Jharkhand High Court
Kaushal Kishore Verma vs State Of Jharkhand Through Chief ... on 21 April, 2017
Author: Pramath Patnaik
Bench: Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (S) No. 893 of 2016
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Kaushal Kishore Verma S/o Late Phuldeo Narayan R/o Kusum
Vihar Road No. 4 B, Divyayan Gali Road, East Morabadi, P.O.
Ranchi University P.S. Bariatu District Ranchi... ... Petitioner
-V e r s u s-
1. State of Jharkhand through Chief Secretary Government of
Jharkhand, Ranchi at Project Building Dhurwa, Ranchi P.O. and
P.S. Dhurva District Ranchi.
2. Chancellor of Universities of Jharkhand at Raj Bhawan, Ranchi.
3. The Principle Secretary Human Resource for Higher Education
Department,Government of Jharkhand at Nepal House Doranda
P.O. Doranda P.S. Doranda District Ranchi.
4.The Vice Chancellor, Ranchi University, Ranchi at near
Shaheed Chowk P.O GPO Ranchi, P.S Kotwali, District Ranchi.
5.The Registrar, Ranchi University, Ranchi at near Shaheed
Chowk P.O GPO Ranchi, P.S Kotwali, District Ranchi.
6.Jharkhand Public Service Commission through its Secretary
Jharkhand Public Service Commission at Circular Road Ranchi
P.O GPO Ranchi, P.S Kotwali, District Ranchi.
7.Dr. Pritam Kumar, Deputy Registrar No. 1 cum Incharge
Finance Officer Ranchi University, Ranchi at near Shaheed
Chowk P.O GPO Ranchi, P.S Kotwali, District Ranchi.
8. Syndicate, Ranchi University, Ranchi through Vice Chancellor,
Ranchi University, Ranchi at near Shaheed Chowk P.O GPO
Ranchi, P.S Kotwali, District Ranchi. ... Respondents
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CORAM: - HON'BLE MR. JUSTICE PRAMATH PATNAIK.
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For the Petitioner : - Mr. V. P. Singh, Sr. Advocate
and Mr. Mahesh Kr. Sinha, Advocate.
For the Respondent nos. 1 & 3 : - J.C. to G.A.
For the Respondent no. 4 & 5 : - Mr. Anoop Kumar Mehta, Advocate.
For the Respondent No. 6 :- M/s. Sanjay Piprawall
and Abhay Prakash, Advocates.
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C.A.V. On: - 07.12.2016 Delivered On: - 21/04/2017
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Per Pramath Patnaik, J.:
In the accompanied writ application, the petitioner has, inter alia,
prayed for quashing the order dated 02.01.2016, whereby the
respondent no. 7 has been made In-charge to carry out the functions of
Finance Officer, Ranchi University, Ranchi with effect from
02.01.2016by resuming the office of Finance Officer without giving any notice or without issuing any termination order to the petitioner 2 and for direction to the respondents to permit the petitioner to continue to discharge his duties as Finance Officer, Ranchi University, Ranchi and the petitioner has further prayed for direction to the Ranchi University, Ranchi to treat the petitioner's service as Finance Officer on permanent basis and in continuance till he attains the age of superannuation and the petitioner has further prayed for issuance of writ of certiorari for quashing the Resolution dated 02.01.2016 of the Syndicate meeting held on 02.01.2016, whereby Syndicate has resolved not to grant extension of tenure to the petitioner for the post of the Finance Officer.
2. The brief facts, as narrated in the writ application, is that an Advertisement No. 06 of 2010 was published by the Jharkhand Public Service Commission for recruitment of the Finance Officer in the Ranchi University, Ranchi. The petitioner applied for the said post through proper channel and the Jharkhand Public Service Commission after completion of selection process found the candidature of the petitioner, suitable and accordingly, recommendation has been issued under the signature of the Secretary, Jharkhand Public Service Commission, Ranchi for appointment of the petitioner on the post of the Finance Officer to the Registrar, Ranchi University, Ranchi as evident from Annexure-3 to the writ petition. In view of the provisional recommendation of the JPSC, the matter of appointment of the petitioner on the post of the Finance Officer was discussed in the meeting of the Syndicate of Ranchi University, dated 23.09.2011, in which the name of the petitioner was duly approved for appointment subject to the verification of the certificates as evident from Annexure-5 to the writ petition. After verification of the requisite qualification and experiences, the petitioner was appointed as the Finance Officer, Ranchi University, Ranchi vide Notification dated 29.09.2011. The petitioner submitted his representation before the Vice-Chancellor, Ranchi University, Ranchi and the same has been accepted by the Ranchi University, Ranchi vide Memo dated 02.01.2012, issued under the signature of the Registrar, Ranchi 3 University, Ranchi. It has been averred in the writ application that no such condition of tenure of appointment was mentioned in the Notification of the appointment of the petitioner but to the utter surprise and consternation, the petitioner came to know the office order of the Ranchi University, Ranchi dated 02.01.2016 issued by the Registrar, Ranchi University, Ranchi that the respondent no. 7 has been given an additional charge of the post of the Finance Officer of Ranchi University with all financial power as evident from Annexure-12 to the writ petition. Being aggrieved by the order dated 02.01.2016, the petitioner submitted representation before the Vice-Chancellor of the Ranchi University and the petitioner also submitted an Appeal representation dated 04.01.2016 before His Excellency, the Chancellor of Jharkhand State Universities, Raj Bhawan, Ranchi by requesting to allow him to continue on the post of the Finance Officer of the Ranchi University till attaining the age of superannuation. Being aggrieved by the impugned order dated 02.01.2016 vide Annexure-12 and inaction of the respondents in not considering the representation as well as the appeal representation, the petitioner left with no other alternative, has been constrained to approach this Court under Article 226 of the Constitution of India for redressal of his grievances.
3. Learned senior counsel for the petitioner has strenuously urged that the action of the respondents in treating the post held by the petitioner as tenure post for a limited period, is de hors of the statute of the University. In order to buttress his submissions, learned senior counsel for the petitioner has referred to Section 2 (v), Section 7, Section 16, Section 36 sub-section (5) and (6) Part II of the Statute, Clause 2 (XVII), Clause (X), Clause (XVIII), Clause 16, Clause 18 and Clause 9. Learned senior counsel for the petitioner has further submitted that in the Notification of the appointment of the petitioner, there has been no mention of tenure of the post nor the terms and conditions of the appointment speaks about the post of the Finance Officer as a tenure post, therefore, the respondents in a very arbitrary and illegal manner, have terminated the services of the petitioner from 4 the post of the Finance Officer without issuing any order of termination or notice prior to termination. Learned senior counsel further submits that the act of the respondents is highly arbitrary and is violative of the rights guaranteed under Articles 14, 16, 19 (i) (g) and 311 (i) and (ii) of the Constitution of India. Learned senior counsel for the petitioner further submits that though under the qualification and experience, as mentioned in Serial No. 2 of the Advertisement, it has been stated therein, that direct recruitment would be made for the post of the Finance Officer for the tenure as per the Rule. However, in its clarification, as contained, in Clause (ii), it was nowhere mentioned that the appointment would be for a fixed period. Learned senior counsel has drawn the analogy of Annexure-10 of the writ application, wherein, it has been clarified that in so far as tenure post are concerned, the same are specifically mentioned in the letter of appointment, which was not a condition in the petitioner' appointment but however, clearly mentioned in other appointments, namely, for the post of Controller of Examination and Registrar etc., it clearly mentions that the appointment would be for a period of four years only. Learned senior counsel has referred to the statute for qualification of pay-scale of the post, as has been annexed under Annexure-A to the counter affidavit. In this respect, learned senior counsel submits that Clause 1.1.1 (d) of the said statute deals with the qualification and other particulars regarding appointment of Finance Officer and Clause 1.1.1 (f) (i) of the said Statute pertains to tenure of four years but the said provisions are not in conformity with the Act.
4. Controverting the averments made in the writ application, a counter affidavit has been filed by the respondent nos. 4 and 5. It has been, inter alia, submitted that the HRD Department, Government of Jharkhand vide letter dated 18.05.2004 has forwarded the Statutes for qualification and pay scales for the post of Officers to be filled by the University by direct recruitment through All India Advertisement by the Jharkhand Public Service Commission. The said statute has been framed in exercise of powers under Section 36 of the Jharkhand State 5 Universities Act, 2000 and has the approval of His Excellency the Chancellor of Universities, Jharkhand. Clause 1.1.1 (d) of the said Statute lays down the qualification and other particulars regarding appointment of Finance Officer. Further Clause 1.1.1 (f) (i) of the said Statute provides that the appointment of Registrar, Inspector of Colleges, Controller of Examinations and Finance Officer shall be on the basis of direct recruitment for a tenure of four years which may be extended by the order of the Syndicate for further four years. From the above, it is evidently clear that the post of Finance Officer is a statutory post to be filled-up by direct recruitment for a tenure of four years. The copy of the letter dated 18.05.2004 enclosing therewith the Statutes has been annexed as Annexure-A to the counter affidavit. As a vacancy to the post of the Finance Officer was to be created on account of completion of four years tenure of the earlier Finance Officer, the Registrar, Ranchi University, Ranchi vide letter dated 04.03.2010 sent a requisition to the Secretary, J.P.S.C. for filling up the vacant and sanctioned post of officers including Finance Officer. As against para 4
(a) of the requisition form, it was mentioned that the post of the Finance Officer, is a permanent post of fixed tenure of four years as per Annexure-B to the counter affidavit. The Jharkhand Public Service Commission acting upon the requisition of the Ranchi University published Advertisement No. 06/2010 inviting applications for appointment to different posts of Officers in the Ranchi University including the post of the Finance Officer. In the said advertisement, after para (vi), a note has been appended, which reads as under : -
"Note :- The appointment of Inspector of Colleges, Science/Arts and Commerce, Controller of Examinations and Finance Officer shall be made on the basis of direct recruitment for the tenure as per Rules" vide Annexure-C to the counter affidavit.
It has further been stated that therefore, the petitioner was fully aware of the fact that the post of Finance Officer advertised was in terms of the statute and also the fact that the said post was a tenure post. It has further been stated that since the tenure of four years was 6 about to lapse, the petitioner made representation to the Vice Chancellor, Ranchi University for extension of his tenure for a further period of four years in terms with para 1.1.1 (f) (i) of the Statute. From perusal of the representation, it is evident that the petitioner was aware that his tenure was coming to an end on 31.12.2015 as he had joined on 02.01.2012 and therefore, he represented as under :-
"I am willing to continue as Finance Officer beyond 31.12.2015 in the Ranchi University, Ranchi" as evident from Annexure-D to the counter affidavit.
Thereafter, the representation of the petitioner was placed before the Syndicate of the Ranchi University as the Syndicate alone was competent to grant extension of tenure for a further period of four years. In the 138th Meeting of the Syndicate held on 02.01.2016, the Syndicate vide its resolution No. 826/16, resolved not to grant extension of tenure to the petitioner for the post of Finance Officer and the Syndicate also resolved to make requisition for appointment to the J.P.S.C. and the resolution No. 826/16 of the Syndicate Meeting held on 02.01.2016 has been marked as Annexure-E to the counter affidavit.
5. A counter affidavit on behalf of the Respondent nos. 4 and 5 to the amendment of the writ petition pursuant to I.A. No. 3498 of 2016 has been filed, wherein, the Notification dated 02.01.2012 vide Annexure-F has been annexed, which would clarify that the petitioner has full knowledge of the fact that his appointment as Finance Officer is for a tenure of four years commencing on 02.01.2012 and ending on 01.01.2016. On the question raised by the petitioner regarding the legality and validity of the decision of the Syndicate on the ground that the quorum was not complete and therefore, the Resolution dated 02.01.2016 of the Syndicate has been vitiated, it has been submitted that the Rules of business of the Syndicate have been framed and codified in the Ranchi University Code, 1970. Rule 4 of the Rules for the Syndicate under the Ranchi University Code lays down the procedure of meetings. Rule 4 (i) lays down that seven members of the syndicate shall constitute a quorum. Thus, any decision/resolution of 7 the Syndicate of the Ranchi University passed by at least seven members of the Syndicate is fully justified and the same cannot be questioned on the point of quorum and the relevant portion of the Ranchi University Code, 1970 containing rules for the Syndicate has been annexed as Annexure-G and the xerox copy of the proceedings of the 138th Meeting of the Syndicate of the Ranchi University has been annexed as Annexure-H to the amended counter affidavit. In the said counter affidavit, the xerox copies of the representations dated 04.01.2016, 01.08.2016, the notices of the OSD (J) dated 21.01.2010 and 22.08.2016 as also the response of the University dated 26.08.2016 also have been marked as Annexure-I series.
6. Learned counsel for the Respondent-University has assiduously submitted that the writ petition was filed on 17.02.2016, while the petitioner was pursuing remedy before His Excellency, the Chancellor as per his representation dated 04.01.2016, therefore, on that score writ petition ought to be dismissed. Learned counsel for the Respondent- University further submits that the advertisement for the post of the Finance Officer does mention that the appointment on the post of the Finance Officer is for a tenure as per the Rules. Moreover, there is no challenge to the non-compliance of any provisions of the Statute and the pleadings are lacking in that respect. Learned counsel further submits that since the appointment of the petitioner is as per the Statute and the post being a tenure post, the petitioner does not have any legally tenable right to ask for any equitable relief. Moreover, the learned counsel for the Respondent-University submits that the Statute cited by the petitioner does not apply in the instant case. In this respect, the learned counsel for the respondent-University has referred to the decision reported in AIR 1992 SC 1872, para 16.
7. As against the submissions of learned counsel for the respondent- University, learned senior counsel for the petitioner by referring to paragraphs 4 and 5 of the supplementary affidavit filed on behalf of the petitioner, dated 28.10.2016, pointed out that the Registrar, Dr. Amar Kumar Choudhary and the Finance Officer of the Kolhan University 8 have been granted extension of another four years. Learned senior counsel further submitted that the Syndicate of the Ranchi University is adopting a discriminatory and dual policy in case of the petitioner.
8. Learned counsel for the respondent-JPSC during course of hearing has referred to the decision reported in (2007) 8 SCC 100 in the case of Union of India and others-versus-S. Vinod Kumar and others, paragraph 18 as well as on the decision reported in 2006 SCC (L&S) 1870 in the case of Malik Mazhar Sultan and another-versus-U.P. Public Service Commission and others paragraph 21 to 24.
9. It appears that Section 57 of the Jharkhand State Universities Act, 2000 deals with Appointment of teachers and Officers and Section 58 deals with appointment of Teachers as well as Officers of the University. Before delving into the rivalry submissions of the respective parties, it would be apposite to refer to the relevant provisions of the statute of sub-section (6) of Section 36 of the Jharkhand State Universities Act, 2000 for effectual adjudication of the matter, which reads as under :-
" 3[(6) Notwithstanding anything contained in the above clauses, if at any time when the Senate is not in session and the Chancellor is satisfied that it is necessary to frame Statutes on any subject, the Chancellor after obtaining the advice of the 4 [Department of Higher Education, Government of Jharkhand] shall send the draft Statutes for opinion to the Syndicate of the University and it shall be binding on the Vice-Chancellor to convene a meeting of the Syndicate for consideration of the drafts statutes within 10 days of receipt of the said draft. The Chancellor shall then give his assents to the Statutes with such amendments as may deem necessary in the light of the opinion of the Syndicate. The Statutes shall be deemed to have come into force in the University from the date of assent. Statutes framed in this manner shall be placed before the next meeting of the Senate for confirmation :"
10. After bestowing my anxious consideration to the submissions at the bar and on perusal of the records, the petitioner has not been able to make out a case for interference due to the following facts and reasons: -
(i) From perusal of the Statute, which has been framed in exercise of the powers conferred under Section 36 of 9 the Jharkhand State Universities Act, 2000, which has got the approval of His Excellency, the Chancellor of the Jharkhand State Universities, Raj Bhawan, Ranchi, which deals with qualification and tenure of the appointment of various posts including Finance Officer. Clause 1.1.1 (d) and Clause 1.1.1 (f) (i) of the Statute makes it abundantly clear that the post of the Finance Officer is a statutory post, which is to be filled up by direct recruitment for a tenure of four years, as evident from Annexure-A to the counter affidavit. Before advertisement was published by the JPSC, a requisition form was sent by the Registrar, Ranchi University, Ranchi vide letter dated 04.03.2010 as against 4 A of the requisition form, a tenure of the post has been mentioned as the fixed tenure for four years.
Moreover, in the advertisement published by the JPSC under the note, it has been mentioned that the appointment of the Finance Officer shall be done on the basis of direct recruitment as per Rules, so, there is no room for any doubt or debate that the post of the Finance Officer is a tenure post, which can be subject to extension by the Syndicate. In the case in hand, the Syndicate in its Resolution has decided not to extend the services of the petitioner on the post of the Finance Officer, therefore, the petitioner does not have any indefeasible right to claim for any equitable relief. On that score, the writ petition will not be legally tenable.
(ii) Moreover, as per the Statute framed in the year 2004 having the approval of His Excellency, the Chancellor of the Jharkhand State Universities, Raj Bhawan, Ranchi on the expiry of the tenure of four years, it is left to the discretion of the Syndicate to consider further extension of the services. Since the Syndicate has taken the decision vide Annexure-12 vide the impugned order dated 10 02.01.2016 to allow the respondent no. 7 in addition to his own duties of Deputy Registrar, to discharge the duties of the Finance Officer with effect from 02.01.2016 after the expiry of the tenure of the petitioner, no right much less vested or accrued right has been curtailed or extinguished by the action of the respondents, therefore, the challenge to the impugned order vide Annexure-12 by the petitioner fails, being devoid of any merit.
11. In view of the reasons stated in the foregoing paragraphs and as a sequel to the aforesaid reasons, this Court is not inclined to interfere in the impugned order dated 02.01.2016 vide Annexure 12 and accordingly, the writ petition sans merit, is hereby dismissed.
(Pramath Patnaik, J.) APK