The Lieutenant Governor And ORS. v. Dr. Bijaykrishna Jana And ORS.

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** WP.CT/47/2023 The Lieutenant Governor and others Vs.

Dr. Bijakrishna Jana and others Mr. Shatardu Chakraborty Mr. Dibesh Dwivedi ... for the petitioners Mr. Arul Prasanth ... for the respondent No.1 November 16, 2023 [SR] Item No.7 1.

The writ petition is directed against an order passed by the Judicial Member on 17th October, 2022 upon a reference being made by the Judicial Member in view of the difference of opinion between the Judicial Member and the Administrative Member with regard to the entitlement of the writ petitioner on a scale of pay based on his initial appointment on an adhoc basis.

2.

The Regular Bench consisting of Judicial Member and the Administrative Member, on consideration of the available record had arrived at different conclusion. The Judicial Member was of the view that the due to lack of relevant record being produced by the writ petitioner and having regard to the fact that the applicant was selected on adhoc basis like others, the respondent is entitled to pay fixation on the basis of the initial date of appointment on adhoc basis. The observation of the Judicial Member in this regard is reproduced below: "8. Furthermore, it is profitable to note that once a controversy has been settled final judgment is required to be implemented to all employees similarly situated vide Union of India v. Satya Brata Chudhury; 2009 (2) SCT 365 & Balraj Singh v. State of Haryana, 2009 (1) SCT 589.

In the case of Inder Pal Yada v. Union of India [(1985) 2 SCC 648]. It was also held by the Hon'ble Apex Court that ht relief granted by Court is to be given to other similarly situated employees without forcing them to go to Court for similar benefits. The same view was expressed by the Hon'ble Apex Court in the case of Lal Berry v. CEE [(1975) 4 SCC 714]. The Constitution Bench of the Hon'ble Apex Court in the case of R.C.Sharma & Ors vs. Union of India, (1997) 6 SCC 721, while Tribunal O.A.Nos.123/AN/09, 130/AN/09, 122/AN/09 and 129/AN/09. With great respect, it may be recorded that the Hon'ble Member (Admn.) came to the conclusion based on the points, which are not available to be canvassed after the implementation of the orders in O.A Nos.

123/AN/09, 130/AN/09, 122/AN/09 and 129/AN/09 setting the issue at reste and the conclusion that the aforesaid cases are different is not supported by the fact and law.

9.

In view of the discussions made above, I do hereby agree with the findings and view taken by the Hon'ble Member (Judl) and the O.A. stands disposed by reiterating that the authorities to exend the Senior Scale to the applicant with effect from the date of his appointment as a Lecturer, albeit on adhoc basis, alike other Lecturers as there is nothing on record to show that Dr. B.K.Jana, the present applicant, was not entitle dto count the adhoc period of service for senior scale. Let appropriate orders be issued within 2 months."

3.

The Administrative Member, however, on consideration of the fact that the UGC notification of 2007 has clearly stated that the period of adhoc services of the lecturers, who were appointed on adhoc basis by adopting the process of selection by the Administration and on the recommendation of a Selection Committed constituted by the Chief Secretary may be counted for placement of Lecturer in senior scale and having found that Dr. Jana was not appointed by selection committee although in 1995 the post of Lecturer in Maths was advertised by the Administration . Dr. Jana did not respond. He was recommended as a departmental candidate. Therefore, the grant of senior scale on the basis of his initial appointment on an ad hoc basis could not be considered.

4.

The Administrative Member after taking into consideration the benefit extended to the candidates namely Shadab Hasan, Dr. Ratan Majumder and other applicants particulars whereof is mentioned in paragraph 8 of the judgment, held that all those applicants unlike Dr.Jana, were appointed through a selection process in conformity with the clarificatory order issued by the UGC on 10th October, 2007.Therefore, Dr. Jana cannot be held to be similarly placed with them.

Moreover, the respondent accepted his appointment with effect from 09.09.2003 as a regular Lecturer without protest and only after his superannuation as an afterthought he made aforesaid application.

5.

In view of the difference of opinion, the matter was referred to a Third Judge. It appears that the Judicial Member to whom the matter was referred to, has passed an order which does not contain any reason. The learned Judicial Member has proceeded with the matter mechanically and accepted the view of the Judicial Member without assigning any reason for such acceptance.

6.

The Judicial Member referred to few decisions and opined that similarly situated employees should be extended the benefit and on that score, extended the benefit to the respondent.

7.

The Judicial Member has overlooked the materials relied upon by the Administrative Member in refusing to the same relief.

Admittedly in the letter of appointment dated 06.07.1998, three persons were named for appointment on adhoc basis and all were treated alike.

8.

We are also of the view that the respondent is not similarly placed as that of the person on whom the reliance has been placed by the respondent for pay parity. 9.

Learned counsel for the respondent has relied upon a decision of the Hon'ble Supreme Court in Lieutenant Govern and others vs. Parimal Halder and another in Special Leave to Appeal (C) No.31187/2013 dated 13th January, 2015 to contend that since the appointment of the respondent from the very beginning was in a pay scale and not on a fixed pay, the view taken by Judicial Member and affirmed by the 3rd Judge is required to be accepted.

10.

We are unable to accept the said submission having regard to the fact that the respondent in the said Special Leave Petition are not similarly placed and circumstanced as that of the present respondent.

11.

Moreover, the nature of service, method of recruitment and rules governed the other service in Parimal Halder (supra) are different from the present case. The UGC notification was not under consideration in Parimal Halder and other (supra). 12.

The Judicial Member in the original application also did not consider the said UGC guidelines and other relevant facts, as referred to earlier, taken note of by the Administrative member in deciding the application.

13.

On such consideration, we allow the writ petition and set aside the order dated 17th October, 2022 read with the Order dated 6th December, 2022.

14.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities.

( Soumen Sen, J. ) ( Siddhartha Roy Chowdhury, J. )