Jharkhand High Court
Dr. Maya Singh vs State Of Jharkhand And Ors. on 4 October, 2005
Equivalent citations: [2006(1)JCR165(JHR)], 2006 (1) AIR JHAR R 753, (2006) 108 FACLR 1125, (2006) 2 JLJR 48, (2006) 1 JCR 165 (JHA), (2006) 39 ALLINDCAS 882 (JHA)
Author: Narendra Nath Tiwari
Bench: Narendra Nath Tiwari
ORDER Narendra Nath Tiwari, J.
1. In this writ application the petitioner has prayed for a direction to the concerned respondents to pay her retiral dues as well as arrears of salary on the basis of U.G.C. revised pay scale and to fix her pension and other retiral dues on the basis of the last pay drawn on the post of University Professor from which she has retired and for quashing the part of the order dated 16.03.2004 contained in Annexure 2 and the fixation chart enclosed therewith (Annexure 2/1) and also the order as contained in Annexure 7 whereby the petitioner's scale has been down graded from the scale of University Professor to the pay scale of Lecturer, arbitrarily and illegally and that too after the retirement of the petitioner.
2. According to the petitioner, she was appointed as a lecturer in the year 1968 after she passed M.A. in Hindi and obtained her Ph.D. degree. The petitioner was initially appointed as a Lecturer in K.B. Womens' College, Hazaribagh and then rose to the scale of University Professor and was appointed as Head of the Department of Hindi of Vinoba Bhave University and retired from service with effect from 1.7.2003. It has been stated that during his service tenure, her career was unblemished. The petitioner was initially appointed in A.N. College, Barh as a Lecturer in Hindi. Thereafter she had joined as Lecturer in Jodh Singh Namdhari Womens' College, Daltongaj on 20.2.1970. She remained there till 19.2.1972 and thereafter she was appointed as Lecturer in K.B. Womens' College. Hazaribagh on 21.2.1972. The petitioner in due course was promoted to the scale of Reader and thereafter she was further promoted to the post of University Professor and on that post she was confirmed with effect from 7.7.1988 vide order dated 21.1.2000 issued by Vinoba Bhave University (Annexure-3). According to the rules and circulars, the petitioner was entitled to get her salary on the revised pay scale with effect from 1.1.1996, le., Rs. 16400-22400, but till her retirement she was given salary in the old scale of Rs. 4500-7300. The petitioner, after her retirement, filed representation before the Chancellor for her grievance of downgrading her pay scale. At the time of retirement, she was the senior-most professor in the Department of Hindi in Vinoba Bhave University and on that basis she was appointed Head of the Department of Hindi by the University. In view of her seniority and merit, downgrading her scale and reduction of pay without even giving any opportunity of hearing is wholly arbitrary and illegal. The petitioner is entitled to get her pension on the basis of last pay drawn by her, Le., 6900/-, but the same is not being paid to her. The petitioner is also entitled to get her gratuity and other retiral benefits on the basis of the said scale and she is also entitled to get difference of pay with effect from 1.1.1996 till her retirement along with dearness allowance and other consequential benefits. The petitioner has enclosed a copy of her last pay certificate as Annexure-2 in support of her claim that she was getting salary of University Professor in the old scale of 4500-7300 and as per new notification, her pay has been fixed in the UGC revised lecturer's scale, Le., 8000-13500 in the basic pay of Rs. 11475/-.
3. A counter-affidavit has been filed on behalf of the respondent Nos. 5 and 6, namely, Vice Chancellor' and Registrar of the Vinoba Bhave University, respectively. It has been stated, inter alia, that under the provisions of Bihar State University Act, 1976 also adopted by the State of Jharkhand in Jharkhand State University Act, 2001, the financial control of the Universities is with the State Government. After the creation of the State of Jharkhand, State Government implemented the new UGC scale for the College Teachers. The State Government directed the University and the first list of pay fixation has been sent by letter No, 329, dated 3.2.2002. According to the said fixation chart, fund has been released by the Government for making payment in accordance with the pay fixation chart by way of provisional pay fixation. Subsequently, vide letter No. 96, dated 30.1.2004, the Human Resources Development Department, Government of Jharkhand has fixed the petitioner's scale in the UGC revised lecturer's scale of 8000 13500, on the basic pay of Rs. 11475/- on 1.1.1996 and accordingly last pay certificate has been issued to her on 16.3.2004. Respondents have calculated the dues on the said scale and have shown the figure of the respective heads in paragraph 13 of Annexure.
4. A counter has also been filed on behalf of the respondent Nos. 1 to 4 in which it has been, inter alia, stated that the petitioner is not entitled to professor's scale because she was not validly promoted to the post of Reader as there was no recommendations of Bihar Universities Service Commission and therefore, she could not be promoted to the post of Professor and she is not entitled to get the revised scale of professor of Rs. 16400-22400. The last pay of the petitioner was rightly fixed in the pay scale of 8000-13500. It has been stated that the petitioner was substantively appointed as Lecturer on 20.6.1974 on the recommendations of Bihar Universities Service Commission and for the purpose of promotion the length of service can be counted from the said date. The services rendered by the petitioner in other colleges on ad hoc basis cannot be calculated for the purpose of promotion. The petitioner was appointed in A.N.S. College, Barh on honorarium and then had worked as Lecturer in Y.S.N. Mahila Mahavidyalaya from 2.2.1970 to 19.2.1972 while the college was not affiliated as Degree College and so the services rendered by the petitioner in that college also cannot be considered for the purpose of her promotion. The substantive date of appointment of the petitioner on the basis of recommendation of the Commission for appointment as Lecturer in K.B. Mahila College, Hazaribagh was 20.6.1974. The petitioner was, thus, illegally given promotion to the post of Reader, contrary to the statues before completion of 13 years of service and as such her subsequent promotion to the post of Professor was also not valid. It has been further stated that under Section 35(3) of the Jharkhand Universities Act, the State Government is empowered to scrutinize the legality of appointment/promotion of the University staff and since the promotion to the post of Reader was not proper and legal, her promotion to the post of Professor cannot be said to be valid and her appointment as Head of the Department also cannot be said to be valid appointment and as such the petitioner is not entitled for the revised pay scale of the Professor of Rs. 16400-22400 and her pay scale has been rightly downgraded to the pay scale of Lecturer at Rs. 8000-13500.
5. The petitioner, in her reply, has refuted the grounds taken by the respondents in support of downgrading her pay scale from the post of University Professor to the post of Lecturer and has alleged that the University has taken malicious attitude, adopted pick and choose policy to victimize her with ulterior motive. The petitioner's services was confirmed on the post of Lecturer on 20.6.1974 and it is false to state that she was substantially appointed as Lecturer on 20.6.1974. According to the petitioner, she being a Lecturer having Ph,D Degree and completed 13 years of continuous service as a Lecturer in a Degree College in one or more Universities, had been working since 1967-68 in different colleges and was confirmed in the post of Lecturer in the year 1974, was rightly promoted to the post of Reader by an order dated 24.3.1994 by the Selection Committee, which was equivalent to University Service Commission. The petitioner was entitled to be promoted to the post of Reader in the year 1987 and was further entitled to be promoted to the post of University Professor in the year 1990, but the petitioner's promotions were delayed. In similar circumstance, Dr. K.K. Srivastava, the then Director of Higher Education was granted promotion to the post of reader as well as to the post of Professor. He was appointed initially on 23.12.1972 on the post of Lecturer and on 1.12.1985 his services was not even of 13 years when he was given promotion to the post of Reader. But the petitioner only has been singled out for downgrading her pay scale without touching the similar other cases. The petitioner was duly given promotion to the post of Professor which was approved by the University Service Commission. She was entitled to get the revised scale of 16400-22400, but the same was not given till date nor any reason was assigned. A letter was written by the Vinoba Bhave University to the State Government on 27.6.2005 by which promotion to the post of Reader in view of the Notification of the Ranchl University was confirmed. Now the petitioner has retired and it is not now open to question the legality and propriety of her promotion. The. petitioner was given promotion long ago by the competent authority and she got the benefit of promotion and there was no misrepresentation or suppression of any fact by the petitioner, the same cannot be curtailed or withdrawn suddenly after so many years and that too without giving her any opportunity of hearing. After her retirement, the petitioner cannot be reverted to the post of Lecturer and she cannot be deprived of her due retiral benefits. The petitioner relied on a decision of the Supreme Court in Badri Prasad v. Union of India reported in 2005 (3) JCR 241 (SC) : 2005 AIR SCW 2717.
6. On the basis of the rival contentions and submissions made on behalf of the parties and materials brought on record, it emerged undisputed that the petitioner has retired as the Head of the Hindi Department of Vinoba Bhave University on 1.7.2003 and on the date of her retirement she was holding the post of University Professor. The petitioner was getting her salary on the old scale of University Professor, le., 4500-7300. At the time of retirement, the petitioner's pay was fixed at Rs. 6900/- in old scale. The said scale of 4500-7300 was revised as 16400-22400. The petitioner was given promotion to the post of Professor with effect from 7.7.1988 and on that basis she was appointed Head of the Department with effect from 17.2.2000 by the order of the Vice Chancellor of the Vinoba Bhave University. The petitioner was not given the revised pay scale of 16400-22400. After her retirement, a last pay certificate has been issued by the respondent-university dated 16.3.2004 by which it has been admitted that the petitioner was getting pay in the unrevised scale of University Proiessor of 4500-7300, but her pay has been fixed in the U.G.C. revised Lecturer's scale of 8000-13500 on the basic pay of Rs. 114757- as on 1.1.1996, on the alleged basis of new notification of the Government of Jharkhand, Human Resources Development Department (An-nexures 2 and 2/1). No notice or opportunity of hearing was given to the petitioner before downgrading her scale from the University Professor to the basic scale of the post of lecturer.
7. Mr. Pradip Modi, learned G.P.-I has emphatically submitted that the substantive date of appointment of the petitioner as a lecturer was 20.6.1974 in K.B. Mahila College, Hazaribagh and since a Lecturer having Ph.D Degree who had completed 13 years' of continuous service in one or more University could be promoted to the post of Reader according to the statute approved by the Chancellor vide letter No. 5260 GS, dated 18.11.1980, the petitioner was wrongly given promotion to the post of Reader although she had not completed 13 years of service from the date of her substantive appointment. He has placed reliance on a Division Bench decision of this Court passed in L.P.A No. 31 of 2003 wherein the decision of the Apex Court in Dr. B.P. Yadav and others. has been referred to and has been held that the persons who got provisional promotion but the same was not taken up for consideration by the Commission for years for its approval and the same being not approved by the Commission within the timeframe, ceased to be operative after expiry of six months from 25.8.1983 and as such the persons are not entitled to get pension on the basis of the last pay drawn by them in the scale of University Professor on the basis of the said provisional promotion. They are entitled to pension on the basis of last pay drawn in the scale of Reader. In the said case (L.P.A. No. 31 of 2003) the respondents-writ petitioners in the Writ Court were working as Reader in different Colleges of the University and all of them were promoted to the post of University Professor provisionally by the Scrutiny Committee on temporary basis subject to the recommendations of Bihar State University (Constituent Colleges Service) Commission, but the Commission did not take up the matter and neither approved nor disapproved their promotion till the date of the retirement of the said persons. However, they went on getting salary in the scale of University Professor till their date of retirement. After their retirement, their amount of pension was reduced. Aggrieved by the said reduction, the said persons had filed writ application claiming their retiral benefits and other dues on the basis of last pay drawn by them in the scale of University Professor. The learned single Judge allowed the said writ application and directed the University to fix and pay the pension amount to the petitioner in accordance with the statute taking into consideration the last pay drawn by them. On appeal against the said order, the Division Bench, on the basis of the decision of the Supreme Court in Dr. B'.P. Yadav and Ors. v. Ratneshwar Prasad Singh (supra), held that the provisional promotion given to the writ petitioners having not been approved by the Commission within time frame indicated in Section 8(10) of the Act, ceased to be operative after expiry of six months and as such they are entitled to get pension on the basis of the last pay drawn in the scale of Readers. But the facts and circumstances of the instant case is different. The petitioner in this case had been given promotion to the post of University Professor on the recommendations of Bihar State University (Constituent Colleges) Service Commission itself and no further approval was required. The said decision of the Division Bench in L.P.A. No. 31 of 2003 Sidhu Kanhu University and Anr. v Professor Raghunath Ray, has thus no application in the facts and circumstances of this case. The learned G.P.-l could not also differentiate the case of the petitioner from that of Dr. K.K. Srivastava University Professor, Vinoba , Bhave University, Hazaribagh whose admitted date of substantive appointment was 5.4.1974 and date of temporary appointment was 23.12,1972 and who had been given seale of University Professor in the revised scale of 16400-22400 duly approved by the Department of Human Resources Development, Jharkhand. Nothing on record has been brought to controvert the petitioner's statement that she has not been given any notice or opportunity of hearing before such arbitrary reduction giving different treatment from that of Dr. K.K. Srivastava. The petitioner was given promotion to the post of University Professor by notification issued by Memo No. 746-724, dated 21.1.2000 on the recommendations of Bihar State University (Constituent Colleges) Service Commission. She was thereafter appointed University Head of the Department of Hindi and the same was also approved by the Bihar State University Service Commission, Patna (Annexure-12).
8. Having considered the facts, materials on record and the submissions made by the learned Counsel for the parties, I find that the petitioner has retired as University Professor and at the time of retirement, she was getting pay of University Professor in the unrevised scale of 4500-7300 but her pay has been arbitrarily fixed in the UGC revised scale of lecturer 8000-13500 on the basic pay of Rs. 11475/- as on 1.1.1996 without any justification and reason. The last pay of the petitioner in the old scale 4500-7300 basic was Rs. 6900/- arid the petitioner is entitled to get her retiral benefit to be fixed in the equivalent revised scale of 4500-7300 (basic Rs. 6900/-) with other admissible benefits. The petitioner is also entitled to get the arrears of difference of pay in the * revised scale of the old scale of University Professor 14400-22400. The last pay certificate issued by the Vinoba Bhave University dated 16.3.2004 (Annexure-2) and the provisional pay fixation in U.G.C. pay scale with effect from 1.1.1996 Issued by the Department of Human Resources Development (Higher Education), Government of Jharkhand (Annexure-2/1) are wholly without any basis. The same are arbitrary and discriminatory and are viola-tive of Articles 14, 16 and 21 of the Constitution of India and are hereby quashed. The petitioner is held entitled to get all admissible benefits in the UGC revised scale of University Professor with effect from 1.1.1996 including difference of arrears of salary and difference of the retiral benefits. The petitioner has retired in the year 2003 and till date her retirement dues have not been cleared. The respondents are, thus, directed to issue last pay certificate on the corresponding UGC Revised scale of University Professor and to calculate and fix her pension on the revised amount of last pay drawn and to pay her all admissible dues within a period of two months from the date of receipt/production of a copy of this order along with the admissible interest on each head.
In case of the failure of the respondents to pay to the petitioner her service/ retiral dues within the period aforesaid, the petitioner shall be additionally entitled to get interest at the rate of 5% per annum on the amount of arrears from the date, the petitioner was entitled to get the respective dues till the date of actual payment thereof. The respondents, however, shall be at liberty to realize the said amount of penal interest, from the erring officials who are found responsible for causing delay in the said payment.
This writ application is, accordingly, allowed but with no order as to costs.