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2022 DIGILAW 341 (JHR)

Amar Archar Tudu v. State of Jharkhand

2022-03-24

RAVI RANJAN, SUJIT NARAYAN PRASAD

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JUDGMENT : 1. The instant intra-court appeal preferred under Clause 10 of the Letters Patent is directed against the orders/judgment dated 15.12.2020 passed by the learned Single Judge of this Court in W.P.(S) No. 449 of 2015, whereby and whereunder, the decision of the authority as contained in notification no. 41 of 2014 dated 20.06.2014, by which the writ petitioner had been reverted to Class-IV post in the scale of Rs. 2500-3200 him from the post of clerk, has been refused to be interfered with by dismissing the writ petition. 2. The brief facts of the lis as per the pleading which are required to be enumerated, read as hereunder: The writ petitioner had applied for appointment on compassionate ground on the ground of death of the bread earner who died in harness. The bread earner of the writ petitioner who was in the regular service in establishment of the respondent-University. The writ petitioner had made application for appointment on compassionate ground. His case was send before the District Compassionate Committee. The Committee convened a meeting on 07.07.2012 under the Chairmanship of Vice Chancellor and other seven members of the Committee. The case of the writ petitioner was recommended for appointment in Class-III post (LDC) in the pay scale of Rs.4000-6000/-. The writ petitioner joined the service in the Deoghar College on 13.10.2012 and started discharging his duties. The respondent-Vice Chancellor issued a notification being Notification No. 41 of 2014 dated 20.06.2014 in supersession to the earlier notification No.110 of 2012 dated 06.10.2012 by which the writ petitioner had been appointed in the Class-III post, has now been reverted to Class-IV post. The writ petitioner, being aggrieved with the aforesaid order, approached to this Court by filing writ petition being W.P.(S) No.449 of 2015 on the ground of violation of principles of natural justice as also the appointment since made out on due recommendation of the compassionate committee should not have been modified by reverting the writ petitioner from Class-III to Class-IV post. The respondents have appeared and contested the case by taking the plea therein that appointment on compassionate ground of the writ petitioner since has not been approved by the State Government, therefore, such decision has been taken. According to the respondent-University, decision of the State Government is the final authority to approve the appointment made under the University even on the compassionate ground. According to the respondent-University, decision of the State Government is the final authority to approve the appointment made under the University even on the compassionate ground. The learned Single Judge on appreciation of the rival submissions advanced on behalf of the parties, dismissed the writ petition on the ground that the University, in pursuance to the provision of Section 35 of the Jharkhand University Act, 2000, has got no authority, whatsoever, to create fresh financial liability for the Government by making appointment even on compassionate ground without prior approval of the State Government since the entire fund for making payment to the officers and the employees of the University comes from the State Government. No payment of salary can be made to the employees appointed till their appointment is ultimately approved by the State Government and funds are made available to the University for payment of their salary. Further, Section 5 of the Jharkhand Staff Selection Commission Act, 2008 has also been considered, whereby and whereunder, the appointment to the Class-III/Grade-C posts is to be made on the basis of the recommendation of the Jharkhand Staff Selection Commission but having not done so by the Jharkhand Staff Selection Commission, so far as the appointment of the writ petitioner is concerned, action of the University by reverting the writ petitioner in Class-IV post has been declined to be interfered with. 3. Mr. Durga C. Mishra, learned counsel for the writ petitioner has submitted that the learned Single Judge has dismissed the writ petition by considering the provision as contained under Section 35 of the Jharkhand University Act, 2000 which at all is not applicable in the facts and circumstances of the case, reason being that Section 35 stipulates that no post for appointment shall be created without prior sanction of the State Government, but here, there is no question of creation of post either under Class-IV or Class-III rather appointment on compassionate ground is to be made against the sanctioned post and once the appointment has been made by the University concerned against the sanctioned post, there is no question of applicability of the provision of Section 35 of the Act, 2000. It has further been submitted by referring to the impugned order that there is no reference of the post upon which the writ petitioner has been appointed, i.e., Class-III/Grade-C post has never been created by the State Government, therefore, applying the provision of Section 35 of the Jharkhand University Act, 2000 cannot be said to be justified, basis upon which the writ petition has been dismissed by not interfering with the impugned notification. Further, the consideration given by the learned Single Judge upon Section 5 of the Jharkhand Staff Selection Commission is also not applicable in the facts of the given case, reason being that, if the appointment is to be made on compassionate ground it cannot be conducted by the Jharkhand Staff Selection Commission rather the appointment is to be made on the basis of the recommendation of the District Compassionate Committee/ Compassionate Committee. The constitution of Staff Selection Commission in pursuance to the Jharkhand Staff Selection Commission Act, 2008 has been made to recommend for appointment through the direct recruitment and not for appointment on compassionate ground. 4. Dr. Ashok Kumar Singh, learned counsel appearing for the respondent-University has submitted, so far as the applicability of Section 35 of the Act, 2000 is concerned, that it is not the case of the University that the post of Class-III/Grade-C has never been created rather the case of the University is that the approval was sought for from the State Government so that the fund be allotted to the University for disbursement of salary in favour of the writ petitioner and when the State has not responded, the writ petitioner was reverted to Class-IV from Class-III post. He further submits that if the State Government is willing to give the fund, there is no objection on the part of the University in retaining the writ petitioner in Class-III post. 5. This Court, on earlier occasion, while hearing the matter had passed an order on 29.09.2021 directing the respondent-University to bring on record the relevant instructions/rules for appointment on compassionate ground which would be of relevance. The respondent-University filed an affidavit in pursuance of the order dated 29.09.2021 on 25.11.2021 wherein it has been stated as under paragraph-6 that the University has not formally adopted the policy formulated by the State Government with regard to appointment on compassionate basis. The respondent-University filed an affidavit in pursuance of the order dated 29.09.2021 on 25.11.2021 wherein it has been stated as under paragraph-6 that the University has not formally adopted the policy formulated by the State Government with regard to appointment on compassionate basis. However, the University generally follows the policy of the State Government with regard to appointment on compassionate basis. Further, at paragraph-7 thereof, it has been stated that as per the provision contained in Section 10(6) of the Jharkhand State Universities Act, the Vice Chancellor of a University in Jharkhand has been vested with power to make appointment to posts within the sanctioned grades and scales of pay and within the sanctioned strength of the ministerial staff and other servants of the University not being teachers and officers of the University. Further, at paragraphs-8 & 9 thereof, it has been stated that the State Government has directed all the Universities in Jharkhand that all the Class-III and IV appointments in the Universities in Jharkhand shall be made by the Jharkhand Staff Selection Commission but the State Government has not, till date, accorded approval to the appointment of the writ petitioner on compassionate ground on Class-III post. No fund was provided for payment to the writ petitioner and that is the reason why the writ petitioner was again appointed on Class-IV post and payment was made accordingly. It has further been submitted therein that such action has not been done as a penalty to the writ petitioner but to ensure payment of salary to him. The relevant paragraphs of the said counter affidavit read as under: “6. That the respondent S.K.M. University has not formally adopted the policy formulated by the State Government with regard to appointment on compassionate basis. However, the University generally follows the policy of the State Government with regard to appointment on compassionate basis. 7. That as per the provision contained in section 10(6) of the Jharkhand State Universities Act the Vice Chancellor of a university in Jharkhand has been vested with power to make appointment to posts within the sanctioned grades and scales of pay and within the sanctioned strength of the ministerial staff and other servants of the University not being teachers and officers of the University. 8. 8. That vide Letter No. – 1526 dated 29.10.2010 kept at page no.-69 in the instant LPA the State Government has directed all the Universities in Jharkhand that all the class 03 and 04 appointments in Universities in Jharkhand shall be made by the Jharkhand Staff Selection Commission. 9. That the State Government has not till date accorded approval to the appointment of the petitioner on compassionate ground on class 03 post. No fund was provided for payment to the petitioner and a few other persons appointed on compassionate basis. This is the reason why the petitioner was appointed again on a class IV post and payments were made to him accordingly. This has not been done as a penalty to him but to ensure payment of salary to him. 6. This Court, after perusal of the aforesaid fact, passed an order on 22.12.2021 directing the State to come with an affidavit explaining as to when the writ petitioner was appointed on Class-III post and the matter was sent to the State Government for approval and for allotment of fund, why such allotment of fund was not approved by the State Government which has culminated ultimately into reviewing the appointment by the impugned order the University has appointed the writ petitioner on Class-IV post from a retrospective date. The State Government, in pursuance of the aforesaid order, had filed an affidavit on 15.01.2022 wherein the stand inter alia has been taken as under paragraph-5 that so far as appointment matter is concerned the same falls under domain of concerned University (as per the provision contained in Section 10(6) of the Jharkhand State Universities Act, 2000) as the University is autonomous body and the answering respondent has nothing to do with the same. At paragraph-6 thereof, it has been stated that no prior approval is required by the University to appoint a person under the sanctioned post, from the State. At paragraph-7 thereof, it has been stated that the role of the State Government comes when application for pay fixation is sent by the University related to any employee. At paragraph-8 thereof, it has been stated that so far as release of the fund for payment to appellant is concerned, the same is not sent individually but the fund is allotted to the concerned University (as per the requirements) for the financial year. At paragraph-8 thereof, it has been stated that so far as release of the fund for payment to appellant is concerned, the same is not sent individually but the fund is allotted to the concerned University (as per the requirements) for the financial year. At paragraph-9 thereof, it has been stated that so far as converting the post of the appellant from Class-III to Class-IV is concerned, the same falls under the domain of the University and the answering respondent has no role for the same. The relevant paragraphs of the said affidavit read as under: “5. That so far as appointment matter is concerned the same falls under domain of concerned university (as per the provisions contained in section 10(6) of the Jharkhand State Universities Act, 2000) as the university is autonomous body and the answering respondent has nothing to do with the same. 6. That no prior approval is required by the university to appoint a person under sanctioned post, from the state. 7. That the role of the state government comes when application for pay fixation is sent by the university related to any employee. 8. That so far as release of the fund for payment to appellant is concerned, the same is not sent individually but the fund is allotted to the concerned university (as per the requirements) for the financial year. 9. That so far as converting the post of the appellant from class-III to class-IV is concerned, the same falls under the domain of the university and the answering respondent has no role for the same.” 7. Thus, it is evident from consideration of the stand inter alia taken by the State in the affidavit that in the matter of decision of appointment made by the Vice Chancellor in the capacity of competent authority to appoint Class-III and Class-IV employees, the approval of the State Government against the sanctioned post is not required, which would be evident from the statement made at paragraphs-5 & 6 of the affidavit dated 15.01.2022. It is further evident from the affidavit filed on behalf of the State that so far as the disbursement of salary is concerned, as per the requirement, the fund is allotted to the concerned University for the financial year. It is further evident from the affidavit filed on behalf of the State that so far as the disbursement of salary is concerned, as per the requirement, the fund is allotted to the concerned University for the financial year. So far as the issue of reversion of the writ petitioner from Class-III to Class-IV post is concerned, the stand has been taken by the respondent-State that it is under the domain of the University and the answering respondent, i.e., the State of Jharkhand, has no role for the same. 8. It is evident that the stand which has been taken by the University so far as the allocation of fund, which led the University to revert the writ petitioner from Class-III to Class-IV post, i.e., the ground of approval by the State Government, is found to be incorrect after the stand of the State Government having been taken by the State Government in the affidavit dated 15.01.2022. 9. In course of argument, Dr. Ashok Kumar Singh, learned counsel for the University has submitted by taking into consideration the stand of the State about non-requirement of approval for appointment of the writ petitioner in the Class-III post, the University will take appropriate decision by recalling the order by which the writ petitioner has been posted as Class-IV employee vide notification no. 41 of 2014 dated 20.06.2014 by modifying the earlier notification no. 110 of 2012 dated 06.10.2012 by which the writ petitioner was appointed on Class-III post. 10. So far as the salary part is concerned, the learned counsel for the State has submitted that fund is required to be allotted by the State Government for the sanctioned post and if the writ petitioner’s appointment in Class-III post is against the sanctioned post, there is no difficulty in releasing the fund for the purpose of disbursement of salary in his favour. 11. 11. This Court, apart from the aforesaid concession made on behalf of the concerned respondent and as per the stand taken in the affidavit on their behalf, is of the view that the learned Single Judge while dismissing the writ petition by relying upon the provision of Section 35 of the Jharkhand University Act, 2000 is incorrect in applying the said provision in the matter of appointment on compassionate ground, reason being that the appointment on compassionate ground is required to be made under the provision of scheme floated by the State. Section 35 of the Jharkhand University Act, 2000 speaks about allocation of fund by the State Government. Appointment on compassionate ground since is to be made against the sanctioned post, therefore, while making such appointment there is no reason of applying the provision as contained under Section 35 of the Jharkhand University Act, 2000 and in absence of sanctioned post, there cannot be any appointment on compassionate ground. Therefore, the reason of dismissal of the writ petition by the learned Single Judge by applying the provision as contained under Section 35 of the Jharkhand University Act, 2000, according to our considered view, is incorrect as per the discussion made hereinabove. 12. So far as the second ground for dismissal of the writ petition, i.e., Section 5 of the Jharkhand Staff Selection Commission Act, 2008 is concerned, it is not in dispute that the power to fill up the post through direct recruitment has been vested to the Staff Selection Commission under the provision of Section 5 of the Act, 2008. Since, we have already discussed hereinabove that the appointment on compassionate ground is to be made in view of the scheme floated by the State which admittedly cannot be considered to be direct recruitment rather it is an appointment under exception to Article 14 and 16 of the Constitution of India as per the scheme to provide immediate succor to the bereaved family on account of sudden demise of the bread earner, therefore, the section 5 of the Act, 2008, in such circumstances, will not be applicable for the reason as referred hereinabove. It further requires to refer herein that the University itself has taken the stand that the policy of the State Government with regard to appointment on compassionate basis is being followed, therefore, we have considered the policy formulated by the State Government for the purpose on 05.10.1991 which was in vogue on the date of consideration of the case of the writ petitioner taking into consideration the date of death and the date of convening the meeting by the compassionate committee, i.e., on 07.07.2012 as per which the appointment is to be made on compassionate ground against the Class-III/Class-IV posts by the District Compassionate Committee/Compassionate Committee. Therefore, once the University has taken the plea about following the policy of the State Government in the matter of appointment on compassionate ground which admittedly as per the Circular dated 05.10.1991 is required to considered by the Compassionate Committee, therefore, there is no question of making appointment on compassionate ground through the examination conducted by the Jharkhand Staff Selection Commission. 13. Admittedly herein, the writ petitioner was appointed on the basis of the recommendation made by the compassionate committee under the authority of the Vice Chancellor of the concerned University by virtue of notification no. 110 of 2012 dated 06.10.2012. The writ petitioner gave his joining and started rendering his duty as also transferred from one place to another and has given joining in terms of the aforesaid order of transfer. The State Government has come with the specific stand that the Vice Chancellor is competent authority and if such appointment has been made against the sanctioned post, there is no reason to get an approval from the State Government. 14. This Court, therefore, in the entirety of the facts and circumstances, is of the considered view that the learned Single Judge while dismissing the writ petition, has not considered the facts in the right perspective as per the discussion made hereinabove, therefore, the order passed by the learned Single Judge suffers from patent illegality. Accordingly, the order passed by the learned Single Judge requires interference, as such, quashed and set aside. The notification no. 41 of 2014 dated 20.06.2014 by which the writ petitioner has been reverted to Class-IV post is also hereby quashed and set aside. In consequence thereof, the writ petition being W.P.(S) No. 449 of 2015 stands allowed. 15. Accordingly, the order passed by the learned Single Judge requires interference, as such, quashed and set aside. The notification no. 41 of 2014 dated 20.06.2014 by which the writ petitioner has been reverted to Class-IV post is also hereby quashed and set aside. In consequence thereof, the writ petition being W.P.(S) No. 449 of 2015 stands allowed. 15. The respondent-University is directed to accept the joining of the writ petitioner in Class-III post in pursuance of the notification no. 110 of 2012 dated 06.10.2012 within a period of four weeks from the date of receipt of copy of this order. 16. This Court, considering the stand of the State Government, directs the concerned department of the State Government to release the fund forthwith so that the salary of the writ petitioner be paid. 17. In the result, the instant appeal stands disposed of with the aforesaid observations and directions. 18. Pending interlocutory application(s), if any, also stands disposed of.