Jharkhand High Court
Dr.Akhaury Brajesh Kumar vs State Of Jharkhand & Ors on 1 March, 2013
Author: Narendra Nath Tiwari
Bench: Narendra Nath Tiwari
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No.2241 of 2010
with
I.A. No.1034 of 2013
Dr. Akhaury Brajesh Kumar. .......... Petitioner.
Versus
The State of Jharkhand & Ors. .......... Respondents.
CORAM : HON'BLE MR. JUSTICE NARENDRA NATH TIWARI
For the Petitioner : Mr. M. S. Anwar, Sr. Advocate
For the State : Mr. A. Allam, Sr. S.C.II
06/01.03.2013: I.A. No.1034 of 2013 has been listed today under the heading "For Orders". In the said application, the petitioner has prayed for an interim order, directing the respondents to pay arrears and current salary in the scale of University Professor.
2. Learned counsel for the parties submitted that the same prayer has been made in the writ petition and the writ petition itself can be heard and disposed of at this stage.
3. Accordingly, the parties have been heard on merit of the writ petition as well as interlocutory application and both are being disposed of by this order.
4. The petitioner is holding the post of University Professor in Mathematics in Ghatshila College under Vinoba Bhave University.
5. The petitioner is aggrieved by forward shifting of the date in counting length of his service to his prejudice. The respondents are counting the length of his service for time bound promotion, with effect from the date of his substantive appointment, whereas the petitioner claims that the length is countable from the date of his initial appointment i.e. 19th September, 1977.
6. The respondents have taken plea that the period of temporary service cannot be taken into consideration for computing his past service for giving time bound promotion. The services of the petitioner is legally countable with effect from the date of substantive appointment.
7. The case of the petitioner is that the petitioner was appointed as Lecturer in Mathematics in Ghatshila College, Ghatshila (hereinafter to be referred as 'the College'), following the due procedure of selection, on 19thSeptember, 1977.The Bihar 2 University Service Commission accorded concurrence in view of the petitioner's appointment against the substantive post. The College was made a constituent unit of Ranchi University in July, 1980. The University Selection Committee recommended the petitioner's name for regular appointment on 7th January, 1982. The services of the petitioner was, in the meantime, confirmed by Ranchi University from the date of his initial appointment (Annexure4). By order dated 18th April, 1996, the petitioner was given promotion to the post of Reader under ten years time bound statute, on regular basis, on the recommendation of Bihar State University Service Commission with effect from 19th September, 1987. The petitioner was considered for promotion under Eight Years Merit Promotion Scheme and was given promotion under the said provision with effect from 22nd December, 1986 on the recommendation of Bihar State University Service Commission. The petitioner was further promoted to the post of University Professor in Mathematics on regular basis with effect from 19th September, 1993. The respondents suddenly shifted his date of promotion as Reader, showing date of promotion as 7th January, 1990 in place of 22nd December, 1986. The petitioner challenged the said order in W.P. (S) No.4683 of 2006. This Court, while disposing of the said writ petition, directed the concerned respondents to reexamine the matter and take a fresh decision in the light of the judgment in the case of Dr. (Mrs.) Rafat Ara Vs. Ranchi University & Ors. [2009(1) JCR 166 (Jhr.)].
8. By the impugned order, the respondents repeated the earlier order, holding that the period of temporary service of the petitioner cannot be counted for the purpose of promotion to the post of Reader and for that purpose the period countable for promotion would be from 7th January, 1982 i.e. the date of substantive appointment.
9. The petitioner has challenged the said order dated 30th March, 2010 (Annexure10) in this writ petition.
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10. Learned counsel appearing on behalf of the petitioner submitted that the respondents have repeated the earlier order in violation of the order passed by this Court in W.P.(S) No.4683 of 2006, whereby they were directed to reconsider and pass a fresh order in view of the decision in Dr. (Mrs.) Rafat Ara's case (Supra).
11. Learned counsel appearing on behalf of the respondents opposed the writ petition and supported the impugned order by reiterating the same grounds, which are mentioned in the said order.
12. I have heard learned counsel for the parties and considered the facts and documents on record.
13. In W.P.(S) No.4683 of 2006 the petitioner has challenged the similar order passed by the respondents. The said writ petition was disposed of by order dated 16th July, 2009, observing that the controversy is squarely covered by the decision in Dr. (Mrs.) Rafat Ara's case (Supra) and the view taken by the State Government in the decision is contrary to the decision of this Court in Dr. (Mrs.) Rafat Ara's case (Supra).
14. The order was quashed by this Court and the respondents were directed to reexamine the matter and take a fresh decision in accordance with the said decision.
15. The respondents, without taking into consideration the said observation and the ratio laid down in Dr. (Mrs.) Rafat Ara's case (Supra) , have repeated the same terms.
16. The impugned order is not only contrary to the decision of Dr. (Mrs.) Rafat Ara's case (Supra), but is also contrary to the order dated 16th July, 2009 passed in W.P.(S) No.4683 of 2006 and the same is wholly illegal and unsustainable.
17. Dr. (Mrs.) Rafat Ara's case (Supra) as well as in Dr. Anant Kumar Akhouri Vs. The Vice Chancellor, Ranchi University, Ranchi & Ors. [2012(2) JCR 153 (Jhr.)] are impliedly upheld by the Hon'ble Supreme Court by dismissing Special Leave to Appeal (Civil) No.CC 11707 of 2012.
18. In the said decision, it has been clearly held that temporary service shall be also counted for the purpose of 4 considering length of service for the purpose of giving time bound promotion and for all other purposes, if the service is continuous.
19. In the present case, admittedly, the petitioner is in continuous service since the date of his initial appointment i.e. 19th September, 1977. The said appointment was confirmed by the Ranchi University as also by the Bihar State University Service Commission.
20. In view thereof, there was no scope for the respondents to ignore the period of service from the date of initial appointment till his substantive appointment in computing length of the petitioner's service.
21. The impugned order dated 30th March, 2010 (Annexure10) contrary to the said decision is wholly illegal and unsustainable and is hereby quashed.
22. It is held that since the petitioner has no break in service from the date of his initial appointment dated 19th September, 1977, entire period of service from that date is computable for the purpose of determining length of his service. Accordingly, the petitioner is entitled for all consequential benefits, including fixation of pay scale(s) on that basis.
23. The respondents are directed to fix the petitioner's pay by correcting the date of his promotion, accordingly, within four weeks from the date of receipt/production of a copy of this order and pay the arrears/difference of pay within four weeks thereafter.
24. This writ petition as well as I.A. No.1034 of 2013 are allowed with a cost of Rs.10,000/ (rupees ten thousand) to be paid to the petitioner by the respondents within four weeks from the date of receipt/production of a copy of this order.
(Narendra Nath Tiwari, J.) Sanjay/NAFR