Uttarakhand High Court
Tahir Khan vs G.B. Pant Agriculture And Technology on 4 October, 2018
Bench: Rajiv Sharma, Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Special Appeal No. 341 of 2018
Tahir Khan ......Appellant
Versus
G.B. Pant Agriculture and Technology
University Pantnagar and others ...... Respondents.
Present:
Mr. Alok Mahra, Advocate for the appellant.
Mr. Rajendra Dobhal, Senior Advocate assisted by Subhang Dobhal, Advocate for
the respondents. .
With
Special Appeal No. 386 of 2018
Deepak Balutiya ......Appellant
Versus
G.B. Pant Agriculture and Technology
University Pantnagar and others ...... Respondents.
Present:
Mr. K.K. Harbola, Advocate for the appellant.
Mr. Rajendra Dobhal, Senior Advocate assisted by Subhang Dobhal, Advocate for
the respondents. .
With
Special Appeal No. 388 of 2018
Pushpendra Kumar ......Appellant
Versus
G.B. Pant Agriculture and Technology
University Pantnagar and others ...... Respondents.
Present:
Mr. K.K. Harbola, Advocate for the appellant.
Mr. Rajendra Dobhal, Senior Advocate assisted by Subhang Dobhal, Advocate for
the respondents. .
JUDGMENT
Coram: Hon'ble Rajiv Sharma, A.C.J. Hon'ble Sharad Kumar Sharma, J.
Judgment reserved : 24th August, 2018 Judgment Delivered : 4th October, 2018 SHARAD KUMAR SHARMA, J. (Oral) This is a bunch of three Special Appeals which arises out of the judgment passed by the learned Single Judge dated 26th 2 April, 2018, whereby, the learned Single Judge has dismissed the Writ Petition preferred by the appellants/ writ petitioners, challenging the order of their reversion dated 29.12.2015, impugned in the writ petitions.
Before going into the merits of the Appeals, it would be essential to deal with the specific cases briefly, as pleaded by the appellants/ writ petitioners in the respective writ petitions.
In Special Appeal No. 341 of 2018, Tahir Khan Vs. G.B. Pant University (hereinafter referred as the 'University'), the challenge was given to the order dated 30th December, 2015, by virtue of which, the Registrar of the University, in compliance of the Office Memorandum No. 404 dated 18th February, 2014, had reverted the appellant/writ petitioner to Class-IV (Mate), carrying the Pay Band-I of Rs.5200-20200 plus grade of pay of Rs.1800/-, by virtue of highly belated action after 22 months of the Office Memo No. 404 dated 18.02.2014.
In Special Appeal No. 386 of 2018, the appellant was appointed under the Harness Rules on 19th May, 2012. The said appointment contained certain conditions, including the followings :-
"vkids izkFkZuk i= fnukad 05&11&2011 ds Øze esa vkidks dfu'B lgk;d ds in osru cSaM &1 osrueku :0 5200&20200$xzsM osru :0 1900@& esa vuqdEik ds vk/kkj ij l{ke vf/kdkjh }kjk 6 ekg ds fy;s rnFkZ :i ls bl izfrcU/k ds lkFk fu;qfDr iznku fd;s tkus dh lg'kZ Lohdfr iznku dh gS fd vkidks mDr vof/k esa Vda.k esa fu/kkZfjr xfr izkIr djuh gksxhA Vda.k esa izoh.krk izkIr djus ds mijkUr gh vkidks vLFkk;h fu;qfDr fn;s tkus ij fopkj fd;k tk;sxkA ofj'Brk ,ao okf'kZd osruo`f) dk ykHk ,ao rnFkZ lsok dk vLFkk;hdj.k rHkh fd;k tk;sxk tcfd vkids }kjk Vad.k esa izoh.krk izkIr dj yh tk;sxh fdUrq Vad.k esa izoh.krk izkIr dj ysus ij vkidks mDr ykHk rnFkZ :i ls in ij izFke ;ksxnku fnol dks vk/kkj ekurs gq;s vuqeU; fd;s tk;sxsaA bl vof/k esa vkids pfj= dk iqfyl }kjk lR;kiu esa vkids pfj= ds lEcU/k esa dksbZ foijhr fVIi.kh dh tkrh gS] tks vkidks lsok es v;ksX; ?kksf'kr djrh gks] rks vkidh lsok;sa lekIr gks tk;saxhA"
By virtue of the impugned order dated 29th December, 2015, the appellant has been demoted in Pay Band-I by reducing grade pay from Rs.1900/- to Rs.1800/-, although it carried Pay Band-I of Rs. 5200-20200. The language, purpose and intention of 3 this order were identical to that of other connected appeals. The order further directed that the appellant should be relieved forthwith to enable him to join at the relevant Department. The appointment letter of appellant/petitioner shows that he was inducted into the services as Junior Assistant though on adhoc basis on compassionate ground carrying Pay Band-I of Rs. 5200- 20200/- and grade pay 1900/-. The petitioner was to attain the required typing speed and the condition was that he would be regularized only when he attains the required speed. Seniority and annual increment were deferred to be decided later, subject to attaining the speed.
In Special Appeal No. 388 of 2018, the appellant was appointed as Junior Assistant in the Pay Band-I of Rs.5200-20200 with grade pay of Rs.1900/- on the basis of harness appointment. The terms of the appointment dated 28th November, 2013 reads as under :-
"vkids izkFkZuk i= fnukad 25&07&2013 ds Øze esa vkidks dfu'B lgk;d ds in osru cSaM &1 osrueku :0 5200&20200$xzsM osru :0 1900@& esa vuqdEik ds vk/kkj ij l{ke vf/kdkjh }kjk 6 ekg ds fy;s rnFkZ :i ls bl izfrcU/k ds lkFk fu;qfDr iznku fd;s tkus dh lg'kZ Lohdfr iznku dh gS fd vkidks mDr vof/k esa Vda.k esa fu/kkZfjr xfr izkIr djuh gksxhA Vda.k esa izoh.krk izkIr djus ds mijkUr gh vkidks vLFkk;h fu;qfDr fn;s tkus ij fopkj fd;k tk;sxkA ofj'Brk ,ao okf'kZd osruo`f) dk ykHk ,ao rnFkZ lsok dk vLFkk;hdj.k rHkh fd;k tk;sxk tcfd vkids }kjk Vad.k esa izoh.krk izkIr dj yh tk;sxh fdUrq Vad.k esa izoh.krk izkIr dj ysus ij vkidks mDr ykHk rnFkZ :i ls in ij izFke ;ksxnku fnol dks vk/kkj ekurs gq;s vuqeU; fd;s tk;sxsaA bl vof/k esa vkids pfj= dk iqfyl }kjk lR;kiu esa vkids pfj= ds lEcU/k esa dksbZ foijhr fVIi.kh dh tkrh gS] tks vkidks lsok es v;ksX; ?kksf'kr djrh gks] rks vkidh lsok;sa lekIr gks tk;saxhA"
He has also questioned the impugned order dated 29th December, 2015, where the appellant / writ petitioner has been demoted from grade pay of Rs.1900/- to grade pay of Rs.1800/- in the pay Band-1 of Rs. 5200-20200/-
For convenience, facts of Special Appeal No. 341 of 2018 would be taken in consideration as leading case. By an Order dated 30th December, 2015, by virtue of which, the Registrar of the University, in compliance of the Office Memorandum No. 404 4 dated 18th February, 2014, had reverted the appellant/writ petitioner to the scale of Class-IV, carrying the Pay Band-I of Rs.5200-20200 plus grade of pay of Rs. 1800/-. This order was termed as to be the demotion from the scale, which the petitioner was receiving prior to passing of the impugned order as admissible to the Junior Assistant, i.e. of the grade pay of Rs.1900/-. The case of the appellant / writ petitioner is that on the basis of his qualification of intermediate qualification, he was appointed on daily wage basis as a Dispatch / Bill Clerk in Water Division of the University w.e.f. 3rd May, 1995. The further case of the appellant is that while working as Dispatch / Bill Clerk, he has also handled the work of accounts in the Water Division.
The case of the appellant/petitioner is that with the enforcement of the Regularization Rules of 2011, as notified w.e.f. 21st November, 2011, the Rules of Regularization stood adopted by the University and the University has constituted a Selection Committee as per Rules of 2011 for considering the claim of regularization of the services of the employees. Accordingly, the Committee, after undergoing the process has recommended a list of Group 'C' employees, who were to be considered for regularization. The Selection Committee, thus, sent a list on 24th August, 2013, which, according to the petitioner, included his name at S.No. 23 (and such other appellants/petitioners also). The said list was scrutinized by the Appointing Authority and, after finding the candidate eligible and fulfilling conditions of the rules, their services were regularized under the Regularization Rules, 2011. The recommendation of the Selection Committee for regularization of the services of the Group 'C' employees was considered by the Governing Council and, consequently, 14 daily wage employees were regularized on the post of Junior Assistants carrying a Pay Band-1 of Rs.5200 to 20200 with grade pay of Rs. 1900/- vide office order dated 18th February, 2014.
5In the said list of the approved employees whose services stood regularized included the name of the petitioner at S. No. 12, hence, the services of the appellant stood regularized as a Junior Assistant along with the others under the said Rules and all those persons who were thus approved for being regularized by the Governing Council, they acquired the status of regular employees substantively appointed against the permanent post.
The case of the appellant/ writ petitioner is that in terms of the Rule 10 (1) of the Regularization Rules to be read with Rule 8 (1), it provides that when services of a daily wage employee is regularized, he/she shall be treated to be substantially appointed against a post and his / her seniority to be reckoned from the date of regularization. Now, almost after more than 1-1/2 years for undisclosed reasons, the respondent No. 3 had issued the order dated 30th September, 2011, impugned in the writ petition, wherein, the petitioner is shown to have been demoted to Class- IV post of Mate despite the fact that his services were regularized as a Class-III post as Junior Assistant in the Pay Band-I of Rs. 5200-20200 carrying grade pay of Rs.1900/- and by the impugned order, he was reverted to the scale carrying the grade pay of Rs.1800/-. For redressal of his grievance, the petitioner submitted his representation against the order or reversion before the authority competent under the Rules but no action was taken on the same.
It is the case of the appellant / writ petitioner that while considering the representation, the respondent proceeded to pass an order dated on 6th January, 2016, wherein, it was contemplated that for the purposes of availing the benefit of the enhanced promoted scale and regularization as promoted post of Junior Assistant, the appellant / writ petitioner may avail one more opportunity to prove his efficiency in typing test so as to be considered for regularization under the Rules, once he crosses the 6 efficiency as fixed by the respondents, they would be getting the benefit of scale and promoted post.
The respondents have contended that the fact that the petitioner was not being eligible on account of failure to qualify the typing test examination, which according to the respondent, was essential for being granted the benefit of revised scale as given to the appellant / writ petitioner on 18th February, 2014. The petitioner had submitted the representation on 22nd November, 2016 to the effect that he may be provided with an opportunity to undertake the typing test so that he could avail the benefit and prove his efficiency. Almost under the identical circumstances, there were other persons, namely, Rajesh Kumar Singh, Vinod Kumar and Virender Singh against whom the order was passed and they challenged the same by filing Writ Petition Nos. 2341 of 2016, 896 of 2017 and 897 of 2017 and consequent to the grant of interim order, the order of reversion was kept in abeyance, and are working as higher post and scale.
The pleadings were exchanged and in the counter affidavit the respondents have come up with the case that since the appellant /writ petitioner failed to cross the efficiency bar of passing the typing test, he cannot granted the benefit of promotional scale and post of Group 'C ' as it has been granted by the University.
In response to the stand taken by the respondents in the counter affidavit pertaining to the failure of the appellant / writ petitioner to cross the efficiency bar, the appellant has placed reliance heavily on Clause (2) of their selection dated 18th February, 2014. Clause 2 of the Selection / regularization order dated 18th February, 2014 reads as under :
"budks mDr vof/k esa Vad.k esa fu/kkZfjr xfr izkIr djuh gksxhA Vad.k esa izoh.krk izkIr djus ds mijkUr gh budks vLFkk;h fu;qfDr fn;s tkus ij fopkj fd;k tk;sxkA ofj'Brk ,ao okf'kZd osruo`f) dk YkkHk ,ao rnFkZ lsok dk vLFkk;hdj.k rHkh fd;k tk;sxk tcfd buds }kjk Vad.k esa izoh.krk izkIr dj yh tk;sxh fdUrq Vad.k esa izoh.krk izkIr dj ysus ij budks mDr ykHk rnFkZ :i ls in ij izFke ;ksxnku fnol dks vk/kkj ekurs gq;s vuqeU; fd;s tk;sxsaA"7
In a nutshell, Clause (2) provided that only those employee would be considered for regularization, grant of permanent status as regular employees who passes the typing test and attains the specified speed required.
Learned counsel for the appellant/writ petitioner argues that as per Clause (2), it provided that until and unless a candidate qualifies the typing test, he would not be granted the benefit of seniority, annual increment and the benefit of the regularization on the adhoc appointment. Taking shelter from Clause (2) of the said order dated 18th February, 2014, the argument of the learned counsel for the appellant / writ petitioner is that even as per the terms of the Clause (2), let us presume even if a candidate fails to qualify the written test, in that event, the employer/respondents too would be bound by the said condition and could have only deprived the employee of his seniority and benefit of annual increment. The said clause never provided that the services of the employee failing in the typing test would be reverted /demoted to a post lower than the induction level post as is the case on compassionate appointments where adhoc appointment was Junior Assistant and employee reverted to class IV post now by the order impugned in the writ petition, which is the post lower to induction level post.
After the exchange of the pleadings, the writ petitions came to be dismissed by the learned Single Judge by the impugned order in Appeals dated 26th April, 2018.
The learned Single Judge has proceeded on a premise that the appellant / writ petitioner who was appointed as Junior Assistant and the work was assigned to him according to his designation. The learned Single Judge recorded that the petitioner appointed on compassionate ground as Junior Assistant, which is Group 'C' post, and the appointment was against the sanctioned post and had completed period of probation. It is further held 8 that in terms of the condition of the appointment letter, the appellant is required to attain the prescribed typing speed within the period of six months. The reason which has been assigned by the learned Single Judge is that despite of opportunity, the prescribed typing speed was not attained, though, the petitioner availed three opportunity and, thereby, held that the petitioner was not entitled for the post and held that he did not fulfill the conditions and, consequently, the Court dismissed the writ petitions upholding the action of demotion of the petitioner to the Class -IV post.
After having heard the rival contentions at length, we are of the view that if the learned Single Judge has placed reliance on Clause (2) of the letter of appointment dated 18th February, 2014, as to be a condition, which was required to be fulfilled by the appellant/writ petitioner for giving him with a regular status as Junior Assistant, and if the said Clause 2 is read, it stipulates that the typing test with stipulated speed was necessary. In that eventuality, the learned Single Judge ought not to have interpreted Clause (2) of the order dated 18th February, 2014 by splitting its implication into two different parts. If he has taken qualifying of typing test as to be a condition precedent for the grant of a permanent status, then the Court ought to have also considered as to the consequence failure to attain that particular speed of typing test or failure to qualify the test and its consequence thereto which is contained in Clause (2) is a self- contained Clause and it contemplates that in an event if a candidate fails to qualify the typing test or fails to attain the specified speed, the action itself is included in Clause (2) which only contemplates that the benefit of seniority, annual increment and regularization in the temporary service would only be possible, when candidate qualifies typing test and failure to qualify the typing test would be deprived of the said benefit.
9The argument of the learned counsel for the appellant / writ petitioner is that since this Clause does not contemplate reversion / demotion to Class IV post, the action would be bad as demotion to the post which is lower to the induction level post.
We are in agreement with the arguments as extended by the learned counsel for the appellant that once the terms and conditions of recruitment are stipulated by the specific terms settled by the employer, apart from the fact that it would bind the employee, it would also simultaneously bind the employer too and hence, the employer cannot take an action beyond the action as reserved to be taken in an event of failure to satisfy the condition of appointment.
There is another aspect of the matter. Under service jurisprudence, the covenants of the terms of appointment are the contract, which binds the employer and employee. If the letter of appointment restricts an employee his rights, his duties and his liabilities, it would simultaneously have same binding effect on the employer who is the other party to the terms of appointment, rather the party who has an upper-hand as employer to impose conditions. If this be so, the employer too is bound by it and cannot go beyond the stipulations contained in it.
The other argument extended by the learned counsel for the appellant / writ petitioner is that if the petitioner 's services is regularized under the Rules of 2011, he would acquire the status of that being a direct recruit as it is only after the regularization that he is able to get all service benefit as admissible to regular employee. Thus, for all practical purposes, the order dated 18th February, 2014, would be an order of direct recruitment and if that be so, the argument of the learned counsel for the appellant is that there cannot a reversion to a post lower than the induction level post, which in the instant case, since by the order dated 18th February, 2014, the petitioner was inducted as Junior Assistant.
10Thus, the Special Appeals would stand allowed. The impugned order passed by the learned Single Judge dates 26th April, 2018, is quashed. Consequently, the Writ Petitions too would stand allowed and the impugned orders in the respective writ petitions too would stand quashed. This judgment will not create any restriction or bar as against the respondents employer from taking any action within the ambit of action which has been reserved to be taken by the order dated 18th February, 2014.
Subject to the above observations, the Special Appeals would stand allowed. There would be no order as to costs.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, A.C.J.) 04.10.2018 04.10.2018 Shiv