Brajendra Mishra, son of late Uma Kant Mishra v. State of Jharkhand
2017-10-13
SHREE CHANDRASHEKHAR
body2017
DigiLaw.ai
JUDGMENT : 1. The petitioner has approached this Court with the following prayers: (A) To treat the petitioner as a teacher in Vinoba Bhawe University, Hazaribagh; (B) To provide the petitioner all the benefits regarding the salary, age and retiral benefits which are given to the University teachers of the University; (C) To consider case of the petitioner for his superannuation on attaining the age at par with the others, i.e., on attaining the age of 65 years at which the other teachers/Lecturers of the University are superannuated; and (D) Pending final hearing of the instant writ-petition, the respondents be directed not to make the petitioner retire on attaining the age of 60 years as he is entitled for services up to the age of 65 years as he is teacher of the University who are to retire at the age of 65 years. 2. At the outset, Mr. Mithilesh Singh, the learned counsel for the respondent-University raising a preliminary objection to the maintainability of the writ-petition, submits that fixation of age of superannuation is a policy matter which falls exclusively within the domain of the executive and the legislature. The learned counsel for the respondent-University submits that prayer for enhancement of age from 60 to 62 years by some of the employees under Baidyanath Kamal Kumari Sanskrit College, Deoghar has already been declined by a coordinate Bench of this Court in W.P.(S) No.549 of 2010 with W.P.(S) No.7491 of 2012. 3. It is stated that the petitioner was appointed on 01.04.1975 in Baidyanath Kamal Kumari Sanskrit College, Deoghar as assistant teacher and he would have attained the age of 60 years on 31.01.2015. Claiming benefit under Notification dated 26.12.2012, the petitioner seeks a direction for grant of pensionary benefits. By filing a supplementary counter-affidavit, the respondent-University has taken the following stand: “3. That at the outset it is most respectfully submitted that the petitioner is not the employee of the respondent University and thus there are no Government orders and payment orders which would establish that the petitioner is an employee of the Vinoba Bhave University, Hazaribagh. 4. That it is pertinent to state here that prior to creation of Jharkhand Public Service Commission the lecturers in the University and Constituent Colleges used to be appointed on the recommendation of Bihar State University (Constituent College) Service Commission.
4. That it is pertinent to state here that prior to creation of Jharkhand Public Service Commission the lecturers in the University and Constituent Colleges used to be appointed on the recommendation of Bihar State University (Constituent College) Service Commission. However, there is nothing on record to show that the petitioner was ever appointed as lecturer on the recommendation of Bihar State University (Constituent College) Service Commission. 5. That bare perusal of Annexure1 to the Writ petition shows that the petitioner was initially appointed as 'Assistant Teacher' at Baidyanath Kamal Kumari Sanskrit School, Baidyanathdham, Santhal Pargana. That subsequently the school of the petitioner was upgraded to Inter College. That after being upgraded as Inter College by State of Bihar in the year 1980 the status of the Baidyanath Kamal Kumari Sanskrit Upshastri College, Deoghar has remained the same and thus it is still and Inter College and not a Degree college. Thus the teaching and non teaching employees of an intercollege including the petitioner cannot equate themselves with teaching and non teaching employees of University as the college in question does not fall within the definition of 'College' as provided in Section2(f) of the Jharkhand State University Act, 2000 (Adapted). 6. That the fact that the college of the petitioner is an affiliated college is further evident from the list bearing the signature of the Registrar, Kameshwar Singh Darbhanga Sanskrit University, Darbhanga, Bihar. Bare perusal of the list shows that the college of the petitioner, i.e., Baidyanath Kamal Kumari Sanskrit Inter College, Deoghar is an aided affiliated College.” 4. In compliance of order dated 13.09.2017, a second supplementary counter-affidavit has been filed by the respondent-University, wherein it has taken the following stand: “3. That the release order dated 05.02.15 by the University (Annexure8 to the supplementary affidavit dated 19.06.17 by the petitioner) shows the-amount sanctioned and provided by the State Government has been in turn been released by the University in favour of the college of the petitioner which is affiliated to the respondent University. The bare perusal of the said release order will show that the amount sanctioned by the State Government has been released for payment of salary for the month of January, 2015 to the teachers and staff who are working on sanctioned posts in the college of the petitioner.
The bare perusal of the said release order will show that the amount sanctioned by the State Government has been released for payment of salary for the month of January, 2015 to the teachers and staff who are working on sanctioned posts in the college of the petitioner. As per clause1 of the said release order the payment of salary is to be made on the basis of provisional pay fixation by the State Government. As per clause2 the Principal of the college is required to demand the monthly salary and sent the utilization certificate to the University. However, it is most humbly stated that such release orders are passed in routine manner and the same in no way makes the employees of affiliated college like that of the petitioner, the employee of the Respondent University. 4. That it is pertinent to state here that teachers and staff who are working on sanctioned posts at Baidyanath Kamal Kumari Sanskrit College, Deoghar (interlevel) gets monthly salary on the basis of provisional pay fixation by the State Government in the revised scale with effect from 01.01.96. It is pertinent to state here that the salary of teaching and non-teaching employees of Baidyanath Kamal Kumari Sanskrit College, Deoghar (interlevel) has not been fixed in the pay scale recommended by U.G.C as the same is not applicable to the affiliated college. 5. That the fact that U.G.C pay scale is not applicable to the affiliated colleges of the University is also evident from resolution of the Human-Resources Development Department, Government of Jharkhand contained in letter no.1188 dated 20.11.10 (Annexure A to the counter affidavit dated 23.04.15 by the University) wherein the affiliated colleges have been excluded by the State Government. Thereby making it crystal clear that employee of the University is different from employee of affiliated college like the petitioner. 6. That the fact that the employees of the affiliated college is not the employee of the University is further emboldened from the fact that employees of affiliated colleges like the college of the petitioner do not get the retiral benefits upon retirement as is evident from letter dated 19.05.15 by the then registrar of the respondent University which is with respect to affiliated Sanskrit colleges including Baidyanath Kamal Kumari Sanskrit College, Deoghar (interlevel).
That it is necessary to point out that no action has been taken by the State Government with respect to the request made in the said letter.” 5. I have carefully examined the records produced by the parties in the present proceeding. The petitioner has not produced a Government Notification/Resolution under which teachers in affiliated Sanskrit colleges can seek benefits of Notification dated 26.12.2012. Grant of pension and other benefits are the matters falling exclusively within the domain of the executive and the legislature. The respondent-State has taken a stand that the teachers like the petitioner are not entitled for pension, extended age of superannuation, other pensionary benefits etc. 6. In the above facts, I find no merit in the writ-petition,