Jharkhand High Court

Laxmi Narayan Singh vs The State Of Jharkhand Through The ... on 22 February, 2021

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       W.P. (S) No.4636 of 2018
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1. Laxmi Narayan Singh, aged about 57 years, son of late Kanhaiya Prasad Singh, resident of village Jhawar, P.O. Jhawar, P.S.Medini Nagar, District Palamau, PIN 822126, Jharkhand

2. Amar Nath Gupta, aged about 53 years, son of late Puneshwar Saw, resident of Raj Chainpur, P.O. and P.S. Chainpur, District-Palamau, PIN 822110 .... Petitioners Versus

1. The State of Jharkhand through the Secretary, Higher, Technical Education & Skill Development Department, Ranchi

2. Director, Higher Education, Higher, Technical Education & Skill Development Department, Ranchi

3. Nilambar Pitambar University, through its Registrar, having its office at Medini Nagar, P.O. and P.S. Medini Nagar, District Palamau

4. Ranchi University, through its Registrar, having its office at Ranchi University Campus, P.O.- G.P.O., P.S. Kotwali, Ranchi 834001, District-

            Ranchi
                                      ....    .... ....  Respondents

         CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

         For   the
             Petitioners : Mr. Sumeet Gadodia, Advocate
         For   the
             Respondent-State: Mr. Suresh Kumar, Advocate
         For   the

Nilambar Pitambar University: Dr. Ashok Kumar Singh, Advocate For the Ranchi University: Mr. A.K. Mehta, Advocate

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11/22.02.2021 Heard Mr. Sumeet Gadodia, learned counsel for the petitioners, Mr.

Suresh Kumar, learned counsel for the respondent-State, Dr. Ashok Kumar

Singh, learned counsel for the respondent-Nilambar Pitambar University and

Mr. A.K. Mehta, learned counsel for the respondent-Ranchi University.

2. This writ petition has been heard through Video Conferencing in

view of the guidelines of the High Court taking into account the situation

arising due to COVID-19 pandemic. None of the parties have complained

about any technical snag of audio-video and with their consent this matter

has been heard.

3. The petitioners have approached this Court for direction upon the

respondents to absorb the services of the petitioners on Class-III post of

Non-teaching cadre of Sri Sadguru Jagjit Singh Namdhari College, Garhwa.

Prayer to extend all consequential benefits to the petitioners has also been

made in the writ petition.

4. The petitioner no. 1 was appointed in Sri Sadguru Jagjit Singh

Namdhari College, Garhwa on the post of Routine Clerk/Assistant being a

Class-III employee on 12.12.1986, thereafter he submitted his joining on the

said date in the aforesaid college. The appointment of the petitioner no. 1

was duly approved in the meeting held by the Governing Body of the

College on 30.01.1987. The petitioner no. 2 was appointed in Sri Sadguru

Jagjit Singh Namdhari College, Garhwa on the post of Accounts

Clerk/Assistant being a Class-III employee on 10.12.1986. The appointment

of the petitioner no. 2 was duly approved in the meeting held by the

Governing Body. The petitioners were discharging their duties on Class-III

posts in Sri Sadguru Jagjit Singh Namdhari College, Garhwa. The certificate

to that effect was issued by the Principal of the said college evidencing the

said fact. In the year, 2005, services of the petitioners along with other

similarly situated non-teaching employees who were appointed in the said

college prior to the cut-off date i.e 31.03.1987, were discontinued by the

respondent-University and the services of the petitioners along with other

similarly situated employees were not absorbed by the respondent-

University. The said college was established in the year, 1973 and was

affiliated with the Ranchi University. Pursuant to decision of the erstwhile

State of Bihar, said college was converted into a Constituent College of

respondent no 4-Ranchi University w.e.f. 1.04.1987 and the cut-off date for

the said college was fixed as 31st March, 1987. The petitioners were

working in the said college on Class-III post of Routine Clerk/ Accounts,

Clerk/Assistant prior to cut-off date and the petitioners were entitled for

absorption of their services under the respondent-Ranchi University. Several

colleges were converted into Constituent colleges at the relevant point of

time and disputes arose with respect to absorption of Teaching and Non-

teaching staff of the said college. The disputes with respect to

regularization of employees working in one or the other respective colleges

prior to their taking over as Constituent colleges, were initially referred to a

Three-Members Committee of the respective Universities. The said Sri

Sadguru Jagjit Singh Namdhari College, Garhwa prior to cut-off date of

taking over of the college, there were altogether 114 sanctioned posts of

Teaching Staff and altogether 66 sanctioned posts of Non-Teaching Staff, i.e

49 sanctioned posts in Grade-III and 17 sanctioned posts in Grade-IV. The

petitioners along with similarly situated persons were considered for

appointment by the Governing Body of the said college on the posts for

which recommendations were already made by the college to the University

prior to the cut-off date. The Ranchi University has recommended for

sanction of 75 posts of non-teaching staff prior to the cut-off date, which

comprised of 34 posts of Grade-III employees and 41 posts of Grade-IV

employees. The dispute with regard to absorption of one or the other

Teaching and Non-Teaching staff working in converted Constituent colleges

was, ultimately travelled upto the Hon'ble Supreme Court. The Hon'ble

Supreme Court constituted One Member Commission of Hon'ble Mr. Justice

S.C. Agarwal (Retd.) to examine the matter and to submit its report. The

Hon'ble Justice S.C. Agarwal Commission examined in detail the validity of

appointment of one or the other non-teaching staff made in Sri Sadguru

Jagjit Singh Namdhari College, Garhwa. The Hon'ble Mr. Justice S.C.

Agarwal Commission noticed and gave a finding that the respondent-Ranchi

University vide its letter dated 11.02.1987 i.e prior to the cut-off date had

already recommended for sanction of 75 posts of non-teaching staff which

comprise of 34 posts of Class-III employees and 41 posts of Class-IV

employees and had specifically given a finding that said 75 posts were also

duly sanctioned by the State Government. Adequate details with regard to

non-teaching staff, who were appointed on the recommended posts were

not placed before Justice S.C. Agarwal Commission and in that view of the

matter, Justice Agarwal Commission submitted report. Thereafter, the

Hon'ble Supreme Court constituted another committee of Justice S.B. Sinha

(Retd.) Justice S.B. Sinha Commission considered the case for regularization/

absorption of the employees after hearing in detail and submitted report.

The report of Justice S.B. Sinha Commission has been accepted by the

Hon'ble Supreme Court however, the persons who have not been able to

approach the Justice S.B. Sinha Commission have contended before the

Hon'ble Supreme Court and the Hon'ble Supreme Court directed to approach

the High Court for such relief. Pursuant thereto, the petitioners have

approached this Court.

5. Mr. Sumeet Gadodia, learned counsel appearing on behalf of the

petitioners assailed the impugned action of the respondent-Nilambar

Pitambar University on the ground that Justice S.B. Sinha Commission has

considered entire aspect of the matter in detail wherein Form-II, the names

of the petitioners who are required to be absorbed was disclosed by the

Ranchi University and after much deliberation the Commission has come to

the conclusion that Form-II is genuine. Leaned counsel for the petitioners

further submits that pursuant to that acceptance of the Justice S.B. Sinha

Commission Report, the persons whose name is appearing in Form-II, have

been appointed whereas the petitioners have been left out and this action is

discriminatory in nature. The name of the petitioners are also figured in

Form-II. He submits that the Hon'ble Supreme Court has accepted the

report of Justice S.B. Sinha Commission whereas the names of the

petitioners are figured and the petitioners are entitled for absorption.

Learned counsel for the petitioners draws the attention of the Court to

several observations made by the Justice S.B. Sinha Commission and

submits that the case of the petitioners is required to be absorbed in terms

of observation of Justice S.B. Sinha Commission Report and the Hon'ble

Supreme Court. He submits that by way of notification dated 26.07.2018

persons whose names appeared in Form-II, have been absorbed and the

petitioners have been arbitrarily not absorbed.

6. Per contra, Dr. Ashok Kumar Singh, learned counsel appearing on

behalf of the respondent-Nilambar Pitambar University vehemently opposes

the prayer of the petitioners. By way of drawing the attention of the Court to

several annexures of the writ petition, he submits that the petitioners' initial

appointment itself in cloud that is why the University after scrutinizing

records have not recommended the name of the petitioners for absorption.

He refers to Annexure 1, 2, 3 and 4 of the writ petition and submits that

these are not appointment letters. There is no document annexed with the

writ petition with regard to 12.12.1986 proceeding of the Governing Body of

the college. He refers to annexure II/B which is at page 72 of the writ

petition and submits that sanctioned posts have been disclosed therein

where the posts on which petitioners were appointed, is not there. He

submits that the petitioners have not worked with the said college for a

single day and there is no acquaintance roll and salary has also not been

paid to the petitioners. He vehemently disputes the argument of the

petitioners and submits that all these facts he has disclosed on affidavit and

on these grounds, the writ petition is fit be dismissed.

7. Mr. A. K. Mehta, learned counsel appearing on behalf of the

respondent-Ranchi University draws the attention of the Court to the Justice

S.B. Sinha Commission report and submits that Ranchi University was heard

by the Justice S.B. Sinha Commission and pursuant thereto observation was

made that Form-II of non-teaching staff has admitted to be genuine. He

submits that the University has not been able to take any decision prior to

that and the Form-II was submitted by the Ranchi University whereas the

persons who were working, have been disclosed before the Justice S.B.

Sinha Commission pursuant thereto Justice S.B. Sinha Commission accepted

the genuineness of the Form-II. He further submits that now the said

college is affiliated with Nilambar Pitambar University and there are no

documents with the Ranchi University to submit beyond the report of S.B.

Sinha Commission.

8. Mr. Suresh Kumar, learned counsel appearing on behalf of

respondent-State submits that the State has filed counter-affidavit in which

it has been disclosed that the University has not recommended the name of

the petitioners and in that view of the matter the role of the State is limited

at this stage.

9. Having heard the learned counsel for the parties, the Court has

gone through the materials on record. In the light of above facts and

submission of the learned counsel for the parties, only question is required

to be answered by this Court as to whether after acceptance of Form-II by

the Justice S.B. Sinha Commission which has been accepted by the Hon'ble

Supreme Court can it be said that the appointments of the petitioners were

not genuine. It appears that the petitioners were appointed w.e.f.

12.12.1986 and 10.12.1986 respectively. Documents at Annexures 1, 1/1,

2, 2/1, 3, 3/1 suggest that the petitioners were working in the said college.

The Secretary of that college has certified about the working of the

petitioners disclosing those documents. The University is disputing that

documents but no document with regard to that effect has been brought on

record by way annexing in the counter-affidavit and only averments have

been made in the counter-affidavit whereas petitioners have brought the

documents vide Annexures 1, 1/1, 2, 2/1, 3, 3/1 to the writ petition with

regard to working in the said college. The argument advanced by the

learned counsel for the respondent-Nilambar Pitambar University was

considered by the Hon'ble Justice S.B. Sinha Commission and that time

Ranchi University was represented before S.B. Sinha Commission, the

argument was verbatim of Nilamber Pitamber University before the

Commission by Ranchi University. For correct appreciation of the argument

of the University, certain observations of that Commission is being

reproduced here-in-below:-

" When the matter was heard on 12.09.2014, Mr. Rajiv Singh, the learned counsel appearing on behalf of the University had raised the following contentions:

(i). The Claimants have not been working.

(ii). The University has no record with regard to continuity of their services.

(iii). The University has also no record with regard to payment of their salary.

The learned counsel however contended that the names of the applicants are contained in Annexures, but the University was required to verify the letters.

Pursuant to or in furtherance of the leave granted by this Commission to the University to verify the genuineness of the documents annexed to the Claim Petition.

An affidavit affirmed by Sh. Amar Kumar Chaudhary, the Registrar of Ranchi University, Ranchi Jharkhand has been filed, wherein the genuineness of the Prapatra-II containing the details of non- teaching employees working on the sanctioned posts and the University Letter No.B/163 dated 16.01.2005 and the reply of the Principal of SSJN College vide reference No. NCG/30/05 dated 19.01.2005 along with annexures containing the list of non-teaching employees of the said college has been admitted to be genuine.

In the said affidavit, it has furthermore been contended that pursuant to a direction issued by the Hon'ble Jharkhand High Court dated 11.02.2009 passed in W.P.(S) No. 6372 of 2007 and other cases whereby and whereunder permission was granted to the writ petitioners therein to file a representation in view of the annexures attached to the petition specially Annexure 13 and 14 appended thereto, the University has passed a reasoned order on 11.07.2009

rejecting the representations of the Claimants.

The Claimants herein have filed a contempt petition before the Hon'ble Jharkhand High Court being Contempt Case (Civil) No. 421 of 2009 and other cases.

While opining that there was no willful disobedience of the order passed by the High Court dated 11.07.2009 liberty was granted to the Claimants herein to challenge the said order in accordance with law.

It is not in dispute that after the disposal of the matter by the Hon'ble Supreme Court of India in the Mahasangh's case, the Vice Chancellor of the University on or about 16.01.2005 sought for a report from the Principal of the College as regards the status of the concerned non-teaching staff pursuant whereto or in furtherance whereof by a letter dated 19.01.2005, the names of all the non- teaching staff who had been working in the said college on the said date was sent to the University.

The University admittedly sat over the said matter for a long time, despite the fact that the same involved the question of livelihood of Class-III and Class IV employees of the college and now it appears that only pursuant to the order of the Hon'ble Jharkhand High Court dated 11.02.2009, a reasoned order was passed on 11.07.2009. This Commission asked a pointed question Mr. Rajiv Singh as to on what basis the report of the Principal of the College was ignored whereupon on instructions Mr. Rajiv Singh submitted that various committees had been constituted by the Universities. The learned counsel, however, very fairly stated that in the year 1998 a committee went into the question as to whether the teaching staff of the college have been working in the college or not, but no report is available in the record of the University with regard to the non-teaching staff. It is, therefore, difficult to accept the contention of the University.

It is a matter of grave concern that the Ranchi University did not file the actual 'Prapatra II' before the Justice Agrawal Commission. It is also a matter of grave concern that despite the fact that it had an opportunity to rectify its mistake, it failed and/or neglected to do so, presumably to save the skin of the concerned officers. The University, for all intent and purport, has failed to exercise its

jurisdiction under Section 4(1) (14) of the Bihar State Universities Act, 1976 so far as the Claimants are concerned.

The said provision as interpreted by the Hon'ble Patna High Court and upheld by Hon'ble the Supreme Court of India in the case of Mahasangh clearly postulates that it was for the University to pass an appropriate order and not for the State Government in terms thereof, and for the said purpose even the services of those who had been irregularly appointed could be taken over. Thus, there cannot be any doubt or dispute that the University was obligated to take into consideration all relevant facts in the matter of absorption of the teaching and non-teaching staff of a college which has been converted into its constituent unit. If the entire document which was ' Prapatra II' stands admitted, this Commission fails to see any reason as to why an appropriate order could not be passed by the University immediately thereafter. Evidently, the purported reasoned order dated 11.7.2009 was passed without taking into consideration the relevant materials and thus, the University must be held to have misdirected itself in law.

The University, as noticed heretobefore, in no uncertain terms admitted that the Claimants herein had been working in the college on the date of conversion. The University, therefore, ought to have verified as to whether they were validly appointed or not. If the concerned employees were not being paid their due salaries and had been paid certain ad hoc amounts, the same by itself cannot be ground to deprive them from their legitimate claims. In the peculiar facts and circumstances of this case, this Commission is of the opinion that as admittedly the posts are still vacant, the Claimants may be absorbed in the services of the University.

So far as payment of arrears of salary is concerned, the University may pass appropriate order on the basis of the actual services rendered by each of the employee."

10. Justice S.B. Sinha Commission after considering the affidavit

of one Amar Kumar Choudhary for genuineness of Form-II where the name

of petitioners alongwith others are figured has come to the conclusion that

the same is genuine document. This genuineness report of Justice S.B.

Sinha Commission has been accepted by the Hon'ble Supreme Court in Civil

Appeal No. 2703 of 2017 (Annexure-13) at paragraph no. 20 which is quoted

here-in-below:-

"20. In our opinion, the incumbents with respect to whom the favourable direction has been made by Justice Sinha, have to be acted upon by State Governments, and as such, they be implemented forthwith without any further delay within the outer limit of three months".

In paragraph 21 of the said judgment, liberty was given to the

persons to approach the High Court whose name was not found to be fit for

acceptance by the Commission.

The argument of non-working of some of the candidates was

considered by the Hon'ble Supreme Court in para 17 of the said judgement

which is quoted here-in-below:-

"17. Coming to the third objection raised with respect to certain candidates that they were not, in fact, working on the date of taking over. The Commission has taken into consideration these aspects and has clearly recorded findings only after going into the factual aspects of individual matters on the basis of documents only then cases have been decided. Thus, we find no infirmity or illegality in the same."

11. The petitioners have been compelled to move before this

Court in view of the fact that although the petitioners were impleaded as

party-respondents in the said civil appeal however, they have not been able

to prove that their case has not been considered by the Hon'ble

Commission. Pursuant thereto in para 21 liberty of the aforesaid judgment,

liberty was provided to the persons. It is not the case that the petitioners'

name is not figured at Form-II, which has been affirmed by Justice S.B.

Sinha Commission and by the Hon'ble Supreme Court. The persons whose

names are figured at Form-II, they have been absorbed whereas the

petitioners have been left out. The University is model employer and in view

of the observations of Justice S.B. Sinha Commission and the Hon'ble

Supreme Court, discrimination cannot be allowed to be continued with