C/M Through Its Secy./Manager Jai ... vs State Of U.P.Through Principal ...
2023 Latest Caselaw 557 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
High Court of Judicature at Allahabad
 
(Lucknow)
 
************
 

 
Court No. - 3
 

 
Case :- WRIT - A No. - 2000745 of 2012
 

 
Petitioner :- C/M Through Its Secy./Manager Jai Narain Degree College Lko.
 
Respondent :- State Of U.P.Through Principal Secy. Higher Education Lko.
 
Counsel for Petitioner :- Shivaji Shukla
 
Counsel for Respondent :- C.S.C., ,Savitra Vardhan Singh
 

 
Hon'ble Rajan Roy,J.

Heard Shri Shivaji Shukla, learned counsel for petitioners, Shri Satrohan Lal, learned Standing Counsel for the State and Shri Savitra Vardhan Singh, learned counsel for the University.

A supplementary affidavit has been filed by the Additional Chief Secretary, Higher Education Department dated 20.07.2022 in compliance of the order of this Court dated 23.05.2022 wherein she has stated that the impugned orders are not covered by the Government Order dated 04.12.2010 keeping in abeyance the orders passed by Dr. Mian Jaan, the then Director, Higher Education and that the impugned orders are correct and legal and are unaffected by the disciplinary proceedings against Shri Mian Jaan and the Government Order dated 04.12.2010.

The facts of the case in brief are that the petitioner no. 2 was appointed as Lecturer in the Department of Chemistry in Jai Narain Degree College which is an associate college of the Lucknow University on 17.07.1977 based on a Selection Committee constituted under Section 31(4)(d) of the U.P. State Universities Act, 1973. The appointment was made against a short term vacancy/leave vacancy having arisen on account of the Lecturer Shri S.P. Gaur having gone on leave. Such appointment was approved by the Vice-Chancellor on 14.10.1977. The petitioner joined against the said vacancy on 15.10.1977. While working against the said vacancy the petitioner no. 2 was adjusted against another leave vacancy of Dr. V.K. Tandon on 04.11.1978 in pursuance to a resolution of the Managing Committee of the College. Shri S.P. Gaur, needless to say, joined on back on his post on 10.09.1979, however, this is not very relevant, as, prior to it i.e. on 04.11.1978 itself petitioner no. 2 was adjusted against another leave vacancy of Dr. V.K. Tandon. On 21.08.1979 the Acting Principal of the College gave a notice to the petitioner no. 2 that he would have to relinquish Office on 08.09.1979 in anticipation of the fact that Dr. V.K. Tandon would join on his post on 08.09.1979. The notice itself mentions about the possibility of Shri Tandon's joining accordingly. Based on this notice petitioner no. 2 filed a suit for permanent injunction wherein he sought temporary injunction, on 07.09.1979. A temporary injunction was granted on 13.09.1979 staying operation of the notice dated 21.08.1979 on the ground that the notice had been given by the Principal, whereas, the Appointing Authority was the Secretary Manager but with a caveat that termination as permissible under law had not been stayed. This temporary injunction order was vacated by the trial Court on 10.11.1979 which gave rise to a First Appeal From Order being filed by the petitioner no. 2 wherein an interim order was passed on 04.12.1979 by this High Court, which reads as under:-

"Issue notice. In the mean time the order dated 21-08-1979 is suspended and opposite parties are 2 and 3 restrained from giving effect to the order dated 21 August 1979 as it has been brought to the notice of this court that the impugned order has been issued by the Principal while it was the managing committee that had appointed the appellant. It is, however clarified that it would be open to the committee of Management to consider the case of appellant in accordance with the Act and Statues framed their under. Until such order is passed the applicant will be entitled to receive the Salary. It will be open to the respondents to take or not to take work from the applicant."

At this stage learned counsel for petitioners invites attention of the Court to a document annexed as Annexure No. RA-2. According to which he was paid arrears of salary for the period 04.12.1979 to 20.02.1980 but not for the period thereafter.

It is not out of place to mention that from 04.12.1979 till 16.01.1987 the petitioner was neither allowed to work in the college nor was paid salary. However, subsequently on 14.01.1987 a compromise was arrived at between the petitioner no. 2 and the petitioner no. 1 in the Suit filed by the petitioner no. 2 bearing Regular Suit No. 259 of 1979. The compromise which is annexed as Annexure No. 12 to the writ petition, reads as under:-

"The parties to the suit beg to state as under:-

1. The termination order given to Dr. Sarveshwar Shukla, a lecturer in the Department of Chemistry on 20/21-8-1979 is being revoked subject to condition No.5 mentioned hereinafter.

2. The Managing Committe recommends his joining against the leave vacancy of Dr.V.K.Tondon.

3. The Managing Committee recommends five more increments over his last pay drawn i.e. Rs.780/-. Two increments are not being recommended since Dr.Sarveshwar Shukla was pursuing higher studies and was drawing fellow-ship from I.C.M.R.

4. The Managing Committee shall help Dr.Shukla in receiving his dues from the competent authorities without any obligation to pay the same out of its funds.

5. The Managing Committee of the college or the college shall no not pay any salary or shall also not liable to pay any salary from 20/21.8.1979 to this day or cost of suit to Dr.Sarveshwar Shukla.

It is, therefore, prayed that the suit may be decided in terms of above compromise which may be ordered to be made part of the decree."

The suit was decreed in terms of the compromise on 27.01.1987. The said judgment is on record. The State Government or its authorities, as per the averment made in the impugned order, was not a party in the aforesaid suit. The salary for the post in question was/is to be paid from the funds of the State Government but the compromise did not entail any such financial burden. In pursuance to the compromise referred hereinabove petitioner no. 2 joined against the leave vacancy of Dr. V.K. Tandon on 16.01.1987. It appears that after earlier leave Dr. V.K. Tandon again went on leave that is why in the compromise it is mentioned that the petitioner no. 2 would be adjusted against the leave vacancy of Dr. V.K. Tandon. This aspect of the matter has not been considered in the impugned orders. Therefore, when Dr. V.K. Tandon went on leave once again, petitioner no. 2 was adjusted against this leave vacancy on 16.01.1987 and thereafter, on 18.09.1987 he was substantively appointed against such vacancy under Section 31(3)(b) of the U.P. State Universities Act, 1973. The impugned order proceeds on an incorrect premise that the substantive appointment was made on account of a compromise arrived at in the suit proceedings referred hereinabove. This is factually incorrect. The compromise was only to adjust the petitioner no. 2 against a leave vacancy and not for substantive appointment. Substantive appointment under Section 31(3)(b) of the Act, 1973 is something which has happened subsequently independent of the compromise. The Director, Higher Education has misread and misconstrued the facts of the case and has therefore stated that the Statement Government was not a part of the compromise which was illegal. There was no illegality in the compromise as the only thing agreed upon between the parties was to adjust the petitioner no. 2 against a leave vacancy of Dr. V.K. Tandon. The impugned order does not say that there was no leave vacancy existing at that time. for adjustment of the petitioner no. 2.

The impugned order says that petitioner no. 2 was out of service since 1979 to 1987, therefore, he was not in service continuously for a period of one year against a leave vacancy so as to attract the provisions of Section 31(3)(b) of the Act, 1973, as such, this substantive appointment of the petitioner no. 2 was bad. As already stated, from 1977 to 1979 petitioner no. 2 had worked against leave vacancy including leave vacancy of Dr. Tandon. The subsequent appointment of the petitioner no. 2 against the leave vacancy of Dr. V.K. Tandon was on 16.01.1987 and before expiry of period of one year he was substantively appointed on 18.09.1987 by a resolution of the Committee of Management which is on record, therefore, this aspect is certainly not in conformity with Section 31(3)(b) of the Act, 1973. However, the fact of the matter is that ever since 16.01.1987 followed by his substantive appointment on 18.09.1987 the petitioner no. 2 continued to work uninterruptedly and his salary was paid from the State Exchequer till his retirement in 2016. On attaining the age of superannuation sometime in 2016 but he was given the benefit of extension of tenure till the end of academic session and actually remitted office on 30.06.2016. After retirement, as informed by Shri Shivji Shukla, learned counsel for the petitioners, petitioner no. 2 is being paid provisional pension since 2017 but other post retiral dues have not been paid as yet. Increments, selection grade, time scale/ promotional pay-scale, revision of pay and every benefit permissible in law were given to the petitioner no. 2 as would be given to a substantively appointed person. It appears that some disgruntled person, as stated by Shri Shukla, learned counsel for the petitioners, made some complaint in the year 2010 about the appointment being illegal i.e. after almost 23 years of the petitioner no. 2 having been continuously working as Lecturer (Chemistry). Based on the aforesaid complaint an inquiry was conducted which resulted in the impugned order passed by Dr. Mian Jaan, the Director, Higher Education. After passing of the impugned orders the same were put to challenge before this Court by means of this writ petition in 2012 and till then the petitioner no. 2 continued to be paid salary and was working as Lecturer (Chemistry). This Court while entertaining this writ petition passed an interim order on 30.05.2012 to the effect - 'subject to further order passed by this Court, the opposite parties shall ensure the payment of salary to the petitioner No. 2, in case he is appointed in the year 1977.' Accordingly, in pursuance to the aforesaid interim order the petitioner no. 2 continued to work and be paid salary from the State Exchequer and continued to perform his duties as Lecturer (Chemistry) in the Petitioner No. 1-Institution.

It is not out of place to mention that the counter affidavit of the State does not point out any deficiency in the work and conduct of the petitioner no. 2 during this period i.e. 1987 to 2016. The petitioner no. 2 who was an M.Sc., had completed his Directorate (Ph.D.) prior to joining on 16.01.1987 and substantive appointment on 18.09.1987 and it is nobody's case that he did not possess requisite qualification for such appointment.

Having worked against a leave vacancy, the substantive appointment under Section 31(3)(b) of the Act, 1973 had been made. The fact of the matter is that initial appointment against a leave vacancy was on 17.07.1977 after he had faced the Selection Committee constituted under Section 31(4)(b) and thereafter, again on 04.11.1978 against the earlier leave vacancy of Dr. V.K. Tandan and then on 16.01.1987 again against the leave vacancy of Dr. V.K. Tandon, therefore, in view of the totality of facts and circumstances of the case, considering the long services rendered by the petitioner no. 2 continuously since 1987 without any blemish, the Court is of the opinion that the ends of justice would suffice if the date of substantive appointment of the petitioner no. 2 dated 18.09.1987 is shifted to the date on which the period of one year envisaged in Section 31(3)(b) expired i.e. to 16.01.1988, as, it is not in dispute that since 16.01.1987 the petitioner no. 2 had continuously been working, therefore, the requirement of continuous service of one year in Section 31(3)(b) of the Act, 1973 would stand satisfied as on 16.01.1988 and he would be treated as substantively appointed under Section 31(3)(b) from the said date. As regards the requirement of Selection Committee being held the petitioner no. 2 had already faced the Selection Committee earlier when he was firstly appointed against a leave vacancy, therefore, in view of Section 31(3)(b) of the Act, 1973 he was not required to face the Selection Committee again.

Section 31(3)(b) of the Act, 1973 contains a provision for substantive appointment of a person who has been appointed again to a permanent post in a vacancy caused by grant of leave to an incumbent for a period exceeding 10 months and such post subsequently becomes permanently vacant. Dr. V.K. Tandon obviously went on leave prior to 14.01.1987 otherwise this fact would not have been mentioned in the compromise dated 14.01.1987. He was permanently appointed in the Lucknow University, as such, the post against which the petitioner no. 2 was adjusted i.e. the Lecturer (Chemistry), became permanently vacant and was available as such for petitioner's substantive appointment.

In view of the above, the Court is of the opinion that the impugned orders are based on incorrect facts and whatever little irregularity is there, the same is not such so as to render the appointment illegal and invalid. The equities have been balanced as aforesaid considering the facts of this case. Petitioner no. 2 has always received salary from the State Exchequer ever since 16.01.1987 and is still being paid provisional pension from the State Exchequer. On the date of his retirement he has put in almost 29 years of continuous service as Lecturer (Chemistry). He has worked for a long period, therefore, there is no reason as to why he should not be treated as substantively appointed and be paid all the post retiral dues which may be admissible to him. For his service and pensionary benefits, his services since 16.01.1988 alone shall be counted and this date shall be treated as the date of substantive appointment of the petitioner under Section 31(3)(b) of the Act, 1973. Whatever retiral dues are payable to the petitioner no. 2 shall be paid in accordance with law. If any revised salary was payable to the petitioner no. 2 for the period he has worked as per the revision of the pay-scale the same would also be admissible along with other service benefits to which he may have been entitled but may not have been given to him. In this regard he may submit a representation to the concerned authority who shall pass appropriate orders in this regard within a period of three months. The impugned orders are accordingly quashed. Consequences shall follow accordingly.

The writ petition is allowed in the aforesaid terms.

.

(Rajan Roy,J.)               

Order Date :- 6.1.2023

R.K.P.