Om Prakash Bairwa and Others vs Swami Keshva Nand Raj. Agrl. University and Others

Nirmaljit Kaur, J.

The prayer in the present petition is for setting aside the order dated 23.07.2014 withdrawing the pay scale of Assistant Registrar and restrain them from making any recovery.

The petitioners were promoted on the post of Assistant Registrar on the recommendations of the Screening Committee constituted by the University vide order dated 05.01.2013 till further orders, or the regularly selected candidates join the post. Without granting any opportunity of hearing, the said order was withdrawn vide impugned order dated 08.02.2013 which was bereft of any reason. The petitioners, therefore, filed SB Civil Writ Petition No. 3718/2013 (Om Prakash Bairwa and ors. vs. Swami Keshva Nand Raj. Agrl. University and anr.) challenging the impugned order dated 08.02.2013. The co-ordinate Bench of this Court granted interim order in that writ petition on 02.05.2013 as under:

"Heard on stay petition.

From a bare perusal of impugned order dated 08.02.2013 (Annexure/5) it is clear that it is a non speaking order. There is no quarrel in the factual position that the petitioner was promoted as Assistant Registrar on the recommendations of Screening Committee constituted by the University vide order dated 05.01.2013 till further orders, or the regularly selected candidates joins.

In view of the fact that the order impugned dated 08.02.2013 is bereft of any reason, I deem it just and appropriate to grant interim protection to the petitioners.

Accordingly, operation and effect of the impugned order dated 08.2.2013 (Annexure/5) shall remain stayed qua the petitioners."

In view of the above order, the respondents vide their orders dated 17.05.2013 and 30.08.2013 ordered the continuation of the petitioners on the post of Assistant Registrar and granted the benefits of the post of Assistant Registrar to be paid to the petitioners subject to the outcome of the writ petition No. 3718/2013.

Thereafter, the said order was confirmed by the co-ordinate Bench of this Court vide order dated 25.07.2013 in the presence of learned counsel for the parties. During the pendency of the said writ petition and the interim order having been confirmed, the respondent University went ahead and passed the impugned order 23.07.2014 withdrawing the benefits given to the petitioners of the post of Assistant Registrar and also passed an order directing recovery of the amount which was paid to the petitioners in pursuance to the order dated 17.05.2013. Accordingly, the present petition has been filed for setting aside the impugned order dated 23.07.2014. The present petition is thus an offshoot of the same.

On 25.07.2014, a co-ordinate Bench of this Court while issuing notice in the present writ petition, stayed the operation of the impugned order dated 23.07.2014 and the same was confirmed vide order dated 01.09.2014 after hearing the learned counsel for the parties and the matter was ordered to be heard along with S.B. Civil Writ Petition Nos. 3718/2013.

Today, only the present writ petition being SB Civil Writ Petition No. 5413/2014 is listed on the application for early hearing filed by the respondent University.

Learned counsel for the respondent University insists that the matter should be disposed of today itself in view of the order passed by the Division Bench in DB Civil Special Appeal (Writ) No. 1424/2014 filed against the order confirming stay dated 01.09.2014 passed in the present writ petition. The learned Division Bench dismissed the said appeal on 05.11.2014 with the following observations:

"Appeal No. 1417/2014

The special appeal has been filed by Swami Keshwanand Rajasthan Agriculture University, Bikaner against the order passed by learned Single Judge dated 1.9.2014, by which he has confirmed the interim order dated 25.7.2014 staying the operation of the order passed by the appellant-University(respondent No. 2 in the writ petition) on 23.7.2014 relieving the petitioners-respondents serving as Assistant Registrars, working on promotion. The order dated 23.7.2014 has been passed on the ground that the respondents were wrongly promoted as they were not promoted by the competent authority.

In a similar matter, this Court did not interfere with the confirmation of the interim order and has given liberty to the appellant-University to file an application for early hearing of the writ petition.

Since the special appeal arises out of the similar matter, we do not propose to interfere in the matter at this stage. The special appeal is dismissed with liberty to the appellant-University to apply for expeditious hearing of the writ petition. If such an application is made, the writ petition may be decided at an early date.

Appeal No. 1424/2014

Since this appeal arises out of the similar matter, it is also dismissed in terms of the above order. A copy of this order be placed in both the files."

Since only the present writ petition i.e. SB Civil Writ Petition No. 5413/2014 is listed today on the application for early hearing, this Court was of the view that the writ petition No. 3718/2013 which is the main writ petition from whose the present writ petition arises and is connected should be listed along with the present petition for final disposal. Learned Counsel for the respondents, however, stated that the present writ petition is separate and can be disposed of without awaiting the outcome of the other writ petitions. Accordingly, this Court proceeded to hear the present petition.

It soon came to notice that the outcome of the present writ petition is dependent on the outcome of the SB Civil Writ Petition No. 3718/2013. This fact is noticed by the learned Division Bench as well. However, learned counsel for the respondent University still insisted that the matter should be disposed of today itself. This Court proceeds to do so.

The petitioners Nos. 1 to 3 were appointed on the post of LDC and the petitioners Nos. 4 and 5 were appointed on the post of Steno in the Mohan Lal Sukhadia University on various dates. Thereafter, the petitioners were promoted on the post of Section Officer/Senior Personal Assistant. Six posts of Assistant Registrar as well as the post of Administrative Officers fell vacant. It was resolved in the meeting of the Board of Management of the respondent University that the said six posts of Assistant Registrar were to be filled up by promotion from the Senior Personal Assistant/Section Officer. The Screening Committee was constituted by the Registrar of the respondent University for screening the cases of in-service Section Officer/Senior Personal Assistant on the basis of seniority-cum-merit, qualification, experience etc. The meeting of the Screening Committee was held on 28.12.2012. The Committee recommended that against the said 6 vacant posts of Assistant Registrar, 4 posts be filled up by promotion of Section Officer and 2 posts be filled up by promotion of Senior Personal Assistant on seniority basis. The applications were invited for promotion to the post of Assistant Registrar/Administrative Officer in pursuance to the recommendation of the screening committee. The petitioners submitted their application forms. In pursuance to the recommendations made by the Screening Committee, which were duly approved by the Vice Chancellor of the respondent University, the petitioners were accorded promotions vide order dated 05.01.2013 on the post of Assistant Registrar/Administrative Officer as per their seniority-cum-merit and qualification. By the same order, the petitioners were relieved to enable them to join their duties on the post of Assistant Registrar. Thereafter, without giving any notice of hearing, the said order of promotion was cancelled vide order dated 08.02.2013. The order cancelling the promotion was challenged by the petitioners by way of SB Civil Writ Petition No. 3718/2013. The writ petition stands admitted and the operation of the order dated 08.02.2013 as stated above has been stayed. The stay order was confirmed in presence of both the parties vide order dated 25.07.2013. The respondents allowed the petitioners to join back the duty on the post of Assistant Registrar by passing a specific order dated 17.05.2013 and the pay band of Rs. 15600-39100 with Grade Pay of Rs. 5400 was granted w.e.f. 07.01.2013. Thereafter, suddenly vide order dated 23.07.2014, the Registrar withdrew the benefits granted to the petitioners and also passed the order for recovery of the amount which was paid to the petitioners in pursuance to the order dated 17.05.2013.

Reply has been filed. It was vehemently argued by the learned counsel for the respondents that the order of promotion dated 05.01.2013 was passed without any authority, Rules or Statute applicable to the University. The petitioners were designated and not promoted and therefore, the Vice Chancellor had rightly cancelled the order dated 05.01.2013 and after the mistake came into notice, the University vide its order dated 23.07.2014 recalled its previous order granting benefit of grade pay of the post of Assistant Registrar along with 3% of the pay fixation to the petitioners. Hence, no illegality has been committed. The petitioners were only designated as Assistant Registrar and therefore, they were not entitled to the pay grade of Assistant Registrar along with 3% of the pay fixation.

The question whether the order of promotion dated 05.01.2013 of the petitioners on the post of Assistant Registrars was correct and in accordance with the Rules or not, is a subject matter of the Writ Petition No. 3718/2013. Hence, this Court cannot go into this question in this writ petition.

For the purpose of the present writ petition, it is sufficient to notice that the order cancelling the promotion of the petitioners to the post of Assistant Registrar has been stayed by this Court in SB Civil Writ Petition No. 3718/2013. The said writ petitions stand admitted and the interim order dated 02.05.2013 has been confirmed. In these circumstances, this Court is of the view that the respondents, under no circumstances, could have withdrawn the order granting pay grade of Assistant Registrars especially because learned counsel for the respondents admits that in case, those writ petitions challenging the order cancelling the promotion to the post of Assistant Registrar are allowed, the petitioners will be held entitled to the pay grade of Assistant Registrar and 3% of the pay fixation. Obviously, this special order of withdrawal of pay grade during the pendency of the writ petition and stay order having been confirmed is passed to circumvent the interim order dated 02.05.2013 and confirmation of the stay order on 25.07.2013 passed in SB Civil Writ Petition No. 3718/2013 and is almost contemptuous. The situation has been made worse by directing the recovery of benefits which was ordered to be paid vide order dated 30.08.2013.

At this stage, learned counsel for the respondent University submits that by the order impugned, only the 3% of pay fixation granted to the petitioners has been withdrawn. It is further submitted that in fact the said amount was never paid to the petitioners.

In order to find out the correct position, it is necessary to go into some of the orders. In compliance of the stay order passed by this Court in CWP No. 3718/2013, the petitioners were allowed to continue on the post of Assistant Registrar and vide order dated 30.08.2013, the benefits of the post of Assistant Registrar were granted subject to the undertaking that the same was subject to the final orders of this writ petition. The same reads as under:

However, while passing the impugned order, the 3% pay fixation and the pay grade both have been withdrawn with a further direction to recover the benefits of the post of Assistant Registrar. The operative part of the order reads:

From the perusal of the above, it is evident that a direction has been issued to the University of Swami Keshvanand Rajasthan Agriculture University, Bikaner where the petitioners are appointed to recover all the benefits of the post of Assistant Registrar granted to the petitioners.

The propriety demands that such an order should not have been passed knowing that the petitioners were allowed to continue on the post of Assistant Registrar by way of interim order dated 02.05.2013 passed by this Court in SBCWP No. 3718/2013 and confirmed vide order dated 25.07.2013 and that too in the presence of both the parties. The explanation that the benefits were withdrawn as the petitioners were only granted the designation of Assistant Registrar without benefits is not borne out from the recommendations of the Screening Committee which specifically recommended the names of the petitioners for promotion on the vacant posts of Assistant Registrar and the appointment letters were also issued with the approval of the Vice Chancellor to designate them as Assistant Registrar entitling them to the benefit of the pay scale of the said post. Moreover, learned counsel for the respondent University admits that in case SB Civil Writ Petition No. 3718/2013 is allowed, the petitioners are entitled to all the benefits of the post of Assistant Registrar as have been ordered to be been paid to them vide order dated 17.05.2013. In these circumstances, the action of the respondents in withdrawing the benefits vide order dated 23.07.2014 during the pendency of SBCWP No. 3718/2013 cannot be sustained and is accordingly set aside.

The present petition is accordingly allowed as above.