Allahabad High Court
Dr. Aziz-Ur-Rahman Khan vs State Of U.P. And 4 Others on 16 May, 2017
Bench: Amreshwar Pratap Sahi, Daya Shankar Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No.-37
[A.F.R.]
Case :- WRIT - A No. - 24431 of 2016
Petitioner :- Dr. Aziz-Ur-Rahman Khan
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Aktar Ahmed Siddiqui
Counsel for Respondent :- C.S.C.,Vivek Varma
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Daya Shankar Tripathi,J.
The petitioner retired from service as Lecturer from a College on 30.06.2014 and he was allowed to continue till the end of Session.
The contention of the petitioner's counsel is that after having joined in the Institution consequent to the recommendation of the Selection Committee on 18.11.2002, the period of petitioner's service should be counted from that date in order to calculate the qualifying years of service for the purpose of calculation of pension which requires completion of 10 years of service. According to the petitioner, he had worked for 11 years, 7 months and twelve days. He therefore having completed the qualifying years of service was entitled to post retiral benefits.
It is also the admitted case of the petitioner that the approval to the appointment of the petitioner was delayed by the University and the Vice-Chancellor passed the order on 12.01.2014. It is urged that this approval should relate back to the date of appointment and even otherwise after the recommendation having sent to the Vice-Chancellor, this appointment will be deemed to have been approved in terms of the provisions of Section 31 (ii) (c) of the State Universities Act, 1973.
Learned counsel submits that the reference to the date of approval by the respondents is erroneous inasmuch as, the completion of the mandatory period of tenure was established on record with the joining of the petitioner in the year 2002 itself.
A counter affidavit has been filed on behalf of the respondents alleging therein that the petitioner had been approved on 13.01.2004 as a Lecturer in the Institution. In such circumstances, keeping in view the relevant provisions of the Civil Services Regulations read with the provisions of Section 31 referred to hereinabove and the relevant Government orders the petitioner was not entitled to include the period of service prior to his approval.
Learned counsel submits that any delay on the part of the respondents in extending the benefit of approval cannot take away the right of the petitioner as he has actually served in the Institution.
We have considered the aforesaid submissions and we find that there is no challenge raised by the petitioner to the date of grant of approval which is 12.01.2004. In the absence of any challenge having been raised to the said date of approval it is not open to the petitioner to contend that his appointment will be deemed to have been approved from a prior date. No challenge appears to have been raised to the delay in approval of the selections. The petitioner therefore has acquiesced to the said status of his service. The deeming section would have come into play had there been no approval at all. In the instant case the approval has been given on 12.01.2004 and the same having not been challenged the aforesaid action now cannot be questioned. Consequently, the petitioner having completed 9 years and 6 months of service upon approval the same falls short of the 10 years mandatory period. Consequently, the relief as prayed for on the aforesaid strength cannot be granted as the petitioner had not completed 10 years of qualifying service. The order dated 03.07.2014 therefore cannot be interfered with.
The judgment which has been relied upon by the petitioner is not a ratio on the issue raised in the present writ petition pertaining to the qualifying years of service for pensionary benefits. The said judgment therefore does not come to the aid of the petitioner. No other authority has been placed before this Court to support the submissions.
The writ petition is accordingly dismissed.
Order Date :- 16.5.2017
Rajneesh)
[Daya Shankar Tripathi,J.] [Amreshwar Pratap Sahi,J.]
