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2021 DIGILAW 1083 (JHR)

Brij Kumar Mishra v. State of Jharkhand

2021-12-21

S.N.PATHAK

body2021
JUDGMENT : 1. Heard the parties. 2. The petitioner has approached this Court for quashing the Notification contained in Memo No. 317/05 dated 5.8.2005 (Annexure-5), whereby the service of the petitioner has been absorbed with effect from 01.06.2003, instead of 5.12.1987 being the date, when the petitioner attained his eligibility, as per recommendation of Justice S.C. Agrawal Committee. Factual Matrix 3. The facts of the case are short and not much in dispute. The petitioner was appointed and joined the post of Lecturer in Hindi Department on 22.2.1986 in S.N.J.S.N. College, Garhwa under the jurisdiction of Ranchi University (now Nilamber and Pitamber University, Palamau). 4. The dispute relating to absorption of teaching employees of the colleges, consequent upon their conversation into constituted units in 4th phase, had traveled up to the Supreme Court of India. A one Man Committee was formed under the orders of the Supreme Court, headed by Justice S.C. Agrawal (a retired Judge of the Supreme Court), who had made certain recommendations, which were accepted by the Supreme Court in the case of State of Bihar & Ors. Vs. Bihar Rajya MSESKK Mahasangh & Ors., reported in 2005 (1) PLJR 464. The Committee noticed that some of the teachers were appointed against the posts, which were not sanctioned by the State Government at the time of their appointment, but matter related to sanction was already pending with the State Government at that point of time. The Committee, in such cases, also recommended that the Lecturers would be entitled for absorption in the University service from the respective dates of their eligibility. In the report of the Justice Agrawal Commission, the name of the petitioner figured at page 1027, which clearly shows that this petitioner was appointed as Lecture in Hindi Department by order dated February, 22, 1986. Though on the date of appointment, the petitioner did not have high second class post graduation qualification, but he obtained MA degree with 65% marks on December 5, 1987. Therefore, the petitioner became eligible for consideration for appointment / absorption with effect from 5.12.1987. 5. In view of the recommendations made by the Commission and the Supreme Court in the case of State of Bihar & Ors. Vs. Bihar Rajya MSESKK Mahasangh & Ors. (supra), the University (respondent No.2) issued a notification contained in Memo No. 317/05 dated 5.8.2005, whereby the petitioner was absorbed with effect from 1.6.2003. 6. 5. In view of the recommendations made by the Commission and the Supreme Court in the case of State of Bihar & Ors. Vs. Bihar Rajya MSESKK Mahasangh & Ors. (supra), the University (respondent No.2) issued a notification contained in Memo No. 317/05 dated 5.8.2005, whereby the petitioner was absorbed with effect from 1.6.2003. 6. Again, the Hon'ble Supreme Court of India by order 22.1.2013 appointed Mr. Justice S.C. Agrawal to enquire into the claim of each of the employees (both teaching and non-teaching) for absorption in constituted colleges. However, Justice S.C. Agrawal declined to enquire and thereafter, Hon'ble Mr. Justice S.B. Sinha (Retd) had been appointed on 19.8.2013. Hon'ble Mr. Justice S.B. Sinha submitted the report in respect of the petitioner, which reads as under: “So far as the case of Dr. Brij Kumar Mishra is concerned, he has been absorbed in the services of the University w.e.f. 01.06.2003, having regard to the fact that a post had been fallen vacant. It is stated that there was no recommended posts, and unfortunately the relevant documents could not be produced before Justice Agrawal Commission, the absorption of Dr. Brij Kumar Mishra, therefore, is upheld w.e.f. 01.06.2003”. 7. Aggrieved thereby, the petitioner has approached this Court, stating that the finding of the Justice S.B. Sinha Commission is an apparent error on the face of the record. The petitioner has also made a representation before the respondent-University requesting therein to correct his date of absorption on 14.8.2019, i.e. after filing of the writ petition. Submission of Petitioner 8. Mr. Neeraj Shekar, learned counsel appearing for the petitioner strenuously submits that the impugned order dated 5.8.2005, absorbing the petitioner with effect from 1.6.2003, has been passed illegally and arbitrary. Learned counsel submits that order passed by the respondents in fixing substantial date of appointment of the petitioner is in violation of the report of the Hon'ble Agrawal Commission and also in violation of the order of the Hon'ble Supreme Court of India reported in the case of State of Bihar & Ors. Vs. Bihar Rajya MSESKK Mahasangh & Ors. (supra). Learned counsel demonstrates that the Justice Agrawal Commission went into each and every details and had submitted his report in four parts on 19.12.2003 to the Hon'ble Apex Court. Vs. Bihar Rajya MSESKK Mahasangh & Ors. (supra). Learned counsel demonstrates that the Justice Agrawal Commission went into each and every details and had submitted his report in four parts on 19.12.2003 to the Hon'ble Apex Court. Part-IV contained the gist of recommendation wherein it had also specifically prepared a namewise list of teaching and non-teaching employees, who were found fit for being absorbed in service. Justice Agrawal Commission had also gone into the individual cases of absorption on the basis of appointment / date of eligibility, inasmuch as, many of such teaching personnel who were appointed by the private governing body initially were not in possession of requisite qualification and / or against non-existing and unsanctioned post. Learned counsel submits that the name of the petitioner figured in the report of the Commission at page-1041 at serial no.4 in Hindi Department and it was specifically mentioned that the petitioner became eligible for consideration on December 5, 1987. Learned counsel submits that the respondent University, contrary to the report of the Commission, issued the notification, absorbing him with effect from 1.6.2003. In support of his contention, learned counsel places heavy reliance upon the decision of the Patna High Court in the case of Babusaheb Jha & Others Vs. The State of Bihar & Ors., in CWJC No. 3017 of 2006, wherein the Patna High Court held that University cannot change the date of eligibility for absorption as recorded in the report of Justice S.C. Agrawal Commission. Further reliance has been placed upon the cases of Manju Choudhary Vs. Bhupendra Narayan Mandal University & Ors. passed in CWJC No. 9440 of 2009, and Ram Pravesh Rai & Ors. Vs. The State of Bihar & Ors. (CWJC No. 21232 of 2014). Learned counsel also submits that the State of Bihar challenged the judgment passed in CWJC No. 21232 of 2014 before the Division Bench of the Patna High Court and the same was dismissed holding inter alia therein that the issue, which has already been decided up to the level of Supreme Court, cannot be reopened in the present proceeding. Learned counsel also places heavy reliance upon the decisions of this Court in the cases of Kanti Mishra & Ors. Vs. The State of Jharkhand & Ors., in W.P.(S) No. 7555 of 2012, Ambuj Mandal Vs. State of Jharkhand & Ors. Learned counsel also places heavy reliance upon the decisions of this Court in the cases of Kanti Mishra & Ors. Vs. The State of Jharkhand & Ors., in W.P.(S) No. 7555 of 2012, Ambuj Mandal Vs. State of Jharkhand & Ors. in W.P.(S) No. 6365 of 2017, as also Sheo Shankar Tiwary Vs. State of Jharkhand & Ors., in W.P.(S) No. 1202 of 2017. Learned counsel lastly submits that in view of the report of the Hon'ble Justice S.C. Agrawal Commission and in view of the judgments passed by the Hon'ble Supreme Court of India, as also in view of the judgments of the Patna High Court, as well as this Court, the petitioner is entitled to be absorbed from the date of his attaining the eligibility for the post i.e. 5.12.1987. Submission of State/University. 9. Learned counsels appearing for the respondent-State, as also respondent University vehemently oppose the contentions of the learned counsel appearing for the petitioner and submit that admittedly the petitioner was appointed on 22.2.1986 as Lecturer in SSJSN College, Garhwa in Hindi Dept.. At the time of appointment, the petitioner was not in possession of requisite educational qualification. Learned counsel submits that on the cut-off date i.e. 31.3.1987, when the college became a constituent college, there was only four sanctioned posts of Lecturer in the Department of Hindi. Learned counsel submits that the petitioner was appointed on 5th post and such post was neither a sanctioned post nor a recommended post by the University. Learned counsel further demonstrates the fact that on bare perusal of the recommendation of the Justice S.C. Agrawal Commission with regard to Term of Reference No.4 (Teaching Staff), it is crystal clear that number of sanctioned posts in the Department of Hindi was 4 and only such persons who were working on sanctioned posts and posts recommended by the University administration up to the cut off date i.e. 31.3.1987 pending consideration before the State Government were to be absorbed with effect from the date they became eligible after appointment. Learned counsel submits since the petitioner does not fall into this category, the University was wholly justified in not regularizing his service with effect from 5.12.1987 and regularized the petitioner's service with effect from the date of availability of a sanctioned post due to retirement of one Lecturer, who was working against one of the four sanctioned posts. Learned counsel submits since the petitioner does not fall into this category, the University was wholly justified in not regularizing his service with effect from 5.12.1987 and regularized the petitioner's service with effect from the date of availability of a sanctioned post due to retirement of one Lecturer, who was working against one of the four sanctioned posts. Learned counsel further submits that the case of the petitioner has individually been looked into by the Hon'ble S.B. Sinha Commission, which has also found that the services of the petitioner has been absorbed with effect from 1.6.2003 having regard to the fact that a post had been fallen vacant and it was also stated that there was no recommended posts, unfortunately, the relevant documents could not be produced before Justice Agrawal Commission. Therefore, Hon'ble Justice S.B. Sinha upheld the date of absorption of this petitioner to be 1.6.2003. Lastly, learned counsel submits that in regularizing the services of the petitioner w.e.f. 1.6.2003, the respondent University has not acted against the recommendations of Justice S.C. Agrawal Commission and has not acted against the orders of the Hon'ble Supreme Court of India. Findings of the Court. 10. Be that as it may, having gone through the rival submissions of the parties across the Bar, this Court is of the view that the issue involved in this writ petition is no more res intergra. The issue fell for consideration before the Hon’ble Apex Court in the case of State of Bihar Vs. Bihar Rajya SESKK Mahasangh, reported in (2005) 9 SCC 129 , wherein issue of appointment in affiliated college and abortion of those appointees in the constituent colleges in view of Section 4 (1)(14) were elaborately dealt with. The Hon’ble Apex Court after examining every aspects of the matter, clearly held that in view of non obstinate clause contained in proviso to section 4(1)(14), the constraints in section 35 of the Act which provides for grant of prior approval of the creation appointment to the posts in the affiliated colleges will have no application to absorption of existing staff of affiliated colleges taken over by the universities. A one Man Committee was formed under the orders of the Supreme Court, headed by Justice S.C. Agrawal, who had made certain recommendations, which were accepted by the Supreme Court in the case of State of Bihar & Ors. Vs. Bihar Rajya MSEKK Mahasnagh & Ors. A one Man Committee was formed under the orders of the Supreme Court, headed by Justice S.C. Agrawal, who had made certain recommendations, which were accepted by the Supreme Court in the case of State of Bihar & Ors. Vs. Bihar Rajya MSEKK Mahasnagh & Ors. (supra). The Committee noticed that some of the teachers were appointed against the posts, which were not sanctioned by the State Government at the time of their appointment, but recommendation for such sanction was already pending with the State Government at that point of time. The Committee, in such cases, also recommended that the Lecturers would be entitled for absorption in the University service from the respective dates of their eligibility. There appears to be no dispute about the fact that in the recommendations, made by the Commission, the dates, with effect from which the Lecturers had acquired eligibility, have been mentioned therein, indicating specifically the date with effect from which they were entitled to be absorbed. 11. Now, let us examine the matter with respect to case at hand as per Justice Agrawal Commission. Annexure-IA at page -1030 of the said report shows that there were four posts sanctioned in the Department of Hindi. Annexure-IIA of the report at page-1033 shows that the posts recommended by the University up to cut off date, pending consideration before the State Government. Annexure-IIIA at page 1035 of the report relates to teachers who were working on the date of conversion and the name of this petitioner appears at serial 44. As against this petitioner-'R-1' is mentioned, which means the post recommended up to the cut of date. From perusal of terms of reference No. 4A, it appears that the name of petitioner (Brij Kumar Mishra) finds place at serial no. 4 and the date of eligibility was shown as 5.12.1987 with captioned ‘Teacher Staff who were eligible for Absorption”. The fact remains that Justice Agrawal Commission has categorically treated the petitioner against the sanctioned post in terms of date of eligibility and seniority. The judgment of the Apex Court in paras 68 and 73, is very specific that all controversies raised by the parties with regard to the sanctioned, recommended posts, have been rejected and the final decision with respect to sanctioned and recommended Post can be made only on the basis of the Justice Agrawal Commission’s report. The judgment of the Apex Court in paras 68 and 73, is very specific that all controversies raised by the parties with regard to the sanctioned, recommended posts, have been rejected and the final decision with respect to sanctioned and recommended Post can be made only on the basis of the Justice Agrawal Commission’s report. The stand of the University regarding date of eligibility of the petitioner contrary to the report of Justice Agrawal Commission is not in accordance with law and is fit to be quashed and set aside. The contention of learned counsel for the University that the petitioner does not fulfill the requisite criteria for appointment is misconceived, as the same was never brought to the knowledge of this Court and concealed the fact. The petitioner fulfills the requisite qualification on 5.12.1987 and thus was eligible with effect from 5.12.1987 and the date of eligibility was to be taken consideration for absorption and not the imaginary date of 1.6.2003. 12. In the case of Babusaheb Jha & Ors. Vs. The State of Bihar & Ors. in CWJC No. 3017 of 2006, the Patna High Court held that University cannot change the date of eligibility for absorption as recorded in the report of Justice S.C. Agrawal Commission. Further in the case of Manju Chaudhary Vs. Bhupendra Narayan Mandal University through the Registrar & Ors., in CWJC No. 9440 of 2009, the Patna High Court observed that the issue decided by the Apex Court and the finding recorded by the Supreme Court neither can be reopened, altered or scrutinised by any forum including the High Court. Further in the case of Ram Pravesh Rai & Ors. Vs. The State of Bihar & Ors., (CWJC No. 21232 of 2014) the Court observed that service of the petitioner can only be recognised from the date of the post may not be an accepted position in law because it is not open to the State to change their date of absorption or their appointment, which was provided for by Justice Agrarwal Commission under the pretext of non-availability of post or sanction of the same with effect from 1.2.1988. The said view expressed by the learned Single Judge was affirmed by the Division Bench of the Patna High Court in L.P.A. No. 218 of 2016, which reads as under:- “We do not find any force in the submission, so advanced on behalf of the State of Bihar, for the simple reason that these aspects have been elaborately considered in the report of the Justice S.C. Agrawal Committee, and upon examination of all the aspects, the Committee recommended that in such cases, where recommendations for sanction of posts were pending with the State Government, before the cut off date, the effective dates for absorption of the teaching employees would be dates, when they acquired the eligibly criteria. As has been already noted above, the said report has been accepted by the Supreme Court in its decision in the case of State of Bihar & Ors. Vs. Bihar Rajya MSESKK Mahasangh & Ors. (supra). The issue, which has already been decided up to the level of Supreme Court, cannot be re-opened in the present proceeding. The learned Single Judge has rightly held the notifications, under challenge in the writ proceedings (C.W.J.C. No. 21232 of 2014 of 2014), to be, in the teeth of Supreme Court’s decision in the case of State of Bihar & Ors. Vs. Bihar Rajya MSESKK Mahasangh & Ors. (supra), bad in law and, therefore, not sustainable.” 13. Similar issue fell for consideration before this Court in the case of Smt. Kanti Mishra Vs. The State of Jharkhand & Ors., reported in 2017 SCC OnLine Jhar 2575. This Court while quoting paras-53 and 54 of the judgment in the case of State of Bihar Vs. Bihar Rajya MSESKK Mahasngh (supra) held as follows:- “Fixation of substantial date of appointment has to be done in view of Hon’ble Agrawal Commission’s report and also in view of the aforesaid judgment i.e. (2005) 9 SCC 129 . No doubt, State has got wide power under Section 35 of the Act but when the University is taking over the management of any College and thereby if it absorbs any staff under Section 4(1)(14), thereafter the Government cannot exercise power under Section 35 of the Act denying the absorption or questioning absorption.” 14. Similar view was also expressed by this Court in the case of Sheo Shankar Tiwary Vs. State of Jharkhand & Ors., reported in 2018 SCC OnLine Jhar 2178. 15. Similar view was also expressed by this Court in the case of Sheo Shankar Tiwary Vs. State of Jharkhand & Ors., reported in 2018 SCC OnLine Jhar 2178. 15. In the instant case, what it transpires that the date of absorption was fixed by Justice S.B. Sinha Commission in 2003, which was taken into consideration by the authority of the University as well as the State. The date of absorption fixed by Justice S.B. Sinha Commission does have force as the finding was given without perusal of any document, which cannot be said to be a conclusive proof for coming to a finding regarding absorption, which was contrary to the finding of the Justice S.C. Agrawal Commission and therefore, the Hon’ble Apex Court held that the same can be challenged inthe Court. 16. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, this Court is of the view that the case of the petitioner needs consideration. Admittedly the University had acted contrary to the findings of the Justice S.C. Agrawal Committee, which cannot be accepted by this Court. 17. As a cumulative effect, the impugned order dated 5.8.2005, issued by the Registrar, Ranchi University, Ranchi, is hereby quashed and set aside, whereby the respondents have illegally and arbitrarily fixed the wrong date of substantial appointment which is contrary to the report of the Agrawal Commission and also contrary to the ratio laid down in the case of State of Bihar Vs. Bihar Rajya MSESKK (supra). The respondents are directed to consider the case of the petitioner and pass appropriate order regarding fixation of date of absorption from the date of acquiring eligibility i.e. 5.12.1987. 18. Resultantly, the writ petition stands allowed.