IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10560 of 2001 With CWJC No.5375 Of 2000 ---------- Merry Elizabeth, W/O Late Shrikant Tiwary, resident of Tiwary Tola, P.S. Dumraon, District- Buxar, previously Bhojpur ……. Petitioner Versus 1.The Rajendra Agricultural University through its Registrar having office at Pusa, District- Samastipur 2.The Vice-Chancellor, Rajendra Agricultural University at Pusa, District- Samastipur 3.The Comptroller, Rajendra Agricultural University at Pusa, District- Samastipur 4.The Director of Administration, Rajendra Agricultural University at Pusa, District- Samastipur 5.The Officer Incxharge, Central Work Shop, Rajendra Agricultural University at Pusa, District- Samastipur …… Respondents ----------- For the petitioner : Mr. A.B. Ojha, Sr.Adv. For the University : Mr. Mahesh Narayan Parbat, Adv. --------- O R D E R 12 23.07.2009 Heard learned counsel for the petitioner and learned counsel for the respondents. 2. The original petitioner had filed two writ applications for somewhat similar relief. The first writ application mentioned in the cause title (C.W.J.C.No.10560 of 2001) was filed in view of new cause of action which arose to the original writ petitioner on account of rejection of his claim for grant of second time bound promotion during the pendency of the second writ application mentioned in the cause title (C.W.J.C.No.5375 of 2000). Therefore, for convenience sake both the writ applications were tagged together and were taken up together from time to time and they have been finally heard and are being disposed - 2 - of by this common order. However, due to chronology sake, C.W.J.C.No.5375 of 2000 shall be referred as First Case and C.W.J.C.No.10560 of 2001 will be referred as Second Case hereinafter. 3. After death of the original petitioner, the present petitioner, his widow, has been substituted in his place. However, all the references of petitioner in this order shall be treated to be in respect of the original petitioner. 4. Facts, which are not disputed in this writ application, are that the petitioner was initially appointed in 1954 as Motor Mechanic under the State Government and was posted in Cattle Farm at Dumraon. By order dated 5.12.1958 petitioner was transferred from Dumraon to Cattle Farm, Pusa. Accordingly, he was relieved vide order dated 23.1.1959 and joined at Pusa soon thereafter. In 1971, an ordinance was promulgated by State Government creating an Agriculture University in the name and style of Rajendra Agriculture University. The Cattle Farm of Pusa which was under the control of Animal Husbandry Department was thereafter transferred to the control of the said University with effect from 1.2.1972. The said Ordinance matured into an Act and by virtue of the provisions of the Act the petitioner became an employee of the University. Petitioner by dint of his service was allowed to cross efficiency bar in the replacement scale of Rs.85-110 vide Annexure-3 dated 9.8.1972. 5. In 1973 one Tractor Driver namely, Nageshwar - 3 - Thakur working under the University in Sugarcane Research Institute, Pusa itself, was granted temporary promotion to the post of Clerk. Due to his promotion, a vacancy occurred on the post of Tractor Driver. Since the tractor had to remain operational all the time for the purposes of agricultural operations in the Institute, the respondents fell in need for appointment of a Driver immediately. Therefore, a limited interview was held, in which employees of the Institute itself, working in Class-IV posts in different capacities were called for to ascertain their fitness and capability of driving a tractor. In the interview, petitioner was found to be the most suitable person for the purpose. Accordingly, by an order contained in Memo No. 4482 dated 30.6.1973 (Annexure-4 in the Second Case) petitioner was directed to take over charge of the post of Tractor Driver from said Nageshwar Thakur and was directed to work as Tractor Driver as also as a Mechanic. But, it was made clear therein that petitioner will not be entitled to any remuneration for the same. However, later on, by office order no.466 dated 14.9.1976, petitioner was granted the scale of Rs.220- 315, (Annexure-5 in the Second Case). The petitioner continued as such and started getting the scale and subsequently he was granted the replacement scales also. Throughout his service career he continued to function in the dual capacity as Tractor Driver as well as Motor Mechanic under the Institute till he superannuated from service with effect from 31.5.1995. - 4 - 6. After adoption of the 4th Pay Revision Committee report by the State Government vide Resolution No.10770 F dated 30.12.1981, the same was adopted by the respondent-University also. Pursuant to it, University employees also became entitled for two time bound promotions which was made available to the employees on completion of 10 years of service and 25 years of service respectively to be effective from 1.4.1981. As petitioner was in service of the University from before, respondents considered the case of the petitioner for first time bound promotion counting his posting as Tractor Driver as his fresh appointment. Hence, counting 10 years of the service from May, 1973 he was granted first time bound promotion on completion of 10 years of service with effect from 20.5.1983 by office order no. 398 dated 8.6.1989. However, counting his entire service career, petitioner was also given his second time bound promotion with effect from 20.6.1986 by office order no.C 28 contained in Memo no.634 dated 8.5.1996 which was issued after the superannuation of the petitioner. Inspite of grant of second time bound promotion, which was given to the petitioner after superannuation, monetary benefits of the same were not paid to the petitioner. Besides, other retrial dues were also not paid to the petitioner by the respondent-University. As such he moved this Court through C.W.J.C. No. 2237 of 1998 for his retrial and other benefits. The said writ application was disposed of by this Court by order dated 21.6.1999 and directions were issued with regard to - 5 - payment of his retrial dues with interest and cost. However, in respect of the promotional benefits this Court did not give any finding and granted liberty to the petitioner to file a comprehensive representation before the respondent-authority with a direction to it to pass speaking order on the same as early as possible and preferably within a period of three weeks from the date of filing of such representation. Petitioner filed the representation in time. However, the same was not disposed of and the dues as claimed by the petitioner and directed by this Court were not paid to him. As such petitioner moved this Court through the first writ application namely, C.W.J.C. No. 5375 of 2000 for a direction to the respondents to grant time bound promotion to the petitioner with effect from 1.4.1981 taking into account his entire length of service and second time bound promotion with effect from 20.6.1984 instead of from 20.6.1983 and 20.6.1986, respectively, with grant of consequential benefits and also for a direction to the respondents to pay other dues in terms of the order dated 21.6.1999 passed by this Court in his earlier writ application. In the first writ application under consideration, respondents have filed counter affidavit, in which they have contended that the representation of the petitioner has been considered and order for grant of second time bound promotion has been found to be issued on wrong premises and, therefore, the same has been withdrawn. The said order has been annexed with - 6 - the counter affidavit as Annexure-C. For holding the petitioner as not entitled for the second time bound promotion the respondents referred to Clause-7 of Resolution of the Government dated 30.12.1981 which was quoted in paragraph 12 of the counter affidavit. With regard to other dues, respondents claimed that they have paid the petitioner other retrial dues including the cost and interest as awarded by this Court. Since the rejection order of the Director of the Sugarcane Research Institute, Pusa which was under the control of the respondent-University gave rise to a new cause of action, petitioner filed the second writ application under consideration challenging the same. In this writ application also a counter affidavit has been filed by the respondents. As per the case of petitioner, his appointment as Tractor Driver was a local arrangement to facilitate continued operation of the tractor in the Institute which was necessary for the purposes of agricultural operations being taken up in the Institute on day to day basis. It was submitted by learned counsel for the petitioner that this was neither promotion nor his fresh appointment to the post of Tractor Driver. He submitted that the said Memo dated 30th June, 1973 shows that it was only on account of the promotion of the Tractor Driver to class-III posts that the petitioner was transferred and directed to take charge of the post of Tractor Driver, which was also a Class IV post, in addition to his own work of Mechanic. He submitted that - 7 - vide Memo dated 14.9.1976 petitioner’s pay was upgraded in view of his functioning as Tractor Driver as well as Mechanic. Therefore, neither the posting of the petitioner as Tractor Driver nor grant of scale to him could be treated as his promotion to the post or the scale. Hence he was entitled for the grant of time bound promotions under the scheme counting his entire length of service from his initial date of appointment. On the other hand, learned counsel for the University submitted that the appointment of the petitioner as Tractor Driver by virtue of the said Memo dated 30.6.1973 and later grant of the scale by Memo dated 14.9.1976 was in consequence of full-fledged selection process and was a result of fresh appointment of the petitioner on the post of Tractor Driver. Therefore, he submits that the appointment of the petitioner on the post of Tractor Driver from June, 1973 has to be taken as a fresh appointment and his 10 years of service is to be counted from that date for grant of first time bound promotion. Accordingly, the grant of first time bound promotion to the petitioner with effect from 30.6.1983 was perfectly legal and justified. He submits that counting the services of the petitioner from 30.6.1973, the required 25 years of service for second time bound promotion came to 30.6.1998. However, since petitioner superannuated from service prior to completion of said 25 years of service from 30.6.1973, he could not be granted the second time bound promotion and, therefore, the second time bound promotion granted - 8 - to the petitioner earlier was rightly cancelled by the Director. In paragraph 8 of the counter affidavit filed in the second case, the respondents have taken stand that the petitioner was promoted to the post of Tractor Driver with effect from 20.6.1973. But in paragraph 3 of the same counter affidavit, another stand has been taken by the respondents that the petitioner after interview for the post of the tractor driver was selected and appointed in the scale of Rs.220-315 with effect from 20.6.1983, meaning thereby that the posting of the petitioner as Tractor Driver was a fresh appointment altogether. However, during the course of hearing of this case, learned counsel for the respondent University has advanced an alternative argument that, in case the said arrangement of posting of the petitioner as Tractor Driver and grant of scale of 220-315 is not accepted as promotion or fresh appointment, still, since it was an elevation to higher pay scale by promotion, the same was hit by Clause 7 of the said Resolution No.10770 dated 30.12.1981 and referred to Clause 7 of the said Resolution as quoted in paragraph 12 of the counter affidavit of the University filed in the first case. It appears from the records that by earlier orders, the respondent-University was directed to produce service book of the petitioner. However, subsequently learned counsel for the University informed this Court that service book of the petitioner was not available in the University and, therefore, it was not - 9 - possible to produce the same in this case for perusal by this Court. However, from the writ application of the second case, it appears that duplicate service book of the petitioner was also created which was sent from Dumraon to Pusa at some later point of time, when the original service book of the petitioner could not be traced out. But no submission has been made by either of the learned counsels with regard to availability of this duplicate service book of the petitioner. Therefore, in absence of any other material available on record the nature of change in service of the petitioner in the year 1973, from Motor Mechanic to Tractor Driver has to be examined only on the basis of the said Memos dated 30.6.1973 and 14.9.1976 (Annexures- 4 and 5 with Second Case) and the pleadings of the parties in that respect. As said earlier, the respondents have taken stand that this posting of the petitioner as Tractor Driver was on account of fresh appointment and/or grant of promotion in grade and/or promotion in the higher scale. In support of their stand that it was a fresh appointment, respondents have relied upon the representation of the petitioner which he filed before the respondents after disposal of his previous writ application and in the light of the liberty granted to him. In the representation, which has been annexed by the respondents as Annexure-D to subsequent supplementary counter affidavit filed in both the cases, petitioner has mentioned that in 1973 there was an interview for the appointment of Tractor Driver in which - 10 - he had participated and on the basis of his ability he was selected and appointed. Thus, averment made by the petitioner in his said representation is being taken by the respondent as admission of his fresh appointment on the post of Tractor Driver. Petitioner has himself stated in the writ application with regard to the said interview. Question remains whether the said interview was only for the purposes of making a local arrangement for filling up the post of Tractor Driver to facilitate uninterrupted agricultural operation in the Institute or was for a full-fledged altogether fresh appointment on the post. Petitioner in his writ application has stated that it was only by way of local arrangement, meaning thereby that the incumbents working in the Institute on class-IV posts were interviewed for consideration of their fitness for filling up the post of Tractor Driver which was felt to be necessary in view of the promotion of the regular Tractor Driver to a Class-III post. In the counter affidavit, the respondents have not said that any advertisement was published inviting applications from eligible candidates from open market for the fresh appointment. On the other hand, it has been accepted in the counter affidavit that this was by way of local arrangement in the interest of the Institute. Therefore, the said averment made by the petitioner in his said representation does not go to establish that there was a full-fledged selection process undertaken for appointment of Tractor Driver. - 11 - Now coming to the said two memos dated 30.6.1973 and 14.9.1976, this Court finds that by the first memo, petitioner was transferred to the post of Tractor Driver in his own pay scale and he was also directed to continue looking after the work of Mechanic till appointment of fresh Mechanic. It was also made clear therein that petitioner was not entitled to any remuneration for the same. In the said memo, it was also mentioned that the claim of the petitioner for grant of pay scale for driving a heavy vehicle shall be considered only when the Agriculture Department creates the pay scale of the Tractor Driver. By the second memo petitioner was granted pay scale of Rs. 220-315. In the memo, it was mentioned that the petitioner’s case was of transfer and not of promotion and, therefore, he will get only pay protection and will not get any benefits of promotion. The said two orders clearly show that the arrangement of posting of petitioner as Tractor Driver was neither a promotion nor was a fresh appointment. Both the orders clearly show that the petitioner was transferred from one Class-IV post to another class-IV post in the exigencies of the situation and to facilitate running of the tractor for agricultural purposes on day to day basis. So far as Clause 7 of the time bound promotion Scheme, relied upon by the respondents in the counter affidavit filed by the respondent in the first case is concerned, it does mention that - 12 - “The benefit should not be made applicable to such employees who, after once joining Government service have, for any reason, being elevated to a higher pay scale by promotion, merger or even up-gradation”. It is true that the petitioner was earlier in the pay scale of Rs.85-110 while working as mechanic. Later on by memo dated 14.9.1976, he was granted the pay scale of Rs.220-315. The question arises whether this was an elevation of the petitioner to higher scale by promotion, merger or even up-gradation prohibiting him from getting the benefit of time bound promotion under the scheme as per the said Clause 7 of the scheme. Confronted with this situation, learned counsel for the petitioner took adjournment and today has come up with a resolution of the Government, namely, Resolution no. 4245 dated 16.7.1985 and particularly relied upon paragraph 2 of the said resolution as quoted herebelow : ^^2 jkT; ljdkj ds mi;qZDr fu.kZ; ds QyLo:i jkT; ljdkj ds lsohoxZ dks dkyc) izksUufr nsus esa dfBukb;kWa mRiUu gks jgh gS A vr% bl dfBukbZ dks nwj djus dk iz”u jkT; ljdkj ds fopkjk/khu Fkk A iw.kZ fopkjksijkUr ljdkj us ;g fu.kZ; fy;k gS fd foRr foHkkx ds ladYi la0 10770] fnukad 30 fnlEcj]1981 dh dafMdk (vii) esa fofgr fofy;u@mRdze.k ds ca/kst dks lekIr dj fn;k tk;s] c”krsZ fd ,sls lsod@f”k{kd ds lHkh ojh; lsodksa@f”k{kdksa dh izksUUkfr dh lqfo/kk fey pqdh gS A blds QyLo:i osru fu/kkZj.k dk ykHk fnukad 1 vizhy]1981 ds izHkko ls fn;k tk;sxk] ysfdu Hkqxrku fnukad 1 vizhy 1985 ds izHkko ls fd;k tk;sxk A blds vfrfjDr ftu laoxhZ; inks ads duh; inksa esa duh; ,oa ojh; osruekuksa dk ,dhdj.k@lafofy;u fd;k x;k gS] mu ekeyksa esa iwoZ ds duh; osruekuksa ds ojh; osrueku esa lafofy;u@,dhdj.k ds igys ;fn izksUufr gqbZ gks rks oSlh gkyr esa ml iwoZ izksUufr dks izFke dkyc) izksUufr gsrq izksUufr ugha ekuh tk;s] ;fn bl dkj.k folaxfr mRiUu gksosa A ijUrq lkekU; ekeyksa esa dkyc) izksUufr ds lEcU/k esa tks orZeku esa ca/kst gS] mUgsa izHkkodkjh j[kk tk;s A ** - 13 - From a bare reading of paragraph 2 of the resolution quoted hereinabove, it is apparent that the restriction in grant of time bound promotion in cases of merger and upgradation was abolished with effect from 1.4.1981 itself, subject to that all employees senior to the employees concerned had been granted promotion. Learned counsel for the University submits that this provision was withdrawn only in case of merger and up-gradation and not in case of promotion. This stand of learned counsel for the University itself is contrary to his stand taken earlier during the arguments. It appears from the pleadings in the counter affidavit and also from the submissions of learned counsel for the University that the University itself has not been able to decide about their stand in the case in spite of repeated adjournments. Moreover, the memo dated 14.9.1976 (Annexure-5) clearly shows that the case of the petitioner was not a case of promotion. Rather it was, on account of his holding the post of Tractor Driver, at best, only a case of up-gradation of his pay scale. In such a situation and in view of the said resolution of 1985, the said clause 7 of Resolution No.10770 F dated 30.12.1981 does not operate as bar for entitlement of the petitioner to time bound promotions in accordance with law. Paragraph 2 of the Resolution of 1985 also makes it clear that the same has to be given effect to from 1.4.1981 itself. Therefore, after considering the over all - 14 - aspects of the matter, this Court is of the view that the petitioner is entitled for grant of time bound promotion in accordance with law counting his services from initial date of appointment which is 1954. Consequently the petitioner shall be entitled for first time bound promotion with effect from 1.4.1981 from the date the Scheme became operative, and consequent second time bound promotion on the completion of 25 years of continuous service as per the scheme. In the result, this writ application is allowed and the Annexure-7 in the second writ application rejecting the representation of the petitioner is hereby quashed. The respondents are directed to consider the case of the petitioner for grant of first time bound promotion as also the second time bound promotion counting his services as continuous service from 1954 onwards. All considerations shall be made and decisions shall be taken in this respect by the respondents within three months from the date of receipt/production of a copy of this order and consequential benefits of the same shall be paid to the present petitioner within one month thereafter in accordance with law. C.W.J.C.No.10560 of 2001 is accordingly allowed with the above orders and directions and C.W.J.C.No.5375 of 2000 is disposed of in view of disposal of C.W.J.C.No.10560 of 2001. Arvind/ (J. N. Singh, J.)