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2020 DIGILAW 722 (JHR)

Rao Ranjeet Singh v. State of Jharkhand

2020-07-07

RAVI RANJAN, SUJIT NARAYAN PRASAD

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ORDER : 1. The matter has been heard through video conferencing with the consent of the learned counsel for the parties. None of the parties has raised any complaint regarding audio and visual quality. I.A. No. 2607 of 2019 2. This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 25 days in preferring this Letters Patent Appeal. 3. Heard parties. 4. Having regard to the averments made in the application and submissions made on behalf of the parties, we are of the view that the appellant was prevented from sufficient cause in filing the appeal within the period of limitation. As such, the delay of 25 days in preferring the appeal is hereby condoned. 5. I.A. No. 2607 of 2019 stands allowed. L.P.A. No. 699 of 2018 6. The instant intra-Court appeal is under Clause 10 of Letters Patent of the High Court of Judicature at Patna directed against the order/judgment dated 14.09.2018 passed by learned Single Judge of this Court in W.P. (S) No. 2773 of 2011 whereby and whereunder the order dated 16.09.2005 has been declined to be interfered with as also the other relief pertaining to direction upon the respondents to pay salary to the writ petitioner with effect from June, 2011 till date was not found to be fit to be allowed and the writ petition has been dismissed. 7. The brief facts of the case which are required to be enumerated herein read as hereunder:- The appellant-writ petitioner was initially appointed on 08.12.1979 by the Secretary of the Governing Body of Markham College of Commerce, Hazaribagh, as Store Keeper (Grade-III post) and in pursuance there to, he joined on 10.12.1979. The service of the appellant-writ petitioner was regularized under Grade-III post/category with effect from 01.04.1983 by the Governing Body of the college vide decision as contained in letter dated 10.07.1983 and accordingly, pay of the appellant-writ petitioner was also fixed by the Ranchi University accepting his appointment on the sanctioned post. The college in question i.e. Markham College of Commerce, Hazaribagh, was earlier an affiliated college under the erstwhile State of Bihar which, along with other colleges, was converted into constituent college sometime in the year 1986. The college in question i.e. Markham College of Commerce, Hazaribagh, was earlier an affiliated college under the erstwhile State of Bihar which, along with other colleges, was converted into constituent college sometime in the year 1986. Subsequently, the Ranchi University was bifurcated and a new university namely Vinoba Bhawe University has been created and the college in question came under the jurisdiction of Vinoba Bhawe University. It is the case of the writ petitioner that a writ was filed before the Patna High Court praying therein for absorption of about 4000 employees working on teaching and non-teaching posts in 40 colleges affiliated to various universities which were made constituent colleges of respective university in accordance with the provision of Bihar Universities Act, 1976 as also under the Resolution of the Government of Bihar issued in the year 1986. The Patna High Court disposed of the writ petition on 31.01.1997 passing an order in favour of the employees which was assailed by the State of Bihar and others before the Hon'ble Apex Court being Civil Appeal No. 6098 of 1997. The Hon'ble Apex Court vide order dated 12.10.2001 directed for constitution of a High Power Commission and appointed Hon’ble Mr. Justice S.C. Agrawal, retired Judge of Hon’ble Apex Court as One Member Commission to go into the various controversies and disputes with respect to absorption of the employees of the erstwhile affiliated colleges in the service of the converted constituent colleges. The One Member Commission prepared a report after hearing the affected parties and submitted it before the Hon'ble Apex Court which was accepted by Hon'ble Apex Court. The further case of the appellant-writ petitioner is that the name of the appellant was found in the List-I of non-teaching staff working against the sanctioned post prior to 30.04.1986 and for the Markham College of Commerce, his name finds mentioned at S. No. 8 as Store Keeper showing the appellant-writ petitioner working against the sanctioned post of Store Keeper from the initial date of joining i.e. 10.12.1979 as also he was receiving salary but his salary was lowered down since March, 2007 which was protested by filing due representation before the concerned respondent but the same was not decided. The appellant-writ petitioner subsequently came to know that the respondent No. 5 had passed an order in the year 2005 itself taking a decision for not absorbing the writ petitioner in Grade-III Post, rather, he was absorbed under Grade-IV post. The appellant-writ petitioner, on enquiry, found that as per notification issued on 16.09.2005, he was absorbed with effect from 01.05.1986 against Grade-IV post of Peon. The appellant-writ petitioner thereafter assailed the order dated 16.09.2005 by filing writ petition but the said writ petition was dismissed by the learned Single Judge which is the subject matter of the present appeal. 8. Mr. Amit Kumar Sinha, learned counsel appearing for the appellant has submitted that though the appellant-writ petitioner was working in Grade-III post (Store Keeper) in Markham College of Commerce, Hazaribagh against the sanctioned post and was possessing the requisite qualifications as also his name was also appearing in List-I i.e. list of non-teaching staff of the report of Hon’ble Mr. Justice Agrawal Commission, but the case of the appellant-writ petitioner was not considered for his absorption in Grade-III post and learned Single Judge did not consider these aspects of the matter even though the said report was accepted by the Hon'ble Apex Court, therefore, learned Single Judge has committed error in not interfering with the order dated 16.09.2005 whereby and whereunder the appellant-writ petitioner has been absorbed against Grade-IV post in place of Grade-III. 9. Mrs. Vandana Singh, learned Sr. SC-III, appearing for the State, has submitted that the Vinoba Bhave University is the contesting respondent. 10. Mrs. 9. Mrs. Vandana Singh, learned Sr. SC-III, appearing for the State, has submitted that the Vinoba Bhave University is the contesting respondent. 10. Mrs. Indrani Sen Choudhary, learned counsel appearing for the respondent University has submitted by referring to the extract of the report of Justice Agrawal Commission which refers about the consideration of the case of the appellant-writ petitioner as under List-I pertaining to non-teaching staff whereby and whereunder by taking into consideration the requisite qualifications on the date of appointment, it has specifically been held therein that the appellant-writ petitioner was not possessing the requisite qualification on the date of appointment, therefore, he was held not entitled for absorption and in view thereof, the authority has taken decision not to absorb the appellant-writ petitioner in Grade-III post, rather as per Annexure-IIB of the report, the appellant-writ petitioner was found fit to be absorbed as Peon with effect from 01.05.1986 and therefore, learned Single Judge, after taking into consideration the report of Justice Agrawal Commission since has declined to interfere with the order dated 16.09.2005, the same cannot be said to suffer from any fault. 11. This Court, after hearing the learned counsel for the parties and on appreciation of the material available on record as also the finding recorded by the learned Single Judge, deems it fit and proper to refer to certain admitted facts in this case which read hereunder as:- The writ petitioner was working in Grade-III post (Store Keeper) in Markham College of Commerce, Hazaribagh and his name was appearing in List-I, i.e. list of non-teaching staff in the report of Hon’ble Mr. Justice Agrawal Commission. It appears that the appointment of the writ petitioner was made without proper advertisement and he was not possessing the requisite qualification. Therefore, in List-I, in consideration part of the case of the writ petitioner, he was found not fit to be absorbed. It was also found that he did not possess the matriculation certificate. The report submitted by the Hon’ble Justice S.C. Agrawal before the Hon’ble Apex Court has been accepted in entirety, thus, there cannot be any deviation from the report which has been submitted before the Hon’ble Apex Court which has been accepted and as such, we are of the view that whatever stipulation has been made by Hon’ble Mr. Justice Agrawal in its One Member Commission report, the same cannot be deviated. Justice Agrawal in its One Member Commission report, the same cannot be deviated. Admitted position herein, as would be evident from the order dated 16.09.2005, is that as per the provision of Section 4(1)(14) of the Jharkhand State Universities Act, 2000 (as amended upto date), the competent authority has ordered to absorb the services of the non-teaching employees of the colleges, converted into constituent units in 4th phase, against the post recommended up to the cut-off date i.e. 30.04.1986 and identified as per Annexure-IIB of the report of Justice S.C. Agrawal Commission. It requires to refer herein the provision as contained in Section 4(1)(14) of the Bihar State Universities Act, 1976 which provides the jurisdiction to adjudicate upon the appointment in affiliated colleges and absorption of those appointees in constituent colleges vests upon the university. This Court has gone across the order passed by the Hon'ble Apex Court in Civil Appeal No. 6098 of 1997 wherefrom it is evident that the Hon'ble Apex Court has been pleased to hold which reads hereunder as:- “Decision on absorption of the existing teaching and non-teaching staff of the affiliated colleges, which are taken over a constituent colleges, is within the exclusive jurisdiction of the universities concerned. Decision in individual cases, with due regard to the qualification of each employee and corresponding statute applicable at the relevant time prescribing qualification, if any, for the teaching and non-teaching post, is required to be taken by the university based on the findings of the Enquiry Commission and in the light of legal position explained in the present judgment.” The grievance of the appellant-writ petitioner before the writ court was that he ought to have been absorbed in Grade-III post and not in Grade-IV but as would appear from the extract of the report of the Commission, as has been appended as Annexure-4 to the writ petition, whereby and whereunder the list pertaining to non-teaching staff, has been referred which contains the reference of the writ petitioner which reads hereunder as:- “Name of the Post Store Keeper Name of the Employee Rao Ranjeet Singh Nature of Post Held Sanctioned/ Unsanctioned/Recommended Sanctioned Date of Aptt./Joining 10.12.1979 Whether appointment was made through proper advertisement N/A Whether possess requisite qualification on the date of appointment No Whether Entitled for absorption No.” It is evident that the writ petitioner was holding the sanctioned post of Store Keeper having been appointed on 10.12.1979 but in the query part pertaining to “whether appointment was made through proper advertisement” the remark was “NA.” Further, under the query to the effect “whether possess requisite qualification on the date of appointment” the answer is “No.” Under the query to the effect “whether entitled for absorption” it has been written “No.” The question herein is that when the case of the writ petitioner was considered by Justice Agrawal Commission wherein the writ petitioner has been found not fit to be absorbed to the post of Store Keeper and the aforesaid report since has been accepted by the Hon'ble Apex Court, the writ petitioner cannot be absorbed to the post of Store Keeper. Even though the University has provided an opportunity in pursuance to the remark made in the notification dated 12.03.2005 against the name of the petitioner towards absorption column which has been shown as “Pending” therefore, the writ petitioner was directed to produce the matriculation certificate, which is the minimum educational qualification for the post of Store Keeper, but he failed to produce the same. However, during the pendency of the writ petition, the petitioner annexed matriculation certificate as Annexure-11, but that was highly disputed by the respondent authorities stating it to be fake and forged and the learned Single Judge refused to interfere with the impugned order dated 16.09.2005 whereby the appellant-writ petitioner has been absorbed on the post of Class-IV post. The question herein is as to whether the decision of the University in not absorbing the appellant-writ petitioner to the post of Store Keeper is justified? We, after going across the material available on record, more particularly, the extract of the report of the Justice Agrawal Commission, as appended as Annexure-4 to the writ petition, whereby and whereunder the writ petitioner has been found not entitled for absorption and since the aforesaid report has been accepted in entirety by Hon'ble Apex Court, therefore, the decision taken by the University in not absorbing the appellant-writ petitioner in Grade-III post cannot be said to suffer from infirmity. Further, the writ petitioner was directed to produce the matriculation certificate to prove his minimum qualification but the same was not produced, however, it was produced before the writ court but the question is that when the aforesaid certificate was not produced before Justice Agrawal Commission, can he be allowed to produce the same before the University? Our answer would be in negative for the reason that when Justice Agrawal Commission report has been accepted in its entirety by the Hon'ble Apex Court, the University ought not to have provided an opportunity to the appellant-writ petitioner to produce the matriculation certificate but showing bona fide, the University provided opportunity to produce the matriculation certificate but even at that stage the same was not produced, however, before the writ court it was produced which was disputed by the respondent authorities by taking a plea that the aforesaid matriculation certificate is fake and fabricated. The question is that if the writ petitioner was having matriculation certificate, what prevented him to produce it before Justice Agrawal Commission or even before the University and having not done so, if the decision has been taken by the University on 16.09.2005 absorbing the appellant-writ petitioner to Grade-IV post, it cannot be said to suffer from any fault and if in that circumstances the learned Single Judge has refused to interfere with the impugned decision dated 16.09.2005, the same, according to our considered view, cannot be said to suffer from any infirmity. So far as the prayer which has been allowed to be amended by virtue of order passed in I.A. No. 2166 of 2013 pertaining to direction upon the respondents to pay salary of the appellant-writ petitioner with effect from June, 2011 till date is concerned, the learned Single Judge has also refused to interfere with such prayer for the reason that the appellant-writ petitioner never turned up for discharge of his duty in Grade-IV post and in such a disputed question of fact about rendering the services, which according to the writ petitioner he has rendered, while on the other hand the same has been disputed by the respondent University and in case of such a disputed question of fact if no writ has been issued, the same, according to our conscious view, cannot be said to suffer from any infirmity. In that view of the matter and on the basis of the discussions made hereinabove, the order passed by the learned Single Judge suffers from no infirmity. 12. In the result, the appeal fails and the same is accordingly dismissed.