NAND KISHORE ROY Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) In the accompanied writ application, the petitioner has interalia prayed for quashing the office order dated 14.07.2016 issued by respondent no.2 whereby the post of Director, Students' welfare has been held to be nonacademic/ non-teaching cadre and directed the University to proceed accordingly and further prayer has been made for staying the operation of the order dated 14.07.2016 during the pendency of the writ petition.

(2.) Shorn of unnecessary details, the factual matrix of the instant writ petition is that in pursuance to advertisement published in daily newspaper "Dainik Jagran" dated 12.05.2003, the petitioner applied for the post of Director, Students Welfare and panel was prepared and also the appointment of the petitioner was approved by the Board of Management of the University. Thereafter, letter of appointment was issued to the petitioner for the post of Director, Students Welfare and the petitioner joined the said post on 28.03.2005. After joining the said post, the petitioner applied for lien for three years since the petitioner was holding the post of University Professor. The Dean (Agriculture) made a recommendation for continuance of the petitioner as Professor in addition to new assignment. In the year, 2003, there was no distinction for non-teaching employees so far as the age of superannuation is concerned. But subsequently, the age of superannuation of the teachers/scientist has been enhanced to 62 years in the year, 2005 and 65 years in the year, 2014 vide notification dated 18.10.2014. Prior to the year 1980, the Birsa Agricultural University was under the Rajendra Agricultural University, Pusa, Bihar and thereafter, Birsa Agricultural University came into existence in the year 1980. For determination the post of academic and non-academic regarding the post of Director, Students' welfare, the information was sought for from the Registrar as Rejendra Agricultural University, Pusa vide letter dated 07.03.2013 and as per the communication of the Rejendra Agricultural University, Pusa qualification for the post of Director, Students' welfare is more or less similar as academic post as evident from Annexure-8 to the writ petition. Similarly, the Registrar, Punjab Agricultural University communicated the same vide letter dated 25.03.2013 vide Annexure-9 and the Registrar, Bihar Agricultural University also communicated vide letter dated 26.03.2013 that the post of Director, Students' welfare seems to be an academic cadre as evident from Annexure-10 to the writ petition. Vide letter dated 23.08.2014 by the Director (Admn.), BAU, Kanke, Ranchi communicated to the OSD(J) to the Hon'ble Chancellor relating to the 76th Meeting of the academic council of the University declaring the post of Director, Students' welfare as academic subject to adoption of ICAR Model Act in the University by the Hon'ble Chancellor and/or approval of the Jharkhand Government vide Annexure-11 to the writ petition and vide letter dated 03.09.2014, the respondent no.4 to get the necessary details without waiting for approval/assent of ICAR Model Act by the State Government as per Annexure-12 to the writ petition. Further the Board of Management of BAU in 87th Meeting held on 17.03.2015 took a decision to declare the post of Director, Students' welfare to be the equivalent to the teaching cadre post and send the same to the Principal Secretary to the Hon'ble Chancellor for approval on 18.03.2015 vide Annexure-13 and the OSD (J) to the Hon'ble Chancellor vide letter dated 26.03.2015 communicated the approval of the resolution taken in 87th Meeting of the Board of Management declaring the post of Director, Students' welfare as Academic as per Annexure-14. The petitioner was to attain the age of 60 years in March, 2015 but prior to the superannuation of the petitioner, the decision has been taken that the post of Director, Students' welfare which the petitioner was holding is an academic post and the age of superannuation has been increased from 60 years to 65 years and the petitioner continued in the said post thereafter even after March, 2015. Section 2 (XXVIII) defines the word "Teacher" which means a person appointed or recognized by a University for the purpose of imparting instruction or conducting and guiding research or extension education and include a person who may be declared by the statutes to be a teacher and the duties to the post of Director, Students' welfare have been defined in the statute. It has been averred in the writ petition that after appointment to the post in question, the petitioner has taken Post Graduate Classes and also acted as advisor in the programme of Post Graduate of parent department. The Director (Administration) issued the office order dated 31.03.2015 declaring the post of Director, Students' Welfare as Academic but with a rider subject to the approval of the State Government as per Annexure-20 to the writ petition and the said order was challenged by one Ramesh Lal Gupta in W.P.(S) No. 2010/2015, which was disposed of by this Court vide order dated 23.11.2015 directing the respondent no.2 to take a decision in accordance with law. The respondent no.2 vide letter dated 20.05.2015 directed the respondent no.4 to explain the provisions of law of Jharkhand Agricultural University Act for conversion of the non-teaching post as evident from Annexure-21 to the writ petition and the respondent no.5 vide letter dated 03.09.2015 sent a reply to the aforesaid letter of the respondent no.2 and also the Joint Secretary, Department of Agriculture, Animal Husbandry and Co-operative, Jharkhand Co-operative, Jharkhand vide letter dated 11.01.2016 sought the opinion from respondent no.5 about the provisions of law under which the conversion of post has been made as evident from Annexure-23 to the writ petition and the respondent no.5 sent a reply to the Government about the factual position vide letter dated 03.03.2016 as per Annexure-24. The respondent no.2 on the basis of opinion of the learned Advocate General took a decision that the post of Director, Students' welfare is not an Academic /Teaching post, accordingly office letter dated 14.07.2016 has been issued vide Annexure-25 which is impugned in the instant writ petition. It has further been averred in the writ petition that the petitioner has been granted the Academic Grade pay by office order dated 18.06.2011 and academic grade pay is only to the teachers in view of the circular issued by the State Government which itself signifies that the petitioner's post of Director, Students' welfare is a teaching post. Being aggrieved and dissatisfied with the office order dated 14.07.2016 issued by respondent no.2, the petitioner left with no other alternative has approached this Court invoking extra-ordinary jurisdiction under Article 226 of the Constitution of India for redressal of his grievances.

(3.) A counter-affidavit has been filed by the respondent nos.1 and 2 repelling the contentions made in the writ application. In the counter-affidavit, it has been submitted that while the petitioner was working as Chief Scientist-cum-University professor under the Birsa Agriculture University, Ranchi has been appointed as Director, Students' Welfare, Birsa Agriculture University and the representation was filed by the petitioner while Agriculture Department has asked report/details of teacher from the Birsa Agriculture University regarding enhancement of age from 62 years to 65 years vide letter dated 17.12.2013. In compliance of the said letter, the Birsa Agriculture University has submitted details of teaching post and other post vide letter dated 26.12.2013 as per Annexure-A to the counter-affidavit. Vide letter dated 18.10.2014 issued by Agriculture and Sugarcane Development Department has enhanced the age of superannuation of teachers from 62 to 65 years as per Annexure-B to the counter-affidavit. The petitioner was working as Director Student's Welfare in Birsa Agriculture University and knowing that he was going to be retired/superannuated as 60 years on 31.03.2015. The officers on special duty (Judicial) to the Hon'ble Government-cum-Chancellor of the University directed vice chancellor, Birsa Agriculture University to get the necessary declaration regarding nature of the post of Director, Student's Welfare preferably within a period of 45 days so that the uncertainty about the date of retirement of the petitioner is ended as per Annexure-C to the counter-affidavit. The Board of Director/Management of Birsa Agriculture University, Kanke, Ranchi in its 87th Meeting held on 17.03.2015 recommended in respect of agenda no.87/1427 declaring the post of Director Student's Welfare as academic subject to approval from the Agriculture Department, Jharkhand in the light of Jharkhand Agriculture University Act, 2000 and the same has issued the office order dated 31.03.2015 vide Annexure-D to the counter-affidavit. Thereafter, the proposal for approval of declaring post of Director, Student's Welfare as academic by the Birsa Agriculture University to the Government of Jharkhand, Agriculture and Sugarcane Development Department vide letter dated 10.04.2015 and after receiving the said letter, the Agriculture and Sugarcane Development Department asked clarification from Birsa Agriculture University vide letter dated 20.05.2015 as to what provision of the act, the such decision has been taken by the University as per Annexure-E to the counter-affidavit. It has further been submitted that one Ramesh Lal Gupta preferred a writ application being W.P.(S) No. 2010/2015 for quashing of memo dated 31.03.2015 whereby the post of Director, Student's Welfare has been declared as academic post without approval from the State Government in light of the provisions of section 25 (ii) of the Jharkhand Agriculture University Act, 2000. In the said writ petition, the department of Agriculture and Sugarcane Development Department filed counter-affidavit and the said writ petition has been disposed of on 23.11.2015 vide Annexure-F to the counter-affidavit. The relevant provisions of Section 2 (XXVIII) the Jharkhand Agriculture University Act, 2000 and Chapter IV under section 19 of the Jharkhand Agriculture University Act, 2000 have been referred to. Further it has been submitted in the counter-affidavit that the department has got opinion from the Learned Advocate General, Jharkhand and has come to the conclusion regarding the post of Director, Student's Welfare and communicated to the Chancellor, Birsa Agriculture University vide Annexure-G to the counter-affidavit. It has further been submitted that the petitioner has filed writ application being W.P.(S) No.844/2016 before this Court for quashing of the order dated 31.03.2015 issued by Birsa Agriculture University (Annexure-D) whereby the post of Director, Student's Welfare, BAU has been declared as Academic Subject to approval from the State Government in light of section 25(ii) of the Jharkhand Agriculture University Act which is still pending. It has further been submitted that the post of Director, Student's Welfare is not Academic/Teacher as per section 2 (XXVIII) and section 19 of the Jharkhand Agriculture University Act, 2000. The claim of the petitioner is not maintainable and the writ petition may be dismissed.