Jharkhand High Court
Dr.Trilochan Mahto & Ors vs State Of Jharkhand & Anr on 8 March, 2013
Author: D. N. Patel
Bench: D. N. Patel
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Contempt Case (Civil) No. 370 of 2012
1.Dr. Trilochan Mahto
2. Dr. (Mrs.) Bandana Kumari
3. Dr. (Mrs.) Vijay Laxmi... ... ... ... ... Petitioners Versus The State of Jharkhand and another ... ... ... Opposite Parties CORAM: HON'BLE MR. JUSTICE D. N. PATEL For the Petitioner: M/s. Sumeet Gadodia, P.P. Roy, A.K. Mahto For the Opp. Parties: J.C. to Sr. S.C.I 15/ Dated: March, 08, 2013
1) Counsel for the applicant (original petitioner) has submitted that this petitioner had preferred a writ petition being W.P. (S) No.4833 of 2008 with Interlocutory Applications and the said writ petition was decided vide order dated 7th December, 2011 and it has been categorically mentioned in paragraphs 6 and 7 thereof that looking to the powers of the respondentsUniversity under Section 4(1)(14) of the Jharkhand State Universities Act, 2000, it is within sole power and jurisdiction of the University to take over the management, assets, liabilities and the staffs of all private institutions if taken over. The power under Section 35 of the said Act cannot be exercised for question in the regularization/absorption. This aspect of the matter has not been properly appreciated by the respondentsState authority while passing the order dated 30th March, 2012 which is at Annexure 6 to this contempt application and, therefore, let the order be quashed and set aside the matter be remanded for fresh decision within stipulated time and keeping in mind the decision rendered by the Hon'ble Supreme Court reported in (2005) 9 S.C.C. 129 and especially keeping in mind paragraphs 54, 60, 61, 62 and 64 thereof.
2) I have heard the learned counsel appearing for the respondents State and I have also heard Sri B.K. Tripathi, Principal Secretary, Human Resources Development Department (now upon his transfer he is Principal Secretary, Animal Husbandry (Diaries & Fisheries)) Counsel for the State submitted that looking to the interpretation of Section 4(1)(14) of Act which are the powers of the University visavis Section 35 of the 2 Act, 2000 which are the powers of the State, it appears that there is some misreading of the said judgment. Nonetheless, it is submitted by the counsel for the State that whenever any pay revision is to be made, the Government is always verifying the legality of the appointment and, therefore, the impugned order dated 30 th March, 2012 has been passed which is annexed as Annexure6.
3) Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, it appears that the concerned respondentauthority has not properly appreciated the judgment rendered by this Court in earlier W.P. (S) No.4833 of 2008 dated 7 th December, 2011 especially paragraphs 6 and 7 thereof and has also failed to appreciate the ratio of des cendenti of the decision rendered by the Hon'ble Supreme Court in (2005) 9 S.C.C. 129 especially paragraphs 54,
60. 61, 62 and 64 thereof. In this judgment, categorically the powers of the respondentsUniversity has been mentioned in paragraph 54 that in the matter of absorption of staff of such institution/College proposed to be taken over would be within sole power and jurisdiction of the University under Section 4(1)(14) of the Act, 2000. It has also been held by the Hon'ble Supreme Court in paragraph 54 of the said judgment that on the matter of absorption of staff of taken over institutions, Section 35 (requiring prior sanction or approval of the State Government for creation of post and appointment), would not be a constraint on the power of the University. Thus, it appears that wider power with the State Government under Section 35 of the Act, 2000 in ordinary circumstances when increasing the sanctioned strength is to be made by the University, but, when the University is taking over the management of any College and thereby if it absorbs any staff under Section 4(1)(14), thereafter the Government cannot exercise power under Section 35 of the Act denying the absorption or questioning absorption of staff of "takenover college". This aspect of the matter has not been properly appreciated while passing the impugned order at Annexure 6 and, hence, the order passed by the respondentsState authority at Annexure6 dated 30th March, 2012 is hereby quashed and set aside and the matter is remanded for passing order afresh by the concerned respondent keeping in mind the aforesaid aspect of the matter. This decision will be taken regarding approval of 3 revised Pay U.G.C. Scale within eight weeks from the date of receipt of a copy of this order.
4) Put up this case on 10th May, 2013.
5) Presence of the Officer, namely Mr. B.K. Tripathi, is no longer
required till further orders.
(D. N. Patel, J)
Manoj/CP.2