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2017 DIGILAW 1649 (JHR)

Medhavrat Sharma v. State of Jharkhand

2017-09-13

S.N.PATHAK

body2017
JUDGMENT : S.N. PATHAK, J. 1. The petitioner has approached this Hon'ble Court with a prayer for quashing of the order dated 1.11.2006 issued by respondent No. 2 whereby and whereunder the representation of the petitioner submitted in pursuance of the order passed by the Hon'ble Court in W.P.(S) No. 388 of 2005 has been rejected in a most arbitrary manner without consideration of the materials on record and whereby and whereunder the promotion of the petitioner to the post of University Professor granted vide notification No. 1.9.89 w.e.f. 1.2.85 has been cancelled without even a show-cause notice and consequentially the pension has been fixed on the scale of Reader in a most discriminatory and illegal manner. Further prayer has been made for fixing salary/pension of the petitioner in the rank of University Professor in the UGC scale 1998 and payment of other consequential retiral benefits in that scale. Factual Matrix 2. The case of the petitioner is that he was appointed as a Lecturer and later on promoted to the post of Reader, in the scale of Rs. 1200-1900/- on the recommendation of Selection Committee w.e.f. 14th November, 1980 vide Memo No. 3/12569-659 dated 9th November, 1981. He was confirmed to the said post of Reader w.e.f. 14th November, 1980, vide Memo No. B/1623-1918 dated 29th December, 1993 issued by the Vice-Chancellor of the University. As he was entitled for the time bound promotion on the basis of 16 years statute, the Vice-Chancellor of the University, in exercise of power of Syndicate, granted him provisional promotion to the post of Professor w.e.f. 1st February, 1985. The petitioner later retired on 31st January, 2001. 3. The grievance of the petitioner is that the Respondents thereafter had not considered his case of regular promotion to the post of Professor after taking into consideration the recommendation of the Commission, nor provided him the pay scale of a regular Professor, as allowed by the UGC nor his pension has been fixed after allowing such benefits. The other grievance of the petitioner is that the Provident Fund amount to which he was entitled has also not been provided and a sum of Rs. 29,462/- though deducted from his salary, was not deposited in his Account. 4. It has been further stated that petitioner retired from his service as University Professor from Kartik Oraon College, Gumla on 31.1.2001. 5. 29,462/- though deducted from his salary, was not deposited in his Account. 4. It has been further stated that petitioner retired from his service as University Professor from Kartik Oraon College, Gumla on 31.1.2001. 5. The petitioner made representation regarding fixation of salary as per UGC scale 1998 to the Vice-Chancellor, Ranchi University as well as for fixation of final pension on the basis of UGC scale 1998 on 21st February, 2004. 6. In spite of repeated representations when no action was taken, the petitioner moved this Hon'ble Court vide W.P.(S) No. 388 of 2005 which was disposed of by this Hon'ble Court on 8.2.2005 with a direction for filing detailed representation before the Secretary, Human Resources Development Department regarding regular promotion to the post of Professor from the date he was given provisional promotion. "The Secretary, in his turn, will decide the claim, if necessary, will obtain the recommendation of the Commission (JPSC) and pass appropriate order within six months from the date of receipt of representation. 7. Pursuant to the order passed by this Hon'ble Court, the petitioner filed representation and respondents vide order dated 1.11.2006 rejected the claim of the petitioner without considering the fact that petitioner is fully eligible for promotion to the post of University Professor and hence this present writ petition has been preferred. 8. Learned Counsel for the petitioner Mrs. Sheela Prasad strenuously urges that respondents have illegally and arbitrarily rejected the claim of petitioner. The promotion which was granted to the petitioner vide notification on 1.9.1989 w.e.f. 1.2.1985 has been cancelled after 20 years on the ground that no concurrence was provided by the Commission. 9. Learned Counsel submits that without any show-cause and without any valid reasons the cancellation of promotion order after 20 years is not at all tenable in the eyes of law. The right which has been accrued to the petitioner and continued for 20 long years cannot be taken away without following the provisions of natural justice. 10. Learned Counsel further argues that the petitioner fulfills all the criteria for promotion to the post of University Professor under the statute of time bound promotion. It was the duty of the University to get concurrence and petitioner cannot be held liable and that cannot be a reason to deprive him from his rightful claim and benefits. 11. 10. Learned Counsel further argues that the petitioner fulfills all the criteria for promotion to the post of University Professor under the statute of time bound promotion. It was the duty of the University to get concurrence and petitioner cannot be held liable and that cannot be a reason to deprive him from his rightful claim and benefits. 11. Learned Counsel further argues that the action of the respondents is also illegal and discriminatory as similarly situated persons namely Dr. Hridyayeshwar Jha (retired), Dr. Jagdish Mishra (retired) and Renuka Rani Kansyakar has been allowed pension in the scale of University Professor but the petitioner's case has been arbitrarily rejected. 12. Learned Counsel argued that impugned order is arbitrary, illegal and without jurisdiction as petitioner is fully entitled for the post of University Professor and for fixation of pension in the revised scale. 13. Per contra counter-affidavit has been filed. 14. Learned Counsel for the respondents vehemently opposes the contention of the learned Counsel for the petitioner and submits that the Principal Secretary, HRD Department, Government of Jharkhand by reason of his order contained in Annexure-9 to the writ application has decided the claim of the petitioner. The said respondent has held that the petitioner was allowed provisional promotion vide Ranchi University notification dated 1.9.1989 on the post of University Professor w.e.f. 1.2.1985 in anticipation of approval of the Commission. In the said notification it was clearly mentioned that if the Commission does not accord approval, the provisional promotion shall cease to be effective. Accordingly, the Secretary, HRD Department, Government of Jharkhand has in the impugned order held that since the Commission has not accorded approval the provisional promotion has on it own become ineffective. The respondent No. 2 in his order has also taken note of an order passed by this Hon'ble Court in W.P.(S) No. 31/2003 wherein the Hon'ble Court referring to the provisions of Section 58(10) of the Universities Act has held that upon expiry of 6 months, the provisional promotion becomes ineffective and therefore the applicants would draw the retiral benefits in the Reader Scale of pay. 15. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration. 15. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration. The petitioner was granted promotion vide notification No. 1.9.89 w.e.f. 1.2.85 and after lapse of about 20 years, the promotion has been cancelled on the ground that since no concurrence was provided by the Commission the promotion order automatically becomes ineffective in view of Section 58(10) of the Universities Act. Rule 58(10) reads as under: "58(10). Notwithstanding to the contrary contained in this Act or statute, Rules or Regulations made thereunder promotion given on temporary basis to the post of Reader or Professor or Officer of the University shall not be valid for a period exceeding six months unless recommended by the Jharkhand (Bihar) State University Constituent College) Service Commission." 16. In the order of promotion dated 1.8.1989 it has been clearly mentioned that if the University Service Commission does not give concurrence, the provisional promotion shall cease to be effective immediately. Nowhere it has been brought on record that University Service Commission has rejected the concurrence of the petitioner rather getting concurrence was the duty of the University and not the petitioner because it shows lackadaisical and lethargic approach of the University to its employees. The petitioner cannot be held responsible. 17. In view of the earlier direction of this Hon'ble Court regarding obtaining the recommendation of the Commission (JPSC) nothing has been brought on record whether at any point of time steps were taken by the Secretary for obtaining recommendation of the Commission (JPSC). 18. On the other hand, the order of promotion has been recalled after 20 long years which is not sustainable in the eyes of law. Any order visiting civil consequence cannot be recalled without giving any opportunity of hearing to the employee. In the instant case no opportunity ever was granted to the petitioner. Without issuance of any show-cause and valid reasons, the order of promotion granted 20 years back has been recalled which is illegal, arbitrary and not sustainable in the eyes of law. 19. Similarly situated persons namely Dr. Hridyayeshwar Jha (retired), Dr. In the instant case no opportunity ever was granted to the petitioner. Without issuance of any show-cause and valid reasons, the order of promotion granted 20 years back has been recalled which is illegal, arbitrary and not sustainable in the eyes of law. 19. Similarly situated persons namely Dr. Hridyayeshwar Jha (retired), Dr. Jagdish Mishra (retired) and Renuka Rani Kansyakar has been allowed pension in the scale of University Professor but the petitioner's case has been rejected which shows discriminatory attitude by the respondents, the same has not been replied anywhere in the counter-affidavit. Resultantly, the impugned order at Annexure-9 dated 1.11.2006 is quashed and set aside. 20. As a cumulative effect of the aforesaid rules, order and guidelines, I hereby direct the respondents, since the petitioner has retired, to calculate and fix the pension of the petitioner in the revised scale of University Professor in the U.G.C. scale and for payment of any other consequential benefits for which the petitioner is found entitled. The writ petition stands allowed.