Dr. Kamleshwar Dubey vs State Of U.P. And 4 Others
2022 Latest Caselaw 2151 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 24.03.2022
 
Delivered on  06.05.2022 
 

 

 
Case :- WRIT - A No. - 67122 of 2015
 

 
Petitioner :- Dr. Kamleshwar Dubey
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Juned Alam,O.P. Tiwari
 
Counsel for Respondent :- C.S.C.,Hritudhwaj Pratap Sahi,P.K. Upadhyay,Varun Kumar Chaubey,Vijay Kumar Singh
 

 
Hon'ble Siddharth,J.

Heard Sri O. P. Tewari, learned counsel for the petitioner, learned Standing Counsel for respondents no.1 to 3 and Sri P. K. Upadhyay, learned counsel for respondents no.4 and 5.

This writ petition has been filed praying for direction to the Regional Higher Education Officer, Gorakhpur / respondent no.3 to release of the salary of the petitioner as per re-fixation to pay made by the Director of Higher Education by the letter dated 12.04.2010. Further prayer has been made for directing the aforesaid respondent no.3 to take proper action against the Principal/Committee of Management of the College under the U.P. State Universities Act if the order of respondent no.3 is not complied with by not submitting pay bill of the petitioner as per pay fixation made by the Director of Higher Education on 12.04.2010.

The facts pleaded in the writ petition are that Kisan Post Graduate College, Tamkuhi Road, Seorahi, District Kushinagar is a recognized college under the U.P. State Universities Act and it is duly affiliated with Deen Dayal Upadhyay, Gorakhpur University, Gorakhpur and salary of the teaching and non-teaching staff of the college is being paid by the State Exchequer.

On 14.04.2081 a post for appointment of Lecturer in Economics was advertised by Committee of Management of the College and the petitioner applied in response to the advertisement on 24.04.2018. At that time the institution was not under the grant-in-aid list. On account of delay caused in the finalization of selection process, on account of number of reasons, the petitioner was given adhoc appointment in the college on 24.04.1981. Subsequently, interview for the post was held on 24.10.1982 for regular selection and after the selection of petitioner, approval was sought from the Vice-Chancellor, which was given on 09.04.1983. In the approval order it was wrongly mentioned that the petitioner is being given adhoc appointment but later by the order dated 27.02.1984 the Vice-Chancellor modified his earlier approval order dated 09.04.1983 and it was provided that the petitioner is being given regular appointment. The Committee of Management accordingly issued letter dated 15.03.1984 to the petitioner informing about the above modification. The salary of the petitioner was paid by the Committee of Management of the college and the college came in the grant-in-aid list of the State of Government in the year 1988. Petitioner has been paid salary from the State-Exchequer, thereafter. He was subsequently promoted as " Reader" under Career Advancement Scheme. The pay fixation of the petitioner was not done by taking into account his service rendered in the college prior to his regular appointment in the college. On the basis of the records available with the Committee of Management, like salary payment register and attendance register, the petitioner prayed for adding his services for the purpose of calculating his service benefit and vide resolution dated 01.06.2007, the Committee of Management resolved that the service of the petitioner from 13.08.1981 to 10.04.1983 be added for computing the service benefit due to him.

Thereafter dispute arose regarding the appointment of adhoc Principal in the college between the petitioner and two other teachers and Vice-Chancellor decided that the petitioner is the senior most as compared to the rival teachers. By order dated 09.08.2008 on the ground that although regular appointment was granted to the petitioner on 11.04.1983 but he was working in the institution since 13.09.1981. The petitioner represented to the Committee of Management for giving him benefit of the service rendered by the petitioner prior to his regularisation and on the recommendation of the Committee of Management, the Director of Higher Education passed the order dated 12.04.2010 accepting the date of appointment of the petitioner as 13.08.1981 and refixed his pay in the order aforesaid. The copy of the aforesaid order was sent to the Principal of the College by the Director of Higher Education.

The grievance of the petitioner is that the Committee of Management has not submitted the pay bill as per the re-fixed pay by the Director of Higher Education by his order dated 12.04.2010.

The petitioner has represented before the Director of Higher Education and the Regional Higher Education Officer for implementation of the order dated 12.04.2010 of the Director of Higher Education but nothing has been done and hence he is before this Court.

Counter affidavit has been filed only on behalf of respondent nos.4 and 5, being the Committee of Management and Principal of the College, respectively. In the counter affidavit it has been stated that the petitioner was granted approval of his appointment by the Vice-Chancellor dated 09.04.1983 and he joined the institution on 11.04.1983. The petitioner was regularised in service after one year on the basis of approval of regular appointment of the petitioner by the Vice Chancellor. The petitioner was directed by the Committee of Management to obtain essential qualification for the post being Ph.D decree within five years. The petitioner filed an affidavit and entered into an agreement with respondent no.4 that his services would be considered from the date to his regular appointment on 11.04.1983. The fixation of salary of the petitioner has been done treating his date of appointment on 11.04.1983 and no dues remain to be paid to the petitioner. In the grab of the order dated 12.04.2010 passed by Director of Higher Education the petitioner wants to get undue benefit wherein his date of appointment has been show as 13.08.1981. In the service book of the petitioner the date of his appointment is mentioned as 09.04.1983 and date of joining as 11.03.1983 and he never raised any objection regarding the same during his service. It has been stated that the petitioner in collusion with the Finance & Accounts Officer of the Office of Director of Higher Education got the letter dated 12.04.2010 issued in his favour fixing his salary treating his date of appointment as 13.08.1981. He already superannuated on 30.06.2019 and entire service benefits have been paid to him including arrears after fixation of salary pursuant to the recommendations of 6th - 7th Pay Commission.

In the rejoinder affidavit filed on behalf of the petitioner, the petitioner has claimed that from 13.08.1981 to 10.04.1983 he was working as Lecturer (Economics) in adhoc capacity. Therefore, his service is to be considered from 13.08.1981 and no from the date of approval of his regular appointment by the Vice Chancellor on 09. 04.1083.

Learned counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court in the case of Prem Singh Vs. State of Uttar Pradesh and others, 2019 0 Supreme(SC) 1044, wherein the Apex Court has held that qualifying service for pension includes the service rendered under the work charged establishment prior to regularisation in service.

Learned Standing Counsel appearing on behalf of respondent nos.1 to 3 and Sri P. K. Upadhyay, learned counsel appearing on behalf respondent no.4 and 5 have opposed the prayer made in the writ petition by the petitioner. They have submitted that the petitioner is not entitled to get his pay refixation by including the alleged service rendered in adhoc capacity.

After hearing rival contentions, this court finds that it is disputed by the respondent no.4 & 5 that petitioner was ever given adhoc appointment in the college on 24.04.1981 and he worked as such till he was granted approval of his regular appointment by the Vice Chancellor on 09.04.1983 in the counter affidavit filed on behalf of respondent nos.4 & 5. There is no admission about the petitioner being appointed on adhoc basis on the post of Lecturer in Economics in the college. Petitioner has not brought on record any document to prove his adhoc appointment in the institution. In the jointing report of the petitioner dated 11.04.1983 given to the Committee of Management it has been mentioned that he has taken charge of the post of Lecturer in Economics at 11.00 a.m. on adhoc basis. Thereafter the petitioner entered into an agreement with the Committee of Management of the institution on 18.04.1988 to work in the college on total salary of Rs.740 per month. The Committee of Management brought to the notice of the Director of Higher Education by its letter dated 02.07.2013 that the petitioner has got the order dated 12.04.2010 from his office after representing wrong facts and prayed that the order dated 12.04.2010 may be cancelled. Thereafter similar requests were made by the Principal of the institution to the Regional Director of Higher Education, Gorakhpur 23.09.2013 and 26.09.2015. In the self assessment form of the petitioner brought on record as Annexure C.A. -9he has filled his date of appointment as 11.04.1983 and date of regularisation in the service dated 11.04.1984. The photocopy of the service book of the petitioner has been brought on record as annexed CA-10 to the counter affidavit, wherein the date of appointment of the petitioner has been mentioned 09.04.1983 and date of joining as 11.04.1983.

There is no documentary evidence on record to prove that the petitioner worked as adhoc lecturer in economics in the college since 24.04.1981. The resolution of the Committee of Management dated 01.06.2007 has not been accepted as correct by the respondent nos.4 & 5 in their counter affidavit. Only in the order of Vice Chancellor dated 09.08.2008 deciding the seniority dispute of petitioner with rival candidates for appointment on the post of Adhoc Principal of the college, the adhoc services rendered by the petitioner have been mentioned

In view of the above facts and circumstances, the judgement relied by the learned counsel for the petitioner in the case of Prem Singh (supra) will not apply to the facts of the present case since it is not proved conclusively from the material on record that the petitioner was given adhoc appointment by the college on 24.04.1981 prior to his approval of appointment by the Vice-Chancellor on 09.04.1983. The relief prayed in the writ petition cannot be granted to the petitioner in view of his failure to establish before this Court that prior to his regular appointment and approval he worked in adhoc capacity in the college concerned. The objection made by the respondent nos.4 before the Director of Higher Education dated 02.07.2013 against the order dated 12.04.2010 has not been considered till date.

The direction sought by the petitioner cannot be passed in view of the fact that the order dated 12.04.2010 does not appears to have been passed by the Director of Higher Education after consideration of complete and correct facts.

The writ petition is dismissed.

However, it shall be open for the Director of Higher Education, Prayagraj to pass fresh order regarding the claim of the petitioner after hearing the respondent no.4 & 5 afresh with three months from today in accordance with law.

Order Date :- 06.05.2022

SS