Jharkhand High Court
Vinoba Bhave University vs The State Of Jharkhand Through The ... on 28 September, 2022
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.786 of 2019
With
I.A. No.10841 of 2019
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1. Vinoba Bhave University, through its Vice Chancellor,
Hazaribag, Post Office and Police Station- Hazaribag,
District-Hazaribag.
2. The Registrar, Vinoba Bhave University, Post Office and
Police Station- Hazaribag, District-Hazaribag.
... ... Appellants
Versus
1. The State of Jharkhand through the Principal Secretary,
Human Resource Department, Government of
Jharkhand, Project Bhawan, H.E.C., Dhurwa, Post Office
Dhurwa, Police Station, Jagannathpur, District-Ranchi.
2. Principal, Markham College of Commerce, Hazaribagh,
Post Office and Police Station-Hazaribagh, District-
Hazaribag.
3. Basudeo Gope, Son of Sri Gopal Mahto, Resident of
Village-Singhani Post Office-Korrah, Police Station-
Muffasil, District-Hazaribagh.
... ... Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellants : Mrs. Indrani Sen Choudhary, Advocate
For the Resp.-State : Mr. Munna Lal Yadav, SC (L&C)-III
For the Resp. No.2 : Ms. Srija Choudhary, Advocate
For Resp. No.3 : Mr. Anil Kumar Sinha, Sr. Advocate
: Mr. Raunak Sahay, Advocate
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C.A.V. on 20.07.2022 Pronounced on 28.09.2022
Per Sujit Narayan Prasad, J.
The matter has been heard through video conferencing
with the consent of learned counsel for the parties. They have
no complaint about any audio and visual quality.
2. The instant intra-court appeal preferred under Clause-10
of Letters Patent is directed against the order/judgment dated
29.08.2019 passed by the learned Single Judge of this Court in
W.P.(S) No.4471 of 2014, whereby and whereunder, while
allowing the writ petition, the respondents have been directed
to grant notional promotion to the writ petitioner w.e.f.
02.01.2001 on the post on which the writ petitioner was
working as Head-Clerk by taking decision in this regard, but
not later than 12 weeks from the date of receipt/production of
copy of the order.
3. The brief facts of the case which are required to be
enumerated reads as under :-
As per the case of the writ petitioner, he was appointed on
the post of Clerk (Grade-III) on 10.07.1983 by the Governing
body of the College, namely, Markham College of Commerce,
Hazaribagh, which according to the writ petitioner, was made
against the sanctioned post and accordingly, the writ petitioner
has joined the said post on 12.08.1983.
The Markham College of Commerce became constituent
College of the University w.e.f. 31.10.1986. The Vinoba Bhave
University, under whom, the Markham College has come vide
memo no.1297/2005 dated 16.09.2005, by which, the services
of non-teaching employees including the writ petitioner was
regularized in compliance of the order passed by the Hon‟ble
Supreme Court in Civil Appeal No.6098 of 1997 as the writ
petitioner was identified under Annexure-1-B of the report of
the College by Hon‟ble Justice S.C. Agarwal Commission. The
name of the writ petitioner stands at Sl. No.13 of the said
notification and the writ petitioner was absorbed w.e.f.
12.08.1983, i.e., the initial date of joining on the post. The writ
petitioner, since, was allowed to work by way of officiating
charge, to the post of Head Clerk/Accountant, as such, the
College has recommended the name of the writ petitioner in
compliance to the letter issued by the University dated
21.12.2007, asking to take steps for promotion to the post of
Head Clerk/Accountant. But according to the writ petitioner,
no steps have been taken.
The grievance of the writ petitioner is that although, he is
working on the post of Head Clerk since January, 2001 in
officiating capacity, having eligibility qualification to hold
the said post, but, he has not been granted promotion and
therefore, the writ petition has been filed being W.P.(S) No.4471
of 2014 but during the pendency of the said writ petition, the
writ petitioner has already superannuated from his service.
The writ petition has been heard, after the
superannuation of the writ petitioner and the learned Single
Judge after taking into consideration the fact that the writ
petitioner was allowed to officiate on the post of Head Clerk
from January, 2001, therefore, passed an order holding the writ
petitioner entitled for promotion to the post of Head Clerk, the
said order is the subject matter of the present intra-court
appeal having been preferred by the Vinoba Bhave University.
4. Mrs. Indrani Sen Choudhary, learned counsel appearing
for the appellant-University has submitted that the order
passed by the learned Single Judge is without appreciating the
fact that the writ petitioner was not at all entitled for promotion
to the post of Head Clerk merely on account of the fact that the
College has allowed him to perform duty on the post of Head
Clerk. Further, he, even otherwise also is not entitled to hold
the post of Head Clerk, for the reason that, he was absorbed in
service as a „Sorter‟ and as per the hierarchy, the next higher
post on the basis of the higher pay scale is the post of the
Clerk, but, the writ petitioner having not been granted
promotion to the post of Clerk, now the promotion to the post of
Head Clerk has been granted, therefore, on that ground also,
the learned Single Judge has committed error.
The further ground has been agitated that if the order
passed by the learned Single Judge will remain to be intact, the
consequence would be that the other eligible persons who
became eligible, as also the senior will lose their chance for
promotion to the post of Head Clerk, although, the writ
petitioner has retired by now, but, a principle will be laid down
that even on the basis of officiating to the higher post, a person
will be held entitle for grant of regular promotion, which is
nothing but contrary to the rules of promotion and therefore,
the order passed by the learned Single Judge on the aforesaid
background is not sustainable in the eye of law, as such, the
same is fit to be quashed and set aside.
5. Per contra, Mr. Anil Kumar Sinha, learned Senior Counsel
appearing for the writ petitioner assisted by Mr. Raunak Sahay,
has submitted that it is incorrect on the part of the University
that the writ petitioner was appointed as „Sorter‟, rather, he was
all along working as Clerk having been appointed in Class-III
and as such, the post of Head Clerk is immediate hierarchy of
the post of Clerk, therefore, the writ petitioner was allowed to
work as Head Clerk w.e.f. 02.01.2001 and considering his
eligibility, has continued with the said post and
recommendation has been made by the Principal of the
concerned College for approving the decision of the University
to promote the writ petitioner as Head Clerk.
6. According to the learned Senior Counsel, when such
grievance has not been fulfilled, the writ petitioner has
preferred writ petition before this Court being W.P.(S) No.4471
of 2014 and the learned Single Judge after taking into
consideration the fact that the writ petitioner was working in
the Class-III post and the University has allowed the writ
petitioner to work in the officiating capacity, as Head Clerk,
therefore, due recommendation has been made to the
University for its approval but the same has not been approved
and as such, the learned Single Judge after considering the
long working period of the writ petitioner as Head Clerk,
although, in the officiating capacity has passed an order
holding the writ petitioner entitled for notional promotion to the
post of Head Clerk, therefore, there is no error in the order
passed by the learned Single Judge and as such, the order
passed by the learned Single Judge may not be interfered with.
7. We have heard the learned counsel for the parties,
perused the documents available on record as also considered
the finding recorded by the learned Single Judge in the
impugned order.
8. This Court, before entering into the legality and propriety
of the impugned order, deems it fit and proper to refer
undisputed fact which is important for proper adjudication of
the lis.
9. Undisputedly, when the writ petitioner was appointed in
the Markham College of Commerce, Hazaribagh, the said
College was under the private management, wherein, the writ
petitioner was shown to have worked as Class-III employee. The
College has been taken over. The College with respect to
dispute relating to regularization of teaching and non-teaching
staffs has travelled to the Hon‟ble Supreme Court, wherein, a
Committee was constituted under the Chairmanship of Hon‟ble
Justice S.C. Agarwal in an order passed by the Hon‟ble
Supreme Court in Civil Appeal No.6098 of 1997, disposed of on
12.10.2004, in compliance thereof, the Vice-Chancellor, in
exercise of powers vested in him under the provisions laid down
under Section 4(14) of the Jharkhand State Universities Act,
2000 has passed an order to absorb the services of the non-
teaching employees of the Colleges converted into constituent
units in 4th phase against posts sanctioned before the cut-off
date, i.e., 30.04.1986 and identified under Annexure-I-B of the
report of the Colleges by Justice S.C. Agarwal Commission. The
name of the writ petitioner has been shown at Sl. No.13, having
the designation of „Sorter‟, showing the date of joining to be
12.08.1983 and the date of absorption as 12.08.1983, as would
appear from Annexure-1 appended to the writ petition.
It is, thus, evident that the writ petitioner was absorbed as
„Sorter‟. It is not in dispute that the report submitted by Justice
S.C. Agarwal Commission, in entirety has been adopted by the
Hon‟ble Supreme Court and as such, the decision since has
been taken in pursuant to the report of the Justice S.C.
Agarwal Commission, wherein, the case of the writ petitioner
has been considered for absorption by absorbing him as
„Sorter‟, meaning thereby, the status of the writ petitioner as on
the date of absorption, i.e., 12.08.1983 was of „Sorter‟. The writ
petitioner was allowed to continue in his service. The post of
Head Clerk since was vacant in the University, therefore, the
competent authority of the University has asked the writ
petitioner to work as Head Clerk in officiating capacity, and in
pursuant thereto, the writ petitioner has started discharging
his duty in the officiating capacity as Head Clerk, however,
subject to the condition of its approval by the University, since,
the University under the Universities Act, 2000, is the
competent authority to make appointment subject to approval
by the State Government.
According to the writ petitioner, the University has taken
no action for approving the officiating charge as Head Clerk,
therefore, the writ petition has been filed and the learned Single
Judge after considering the fact that the writ petitioner was
allowed to continue as Head Clerk in the officiating capacity
w.e.f. 02.01.2001, has held the writ petitioner entitled for
notional promotion w.e.f. 02.01.2001, which is under question
in the instant intra-court appeal.
10. The admitted case of the writ petitioner, therefore, is that
he has never been granted regular promotion, rather, he was
allowed to discharge his duty in officiating capacity, as Head
Clerk.
11. This Court in the aforesaid background is required to
answer:-
"as to whether merely because the writ petitioner was
allowed to discharge his duty, in officiating capacity, as Head
Clerk, can a right has been accrued for grant of promotion on
substantive basis to the post of Head Clerk".
12. The position of law is well settled that before granting
promotion, the status of the employee which is to be considered
for promotion, is required to be seen, i.e., the hierarchy of the
post vis-à-vis the status of one or the other candidates,
meaning thereby, if the promotion is to be granted to the post of
Head Clerk, the capacity of such employee is to be seen to have
in substantive capacity in the feeder cadre, i.e., just immediate
below in hierarchy.
It is also not in dispute that while considering the
promotion on substantive basis, a Departmental Promotion
Committee is required to be constituted for consideration of
case of one or the other candidates to assess their merit-wise
position before granting such promotion. Further, the concept
of officiating charge by asking a person to discharge duty in the
higher post, can also be availed depending upon the discretion
of the concerned authority, if there is no chance of
consideration of promotion on substantive basis, i.e., known as
officiating charge to the higher post as per the service law
applicable.
13. The material difference in between the regular promotion
and allowing to work in officiating capacity to the higher post is
that while on the one hand, the candidate which is being
promoted on the substantive basis, is the higher post on the
basis of the recommendation made by the duly constituted
Departmental Promotion Committee, subject to its acceptance
by the competent authority, the same will be said to be
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promotion on substantive basis and the consequence would be
that such candidate will be entitled to have the higher post
along with the pay scale attached to the said post.
But, in a case of discharging duty on officiating basis,
such incumbent is being allowed to discharge duty in officiating
capacity to the higher post, it cannot be construed to be a
regular promotion in the eye of law, since, the same is being
asked, in absence of recommendation of the Departmental
Promotion Committee and by not following the due procedure
as established by law to be adopted prior to granting promotion
to such higher post.
Therefore, if a person is being asked to discharge duty on
officiating capacity, no right will be said to be accrued in his
favour to claim promotion to the higher post merely because, he
has been allowed to officiate to the higher post, otherwise, if a
right will be said to be accrued, then the question will be, that
can it be said to be a promotion in accordance with law in
absence of recommendation by the duly constituted
Departmental Promotion Committee and without any approval
by the competent authority, as per the competency to grant
such promotion under the applicable rules, which according to
our considered view cannot be said to be proper and in accordance
with law in absence of recommendation of D.P.C. and decision
by a competent authority.
14. The facts of the given case vis-à-vis the entitlement of the
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writ petitioner for notional promotion to the higher post of Head
Clerk is required to be considered on the basis of the
discussion made in the preceding paragraph to test that merely
because the writ petitioner was allowed to officiate the higher
post of Head Clerk, can a right has been accrued to him to get
promotion on substantive basis, although, herein, notionally
since he has already retired sometime in the year, 2017, has
accrued?
15. The right will be said to be accrued if the right is being
created by a valid order, i.e., the order passed by the competent
authority and on the basis of the established rules for grant of
promotion, otherwise, if a person is being allowed to officiate to
the higher post, no right will be said to have accrued to hold the
said post.
16. The relevance of the hierarchy in the given facts of the
case is required to be considered, since, the learned Senior
Counsel appearing for the writ petitioner has submitted that
the writ petitioner was in the Class-III, even though, he has
been absorbed as „Sorter‟ but his status was of Clerk, therefore,
he was entitled to be considered for promotion to the higher
post as Head Clerk.
Therefore, emphasis has been given on behalf of the
learned Senior Counsel for the writ petitioner that the writ
petitioner since in the Class-III post, as such, he is entitled to
be considered for promotion to the post of Head Clerk, upon
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which, due recommendation was made to the Vinoba Bhave
University, i.e., the competent authority.
17. This Court, has considered the hierarchy of the post,
which was created by the erstwhile State of Bihar through the
Education Department vide memo no.1583 dated 14th August,
1982, wherefrom, it is evident that the post of „Sorter‟ is at Sl.
No.11 having the pay scale of Rs.220-313, in which, the
number of post shown to be two. The post of Clerk is at Sl. No.3
showing therein the pay scale of Rs.333-765 and the post of
Head Clerk, the single post, having the pay scale of Rs.680-965,
for ready reference, the entire list as contained in memo
no.1583 dated 14th September, 1982 is being reproduced
hereinbelow:-
"funs'kkuqlkj mi;qZDr fo"k;d vkids i= la0 [email protected] fnukad 27-01-82 ds
izlax esa eq>s dguk gS fd jkT; ljdkj us ek[kZe dkWyst vkWQ dkelZ]
gtkjhckx ds fy, LVkfiax isVuZ dfefV ds ekin.M ds vk/kkj ij fuEufyf[kr
f'k{kdsRrj deZpkfj;ksa ds inks da s l`tu dh Lohd`fr iznku dh gS%&
Øekad inuke inksa dh la[;k ftldh prqFkZ osru iqujh{k.k
osrueku
Lohd`fr nh xbZ gS
1- iz/kku fyfid ,d in ¼m0o0½ 680&965
2- ys[kkiky ,d in ¼m0o0½ 680&965
3- i=kpkj fyfid nks in 333&765
4- ys[kk fyfid&lg&dks"kkiky nks in 333&765
5- dkmaVj fyfid rhu in 333&765
6- HkaMkjiky ,d in 333&765
7- Vadd nks in 333&765
8- 'kkjhfjd f'k{kk leqns'kd nks in 260&408 ¼viqujhf{kr osrueku es½a
9- prqFkZoxhZ; in chl in 330&425
10- iqLrdk/;{k ,d in 296&460 ¼viqujhf{kr osrueku es½a
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11- lksVZj nks in 220&313 ¼viqujhf{kr osrueku es½a
dqy ;ksx ¼37½ lSarhl in
2- mi;qZDr Lohd`r inksa ij fu;qfDr fofgr izfdz;k ,oa vkj{k.k lEcU/kh
vf/kfu;e ds vkyksd esa dh tk;sxhA
3- funs'kd ¼mPp f'k{kk½] fcgkj dks bldh lwpuk ns nh xbZ gSA"
It is evident from the tabular chart shown in the letter
creating the post that the post of „Sorter‟ is having lesser pay
scale in comparison to that of the post of Clerk.
18. Admittedly, as would appear from Annexure-1 appended
to the writ petition that the writ petitioner was absorbed to the
post of „Sorter‟, in view of the recommendation made by the
Justice S.C. Agarwal Commission and as such, it is not
available for the writ petitioner to make an argument that he
was working as Clerk.
If that be so, then the question will arise, why the writ
petitioner has accepted the order of absorption vide notification
dated 16.09.2005 as contained in memo
no.VBU/Esstt.1297/2005 (Annexure-1 appended to the writ
petition), wherein, the status of the writ petitioner being
absorbed as „Sorter‟ has been shown w.e.f. 12.08.1983.
Since, the writ petitioner has been absorbed as „Sorter‟
having the pay scale of Rs.220-313, as per Annexure-7, referred
hereinabove, therefore, the writ petitioner will be said to be in
the lower pay scale by holding the post of „Sorter‟.
The post of Head Clerk being a single post is required to
be filled up from the immediate hierarchy, having below the
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post of Head Clerk being the feeder cadre, which admittedly, is
in the higher category on the basis of the pay scale attached to
the post of Clerk and as such, the consideration ought to have
been given for promotion to the post of Head Clerk from the
candidates holding the post of Clerk first and not from the
person holding the post of „Sorter‟.
19. The question to decide, as to whether the writ petitioner
has held the post of „Sorter‟, since was disputed, therefore, this
Court has called upon the original service book of the writ
petitioner for its perusal, wherefrom it is evident from page-13
that there is reference, i.e., "never performed the work of
„Sorter‟ since his joining up till now".
It requires to refer herein that the said entry made in the
service book at page-13 is different in ink, which prima-facie
appears to this court that it has been inserted subsequently.
Be that as it may, since the said sentence, if taken to be
correct, then also, the same will only infer that the writ
petitioner was holding the post of „Sorter‟, but he was disputing
to have performed his duty as „Sorter‟.
It appears that the writ petitioner if absorbed as „Sorter‟
but not performed his duty as „Sorter‟, rather, he was working
as Clerk, his status of service will not be changed from „Sorter‟
to Clerk, merely because, he has not discharged his duty as
„Sorter‟.
Since, the writ petitioner has absorbed as „Sorter‟,
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therefore, his status will remain as „Sorter‟ for all time to come,
reason being that, the absorption of the writ petitioner since
was based upon the recommendation made by the Justice S.C.
Agarwal Commission, which has been accepted in entirety by
the Hon‟ble Supreme Court, basis upon which, the State
Government has issued notification by absorbing the writ
petitioner as „Sorter‟.
20. The further question would be that merely because the
writ petitioner was allowed to discharge his duty, in officiating
capacity as Head Clerk, can he be a right for promotion, even
on notional basis?
21. The answer of this Court will be in negative, reason being
that merely because an employee having lower in hierarchy,
has been allowed to discharge his duty in the higher post, in
officiating capacity, no right will be conferred upon him to claim
promotion on the said higher post. A right will be said to be
accrued, if the order of promotion had been granted by the
competent authority and after following the due procedure.
But herein, admittedly, it is the case of the writ petitioner
itself that no regular promotion has been granted, rather, was
allowed to discharge his duty as Head Clerk in officiating
capacity by the Principal of the concerned College subject to
approval of the University, but the University has never
approved such promotion, due to the reason that the promotion
to the post of Head Clerk is required to be taken after following
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the due procedure established under the rule.
Therefore, according to our considered view, merely
because the writ petitioner was allowed to officiate to the post of
Head Clerk, no right is conferred to get it on substantive basis.
22. This Court, after having discussed the factual aspect as
also the legal position as referred hereinabove in detail, has
scrutinize the order passed by the learned Single Judge and
found therefrom that the learned Single Judge basing upon the
fact that the writ petitioner was allowed to discharge his duty,
in officiating capacity as Head Clerk for a long period, therefore,
he has been held entitled to get promotion on notional basis to
the post of Head Clerk w.e.f. 02.01.2001, which according to
our considered view, has been considered by the learned Single
Judge without taking into consideration the accrual of right in
favour of the writ petitioner, since, the order of promotion
without any approval by the competent authority is non-est and
further, he was allowed to officiate to the post of Head Clerk
and hence, no right will be said to have accrued in favour of the
writ petitioner and once the right has not been accrued,
holding such person entitled for such right, will be incorrect
order.
23. Accordingly and on the basis of the discussions made
hereinabove, the order passed by the learned Single Judge, who
has failed to appreciate the position of law as has been
discussed hereinabove, requires interference by this Court.
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24. As such, the order passed by the learned Single Judge in
W.P.(S) No.4471 of 2014 on 29.08.2019 is hereby quashed and
set aside.
25. In consequence thereof, the writ petition being W.P.(S)
No.4471 of 2014 is dismissed.
26. In the result, the instant appeal stands allowed.
27. The Registry of this Court is directed to return back the
original service book, which has been placed before this Court
in a sealed cover to Mrs. Indrani Sen Choudhary, learned
counsel appearing for the Vinoba Bhave University.
28. In consequent to disposal of this appeal, interlocutory
application being I.A.No.10841 of 2019, also stands disposed
of.
(Dr. Ravi Ranjan, C.J.)
I agree
(Dr. Ravi Ranjan, C.J.)
(Sujit Narayan Prasad, J.)
A.F.R.
Rohit/
