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Jharkhand High Court · body

2020 DIGILAW 1001 (JHR)

Saroj Kumar v. State of Jharkhand

2020-10-13

SANJAY KUMAR DWIVEDI

body2020
JUDGMENT : 1. Heard Mr. Indrajit Sinha, learned counsel for the petitioners and Mr. Ashutosh Anand, learned counsel for the respondents-State. 2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard. 3. The petitioners have preferred this writ petition for quashing the order dated 11.02.2019 passed by Director, Higher, Technical Education and Skill Development Department, Government of Jharkhand whereby it has been decided that the benefit of notional increment is not admissible to the petitioners. 4. This writ petition was heard on 03.09.2020 and on that date Mr. Indrajit Sinha, learned counsel for the petitioners submitted that the case in hand is fully covered in view of order passed by this Court in W.P.(S) No.2785 of 2019. On that date, learned counsel for respondents-State was provided a week’s time to examine the order as to whether the case of the petitioners is covered by that judgment or not. On 11.09.2020, Mr. Ashutosh Anand, learned counsel for the respondents-State appeared and submitted that judgment passed by this Court in W.P.(S) No.2785 of 2019 is distinguishable and the matter was adjourned for examining the judgment relied by Mr. Ashutosh Anand, learned counsel for the respondents-State by the learned counsel for the petitioner. Today, learned counsel for petitioners as well as learned counsel for respondents-State have advanced their argument. 5. The petitioners were appointed on 09.12.1986 in private college in the State of Bihar. The State of Bihar took a decision to acquire all private colleges and Indian College of Engineering, Motihari (Bihar) in the Department of Science and Technology, Government of Bihar. The petitioners were paid salary from 09.12.1986 to 30.01.1991 and benefit as per the Management Committee of the College but the payment was made by the State of Bihar. The petitioners after joining their services in the private engineering college in the State of Bihar, the State of Bihar came with an Ordinance named Bihar Private Engineering College (Taking Over of Ordinance), 1986. The petitioners after joining their services in the private engineering college in the State of Bihar, the State of Bihar came with an Ordinance named Bihar Private Engineering College (Taking Over of Ordinance), 1986. On the basis of aforesaid Ordinance, all private colleges were taken over with effect from 09.12.1986 and subsequently the Bihar Private Engineering Colleges (Taking Over) Act, 1991 was passed to give permanent basis to the said action being continued by the series of ordinances issued in continuation of the first ordinance by Section 5 of the said Act. It was provided that from the date of taking over the teaching and other categories of employees would cease to be the employees of the private engineering college but would continue on ad hoc basis in the said colleges until final decision is taken by the State Government under Subsection 3 of the Section 5 of the said Act. The petitioners were declared surplus by the State of Bihar. The petitioners including 135 other persons were terminated from their services and after getting terminated from the service, the petitioners and others preferred writ petitions before the Hon’ble Patna High Court being CWJC No.1316 of 1991 and fourteen other analogous cases. The said writ petition was disposed of and orders of termination were quashed and the writ petition was allowed and the respondents were directed to examine the case of the petitioners and others within a period of four months and thereafter the petitioners were directed to be reinstated in the service. It was also observed in the said order that the petitioners will be entitled to be reinstated in services upon expiry of the aforesaid period of four months. On such reinstatement, the petitioners will not however, be entitled to get payment of back wages but their continuity in service must be maintained. This order is contained in Annexure-1 to the writ petition. 6. Being aggrieved by the order dated 06.05.1996, the State of Bihar preferred L.P.A. Nos.591 to 597 of 1998 and L.P.A. No.623 of 1998. These L.P.As. were delayed by 687 days and finally the L.P.As. were heard on merit and were dismissed. No decision was taken by the respondent-State of Bihar on the order passed by the Patna High Court and a contempt case was filed and the contempt case was disposed of order by order dated 22.01.1998. These L.P.As. were delayed by 687 days and finally the L.P.As. were heard on merit and were dismissed. No decision was taken by the respondent-State of Bihar on the order passed by the Patna High Court and a contempt case was filed and the contempt case was disposed of order by order dated 22.01.1998. In the Contempt case, it was observed that the direction of this Court has not been complied with strictly in terms of the direction and in its correct spirit instead of issuing fresh direction for passing and order, it would be fit and proper to observe that the order of reinstatement passed by the opposite parties shall be deemed to have been passed under Sub-section (3) of Section 5 of the said Ordinance and reinstatement shall not be taken as ad hoc. It was observed that so far the part of judgment and order modified in appeal is concerned, the Additional Advocate General No.III submitted that steps will be taken and payment will be made as expeditiously as possible within a period of three months from today. The said contempt petition was disposed of. The State of Bihar preferred S.L.P. before Hon’ble Apex Court against the order passed in L.P.A. Nos.591 to 597 of 1998 and L.P.A. No.623 of 1998 and the Hon’ble Apex Court was pleased to dismiss the Special Leave Petition preferred by State of Bihar on 05.02.1999. The said order is Annexure-5 to the writ petition. The petitioners were provisionally transferred by the order passed by the Director, Science and Technology Department, Government of Bihar vide order dated 22.10.1999 wherein petitioner no.1 was transferred from Indian College of Engineering, Motihari (Bihar) to B.I.T., Sindri and his name is mentioned at Sl. No.53. The petitioner no.2 was also transferred from Indian College of Engineering, Motihari (Bihar) to B.I.T., Sindri and his name is mentioned at Sl. No.64. The said letter is Annexure-6 to the writ petition. Finally, a decision was taken by the Government of Bihar and the services of the petitioners were regularized in view of Sub-section (3) of Section 5 of the said Act. Thereafter, the order was passed by the Joint Secretary, Science and Technology Department, Patna (Bihar) dated 19.06.2006 wherein the services of the petitioners were regularized from 31.01.1991. In the said order, the name of petitioner no.1 stands at Sl. Thereafter, the order was passed by the Joint Secretary, Science and Technology Department, Patna (Bihar) dated 19.06.2006 wherein the services of the petitioners were regularized from 31.01.1991. In the said order, the name of petitioner no.1 stands at Sl. No.25 and the name of petitioner no.2 stands at Sl. No.28. The services of petitioners were also regularized by Government of Jharkhand as the petitioners were transferred from the State of Bihar to State of Jharkhand vide memo no.206 dated 11.02.2008. By the said letter, the services of petitioners were regularized for the period from 03.01.1991 to 05.09.1996. By Annexure-9 of W.P.(S) No.2785 of 2019 dated 14.03.2007, one Arvind Kumar Singh, Lab Attendant was given the benefit of notional increment. In CWJC No.10680 of 2000 which was disposed of by order dated 08.09.2006 contained in Annexure-10 of the writ petition, it was observed that the petitioners have to be treated under Government service from the date when the college was taken over and all consequential benefits would flow to them and the respondents were directed to give the benefit of annual increment to the petitioners from the date of taking over the college from 09.12.1986 as well as their continuity in service for all the years including for the period during which they were out of service on account of termination. However, it was restricted that such calculation will be notional from the period 31.01.1991 till 05.09.1996. However, interpreting the Rule 85(a) of Jharkhand Service Code, the respondent no.2-Director, Higher, Technical Education and Skill Development Department, Technical Section had taken a decision that the petitioners will not be entitled for notional increment. Aggrieved with that, the petitioners have preferred this writ petition. Based on this fact, this Court has allowed one writ petition being W.P.(S) No.2785 of 2019 by order dated 10.08.2020 in which at paragraph 4 it appears that learned counsel for State has not been able to distinguish the judgment of Hon’ble Patna High Court and based on that order passed by this Court, Mr. Indrajit Sinha, learned counsel appearing for the petitioners submits that the case of the petitioners is fully covered in view of the judgment of Hon’ble Patna High Court in CWJC No.10680 of 2000 as well as this Court in W.P.(S) No.2785 of 2019. Indrajit Sinha, learned counsel appearing for the petitioners submits that the case of the petitioners is fully covered in view of the judgment of Hon’ble Patna High Court in CWJC No.10680 of 2000 as well as this Court in W.P.(S) No.2785 of 2019. He further submits that Rule 85(a) has been wrongly applied in the case of petitioners only with a motive not to provide the notional benefit to the petitioners. Mr. Sinha refers to Rule 83 of Jharkhand Service Code and submits that any increment is the matter of right in view of Rule 83. He further submits that the dispute in question has attained its finality and in that view of matter, the notional increment may be allowed. 7. Mr. Ashutosh Anand, learned counsel for the respondents-State distinguished the judgment passed by this Court in W.P.(S) No.2785 of 2019. By way of referring the judgment of Hon’ble Patna High Court passed in CWJC No.10680 of 2000 submits that the Hon’ble Patna High Court passed the order considering that that there is order dated 22.02.1998 whereby it has been stated that all the benefits of annual increments be given to the petitioners. He submits that this order is on the basis of order dated 22.02.1998. Mr. Ashutosh Anand refers to Rule 85(a) of Jharkhand Service Code and submits that in Rule 85(a), the conditions are there and the order of denying notional benefit has rightly been passed. Learned counsel, Mr. Ashutosh Anand relied the case of Chandra Shekhar Versus Union of India & Others passed in W.P.(C) No.10065 of 2016 of Delhi High Court and submits that in view of this judgment, the increment cannot be allowed. He further refers the case of Union of India & Others Versus Devi Krishna Sharma passed in W.P.(C) No.2449 of 2019 of Delhi High Court and submits that in the light of this judgment, the notional increment cannot be allowed. He also refers to the case of A.P.S.R.T.C. & Another Versus S. Narsagoud passed in Appeal (Civil) No.6362 of 2000 and submits that in view of this judgment wherein different reinstatement has been considered, the petitioners are not entitled for the benefit. 8. Having heard learned counsel for the parties, the Court proceeded to examine the dispute at hand. He also refers to the case of A.P.S.R.T.C. & Another Versus S. Narsagoud passed in Appeal (Civil) No.6362 of 2000 and submits that in view of this judgment wherein different reinstatement has been considered, the petitioners are not entitled for the benefit. 8. Having heard learned counsel for the parties, the Court proceeded to examine the dispute at hand. It is an admitted position that termination order of the petitioners were quashed in CWJC No.1316 of 1991 with analogous cases and in view of order passed in CWJC No.10680 of 2000, the direction was issued to provide notional benefit from 31.01.1991 to 05.09.1996. The State of Bihar filed Civil Review No. 61 of 2008 which was disposed of on 29.01.2014 confirming the order passed in writ petition. Pursuant to order dated 08.09.2006 and 29.01.2014, the Director, Science & Technology Department, Government of Bihar issued the order dated 10.03.2014 to the Accountant General, Bihar for issuance of salary slips in favour of petitioners of that writ petition after calculating the annual increment with effect from 09.12.1986. After bifurcation, the petitioners’ services fall in the cadre of Jharkhand. In view of order of quashing termination w.e.f. 31.01.1991, the services of petitioners were regularized for w.e.f. 05.09.1996 with annual increment. One Baleshwar Sharma, Laboratory Assistant in the Magadh Engineering College, Gaya moved before the Court in CWJC No.17739 of 2014 praying for confirming the regularizing with effect from 09.12.1986. The said writ petition was also allowed in terms of the earlier order dated 25.04.2018 passed in CWJC No.17739 of 2014. CWJC No.17739 of 2014 has been considered in W.P.(S) No.2785 of 2019. CWJC No.10680 of 2000 and CWJC No.17739 of 2014 have attained finality. The petitioners of those writ petitions have been provided benefits. Thus, there are no distinguishing facts in the facts and circumstances of W.P.(S) No.2785 of 2019. In the present case judgment relied by Mr. Ashutosh Anand, learned counsel for respondents-State in the case of Chandra Shekhar Versus Union of India & Others (supra) is not applicable in the facts and circumstances of the present case. Considering the period of suspension and after considering the facts, the Court has come to the finding that the petitioners of that case is not entitle for the increment. This is not the case at hand as this is not the case of misconduct. Considering the period of suspension and after considering the facts, the Court has come to the finding that the petitioners of that case is not entitle for the increment. This is not the case at hand as this is not the case of misconduct. In that view of the matter, the said order is not helping the respondent-State. The case of Union of India & Others Versus Devi Krishna Sharma (supra) is also the case of suspension and the punishment has been considered. This case is also not helping respondent-State. The case relied by Mr. Ashutosh Anand A.P.S.R.T.C. & Another Versus S. Narsagoud (supra) is also distinguishable in the facts and circumstances of present case. In that case, their Lordship has considered Rule 13 wherein certain restrictions were there and petitioner of that case was also found guilty with regard to some misconduct of unauthorized absence and the matter arises out of the order of Labour Court. In that view of the matter, this judgment is also not applicable in the facts and circumstances of present case. Rule 14 of Jharkhand Service Code defines the duty and view of Rule 14 and Rule 83 and Rule 85(a) and in view of conduct of petitioners, Rule 85(a) is not applicable in the case of the petitioners. In view of Rule 83, increment ordinarily arises as a matter of course. Rule 85 (a) says all duty in a post on a time scale counts for increment in that time scale. In view of peculiar facts and circumstances of the case, Rule 85 (a) is not applicable in the case of the petitioners. The petitioners were compelled not to work in view of decision of Government and thus the petitioners were not at fault. 9. In the light of these discussions, there is no distinguishable facts in the order passed in the order passed in W.P.(S) No.2785 of 2019. Accordingly, the respondent-State is directed to grant similar benefit to the petitioners which has been granted to the petitioners in CWJC No.10680 of 2000. 9. In the light of these discussions, there is no distinguishable facts in the order passed in the order passed in W.P.(S) No.2785 of 2019. Accordingly, the respondent-State is directed to grant similar benefit to the petitioners which has been granted to the petitioners in CWJC No.10680 of 2000. However, the petitioners will be granted notionally benefit from 31.01.1991 as they were failed to approach the Court within a reasonable time and thus waiting for the outcome of the writ petition and when the favourable order was passed, they approached the High Court for similar benefit and as such actual monetary benefit is limited to three years prior to the filing of this writ petition being. 10. In view of above terms, the writ petition stands allowed and disposed of.