- (1.) HEARD learned counsels for the petitioner as well as University and the State.
(2.) THE petitioner is aggrieved by the reduction of his pay scale from the scale of Rs. 16,400 -22,400 for the post of Professor to 12,000 -18,300 for the post of Reader vide Annexure -5 and 5/1, issued by the Department of Human Resources Development, (Higher Education), Government of Jharkhand under the signatures of Deputy Director (Higher Education) and Deputy Secretary, (Higher Education) dated 25th February, 2003. By the aforesaid order the provisional pay of the University employees' including the petitioner, have been fixed in U.G.C. Scale w.e.f. 1st of January, 1996. It is the contention of the petitioner that vide Annexure -1 dated 1st of January, 1979, he was appointed as a Lecturer on temporary basis vide notification issued by the Registrar of the Ranchi University in exercise of the powers conferred under Bihar State Universities Ordinance No. 3,1978 for a period of six months. The petitioner thereafter continued as a temporary lecturer till he was appointed on regular basis vide notification contained at Annexure 1/1 dated 7th January, 1982 issued by the Registrar of the Ranchi University where his name is reflected at serial no. 29 amongst 61 persons. The petitioner was thereafter granted promotion on the post of Reader vide notification contained at Annexure -2 dated 16th January, 1989 w.e.f 3rd January, 1987 subject to the approval of the University Service Commission in the pay scale of Rs. 1200 -1900 together with other allowances as admissible under the University Rules on completion of eight years of service as Lecturer. Vide Annexure -3 dated 24th February, 2000, Ranchi University promoted the petitioner to the post of University Professor under relevant statute of 16/25 years Time Bound Promotion Scheme on the recommendation of Bihar State University (Constituent Colleges) Service Commission, Patna dated 22nd December, 1999 and also on the approval of the Syndicate in its meeting held on 5th February, 2000. The petitioner was given promotion on the post of Professor w.e.f. 3rd January, 1995 while he was posted as Principal, G.L.A. College, Daltonganj treating his service to be of 16 years from his first date of appointment in the year 1979. The petitioner started receiving the scale of Professor under the unrevised pay scale of University Professor. However, by the pay revision exercise done vide Annexure -5 by the Department of HRD, (Higher Education), Government of Jharkhand, the petitioner was granted the scale of Reader i.e. 12,000 -18,300/ - w.e.f. 1st of January, 1996, although according to the petitioner his pay ought to have been fixed in the scale of Rs. 16,400 to 22,000/ - i.e. scale of University Professor. The petitioner has approached this Court after his representations have not been heeded to vide Annexure -6.
(3.) LEARNED counsel for the petitioner has submitted that the duly constituted statutory body i.e. the University Service Commission (Constituent Colleges), in exercise of statutory powers recommended the case of the petitioner and others for promotion to the post of Professor under 16/25 years Time Bound Promotion Scheme acting upon which Ranchi University issued consequential notification dated 24th February, 2000, granting him promotion on the post of Professor. However, the State Government while granting the revision of pay as per the UGC recommendation has chosen to reduce the scale of the petitioner to that of Reader by the impugned order contained at Annexure -5. It is submitted that although the impugned order Annexure -5, does not reflect reasons of such reduction of scale but the affidavits filed on behalf of the State justified the same on the ground that the petitioner's services ought to have been treated as permanent from the date of his regular appointment in the year 1982 and not treating his service on temporary basis from January, 1979. 2012(2) JCR 153 (Jhr.). It is submitted that in the case of similarly situated person, the Division Bench of this Court has categorically held that if the person has been appointed on the post of temporary Lecturer on a sanctioned post for six months and has continued on the said post for more than 2 years till the services were absorbed by the University on regular basis, he shall be entitled to the benefit of counting the period of service from the date of his initial appointment on temporary basis. 6. Learned counsel for the Respondents -University has defended the grant of promotion to the petitioner on the post of Professor on the basis of the recommendation of the University Service Commission, but has submitted that the University has only notified the revised pay scale acting upon the direction of pay fixation made by the State Government vide Annexure -5. 7. Learned counsel for the Respondents -State, on the other hand, by relying upon the averments made in their counter affidavit, has supported the impugned pay fixation, whereby the pay scale of the petitioner has been fixed in the scale of Reader i.e. 12,000 -18,300/ - by submitting that his initial appointment has to be treated from 1982 when he was granted regular appointment and on the basis of which the petitioner would not complete 16 years of service when he was granted promotion to the post of Professor in the year 1995. In these circumstances, the Respondents -State has justified its action based upon the powers conferred upon it under the Universities Act i.e. Section 35(3). It is further submitted on behalf of counsel for the Respondents -State that the wrong committed by the Universities, cannot be blindly approved by the State Government which has power under the relevant provisions of the Act to verify whether the sanction of post/promotion to the employee of the University concerned is in accordance with the statutes of the University and the Universities Act. In these backgrounds, learned counsel for the State submitted that taking into account the period of temporary service for grant of promotion to the post of Reader and Professor in the case of the petitioner is not in accordance with law and therefore the State Government has rightly fixed the scale of pay of the petitioner in the scale of Reader i.e. 12,000 -18,300/ - 8. Learned counsel for the State has relied upon the judgment delivered by the Patna High Court which is annexed as Annexure -A to the Supplementary Counter Affidavit and the judgment of the Hon'ble Supreme Court rendered in the Special Leave Petition against the said Division Bench judgment of the Patna High Court vide Annexure -B to the affidavit. By referring to the aforesaid judgments, learned counsel for the Respondents -State has submitted that it has been held therein that in case a teacher was holding the post of Lecturer validly and legally on the date of his absorption, he would be entitled to the benefit of the entire previous service. There can be no quarrel with the aforesaid proposition of law which has been declared by the Patna High Court in the aforesaid judgment. Moreover, the Division Bench of this Court in the case of Dr. Anant Kumar Akhouri referred to (supra) has taken into account the judgment delivered by the Hon'ble Supreme Court in the case of The Direct Recruit Class -II Engineering Officers' Associations and Ors. -Vs. - State of Maharashtra and others reported in AIR 1990 SC 1607 and held that if the appointee has continued in service uninterruptedly until regularization of service made in accordance with Rules the period of officiating service shall be counted. 9. I have heard learned counsel for the parties at length and gone through the relevant materials on record. The issue involved in the present writ application is whether the period of temporary service from January, 1979 till January, 1982 in respect of the petitioner can be taken into account for the purpose of counting his services for granting him promotion to the post of Reader or Professor under the relevant Universities Statutes in question. 10. In the present case, the initial appointment of the petitioner was made in exercise of the powers under the Universities Act by order of the Vice Chancellor issued under the notification contained at Annexure -1. The petitioner thereafter continued on the said post till he was appointed on regular basis again by the University on the recommendation of the University Selection Committee by the order of the Vice Chancellor. Therefore the period since 1979 to 1982 cannot be discounted from his service as having been done illegally or an irregular manner. 11. From perusal of the judgment rendered by the Division Bench of this Court in the case of Dr. Anant Kumar Akhouri referred to (supra), it appears that it has been categorically held that if the person concerned has remained in temporary service after six months and if his services was not found or declared illegal, thereafter, he has been regularized by proper regular appointment, the person/employee concerned should not be denied the benefit for the period of temporary service while counting his service for the purpose of promotion to the post of Reader or Professor under the relevant Universities Statutes. 12. The relevant paragraph nos. 6, 7 and 8 of the judgment referred by the Division Bench of this Court are being quoted herein -below: - "6. The judgment of the learned Single Judge of this Court rendered in the case of Dr. (Mrs.) Rafat Ara v. Ranchi University and Ors.,2009 (1) JCR 380, considered of this matter in detail and ratio of that decision is also in favour of the writ petitioner. The writ petitioner also submitted that for the purpose of appointment on the post of temporary Lecturer, recommendation of the Public Service Commission was not required, which is clear from the Bihar State University (Constituent Colleges) Service Commission, 1987, wherein Section 11 rules out the necessity of obtaining recommendation of the Public Service Commission, if the appointment is given on the sanctioned post for six months. Therefore, in this case it is fully proved that the writ petitioner was given appointment against sanctioned post and his appointment though was for six months was extended and continued for more than two years and accepted to be legal and valid for all purposes at the time of absorbing the writ petitioner. Hon'ble Supreme Court in the case of The Direct Recruit Class -II Engineering Officers' Association and Ors. v. State of Maharashtra and Ors. AIR 1990 SC 1607, held that at the time of considering the question of seniority, period of initial appointment, if not made according to rules, the appointee then continued in service uninterruptedly until regularization of service, the period of officiating service shall be counted. At the cost of repetition, it may be said that the petitioner's service was not found or declared illegal after six months of his appointment after 23.2.1978, but it has been accepted to be legal service. Therefore, the judgment relied by the counsel appearing for the State delivered in the case of LPA No. 1495/2001 Dr. Kishore Kumar and Anr. v. The State of Bihar and Ors., and S.L.P. No. 24570/2008 decided on 20.10.2008, in fact, favours the writ petitioner and not the respondents, wherein also it has been observed that legal service of the temporary employees is required to be counted and the Hon'be Supreme Court in the order dated 20.10.2008 clearly held that where service is regularized and held to be legal, such issue cannot be reopened. 7. In view of the discussion made above, we do not find any force in the submission of the learned counsel for the State that clause 4 of the Statute provides that how increment will be admissible to the absorbed employee. That clause might have application to the limited extent for grant of increment but so far as initial date of appointment is concerned, that is required to be taken from the initial date of appointment of the petitioner. In view of the above reasons, we are of the considered opinion that there was no need for the learned Single Jude to wait for the decision of the Committee and the decision, if any, taken by the Committee, which, according to the learned counsel for the petitioner, has been taken ignoring the decision given in the case of Dr. (Mrs.)Rafat Ara v. Ranchi University and Ors. 2009 (1) JCR 380, will not render this LPA futile and the petitioner was entitled to the full relief in the writ petition. Therefor, this L.P.A. is allowed and it is made clear that initial date of appointment of writ petitioner be 23.2.1978 and the respondents may proceed accordingly. 8. Learned counsel for the respondent -University submitted that Screening Committee took the decision, the record of which has been called and shown to us and indicates that Screening Committee has rejected the candidature of the writ petitioner on the ground of non -completion of 16 years service at the relevant time. That decision of the Committee, in view of the aforesaid judgment cannot remain in force and the petitioner's case is required to be reconsidered by accepting his initial date of appointment to be 23.2.1978.  13. The petitioner was initially appointed vide notification dated 1st January, 1979 as a Lecturer on temporary basis for six months thereafter he joined on the said post on 3rd January,1979. Subsequently university granted him regular appointment vide Annexure - 1/1 dated 7th January, 1982 based upon the recommendation of the University Selection Committee on the post of Lecturer in the subject of Chemistry in the college concerned. The petitioner has subsequently being granted promotion on the post of Reader and on the post of Professor on the recommendation of University Service Commission vide Annexures - 2 and 3. The petitioner pursuant to the notification dated 24th February, 2000 was granted promotion to the post of Professor w.e.f. 3rd January, 1995 treating his service to be 16 years from his initial date of appointment. There has been no break in service of the petitioner since his initial appointment in January, 1979. The University has also been granting the benefits of continuous service and promotion on the basis of recommendation of the Universities Service Commission which is statutory body. The Division Bench of this Court has considered the issue squarely in the judgment quoted hereinabove. 14. In these circumstances, the reduction of pay scale of the petitioner to the scale of Rs. 12,000 -18,300/ - cannot be sustained in law and that part of Annexure -5 and the consequential notification dated 5.3.2003 issued by the Registrar, Ranchi University is quashed. The Respondents -State are directed to re -fix the scale of the petitioner on the post of Professor from the relevant date i.e. 3rd January, 1995 taking into account the pay revision as implemented from time to time in respect of the universities employees and the University shall issue consequential notification thereafter. The petitioner would be entitled to all other consequential benefits arising out of the fixation of pay including difference in the arrears of pay on the revised scale. It is expected that the aforesaid exercise be concluded within a reasonable time preferably within a period of 4 months from the date of receipt/production of a copy of this order. 15. The writ petition is accordingly allowed in the aforesaid term. Petition allowed.;