Shyam Singh Shah vs Jawahar Lal Nehru Univeristy And ...
2008 Latest Caselaw 2310 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


+                            LPA 2/2002


                                              Reserved on: 15.12.2008
%                                         Date of decision: 19.12.2008


SHYAM SINGH SHAH                                  ...APPELLANT

                     Through:   Mr.Rishikesh with Mr.Rajiv Dewan,
                                Advocates.


                                 Versus


JAWAHAR LAL NEHRU UNIVERISTY AND ORS. ...RESPONDENTS

                     Through:   Mr. S.C.Dhanda, Advocate.

CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE MOOL CHAND GARG

1.    Whether the Reporters of local papers
      may be allowed to see the judgment?               No

2.     To be referred to Reporter or not?               No

3.     Whether the judgment should be                   No
       reported in the Digest?

SANJAY KISHAN KAUL, J.

1. The appellant joined Jawahar Lal Nehru University as a

Semi Professional Assistant in 1964 and was promoted

as professional Assistant in 1975. The appellant

claims that he was upgraded as an Assistant Librarian

on 30.07.1997 and was given senior scale of Rs.3,000-

5,000/- with effect from 16.01.1998.

2. The age of retirement for the post of Assistant

Librarian was 60 years and the appellant was attaining

the said age on 31.05.1999. The notifications dated

06.11.1998 and 20.01.1999 were issued by the

Ministry of Human Resource Department, Government

of India in respect of the increase of age to 62 years.

3. It is the case of the appellant that the respondent no.1

followed and implemented the decision, but it is the

appellant who was not given the benefit of increase of

age.

4. The appellant thus filed a writ petition No.3538/1999

before this Court seeking a declaration in his favour

that he was entitled to continue in service till the age

of 62 years. The stand of the respondent no.1 in the

said writ petition was that clarifications had been

issued by the University Grants Commission („UGC‟ for

short) to the effect that the Librarians and Assistant

Librarians would stand retired on attaining the age of

60 years and thus the benefit of extension of age, if

any, was not available to the appellant.

5. It may be noticed that the appellant was granted

interim protection against retirement when he filed

the writ petition and thus continued in service. The

appellant in the writ proceedings held on 22.01.2001

sought not to press the petition provided the

respondent no.1 took no steps to recover the salary

received by him. The learned Single Judge (as he then

was) directed that the appellant shall stand retired

from service at the age of 60 years for all purposes,

but the salary received by him till date of the Order

would not be recovered from him under any

circumstances by the respondents. The retiral

benefits were to enure to the appellant as if he had

retired from service on completion of 60 years of age

and those payments were directed to be made at the

earliest.

6. The appellant consequently stood relieved from

service on 14.02.2001 and his salary and all pay and

allowances were paid till that date inclusive of two

increments earned by him in the meantime.

7. The appellant filed CM 4894/2001 in the writ petition

making a grievance of non implementation of the

Order dated 22.01.2001. The respondent no.1 took a

stand that an Office order dated 14.08.2001 had been

issued where the retiral benefits had been granted to

the appellant under different heads and the pay scale

of the appellant was fixed provisionally in the revised

pay scale of Rs.6,500-10,500/-because the UGC had

not approved the payment of higher pay scale and

thus the respondent no.1‟s stand was that till such

approval is granted by the UGC, the payment in terms

of the higher pay scale cannot be given. It was

simultaneously stated that when similarly situated

persons are granted the benefit, the petitioner would

be treated in no different manner. The learned Single

Judge (as he then was) even directed in terms of the

Order dated 16.08.2001 that the discrepancy in the

amount may be sorted out with the Finance Office of

the JNU. The claim of the appellant for grant of

interest was, however, not accepted though the

question of any further grievance of the appellant was

left open and the application was disposed of on the

said date. The appellant has filed the present letters

patent appeal aggrieved by this Order dated

16.08.2001.

8. The first submission of the learned counsel for the

appellant is that the appellant should be granted

benefit of two increments earned by him between

1999-2001 for purposes of calculation of the retiral

benefits. This plea has only to be stated to be

rejected for the reason that the consent order passed

on 22.01.2001 is crystal clear that the appellant was

to be deemed to have retired on the date when he

attained the age of 60 years though the emoluments

paid to him thereafter including increments for the

period he worked would not be recovered. It is

apparent that the appellant, unsure of the result of the

writ petition, preferred to accept the retirement at the

age of 60 years so long as the emoluments paid to

him were protected and cannot be permitted to re-

agitate the matter.

9. The second aspect urged is on the question of grant of

interest which has been declined by the learned Single

Judge.

10. We are of the considered view that there is no

inordinate delay in payment of the retiral benefits

which have been so paid within six months especially

keeping in mind the aspect of approval of the UGC

coming in the way of quantification of the amount.

11. Learned counsel for the appellant sought to raise

the issue of grant of similar benefits to certain other

persons and thus causing discrimination to the

appellant.

12. Firstly, in view of the consent order dated

22.01.2001, in our considered view, the said plea is

not open to the appellant.

13. Secondly, it has to be noticed that the

substantive post of the appellant was of Semi

Professional Assistant which was upgraded vide Office

Order dated 30.07.1997 designating the appellant as

an Assistant Librarian. The said letter itself made it

clear that the upgradation of the petitioner to the post

of Assistant Librarian was purely personal to the

appellant and on the retirement of the appellant, the

post was to be reverted to Professional Assistant. The

examples given of Sh. S.M.Ali, Assistant Librarian and

Mr.Dilip Singh, Deputy Librarian do not support the

case of the appellant as they were holding substantive

posts and the Circulars whereby the benefit of

enhancement in age on superannuation was given

would thus not ipso facto be applicable to the

appellant. These persons were working at an age

which was beyond 60 years but the benefit was

withdrawn as soon as the UGC issued Circular dated

12.10.2000 making it clear that such persons should

be retired with immediate effect. The appellant, on

the other hand, was only working in pursuance to the

interim directions of the learned Single Judge of this

Court. The appellant cannot be permitted to plead

that the appellant should also be treated as having

retired on 12.10.2000 and thus be granted retiral

benefits calculated on that basis rather than the date

when he attained the age of 60 years.

14. Learned counsel for the appellant did try to

impress that the decision of the appellant to

compromise the matter on 22.01.2001 was in

ignorance of the UGC Circular dated 12.10.2000 and

had he known about the Circular, he might not have

agreed to settle. In our considered view, this is hardly

a plea to be advanced as it was for the appellant to

know about the said Circular. Not only that, the

appellant was clearly informed about the Circular

dated 12.10.2000 by a letter dated 23.10.2000

addressed to the appellant by JNU in the following

terms:

"Dear Sir,

The University has issued a circular No. Admn.III 2000 dated 12th October, 2000 notifying that the age of superannuation of Assistant Registrar, Deputy Registrar, Public Relation Officer, Joint Registrar, Assistant Registrar of Physical Education, Assistant Librarian, Deputy Librarian, Assistant Finance Officer, Deputy Finance Officer shall now be 60 years with immediate effect. Consequently, Group „A‟ officers who may have continued beyond the age of 60 years shall also stand superannuated with immediate effect.

I am desired to inform you that though the above orders are also applicable to you, however, its implementation is withheld pending the Court order on CMP No.10706/1999 in CWP No.3538/1999 filed by you in the Hon‟ble High Court of Delhi."

15. The plea of the learned counsel for the appellant

that the appellant was unaware of the Circular dated

12.10.2000 is thus clearly fallacious.

16. It is important to note that the writ petition was

disposed of by a consent order dated 22.01.2001

against which no appeal would lie. The appellant

cannot seek to achieve indirectly what he cannot

achieve directly. The appellant seeks to make an

endeavour to get out of the consent order dated

22.01.2001 while having enjoyed the benefits under

the said Order. This is wholly impermissible.

17. We find no merit in the appeal.

18. Dismissed.

SANJAY KISHAN KAUL, J.

DECMEBER 19, 2008                          MOOL CHAND GARG, J.
dm