head Clerk / Accountant after their appointment in the respective constituent colleges under the Ranchi University. Petitioner No.1 was appointed against the sanctioned post of Class-III in J.N. College, Dhurwa on 22.7.1972 and promoted as Upper Division Assistant w.e.f 1.4.1978. Thereafter, he was promoted to the post Accountant w.e.f. 18.1.1989. He was re-designated as Sectional Officer, Accounts w.e.f 19.4.1990 by the notification of the University contained at Annexure-1 series. Petitioner no.2 was appointed as Office Assistant in R.L.S.Y. College, Ranchi against the sanctioned post of Office Assistant. He was promoted to the post of Head Assistant on 23.12.1974. The said petitioner was re-designated as Sectional Officer, General by the notification of the University dated 4.2.1986. Petitioner no. 3 was appointed as Office Assistant / Upper Division Clerk on 5.6.1972 and promoted as Head Clerk on 1.4.1978. He was also re-designated as Sectional Officer by the University by the memo dated 5.5.1988. Petitioner no. 4 was appointed on the sanctioned post of Clerk in Simdega College, Simdega and promoted to the post of Upper Division Clerk w.e.f 1.7.1981. He was re-designated as Sectional Officer on 21.1.1994. Petitioner no.5 was appointed as Lower Division Clerk on 17.11.1972 in Kartik Oraon College, Gumla. He was treated to be in regular service vide office order dated 22.2.1994. In the meantime he was also promoted to the post of Head Assistant and thereafter, vide order dated 3.10.1994 he was re-designated as Sectional Officer, General. Petitioner no.6 was appointed as Lower Division Clerk on 5.11.1973 and promoted to the post of Accountant on 24.8.1983 and was re-designated as Sectional Officer on 3.10.1994 in the same college as petitioner no.5. Petitioner no.7 was appointed as Clerk cum Assistant in B.S. College, Lohardaga on 10.1.1971 and promoted as Upper Division Clerk, thereafter. Petitioner no.6 was appointed as Lower Division Clerk on 5.11.1973 and promoted to the post of Accountant on 24.8.1983 and was re-designated as Sectional Officer on 3.10.1994 in the same college as petitioner no.5. Petitioner no.7 was appointed as Clerk cum Assistant in B.S. College, Lohardaga on 10.1.1971 and promoted as Upper Division Clerk, thereafter. He was re-designated as Sectional Officer vide memo dated 24.5.1990. 4. After these individual facts relating to their original appointment leading to re-designation as Sectional Officer, the facts of the all these petitioners are common. Thereafter, by a common order dated 10.4.1995 which is annexed as Annexure- 2/2 as also Annexure-10 to the writ application, the earlier office notifications in respect of these petitioners was partially modified in respect of pay fixation of such Head Clerk and Accountants i.e. petitioners, who were re-designated as Sectional Officer, General / Accounts granting them the pay scale of Rs.1640-2900. It was observed there under that the actual benefit of the scale would be made upon availability of funds by the Government. The said office order was once again modified vide memo dated 22.1.1996 (Annexure-11) where under it was indicated that these petitioners and few others who were re-designated as Sectional Officer, General and Accounts and allowed the pay scale of Rs. 1640-2900 in the 5th Pay Revision would be paid revised pay scale effective from 1.1.1986 but actual payment would be from January, 1996. The Principals of the respective colleges were requested to fix their pay accordingly w.e.f. 1.1.1986 or from the subsequent date on which they have been designated as Sectional Officer and send the same to the University for approval. It was also observed that arrear of salary on account of pay fixation will be paid only after receipt of fund from the State Government. 5. It is contended by all these petitioners that since 1996 till 2003 i.e. passing of the impugned order they availed the actual payment of the said scale of Rs.1640-2900 on account of 5th Pay Revision. 5. It is contended by all these petitioners that since 1996 till 2003 i.e. passing of the impugned order they availed the actual payment of the said scale of Rs.1640-2900 on account of 5th Pay Revision. In the background of aforesaid facts, the controversy in the present writ application is primarily based upon the determination of the question as to whether these petitioners were rightly re-designated as Sectional Officer in the respective year on the basis of Staffing Pattern prepared on 4.8.1980 (Annexure-8) or such re-designation required approval of the State Government before any benefit of the post of Section Officer could accrue to these petitioners? In this context another document which is of relevance is notification dated 13.4.1991(Annexure-9) issued by the Department of Human Resources Development, Government of Bihar laying down the revised pay scale in respect of Officers and Non Teaching employees of the University / colleges where under, as per Schedule 'Kha', the pay scale of Section Officer, have been sanctioned at serial no. 2 in respect of Non Teaching employees of the University, Post Graduate Department and constituent colleges. The revised pay scale of Rs.1640-2900 has been sanctioned in place of Rs.880- 1510. It is stated on behalf of these petitioners by making categorical statement in para 14 of the writ petition that in terms of the staffing pattern of 4.8.1980 in all these colleges, where there were more than 1500 students, post of one Section Officer was sanctioned under the same Staffing Pattern as contained at Annexure-8. 6. In the background of aforesaid facts, the respondents chose to issue notice on 27.2.2003 to individual petitioners asking them to show cause as to why their re-designation as Sectional Officer be not withdrawn in view of the fact that said post is not sanctioned by the State Government in the constituent colleges. The petitioners furnished their reply, some of them are annexed as Annexure-13 series. However, the impugned order has been issued withdrawing the said re-designation of their post as Sectional Officer, (General and Accounts) on 30.6.2003 acting upon the orders of the Hon'ble Chancellor dated 16.9.2002. 7. The petitioners furnished their reply, some of them are annexed as Annexure-13 series. However, the impugned order has been issued withdrawing the said re-designation of their post as Sectional Officer, (General and Accounts) on 30.6.2003 acting upon the orders of the Hon'ble Chancellor dated 16.9.2002. 7. Learned counsel appearing on behalf of the petitioners has argued that the question relating to approval of the services of the Teaching and Non Teaching employees of the University and its constituent colleges under Section 35 of the State University Act at the time when the Staffing Pattern dated 4.1.1980 was in vogue is no longer open for debate. It is submitted that learned full Bench of the Patna High Court in the case of Braj Kishore Singh and others Vrs. The State of Bihar & others vide judgment dated 19.2.1997 reported in 1997(1) PLJR 509 has categorically held that if the posts are available under the Staffing Pattern, it is open to the competent authority to make appointment against those posts and they would be deemed to be appointed in accordance with the staffing patten. They cannot be said to be illegal for want of post. It has also been held that it would be absurd to suggest that although staffing patten has been laid down providing for different categories of posts the same post(s) should be created over and again individually in different colleges and subject to approval of the State Government. That interpretation would make the whole exercise in framing the staffing pattern as superfluous and redundant. It is submitted by learned counsel for the petitioners that in the wake of aforesaid facts, without considering the import of the judgment rendered by the full Bench judgment of the Patna High Court, the respondents have issued the impugned order being guided by the order of the Hon'ble Chancellor passed in totally different context of another person and not in the case of the petitioners. 8. The response of the University as canvassed by learned counsel Mr. Anoop Kumar Mehta is that the re-designation of the petitioners' post as Sectional Officer was never approved by the State Government. 8. The response of the University as canvassed by learned counsel Mr. Anoop Kumar Mehta is that the re-designation of the petitioners' post as Sectional Officer was never approved by the State Government. It is submitted that any office order which are annexed as Annexure 10 and 11 dated 10.4.1995 and 22.1.1996 respectively relating to re-designation of the petitioners' concerned were issued without approval of the State Government and are in teeth of the provision of the State University Act. It is further submitted by referring to Annexure -A to the counter affidavit dated 13.5.1993 that there are no post of Sectional Officer sanctioned in the constituent college. It is further argued that the respondent- University had acted upon the order of Hon'ble Chancellor, which is annexed as Annexure-15 to the writ application. Learned counsel for University further submitted that the orders under which petitioners are claiming right on being re-designated as Sectional Officer, does not have any legal sanctity in view of the fact that the State Government by letter dated 20.11.1995 had withdrawn the staffing pattern created earlier vide order dated 10.5.1991. It is also submitted that in the absence of a clear approval by the State Government, which is mandatory under Section 35 of the University Act, the petitioners did not have any legal right to claim any salary or benefits of the post which was never sanctioned and approved. He has further referred to Annexure-B of the counter affidavit which is a minutes of the deliberation held in the presence of the Hon'ble Chancellor on 14.5.1999 where also in respect of pay fixation of Sectional Officer, it was clearly felt that there was no such sanctioned post of Sectional Officer in the colleges. 8. The response of the State Government is also on similar lines. According to the respondent- State no appointment to any post in the University / Colleges may be made without the post being sanctioned by the State Government in terms of Section 35 of the Jharkhand University Act. According to them also the staffing pattern was recalled by the Bihar Government vide letter dated 2011.1995 (Annexure-A) to their counter affidavit. In the absence of any post of Sectional Officer being created for the constituent colleges, the petitioners cannot claim to have benefits of the said post. In the light of the aforesaid statements the claim of the petitioners have been contested. 9. In the absence of any post of Sectional Officer being created for the constituent colleges, the petitioners cannot claim to have benefits of the said post. In the light of the aforesaid statements the claim of the petitioners have been contested. 9. I have heard counsel for the parties at length and gone through the relevant materials on record. The questions which are posed for determination in the earlier part of the judgment is whether the re-designation of these petitioners to the post of Sectional Officer, (General and Accounts) done at the relevant point of time in the earlier year and subsequently modified on 13.4.1995 and 22.1.1996 were permissible in law or not? Whether the said re-designation of the petitioners required the mandatory sanction in individual cases by the State Government before such a benefit could accrue to these petitioners? 10. In the light of the facts which are available on record and have been referred to in the earlier part of the judgment, the very issue is whether it was mandatory under the State University Act that the post ought to be sanctioned and created under Section 35 of the said act by the State Government before any appointment could be made by the University in the constituent colleges during the life of a Staffing Pattern. The issue relating to appointment made under the Staffing Pattern which was notified by the State Government earlier was under consideration before the learned full Bench of the Patna High Court in the case of Braj Kishore Singh (supra). The said Court was in-seisin of the circumstances when certain appointments were made in the constituent colleges of class III and class IV posts in the 1970s under the Bihar University, later on re-named as Bhim Rao Ambedkar University. After considering the rival submission of the parties and after noticing the provision of Section 35 of the University Act, the learned full Bench of the Patna High Court came to the conclusion that if such staffing pattern is laid down by the State Government, it would amount to creation and sanction of the post. In other words, the College / University may make appointment against posts in accordance with the staffing pattern, then apply for affiliation. In other words, the College / University may make appointment against posts in accordance with the staffing pattern, then apply for affiliation. It has also came to the conclusion that the staffing pattern in respect of Non Teaching post in the University and Colleges of State of Bihar is existing since 1980. It therefore held that it is not open to the State Government to take a stand that Non Teaching Class-III / IV posts have not been created in the College. It was observed that the competent authority can create individual post or lay down a staffing patten. In that situation the post would be deemed to have been created. Once post are available, it should be open to the competent authority to make appointment against these posts and that would be deemed to be appointment in accordance with the staffing pattern and cannot be said to be illegal for want of post. It was also observed that it would be absurd to suggest that although staffing pattern has been laid down providing for different categories of posts, the same post(s) should be created over and again individually in different colleges. That interpretation would make the whole exercise in framing the staffing pattern as superfluous and redundant. The relevant extracts of the judgment at para 12, 13, 14 and 19 are quoted herein below:- “Para 12. Another aspect which should be kept in mind that Section 35 does not envisage sanction, individually, with respect to each and every post of teachers or non-teaching staff. The authority may create one post or a number of posts at the same time. It may be sufficient if instead of creating post or posts for a particular institution, a general staffing pattern is laid down it would amount to creation/sanction of posts. That would also be conducive to the exercise of power under Section 21. In other words, the College / University may make appointment against posts in accordance with the staffing pattern, then apply for affiliation. This would enable the State Government to consider the viability of the institution for the purpose of granting or refusing approval to its proposed affiliation. This would also make the provisions of Section 35 workable. Para 13. The point for consideration, therefore, is whether a general staffing pattern has been laid down by the State Government or not. This would enable the State Government to consider the viability of the institution for the purpose of granting or refusing approval to its proposed affiliation. This would also make the provisions of Section 35 workable. Para 13. The point for consideration, therefore, is whether a general staffing pattern has been laid down by the State Government or not. Such an exercise, in my opinion, is necessary and also expedient because it is more or less an admitted position that the power under Section 35, as such, has never been exercised by the State Government and if a strict interpretation of the provisions were to be made, appointment of almost all teachers and non-teaching staff in each and every College would be rendered illegal. It is another matter that, as regards teachers, statutes have been framed for regularisation of their services but so far as Section 35 is concerned it puts both teachers and non-teaching staff on par. In fact, regularisation of the services of teachers under statutes framed for that purpose without making corresponding provisions for the non-teaching staff has caused heart burn and consternation and given rise to a plea of discrimination. Para 14. The appellants have brought on record certain documents to show that the Bihar Inter University Board after due consideration of the matter had recommended staffing pattern which was approved by the State Government. The first document referred to in this connection is the minutes of the proceeding of the Inter University Board dated February 12, 1983, Annexure 18 to the writ petition. From the aforesaid minutes it appears that the State Government had convened a meeting on February, 8, 1983 under the Chairmanship of the Education Commissioner in which it was decided that the Chairman, Inter University Board should call a meeting to suggest norms regarding staffing pattern for the University or its allied offices, Colleges and P.G. Departments and to sent the same to the State Government, after approval by the Board. The Board accordingly considered the matter on February 12, 1983. It would be useful to quote the portion of the minutes as follows :- “The meeting convened by the Board was attended by the aforesaid persons. The Board accordingly considered the matter on February 12, 1983. It would be useful to quote the portion of the minutes as follows :- “The meeting convened by the Board was attended by the aforesaid persons. In the meeting the norms for staffing pattern in Universities and Colleges as approved by the Board on 14.1.1980 and the norms of staffing pattern for the PG Science Departments as prepared by the Committee earlier were discussed. Certain amendments were made therein. In addition, the norms for under-Graduate Science Departments and other allied offices of the University were finalised. The norms of staffing pattern for Universities and allied offices, Science Departments of Colleges and PG Departments, as recommended by the Committee, are given in the appendix.” Para 19. In view of the aforesaid documents there cannot be any doubt that a staffing pattern with respect to non-teaching posts in the Universities and Colleges in State of Bihar has been in existence since at least 1980. If that is the correct factual position then whether it is open to the State Government to take the stand that non-teaching class III/IV posts have not been created in the College? The answer, in my opinion, must be in the negative. I have already stated above that the competent authority -whether the Government or any other authority- can either create individual post(S) or can lay down a staffing pattern. In that situation the posts will be deemed to have been created. Once posts are available, it should be open to the competent authority to make the appointment against these posts and that would be deemed to be appointment in accordance with the staffing pattern. They cannot be said to be illegal for want of posts. It would be absurd to suggest that although staffing pattern has been laid down providing for different categories of posts, the same post (s) should be created over and again individually in different Colleges. That interpretation would make the whole exercise in framing the staffing pattern as superfluous and redundant”. 11. The said staffing pattern admittedly was withdrawn vide letter dated 20.11.1995 by the State Government annexed as Annexure-A to the counter affidavit. That interpretation would make the whole exercise in framing the staffing pattern as superfluous and redundant”. 11. The said staffing pattern admittedly was withdrawn vide letter dated 20.11.1995 by the State Government annexed as Annexure-A to the counter affidavit. The argument of the respondent University that since no approval of the State Government was granted on issuance of the orders by the Registrar of the Ranchi University, in the individual cases of the petitioners as also the common order dated 10.4.1995 and 22.1.1996, the petitioners cannot claim to have been appointed against duly sanctioned created post, is therefore fit to be rejected. Whether the funds were allocated by the University later on for making payments to the petitioners for the post of Sectional Officer is not the material consideration to decide the main issue which has been raised in the present writ application. It usually happens that funds are made available to the University and Colleges at the subsequent point of time for payment of benefits of the pay revision. In the instant case the exercise to re-designate the petitioners had been undertaken on the basis of the Staffing pattern of 1980 before it was withdrawn and on the strength of the claim that these petitioners were working in colleges having more than 1500 students. 12. It is apparent from perusal of Annexure-9 dated 13.4.1991 to the writ petition more specific Schedule 'Kha' thereof that the scale of Rs.1640-2900 was prescribed for the post of Sectional Officer, not only for the University but also for the constituent college. Therefore the contention of the respondent- State and University that the said post and the pay scale were not applicable to the constituent college also does not appear to be correct. The University and State, while issuing individual notices upon individual petitioners and while passing the impugned order appears to have not taken into account the import of the judgment rendered by the full Bench of the Patna High Court in connection with the same staffing pattern as has been quoted herein above. The reliance of the University upon the order passed by the Hon'ble Chancellor, which was in different contest is therefore also misplaced. The reliance of the University upon the order passed by the Hon'ble Chancellor, which was in different contest is therefore also misplaced. However, at the same time from perusal of the order passed by the Hon'ble Chancellor at Annexure-15 also it does not appear that the import of the staffing pattern and judgment rendered by the full Bench of the Patna High Court were considered , may be that may not have been required in the facts of the said case. 13. In the aforesaid facts and circumstances and the discussion made herein above , it therefore appears that the respondents University and the State have acted on a wrong premise of law and sought to annul the benefit of post of Sectional Officer to the individual petitioners' granted some time in the year 1986-94 in individual cases and reiterated in the year 1995 by the respondents , that the same were required to be approved in exercise of Section 35 of the University Act by the State Government. The said reasons however does not merit acceptance in view of the specific reasons and the import of the full Bench judgment of the Patna High Court discussed herein above. Therefore, the impugned order dated 30.6.2003(Annexure-14) cannot be sustained in the eye of law and is accordingly quashed. 14. The respondent- University and the State would confer the benefits of the post of Sectional Officer in the prescribed scale to the individual petitioners from the effective date as sanctioned by the order at Annexure-11. It would be open for the University to make a requisition before the State Government requisitioning funds for the aforesaid purpose for grant of benefits of the said posts to the petitioner. On receipt of such requisition the Directorate of Higher Education, Department of Human Resources Development in turn shall release the requisite funds for onward payment to the petitioners within a reasonable time. 15. The writ petition is allowed in the aforesaid manner.