IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No.4599 of 2006
Dr. Anant Kumar Akhouri ... Petitioner
Versus
Vice-Chancellor, Ranchi University & Ors. ... Respondents
CORAM: HON'BLE MR. JUSTICE SUSHIL HARKAULI
For the Petitioner : Mrs. Ragini Sinha
For the Respondents: Mr. Anoop Kr. Mehta
For the J.P.C.S.: Mr. Sanjay Piprawal
Mr. Mahadeo Thakur
_______
13/ 01.12.2009
. Heard learned counsel for the petitioner, learned counsel for
the Jharkhand Public Service Commission, learned counsel for the
State and learned counsel for the Ranchi University.
The petitioner was appointed as Lecturer for a period of six
months in a purely temporary capacity by letter dated 21.2.1978.
Pursuant to that letter the petitioner joined service on 23.2.1978.
Under the University Statutes dated 18.11.1980 as approved
by the Chancellor, a copy of which has been enclosed as Annexure-
2 to this writ petition, the petitioner was regularized by letter dated
21.2.1982. The regularization letter which has been filed does not
clearly say that the regularization is w.e.f. 23.2.1978. Apparently
that date (23.02.1978) has been mentioned in that letter against
the name of the petitioner, only to indicate the date when the
petitioner had been originally appointed.
However, subsequently the confirmation order of the
petitioner confirmed him w.e.f. 1.1.1981.
The petitioner claims that his services w.e.f. 23.2.1978
should be counted as a ‘regular service’, or more precisely as
“Continuous Service,” for the purpose of considering the
petitioner for time bound promotions.
The regularization having been made on 21.2.1982, it could
be interpreted to be a new appointment with effect from that date,
or an appointment / regularization with effect from a back date.
Because the confirmation has been made w.e.f. 1.1.1981,
therefore, obviously the regularization or appointment cannot
possibly be of a later date i.e. 21.2.1982, a person cannot be
confirmed in service before his appointment.
If the regularization / appointment is treated to be w.e.f.
23.2.1978, obviously all the service rendered since that date i.e.
23.2.1978, irrespective of the actual nature of the service, will have
2.
to be treated as regular service because of the retrospective
regularization / appointment.
The date with effect from which regularization has been
made retrospective must depend upon the order of regularization
or upon the Statutes.
Further, the subsequent actions may also be relevant to
indicate that the date of regularization / appointment has been
always treated to be of a particular date.
However, such subsequent actions must be either by the
State Government, or of a nature which will bind the State
Government to estop the State Government from taking a different
view at this belated stage. The reason is that by this petition, the
petitioner is in effect seeking a direction that the State Government
must treat his date of substantive appointment to be 23.02.1978.
Certain subsequent actions by the University have been
cited. These are contained in the letter of the University dated
2.12.1995, (Annexure-4 to the writ petition), and 19.1.1996,
(Annexure-3 to the writ petition), which indicate that the petitioner
was granted promotion under the ten years time bound promotion
scheme w.e.f. 23.2.1988. The petitioner was confirmed in that
promotion with effect from the same date i.e. 23.2.1988. Both
these decisions would indicate that the University was considering
the date of appointment for the purpose of computing continuous
service as 23.2.1978. However, in paragraph No. 14 of the counter-
affidavit of the State Government, the State Government has
dissociated itself from the said decision of the University saying
that the promotion was granted wrongly by the University. It has
not been shown, on the present state of record, as to how the
State Government can be held to be bound by these decisions of
the University.
The State Government can be held to be bound only if the
entire facts were before the State Government which in the normal
course the State Government could have been expected to see and
consider.
Therefore, at present I am not inclined to hold that the State
Government is bound by the said actions of the University.
However, the State Government has also stated in
paragraph No. 8 of the supplementary counter-affidavit of Shri
Ashutosh Prasad, Deputy Director, Higher Education that the State
3.
Government vide its letter No. 772 dated 18.6.2009 has constituted
a Committee to examine and decide the substantive date of
appointment of teachers and counting of past services for providing
promotion and other benefits. Since this committee is considering
the matter, it may also take into account all the relevant facts by
calling for the necessary records, as also the law laid down in
various decisions, the direct decision being Dr. (Mrs.) Rafat Ara
v. Ranchi University Ors. Reported in 2009 (1) JCR 380 for
the purpose of examining “continuous service”.
The State has placed reliance upon the decision in the case
of B.R.Ambedkar Teachers’ Association & Ors. V. The State
of Bihar & Ors. Reported in 2000 (2) P L J R 867 in which it
has been held that the past service benefit is to be allowed only to
such temporary teachers who at the time of their absorption in
service were holding the post legally and in terms of the Statutes.
Applicability of such decision depends upon the facts to be
ascertained. The first fact to be ascertained would be, whether the
appointment of the nature which was granted to the petitioner in
1978 was permissible under the Statutes or not. Further, even if it
was not permissible, but the regularization is with effect from the
date of such temporary appointment i.e. 1978. The aforesaid
decision of the Patna High Court would not be relevant.
All the above observations have been made only for the
purpose of deciding this writ petition and will not be treated to be
in any manner binding upon the Committee, which may take
independent decision subject to the conditions (i) that all possible
efforts should be made to ascertain the correct and complete
relevant facts before taking the decision, and (ii) the committee will
take its reasoned decision in respect of the petitioner, if not all
other persons, within two months of the date on which certified
copy of this order is presented before the Director, Higher
Education by or on behalf of the petitioner. The decision will be
forwarded to the State Government by the Committee which will
take the consequent decision within the next three weeks.
With the aforesaid directions, this writ petition is finally
disposed of.
D.S. (Sushil Harkauli, J.)