Dr. Taj Mohammad Raini vs State Of U.P.Through Prin. Secy ...
2023 Latest Caselaw 2136 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 5
 

 
Case :- WRIT - A No. - 2001656 of 2003
 

 
Petitioner :- Dr. Taj Mohammad Raini
 
Respondent :- State Of U.P.Through Prin. Secy Higher Education Lko.
 
Counsel for Petitioner :- Rajendra Nath,Mohd. Tabrez Iqbal
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Irshad Ali,J.

1. Heard Mr. Mohd. Tabrez Iqbal, learned counsel for the petitioner and learned counsel for respondent Nos.1 and 2.

2. By means of the present writ petition, the petitioner is challenging an order dated 20.7.2002 (Annexure-2 to the writ petition) with the further prayer for issuance of writ of mandamus commanding the respondents to include the service period from 1.11.1972 to 2.2.1976 served by the petitioner in Arvind Degree College, New Delhi for the fixation of salary in selection grade.

3. Facts in brief are that the petitioner was appointed as Lecturer in faculty of Commerce in Arvind Degree College, New Delhi, affiliated to Delhi University and served there as a permanent Lecturer since 1.11.1972 to 2.2.1976. In the meantime, the petitioner has applied against an advertisement (permanent post) for Lecturer in the faculty of Commerce in Feroz Gandhi Degree College, Raebareli in the State of U.P. The petitioner got selected and joined in the said institute affiliated to Kanpur University under the name of Sahu Ji Maharaj University, Kanpur. The petitioner was appointed as Lecturer since 3.2.1976 and there is no break in the service period from 1.11.1972 till date.

4. By means of a government order dated 28.12.1974, after the approval of the University Grands Commission, revised pay scale was regulated for the teachers employed in the universities and in non government colleges within the State of U.P. The Rule 18.05 and 18.10 of the statute of the Kanpur University framed and controlled under U.P. State University Act, 1973 provides categorically in Sub Clause (3), "service in a substantive capacity in another university or another degree college or post graduate college whether affiliated to or associated with the university or another university established by law shall be added to his length by his service". By means of the aforesaid provision, the statute determines the seniority of the teachers of all affiliated colleges.

5. A government order issued on 16.10.1984 has made it obligatory for the fixation of pay scale to the teachers employed in the degree college affiliated to universities and various non government degree colleges that a fixed pay scale of 1200-1900 shall be given to the teachers who are P.Hd. and have completed 13 years of service or 16 years of service, in case the teacher is not P.Hd.

6. The petitioner joined in the college as a permanent Lecturer on 1.11.1972 and on the basis of government order, the select committee has approved the name of the petitioner for pay scale of 1200-1900 from 6.8.1986 and the Committee also included service period served by the petitioner in Arvind Degree College, New Delhi affiliated to Delhi University. The service period in Delhi University was from 1.11.1972 to 2.2.1976.

7. The Committee of Management, Feroz Gandhi Degree College, Raebareli has confirmed the selection grade, approved to the petitioner since 6.8.1986. The seniority has also been fixed on the basis of regular service rendered by the teachers of the Feroz Gandhi Degree College, Raebareli and till 30.6.1985 the length of service shown against the name of the petitioner is 12 years 8 months (1.11.1972 to 30.6.1985). The period served by the petitioner in Arvind Degree College, New Delhi affiliated to Delhi University has been considered and then included as in accordance with the Rule 18.10 of the statute of the Kanpur University. The name of the petitioner as at serial No.47.

8. The Government of State of U.P. further approved the revised pay scale by means of a government order dated 7.1.1989. This revised pay scale is modified by University Grants Commission and has to come into effect since 10.1.1986. The Central Government and the University Grants Commission time and again laid stress through that the appointment of a teacher in degree colleges, heed be made through advertisement on all India basis and all the teachers should be treated equally with regard to pay structure in all the universities amongst the country. The revised pay scale 3700-5700 shall be fixed as against the old pay scale of 1200-1900.

9. The petitioner has been given pay scale of 1200-1900 w.e.f. 6.8.1986 and accordingly, as provided under the government order dated 7.1.1989, the modified University Grants Commission pay scale 3700-5700 should have been fixed to the petitioner, but the Director, Higher Education by an order dated 24.6.1990, fixed the pay scale showing 3.2.1983, the time when the petitioner completed 13 years of service in Feroz Gandhi Degree College, Raebareli and thus, has excluded the service period considered earlier by the university and the college as in accordance with Rule 18.10 of the statute of the Kanpur University.

10. Further the fixation sheet indicate against the name of the petitioner that his service outside the State and the matter related to it has been referred to the State Government. Further on 10.1.1992, the Director, Higher Education wrote a letter to the Joint Secretary, Education Anubhag, Lucknow with respect to the decision, if taken by the Government on the point of service period of the petitioner worked outside the State to be counted. The Managing Secretary of the Feroz Gandhi College had also represented the matter to the government through various letters.

11. Due to non counting of service rendered at Delhi University, the petitioner filed Writ Petition No.1488 (S/B) of 2000, which was finally disposed of with the direction to consider the claim of the petitioner in the light of the judgment rendered in the case of Dr. Ajita Bhattacharya Vs. State of U.P. and others and the judgment of Hon'ble Supreme Court in the case of Shardendu Bhushan Vs. Nagpur University [1987 (Supp) SCC 53]. The claim of the petitioner, without taking into consideration, the aforesaid two judgments, has been rejected vide order dated 20.7.2002. Due to non passing of the order within time, the petitioner preferred contempt petition, wherein notices were issued to the opposite parties and thereafter, the order impugned was passed.

12. Assailing the impugned order, submission of learned counsel for the petitioner is that the case of the petitioner has not been decided in the light of the judgment rendered in the case of Dr. Ajita Bhattacharya (Supra) and the judgment of Hon'ble Supreme Court in the case of Shardendu Bhushan (Supra), therefore, the order is erroneous in nature and is liable to be set aside. Next submission is that as per the statute of the university, the petitioner is entitled for the inclusion of service rendered at Delhi University w.e.f 1.11.1972 to 2.2.1976. Due to non inclusion of service, the impugned order suffers from apparent illegality and cannot be sustained. Last submission is that the impugned order is per se illegal and is liable to be set aside by this Court.

13. On the other hand, learned Standing Counsel submits that the impugned order does not suffer from any infirmity or illegality and is a just and valid order. He submits that the argument advanced by the learned counsel for the petitioner is totally misconceived and the writ petition is devoid of merit and is liable to be dismissed.

14. After having heard the rival contention of learned counsel for the parties, I perused the material on record as well as the law report produced by learned counsel for the petitioner.

15. To resolve the controversy involved in the present writ petition, judgment rendered in the case of Shardendu Bhushan (Supra) is quoted below :-

"1. We find no basis for the finding recorded by the High Court that the University did not commit any error in denying to the appellant the benefit of the grade of the Lecturer (Senior Scale) under the scheme framed by the University Grants Commission and accepted by the Central Government by not taking into account the experience of University teaching in colleges affiliated to the Calcutta University. The High Court failed to appreciate that while framing the criteria for the placement in senior scale, the University itself used the words "Experience of University teaching up to degree classes for a period of five years". The High Court obviously fell into an error in assuming that the length of service within the University was the basis. We find it difficult to subscribe to this view on the criteria framed by the University for the purpose of Lecturer (Senior Scale) which reads :

A Lecturer shall hold at least a Master's Degree not lower than a Second Class with an experience of University teaching up to Degree classes for a period of not less than five years. Provided that there shall be an equitable distribution of such posts in different subjects.

2. The contention advanced by learned Counsel for the University based upon the averment in para 2 of the counter-affidavit that in view of the clarification made by the Additional Director of Education by his letter dt. Nov. 15, 1965, the appellant was not entitled to the benefit of the service with a college affiliated to the Calcutta University, cannot be accepted. It appears from para. 2 of the counter-affidavit that the clarificatory letter of the Additional Director of Education was with regard to determination of seniority. That was not the question before the High Court and merely because there was a break of two years service between the date of resignation of the appellant from a college affiliated to the Calcutta University and the date of his employment as a Lecturer in MM Science College affiliated to the Nagpur University, could not be regarded a continuous service for purposes of determining his seniority was no ground for denial of the higher grade. In terms of the criterion laid down by the University itself, a Teacher is entitled to the benefit of the higher grade if he has the teaching experience of not less than five years. The emphasis in the circular is on the experience gained by' the Teacher while in the employment of a University and not on the continuity of the service.

3. In the premises, we allow the appeal with costs. The judgment and order of the High Court are set aside. We order the Nagpur University to issue a direction to the M.M. Science College, Nagpur to accord to the appellant the benefit of the higher grade of Lecturer (Senior Scale) to which he is entitled, taking into account the period of his service in colleges affiliated to the Calcutta University."

16. Taking into consideration the judgment of the Hon'ble Supreme Court, this Court in the case of Dr. Ajita Bhattacharya (Supra), passed the following order on 18.1.2000 :-

"Heard.

The facts of this case are covered by the decision of the Supreme Court in Shardendu Bhushan Vs. Nagpur University 1987 (Supp) S.C.C. 53.

Following the said decision, that writ petition is allowed and the respondents are directed to fix salary of the petitioners as senior Scale Lecturer/ Selection Grade Lecturer by counting his services from 9.10.87 and to give her all consequential benefits."

17. The case of the petitioner is fully covered under the aforesaid judgments. On perusal of the aforesaid judgments, it is apparently clear that the Hon'ble Supreme Court has recorded that in terms of the criteria laid down by the University itself, a Teacher is entitled to the benefit of the higher grade, if he has the teaching experience of not less than five years. The emphasis in the circular is on the experience gained by the Teacher while in the employment of a University and not on the continuity of the service and on the said basis, the appeal was allowed with cost. The judgment of the High Court was set aside and direction was issued to the Nagpur University to issue a direction to the M.M. Science College, Nagpur to accord to the appellant the benefit of the higher grade of Lecturer (Senior Scale) to which he is entitled, taking into account the period of his service in colleges affiliated to the Calcutta University.

18. Accordingly, the impugned order dated 20.7.2002, due to non inclusion of service rendered at Delhi University, is per se illegal and is hereby quashed.

19. Following the said decisions, the writ petition succeeds and is allowed.

20. The respondents are directed to fix the salary of the petitioner as Senior Scale Lecturer/ Selection Grade Lecturer by counting the service from 1.11.1972 and to give him all consequential benefits.

Order Date :- 20.1.2023

Gautam