Dr. Abhishek Dutt Tripathi vs State Of U.P.Thru.Addl.Chief ...
2021 Latest Caselaw 4393 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 17
 

 
Case :- SERVICE SINGLE No. - 8302 of 2021
 

 
Petitioner :- Dr. Abhishek Dutt Tripathi
 
Respondent :- State Of U.P.Thru.Addl.Chief Secy.Higher Education & Ors.
 
Counsel for Petitioner :- Sanjay Kumar Singh
 
Counsel for Respondent :- C.S.C.,Vivek Kumar Shukla
 

 
Hon'ble Irshad Ali,J.

1. Heard Sri Sanjay Kumar Singh and Sri Ram Pratap Singh Chauhan, learned ACSC for respondent Nos.1, 2 & 4.

2. Sri Ashwini Kumar Agnihotri, learned Advocate has today filed Vakalatnama on behalf of respondent No.3. The same may be taken on record.

3. In view of order proposed to be passed in the present writ petition, notice against respondent Nos.5&6 is dispensed reserving their right for providing opportunity of hearing while passing appropriate order under the direction issued by this Court.

4. Grievance of the petitioner is that there is an institution in the name of K.S. Saket Post Graduate College, Ayodhya which is recognized and affiliated to Dr. R.M.L. Awadh University, Faizabad. The provision of U.P. State Universities Act, 1973, U.P. Higher Education Service Commission Act, 1980 and First Statutes of Faizabad University are applicable to the said institution.

5. It is the case of the petitioner that advertisement No.32 was issued by respondent No.3 - U.P. Higher Education Service Commission in year 2002 for filling of posts of Lecturers in different subjects.

6. The petitioner was applicant of subject Sanskrit and was selected finally by the Commission and appointment letter was issued to him by the Manager of the institution on 19.07.2005.

7. In the meantime, a notification was issued by formulating a scheme of New Pension Scheme (NPS), wherein cut-off date was prescribed to provide the pension to the teachers and other employees of an institution recognized under the relevant provisions which were applicable to them. In the said notification, 01.04.2005 was the cut-off date for the grant of pension in regard to the teachers and other employees appointed in the institution.

8. Submission of learned counsel for the petitioner is that the selection process of the petitioner was initiated by the respondent - Commission in year 2000 i.e. much prior to issuance of notification fixing cut off date for applicability of the NPS.

9. He submits that delay in consideration is on the part of the respondents, therefore, the delay cannot be blamed and the petitioner cannot be ousted from the zone of consideration of the claim of Old Pension Scheme. He submits that a controversy arose before this Court in the case of Mahesh Narayan & Others Vs. State of U.P. & Others, passed in Writ-A No.55606 of 2008, which was finally decided vide judgment and order dated 19.12.2019 with the following direction :-

"From the perusal of judgments of Satyesh Kumar Mishra (Supra) and Firangi Prasad (Supra), there is no doubt on the point that similar dispute was before this Court in the matter of Satyesh Kumar Mishra (Supra), which was dismissed by this Court against which Special Appeal Defective No. 480 of 2016 is pending. It is also not disputed that legal issue involved in the matter of Satyesh Kumar Mishra (Supra) was also before Division Bench of this Court in the matter of Firangi Prasad (Supra) where the Court has clearly held that on the fault of appointing authority in issuing appointment letter, petitioners cannot be put any type of disadvantage. It appears that at the time of deciding the matter of Satyesh Kumar Mishra (Supra), judgement of Firangi Prasad (Supra) was not placed before this Court, therefore, without considering the same, decision was given in the matter of Satyesh Kumar Mishra (Supra). Under such facts and circumstances, judgement of Satyesh Kumar Mishra (Supra) is per incuriam and cannot be treated as precedent in the present case and will not come in the rescue of respondents.

The controversy and question of law involved in the present case is squarely covered with the judgement of Firangi Prasad (Supra) as well as other judgments relied upon by learned counsel for the petitioners and Courts have taken consistant view that respondents cannot by their inaction deprive a candidate to his legitimate right.

So far as facts of the case are concerned, there is no dispute on the point that pursuant to advertisement No. A-3/E-1/2000, advertisement was issued in news paper on 22.12.2000 and as per order of this Court dated 29.12.2001 passed in Special Appeal No. 485 (S/B) of 2001 (supra), there was no legal impediment in completition of recruitment process, but dut to inaction on the part of respondents, it was completed only after dismissal of writ petition on 05.07.2005. Final selected list of selected candidate was published in daily newspaper 'Dainik Jagran' dated 12.03.2006 and thereafter appointment letters were issued. It is also not disputed that in between again in subsequent advertisement No. A-3/E-1/2002, recruitment was completed and candidates had been granted appointment prior to 01.04.2005 and getting the benefit of 'Old Pension Scheme'.

Therefore, considering the facts and circumstances of the case and legal position discussed herein above, writ petition is partly allowed and petitioners are excluded from the effect and operation of Notification dated 28.03.2005 and 07.04.2005 as it is in violation of Article 14 of Constitution of India as well as law laid down by the Courts.

Respondents are directed to include the petitioners under 'Old Pension Scheme' as provided in Rules, 1961 before amendment and be given all other consequential benefits."

10. Last submission of learned counsel for the petitioner is that the petitioner has filed his application for consideration of his claim to include under the Old Pension Scheme before the respondent No.2 on 08.02.2021, which is lying pending consideration and in case direction is issued for consideration of claim of the petitioner in the light of the judgment referred hereinabove, ends of justice would be met.

11. On the other hand, learned counsel for the respondents submitted that in case the claim setup by the petitioner in the writ petition is pending consideration before the respondent No.2, appropriate reasoned speaking order shall be passed within a reasonable period.

12. I have considered the submission advanced by learned counsel for the parties and perused the material on record.

13. In view of submissions advanced by learned counsel for the parties, the writ petition is finally disposed of with a direction to the respondent No.2 to consider the claim of the petitioner raised vide representation dated 08.02.2021 for the grant of Old Pension Scheme in the light of the observation made in the judgment of Mahesh Narayan (Supra) and to take decision after providing opportunity of hearing to the petitioner as well as respondent Nos.5&6 within a further period of two months from the date of production of certified copy of this order.

Order Date :- 23.3.2021

Adarsh K Singh