Jharkhand High CourtDr Prafulla Chandra Roy And Ors vs Human Resource Development on 26 November, 2015Author:Aparesh Kumar SinghBench:Aparesh Kumar SinghIN THE HIGH COURT OF JHARKHAND AT RANCHI
                      W.P.(S).No. 4277 of 2013

    1.   Dr. Prafulla Chandra Roy
    2.   Surendra Barai
    3.   Nitya Nand Mishra
    4.   Vinay Akhouri                      .......              Petitioners
                              Vrs.

    1. The State of Jharkhand through the Secretary / Principal Secretary,
        H.R.D Department, Govt. of Jharkhand, Ranchi
    2. The Director, Higher Education, Directorate, H.R.D Dept, Ranchi
    3. Vinoba Bhave University through its Registrar, Hazaribag
    4. The Vice Chancellor, Vinobha Bhave University, Hazaribag
    5. Jharkhand Public Service Commission through its Secretary, Ranchi
                                                      ..... Respondents
                            .......
    CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
    For the Petitioner            : M/s Manoj Tandon, Kumari Rashmi
    For the University            : Mrs. Indrani Sen Choudhary
    For the J.P.S.C               : M/s Rajesh Shankar, Abhay Prakash
    For the State                 : Mr. Lalan Kr. Singh, J.C to G.P.I

03/26.11.2015Heard learned counsel for the parties.There are 4 petitioners herein whose undisputed relevant

            details for considering the issue in controversy are quoted herein

            below, as culled out from para 9 of the counter affidavit filed by

            Respondent- University. Only the date of joining of petitioner

            no.4, Vinay Akhouri should be 24.10.1983, which is incorrectly

            shown as 24.10.1993 in the said Chart:-Petitioners of Markham College of Commerce, Hazaribag

            Name             Subject      Date of       Date of            Date of
                                          Joining     Absorption        sanctioning of
                                                          on                post
                                                      sanctioned
                                                         post1.Dr. Prafulla Chandra    History     3.10.1983   30.4.1986-2nd       28.2.1982
             Roy2.Surendra Barai       Philosophy   3.10.1983   30.4.1986-2nd       28.2.19823.Nityanand Mishra      Chemistry    5.12.1980   30.4.1986-1   st
                                                                         21.12.19844. Vinay Akhauri        Physics     24.10.1983 30.4.1986-1st        21.12.1984



                   Annexure-2 is their absorption notification issued by the

            respondent- Vinoba Bhave University (VBU) in compliance of the

            order passed by the Hon'ble Supreme Court in Civil Appeal No.

            6098/97 dated 12.10.2004 in the case of State of Bihar &

            others Vrs. Bihar Rajya M.S.E.S.K.K. Mahasangh & others-2-reported in (2005) 9 SCC 129 on the basis of the report and

recommendation      of    Hon'ble        Justice   S.C.    Agrawal   (Retd.)

Commission, by the Vice Chancellor in exercise of the power

vested underSection 4(1)14of the Jharkhand State Universities

Act, 2000. Admittedly, these petitioners have been absorbed on

the sanctioned post on 30.4.1986 and the college in question

was taken over as constituent college under 4 th Phase where the

cut off date for absorption was 30.4.1986.In the background of these relevant facts, the plea raised

by   the petitioners is for shifting of their substantive date of

appointment to their initial date of their joining in the light of the

judgment passed by the Hon'ble Supreme Court in the case of

Bihar Rajya M.S.E.S.K.K. Mahasangh & others(supra) and

the decision of the learned Division Bench of this Court in L.P.A.

No. 583 of 2009 dated 6.1.2012 in the case of Dr. Anant

Kumar     Akhauri        Vrs.   the       Vice     Chancellor,       Ranchi

University & others reported in 2012 (2) JCR 153 (Jhr)

(Annexure-6).Learned counsel for the petitioner has referred to the

directions passed in the case of Gokul Narayan Das in W.P.S.

No. 5310 of 2007 vide judgment dated 24.8.2011 upon the

respondent-     department          to      decide        the   petitioner's

representation for correction of date of absorption(Annexure-9

series).It is submitted by learned counsel for the petitioners that

substantive date of appointment of said Gokul Narayan Das was

also shifted and was considered for grant of promotion from the

initial date of joining under the 10 years time bound promotion

scheme vide notification bearing no. 105 dated 22.1.2014 of the

respondent- University. Learned counsel for the petitioner has

also referred from the rejoinder affidavit filed on 10.11.2014 at-3-para 9 where para 53 of the judgment rendered by the Apex

Court in the case of Bihar Rajya M.S.E.S.K.K. Mahasangh &

others(supra) has been quoted in order to submit that underSection 35want of prior approval from the State Government

would not be an impediment in the way of the University to

permit absorption of an employee working against the post.Learned counsel for the respondent- University and the

State have resisted the prayer of the petitioners by way of filing

counter affidavit. It is submitted that petitioners are not entitled

for shifting their date of substantive appointment to their initial

date of joining for the reason that they are not covered under

the Statutes for Regularization of the Service of Purely

Temporary Lecturers Appointed on or before 28.2.1982,

as approved by the Chancellor vide letter dated 29.1.1986,

which lays down the cut off date of 28.2.1982 and several other

conditions required to be satisfied. It is stated that the college in

question was taken over as constituent college in the 4th Phase

and the cut off date for absorption was 30.4.1986. It is also

submitted that the Hon'ble Supreme Court and the report of

Hon'ble Justice S.C. Agrawal Commission did not make any

directions / recommendation for absorption in such cases, in the

list with which petitioners are concerned from the initial date of

joining, though the college itself was taken over as constituent

college in the 4th Phase with the cut of date of absorption as

30.4.1986. They have also submitted that the reliance of the

petitioners upon the case of Gokul Narayan Das(Supra) would

not improve their case as any such instance cannot be relied in

derogation of what has been held by the Hon'ble Supreme Court

or the learned Division Bench in the cases of Bihar Rajya

M.S.E.S.K.K. Mahasangh & others(supra) and               Dr. Anant-4-Kumar Akhauri (supra) respectively.I have heard learned counsel for the parties and gone

through the relevant materials on record. It is to be observed

that in compliance with the judgment rendered by the Hon'ble

Apex Court on the recommendation of Hon'ble Justice S.C.

Agrawal Commission, absorption of the petitioners have been

done w.e.f 30.4.1986 as the college in question was taken over

as constituent college in the 4th Phase and cut off date for

absorption was 30.4.1986. The relevant para 53 relied upon by

the petitioners themselves would show that Hon'ble Supreme

Court clearly observed in the opening line of the said paragraph

that it would be sufficient for the Court to opine that Clause (14)

ofSection 4(1)operates in an exclusive field of considering and

taking decision on absorption of staff appointed regularly or

otherwise in an institution including an affiliated or non-affiliated

college which is to be taken over as constituent college under a

formal agreement reached between the University and the

Governing Body of that college. Therefore, learned counsel for

the petitioners cannot be allowed to read the said para out of

context in which such an observation was made relating to the

requirement of prior approval underSection 35for the purpose

of absorption of the Staffs of the college. In the case of       Dr.

Anant Kumar Akhauri (supra) also upon which reliance has

been placed by learned counsel for the petitioners, the learned

Division Bench of this Court had occasion to decide the issue in

context of the statute regarding 'Regularization of the services of

purely temporary lecturers appointed on or before 28.2.1982', as

approved by the Chancellor on 29.1.1986. Perusal of the statute

shows requirement of fulfillment of several conditions as

contained in para 1 there of which is quoted herein below:--5-"Para 1. A purely temporary lecturer, who is in
           the service of the University or of a college admitted
           to it as a Lecturer shall be appointed by the
           Syndicate or the Governing Body as the case may be,
           in the regular service of the University or the College
           concerned, if he fulfills the following conditions;(a) That, he had been appointed as a lecturer in
           the service of the University or the college concerned
           on purely temporary basis on or before the 28 th
           February, 1982 and has been since then continuing in
           the service of the University / College as such;[(b) that, he possesses at least a second class
           Master Degree in the subject](c) That, the post on which, the lecturer
           concerned had been appointed was duly sanctioned
           by the competent authority;[ or the proposal for sanction of the post had
           been submitted by the University/College to the State
           Government in the Education Deptt. on or before
           28.2.1982 which was subsequently approved by State
           Govt. or the said proposal is still under consideration
           of the State Govt.](d) that, the appointment had been made on
           the basis of advertisement of the post in the Indian
           Nation, Searchlight, Aryavarta, Pradeep or in any
           other daily newspaper of Bihar State or in a leading
           newspaper of India and from the panel recommended
           by a Selection Committee constituted by the
           University / College for the purposes, assisted by an
           expert or experts;(e) that, his work has been found to be
           satisfactory; and(f) that, the Chancellor, on the recommendation
           of a Committee constituted by him consisting of (i)
           the Vice-Chancellor / Pro-Vice-Chancellor of the
           University,(ii) an Officer nominated by the State
           Government and (iii) two experts nominated by the
           Chancellor , is satisfied that the candidate fulfills the
           conditions laid down above;Provided that the Chancellor, may in the case of
           individual hardship in respect of any lecturer
           appointed at the time of the starting of the college
           against the first post in the department, relax any of
           the conditions prescribed in clause(d) above.N.B- The conditions prescribed under clause(d)
           above shall be deemed to be fulfilled if the name of
           the lecturer concerned had ever been recommended
           by the Bihar Public/ University Service Commission
           for appointment to the post of lecturer or if his
           appointment as lecturer had ever been made in the
           post on the basis of advertisement and selection as
           required above".It also appears that the statute would not be applicable to

the temporary lecturer appointed after 28.2.1982. Therefore,

petitioners' case is to be guided in the matter of absorption on

the cut off date for absorption i.e. 30.4.1986 for the college in

question which was taken over as constituent college in the 4 th

phase. Though one of the petitioner i.e. petitioner no.3, Nitya-6-Nand Mishra had joined before 28.2.1982 but in his case the

             post of Chemistry was sanctioned on 21.12.1984.        Instance of

             Gokul Narayan Das (supra) therefore would not be of any help

             to the petitioners as the ratio laid down by the Hon'ble Supreme

             Court and the learned Division Bench of this Court on the point

             cannot be derogated from. Therefore, the plea of shifting of the

             date of substantive appointment based upon the aforesaid

             grounds by the petitioner is not made out on any tenable

             grounds.Learned counsel for the petitioner has relied upon a

             judgment rendered by the Single Bench of the Patna High Court

             in the case of Budhadeo Prasad Singh Vrs. The State of

             Bihar & others reported in [(2007) 1 BLJR 0041 (Pat)] to

             submit that initial date of joining of teacher in an affiliated

             college is to be counted for computing his qualifying service for

             promotion without any reference to the date on which State

             government gave permission for creation of post as sought by

             the University .Needless to say that it is for the petitioners to place

             reliance upon the said judgment to make such claim for

             promotion before the respondent- University which may be

             considered on its own merit. However, this Court, on the main

             plea of the petitioners relating to shifting of substantive date of

             appointment to their initial date of joining is not satisfied that

             any grounds are made out for interference.The writ petition is disposed of accordingly.(Aparesh Kumar Singh, J.)

A. Mohanty