Punjab-Haryana High Court
The Vice-Chancellor vs Dr. Jahan Singh on 26 May, 2009
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
L.P.A. No. 27 of 2006
Date of Decision: May 26, 2009
The Vice-Chancellor, Maharshi Dayanand University, Rohtak and
another
...Appellants
Versus
Dr. Jahan Singh
...Respondent
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE H.S. BHALLA
Present: Dr. Balram Gupta, Senior Advocate,
with Ms. Anamika Negi, Advocate,
for the appellants.
Dr. Jahan Singh, respondent-in-person.
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in
the Digest?
M.M. KUMAR, J.
This order shall dispose of L.P.A. No. 27 of 2006 in C.W.P. No. 7180 of 1999, L.P.A. No. 45 of 2006 in C.W.P. No. 4142 of 2000 and L.P.A. No. 46 of 2006 in C.W.P. No. 11923 of 1999, which involves common facts. These appeals have been filed under Clause X of the Letters Patent challenging judgment dated 18.5.2005 (in L.P.A. No. 27 of 2006) and common judgment dated 23.3.2005 (in L.P.A. Nos. 45 and 46 of 2006) passed by the learned Single Judge.
2. In the first writ petition bearing C.W.P. No. 7180 of L.P.A. No. 27 of 2006 2 1999, the prayer made by the petitioner-respondent was to count 31 years and 6 months of service rendered by him to the State of Haryana or the Universities in Haryana for the purposes of retiral benefits. In the second C.W.P. No. 11923 of 1999, the petitioner- respondent had sought a direction to the appellant-University for grant of consequential benefits, such as, Pension, Gratuity, Earned Leave for the period he spent on Extra-ordinary leave from 30.11.1983 to 14.8.1985. He also sought a direction to count the period of Extra-ordinary Leave from 30.11.1983 to 14.8.1985 towards promotion as Professor in Physics under the Merit Promotion Scheme devised by the University Grants Commission. In the third C.W.P. No. 4142 of 2000, the petitioner-respondent had sought fixation of pay and payment of arrears of salary w.e.f. 1.1.1996 till 31.1.2000. A further direction was sought to the respondents to pay arrears of gratuity, leave encashment and pension according to the basic pay of Rs. 20,000/- as on 31.1.2000 and also according to the revised pay scale of the University Grants Commission.
3. In order to put the controversy in its proper perspective it would first be necessary to notice the skelton facts. The petitioner- respondent has claimed to be a brilliant academician. He has secured First Division in all the examinations from Matric to M.Sc. and he holds a Ph.D. degree in Nuclear Physics. He has published several research papers in reputed journals in India and abroad and has also been invited to attend, participate and deliver lectures in Seminars and Science Conferences at national and international level. He was awarded Merit Scholarship for study from Matric to M.Sc. in India and also in England.
L.P.A. No. 27 of 2006 3
4. The petitioner-respondent has worked as a Lecturer in Physics from 1.12.1965 to 9.10.1967 in the Regional Engineering College, Kurukshetra. He then worked as Research Assistant from October 1967 to June 1970 at the Department of Physics, University of Birmingham, England. On 5.7.1970, the petitioner-respondent came back to India and worked till 30.9.1973 as confirmed Lecturer in Physics, Panjab University Post Graduate Regional Centre, Rohtak. On 1.10.1973, the petitioner-respondent joined as Assistant Director, Haryana Police Forensic Science Laboratory, Madhuban (Karnal) and worked there till 20.7.1977. He then worked as Lecturer in Physics at Kurukshetra University, Kurukshetra, from 21.7.1977 to 18.10.1977. Thereafter, on 19.10.1977, he joined as Reader in Physics, M.D. University, Rohtak, after the approval of his selection by the 3rd Executive Council in its meeting held on 15.10.1977. The Executive Council of the appellant-University passed a resolution and services of Dr. Jahan Singh were terminated w.e.f. 20.6.1979 allegedly on misrepresentation of facts. On 17.8.1979, Government of Haryana appointed a Commission of Enquiry under the Chairmanship of Justice S.S. Dulat (Retd.).
5. The term of reference of Justice Dulat Commission of Enquiry was to enquire into the alleged acts of omission and commission committed by the then Vice Chancellor, Shri Hardwari Lal. The case concerning the termination of service of the petitioner- respondent was also referred to the Commission who submitted its report to the Government of Haryana on 30.6.1980. The conclusion about the petitioner-respondent has been set out in the report, which reads thus:-
L.P.A. No. 27 of 2006 4
"The only conclusion to my mind is that Shri Hardwari Lal was so upset about and so annoyed with Dr. Jahan Singh that he permitted himself to present as dark a picture of Dr. Jahan Singh's work and conduct as he could. I cannot, therefore, escape the conclusion that the Vice-Chancellor Shri Hardwari Lal failed to deal with Dr. Jahan Singh fairly."
6. The report of Dulat Commission was laid before the State Assembly and it was duly accepted. The report was sent to the Chancellor recommending necessary action as under:-
"A copy of the report has been sent to the Governor of Haryana who is also the ex-officio Chancellor of the Maharshi Dayanand University, Rohtak, inviting his attention to the acts of Omission and Commission committed by Shri Hardwari Lal and requesting him to take necessary action in the matter."
7. After the acceptance of Dulat Commission Report by the Government of Haryana and Chancellor of the University, Shri Hardwari Lal had accepted his mistakes and praised the work and conduct of the petitioner-respondent in his statement put up before the Executive Council meeting held on 29.1.1982, vide item No. 72. Thereafter, on 5.10.1983, Shri Hardwari Lal, had allowed the petitioner-respondent to rejoin the University as Reader in Physics on the same post which was held by him before the termination of his services. Accordingly, the petitioner was appointed as Reader in Physics vide appointment letter No. ET-2/83/19683, dated 5.10.1983. The action taken by the Vice-Chancellor was approved by the L.P.A. No. 27 of 2006 5 Executive Council vide its Resolution No. 26 in its meeting held on 6.10.1983.
8. While the petitioner-respondent was out of service, the then Vice-Chancellor, University of Kashmir, recommended his case to Head of Physics Department, University of Zambia for assignment as Senior Lecturer. Thereafter, the Secretary of the University of Zambia, vide letter dated 27.9.1983, offered the post of Senior Lecturer in Physics to the petitioner-respondent. On the basis of the report of the Dulat Commission, the petitioner-respondent was reinstated in service and he joined his post of Reader in Physics on 5.10.1983 from which his services were terminated. The petitioner- respondent submitted an application to the appellant-University for grant of leave, which was sanctioned by the Executive Council vide their Resolution dated 21.11.1983. On 29.11.1983, the petitioner- respondent went on two years leave to work as Senior Lecturer in Physics in the University of Zambia, Lusaka (South Africa).
9. He came back and again joined the appellant-University on 14.8.1985. On 29.9.1985, the petitioner-respondent submitted an application to the Vice-Chancellor of the appellant-University for grant of three increments by counting the period of extra-ordinary leave as duty period. The petitioner-respondent was promoted as Professor in Physics w.e.f. 31.3.1986.
10. Later on a dispute with regard to treating the period spent by the petitioner-respondent in Zambia arose. On 25.3.1991, the Executive Council of the appellant-University decided that the break in service of Dr. Jahan Singh be condoned with all consequential benefits of continuous service. Except for the financial benefits, his L.P.A. No. 27 of 2006 6 original position as Reader in Physics was restored. The decision was communicated on 10.4.1991. The original seniority of the petitioner- respondent w.e.f. his initial date of appointment was restored in the Department of Physics. The seniority of the petitioner-respondent in the cadre of Reader was fixed vide letter dated 29.5.1991 by taking into consideration his total service in that cadre. On 18.7.1991, the Executive Council of the appellant-University decided to count the period of extra-ordinary leave of the petitioner-respondent towards annual increments. The said decision was again reiterated in its meeting held on 7.3.1992. On 28.12.1991, a communication was sent to the petitioner-respondent promoting him as Professor of Physics w.e.f. 31.3.1986. On 23.1.1993, the position of the petitioner- respondent as Professor was restored.
11. The Vice-Chancellor of the appellant University granted approval to the counting of extra-ordinary leave from 30.11.1983 to 14.8.1985 towards annual increments in terms of Clause 26(c) of the Leave Regulations, which was conveyed to the petitioner-respondent vide letter dated 6.2.1995. On 31.3.1998, the petitioner-respondent represented that benefits of service rendered by him in other institutions before joining the appellant-University be granted. The Executive Council of the appellant-University passed Resolution No. 35 in its meeting held on 11.6.1998, approving the Pension Scheme in the University w.e.f. 1.4.1995. On 20.7.1998, options for the pension scheme from the teachers of the appellant-University were invited. The petitioner-respondent submitted his option for the pension scheme on 21.8.1998 (P-20).
12. The petitioner-respondent also claimed additional three L.P.A. No. 27 of 2006 7 years' benefit in service in terms of Clause 17 of the notification dated 24.12.1998, issued by the University Grants Commission, which stipulates that benefit in service upto a maximum of 3 years could be provided to the teachers who have acquired Ph.D degree at the time of entry. On 6.4.1999, the petitioner-respondent submitted another application for counting the service rendered by him in the State of Haryana towards retirement benefits i.e. gratuity and pension etc.
13. Since the concerned authority did not implement the decision of the Executive Council, dated 25.3.1991, regarding condonation of break in service, the petitioner-respondent filed CWP No. 5093 of 1999, which was allowed by a Division Bench of this Court vide order dated 27.1.2000 holding that the petitioner- respondent is entitled to re-fixation of his pay by treating the period from 20.6.1979 to 4.11.1983 so as to include the increments that accrued to him during this period. The petitioner-respondent retired from service on attaining the age of superannuation w.e.f. 31.1.2000. The SLP filed by the appellant-University against the order dated 27.1.2000 passed in CWP No. 5093 of 1999, was dismissed on 6.11.2000.
14. The petitioner-respondent also filed CWP No. 7272 of 1998, claiming the relief of re-fixation of his pay during the break period by treating his service continuous, which was dismissed by the learned Single Judge. Letters Patent Appeal No. 2 of 2002 against the said judgment, filed by the petitioner-respondent was also dismissed. The matter was taken to Hon'ble the Supreme Court by the petitioner-respondent and while disposing of Civil Appeal No. L.P.A. No. 27 of 2006 8 1568 of 2004 arising out of S.L.P. (C) No. 10941 of 2003, matter was remanded back to this Court to hear the appeal afresh and pass a reasoned order by taking into consideration all relevant aspects of the matter after giving opportunity of hearing to the parties. After remand, LPA No. 2 of 2002 was decided again on 29.11.2004 in favour of the petitioner-respondent. The appellant-University was directed to give the benefit of annual increments to the petitioner- respondent in lieu of the period of extra-ordinary leave from 30.11.1983 to 14.8.1985. The appellant University challenged order dated 29.11.2004 before Hon'ble the Supreme Court and Civil Appeal No. 853 of 2006 (Vice Chancellor, M.D. University, Rohtak v. Jahan Singh, 2007 (3) SLR 381). On 8.3.2007, Hon'ble the Supreme Court set aside the order of Letters Patent Bench passed in L.P.A. No. 2 of 2002, dated 29.11.2004 and restored the order of learned Single Judge.
15. After considering the aforementioned factual matrix and the contentions raised by the parties in detail, the learned Single Judge allowed C.W.P. No. 7180 of 1999 vide judgment dated 18.5.2005 and C.W.P. No. 11923 of 1999 & C.W.P. No. 4141 of 2000 vide common judgment dated 23.3.2005.
16. Learned Single Judge vide his order dated 18.5.2005 held that the petitioner-respondent was entitled to continuity of service from the date his services were terminated i.e. 20.6.1979 till the date of his re-instatement on 5.10.1983. The observation of learned Single Judge in that regard reads thus:-
"......The aforesaid sequence of events would make it abundantly clear that the petitioner is entitled to L.P.A. No. 27 of 2006 9 continuity of service from the date his services were terminated and reappointment on 05.10.1983. In fact, this matter is no longer res-integra. The matter has been considered by Division Bench of this Court in CWP No. 5093 of 1999 decided on 27.01.2000. It has been held that the period between 20.06.1979 to 04.10.1983 would be treated as the period spent on duty. The petitioner was only denied monetary benefits. ......"
17. In respect of gratuity, learned Single Judge placed reliance on Regulation 41(1)(a) and in respect of pension he has sought support from the Maharshi Dayanand University Pension Scheme, 1977. Accordingly, it has been held that the petitioner- respondent was entitled to count the entire service rendered by him in different institutions for pension and gratuity. The claim of the petitioner-respondent for grant of three increments was also upheld by placing reliance on clause 17 of the notification dated 24.12.1998 issued by the University Grants Commission. After placing reliance on the judgment of Hon'ble the Supreme Court in the case of Purshottam Lal v. Union of India, AIR 1973 SC 1088, learned Single Judge held that the petitioner-respondent was entitled to be given the benefit of clause 17 of the UGC notification and accordingly directions were issued in the following terms:-
" In view of the above, the writ petition is allowed. The respondents are directed to re-determine the pension and the gratuity payable to the petitioner by giving benefit of the entire service rendered by the petitioner in different institutions as enumerated in the writ petition L.P.A. No. 27 of 2006 10 i.e. the petitioner is entitled to the benefit of service as follows:-
(i) Lecturer in Physics, Regional Engg.
Regional Engg. College, Kurukshetra from
1.12.1965 to 9.10.1967.
(ii) Lecturer in Physics, Punjab University, Post
Graduate Regional Centre, Rohtak from
5.7.1970 to 30.9.1973.
(iii) Assistant Director (Class-I) Gazetted
Officer) Haryana Police Forensic Science
Laboratory, Madhuban (Karnal) from
1.10.1973 to 20.7.1977.
(iv) Lecturer in Physics, Kurukshetra University,
Kurukshetra from 21.7.1977 to 18.10.1977.
The aforesaid period is total 9 years and 2 months in addition to the benefit of service which has already been granted to the petitioner from 19.10.1977 to 31.1.2000. The petitioner shall also be entitled to the benefit of three years service for possessing the qualification of Ph.D. The respondents are directed to re-determine the retiral benefits of the petitioner and release the same within a period of three months from the date of receipt of a certified copy of this order."
18. The other two appeals namely LPA Nos. 45 and 46 of 2006 emerge from CWP No. 4142 of 2000 and CWP No. 11923 of 1999 respectively. The learned Single Judge has placed reliance on the observations made by a Division Bench of this Court in its L.P.A. No. 27 of 2006 11 judgment dated 27.1.2000 rendered in CWP No. 5093 of 1999, which is between the same parties. The observations of the Division Bench reads thus:-
"The grievance now made before us is that even though the petitioner is about to retire in a couple of days the University has not so far re-fixed his pay during the break period by treating his service continuous. In the written statement filed by the University, it is no where pleaded that the pay of the petitioner was re-fixed for the break period or that the increments to which he became entitled were paid to him. It is averred in the reply that on his re-appointment the petitioner was granted pay which he was drawing before his services were terminated on 20.06.1978. It is, thus, clear that the resolution passed by the Executive Council condoning the break in service has not been implemented in its entirety and the petitioner has not been granted the consequential benefits. A bare reading of the resolution passed by the Executive Council makes it clear that the petitioner is entitled to have his service from 20.6.1979 to 4.10.1983 counted and his pay re-fixed after calculating the increments which he would have earned during the said period. This not having been done, we have no hesitation in allowing the writ petition which we hereby do and direct the University to re-fix the pay of the petitioner from 20.6.1979 till 4.10.1983 treating him in service and giving him the benefit of annual L.P.A. No. 27 of 2006 12 increments which he would have earned during that period. We further direct the University to re-fix his pay for the period after he was re-appointed till the date of his promotion as Professor and pay him the arrears of pay for that period. For the sake of clarification, we may mention that the petitioner would not be entitled to the arrears of pay for the period from 20.6.1979 to 4.10.1983. We may also observe that the petitioner will be entitled to all the consequential retiral benefits by treating him in service for the aforesaid break period. He will also be entitled to gratuity and pension by treating him in service during that period. The University is further directed to pay the arrears to the petitioner within a period of one months together with interest thereon @ 15% per annum. The Vice-Chancellor of the University shall fix the responsibility of the office concerned who was responsible for re-fixing the pay of the petitioner and the amount of interest paid by the University shall be recovered from that officer without debiting the amount to the account of the University. Petitioner is entitled to have his costs which are assessed at Rs. 5000/-."
19. It is, thus, obvious that the petitioner-respondent became entitled to have his service counted from 20.6.1979 to 4.10.1983. He also became entitled to his pay fixation after calculating the increments which he would have earned otherwise during that period. He was, thus, deserved to be treated in service from 20.6.1979 to 4.10.1983. A further direction was also issued to the University- L.P.A. No. 27 of 2006 13 appellant to refix his pay for the period he was re-appointed till date of his promotion as Professor and pay him arrears of pay for that period. He was, however, not held entitled to arrears of pay for the period 20.6.1979 to 4.10.1983 but was otherwise held entitled to all the consequential retiral benefits by treating him in service for the aforesaid break period. He was also held entitled to gratuity and pension by treating him in service during that period. The arrears were required to be paid along with interest at the rate of 15% per annum.
20. The learned Single Judge then refers to the entitlement of the petitioner-respondent for promotion with effect from 31.3.1986 as the entire period in dispute has been treated to be period spent on duty and went on to observe as under:-
"......He was promoted on the post of Professor of Physics by order dated 19.02.1991 in the pay scale of Rs. 4500-150-5700-200-7300/-. Subsequently, by order dated 28.12.1991 the petitioner was ordered to be promoted with effect from 31.03.1986 i.e. cut of date on which the petitioner became eligible for promotion. It was made clear in the order that the promotion shall be for the limited purpose of pay fixation and no arrears shall be paid. However, for future promotion under the Scheme, the period shall be counted from the cut of date of the eligibility year. In view of the clarification dated 18.08.1984 and the communication dated 28.12.1991, there shall be no justification to deny the promotion to the petitioner on the post of Professor with effect from L.P.A. No. 27 of 2006 14 31.03.1986.
xxx xxx xxx xxx xxx
xxx xxx xxx xxx
On 18.08.1984, the University Grants Commission had issued the following directions to the Vice- Chancellor of the respondent-University:-
"UNIVERSITY GRANTS COMMISSION BAHADUR SHAH ZAFAR MARG, NEW DELHI.
Y.D. Sharma Deputy Secretary D.O. No. F.1-7/83 (MP) Dated 18th August 1984. Dear Vice-Chancellor The University Grants Commission at its meeting held on 7th July, 1984 on reference from a university considered the question of counting the period of study leave/extra-ordinary leave availed of by a teacher towards computation of eight years of continuous service in the cadre of promotion under the Merit Promotion Scheme. The Commission agreed that the period of leave which entitles a teacher to earn annual increment would be counted towards computation of eight years of continuous service in the cadre of promotion under the merit Promotion Scheme. The above decision of the Commission may also be brought to the notice of colleges affiliated to the L.P.A. No. 27 of 2006 15 University.
With regards, Yours sincerely, Sd/-
(Y.D. Sharma) Shri Hardwari Lal Vice-Chancellor Maharshi Dayanand University, Rohtak-124 001."
These directions make it abundantly clear that the petitioner has to be granted the benefit of the period of leave towards computation of eight years of continuous service in the cadre for promotion under the Merit Promotion Scheme.
The petitions are allowed in the aforesaid terms. The respondents are directed to grant the entire consequential relief to the petitioner within a period of two months from the date of receipt of a certified copy of this order. No costs."
21. Dr. Balram Gupta, learned Senior counsel for the appellant University has argued that according to clause VII, the period of service rendered by an employee in any State Government or Government aided private college or in any University/ Autonomous Body shall be counted as qualifying service for pensionary benefits. He has further pointed out that clause 4(1) dealing with qualifying service include all service interrupted or continuous paid in the University and for which University share is L.P.A. No. 27 of 2006 16 contributed towards pension is to be treated as qualifying service. The period of break is also to be omitted while working out aggregate service. Accordingly, it has been submitted that the learned Single Judge has grossly erred in not appreciating the specific provision relating to the pensionary benefits. In support of his submission, learned counsel has also pointed out that a University employee may have drawn the benefit in the form of Contributory Provident Fund or otherwise and his past service benefit are permitted then it would amount granting double benefit.
22. The second submission of Dr. Gupta is that the petitioner-respondent could not be granted benefit of entire period of service from October 1977 to January 31, 2000 when he superannuated because his services were terminated by resolution of the Executive Council, dated 20.6.1979 and he could rejoin only on 5.10.1983. Even after re-joining the petitioner-respondent proceeded on extra ordinary leave from 30.11.1983 to 14.8.1985. For the aforesaid purposes, the petitioner-respondent had filed C.W.P. No. 7272 of 1998, which after various rounds of litigation, has been dismissed by Hon'ble the Supreme Court. Accordingly, the petitioner-respondent could not be held entitled to the benefit of service for the period from 30.11.1983 to 14.8.1985. In that regard, he has placed reliance on the judgment of Hon'ble the Supreme Court dated 8.3.2007 (supra) and argued that the petitioner-respondent would be entitled to increment for the period of extra ordinary leave only if he fulfilled the requirement of clause 26(ii)(a) to (c) of the Maharshi Dayanand University Calendar, Volume-III Leave Regulations. Learned counsel has further argued that grant of three L.P.A. No. 27 of 2006 17 years service on the basis of Ph.D. degree is also unsustainable. According to the learned counsel, the petitioner-respondent had joined the service as Lecturer on 1.12.1965 at Regional Engineer College, Kurukshtra and acquired the degree of Ph.D in the year 1971. According to the learned counsel the petitioner-respondent was required to have acquired the degree of Ph.D at the time of joining initial service in contrast to the joining of the service of the University and, therefore, learned Single Judge has grossly erred by granting him the benefit of three years. He has further argued that clause 17.1.0 of the notification of the UGC was substituted by para 19 of the notification of the Financial Commissioner and Secretary to Government Haryana, Education Department, dated 13.5.1999/7.6.1999 and the aforesaid benefit granted by the UGC was deleted.
23. Dr. Gupta has further argued that the learned Single Judge has erred in placing reliance on two memos dated 24.12.2001 and 6.6.2002 issued by the Commissioner, Higher Education, Haryana (P-32 and P-33) for holding the petitioner-respondent entitled to count the entire past service rendered by him in different institutions before joining the appellant University for pension and gratuity. Likewise, he has argued that no reliance could be placed upon memo dated 6.6.2002 because the petitioner-respondent had duly taken all his benefits with regard to the past service wherever the same was rendered by him. In any case, the employer's CPF share was never transferred to the appellant University, therefore, the petitioner-respondent was in no case entitled to counting of past service from 1965 to 1977 on the basis of aforementioned two L.P.A. No. 27 of 2006 18 memos.
24. The petitioner-respondent Dr. Jahan Singh has argued his case in person. He submitted that he had retired on superannuation on 31.1.2000 and over nine years have gone by. According to him all the benefits have been rightly granted by the learned Single Judge. He has submitted that he is entitled to all the following benefits:
i. To count total period of nine years two months of the following service for pension, gratuity and other retiral benefits, namely:
a) Lecturer in Physics, Regional Engineering College, Kurukshetra w.e.f. 1.12.1965 to 9.10.1967.
b) Lecturer in Physics, Panjab University Post Graduate Centre, Rohtak, w.e.f. 5.9.1970 to 30.9.1973.
c) Assistant Director (Class-I), Forensic Science Laboratory Haryana, Madhuban (Karnal) w.e.f. 1.10.1973 to 20.7.1977.
d) Lecturer in Physics, Kurukshetra University, Kurukshetra w.e.f. 21.7.1977 to 18.10.1977.
ii. To grant three years service for retiral benefit as notification dated 24.12.1998, which has been rightly relied upon by the learned Single Judge (impugned judgment in LPA Nos. 45 and 46 of 2006).
iii. The Maharshi Dayanand University Pension Rules/Pension Scheme have been published in L.P.A. No. 27 of 2006 19 M.D.U. Calendar Vol. III (2002) [pages 178 to 186]. After clause 4(iii) at page 181 of the said pension scheme, the benefits have been granted.
25. He has also submitted that he has been subjected to a discriminatory treatment as person similar to him have been given benefits by counting service spent in other Universities. He has cited the example of Dr. Sarabjit Singh, Dr. O.P. Aggarwal, Dr. M.G. Gandhi, Dr. Y.V. Dahiya and Dr. K.C. Bhardwaj.
26. With respect to other writ petition, the petitioner- respondent has argued that he is entitled to payment of revised salary in the grade of Professor in the pay scale of Rs. 16400-22400 w.e.f. 1.1.1996 to 31.1.2000 till the date of his retirement as per the recommendation made by the 5th Pay Commission. He has submitted that the arrears of his retiral benefits of pension and gratuity etc. be also revised accordingly. The petitioner-respondent has also claimed salary for the discharge of his duty as Professor w.e.f. 19.2.1991 to 31.1.2000, as he has been duly shown promoted as Professor w.e.f. 31.3.1986. In that regard he has placed reliance on a Division Bench judgment of this Court rendered on 27.1.2000 in CWP No. 5093 of 1999 (Annexure P-32 with LPA No. 45 of 2006). According to the petitioner-respondent, SLP (C) No. 10849 of 2000 against the aforesaid order stand dismissed on 6.11.2000 (Annexure P-33 with LPA No. 45 of 2006). The petitioner-respondent has also asserted that his claim for counting extra ordinary leave as qualifying service for the purpose of pension as well as for his promotion as Professor, should also be granted to him, which is for the period from 30.11.1983 to 14.8.1985 when he worked in the Department of L.P.A. No. 27 of 2006 20 Physics, University of Zambia, Lusaka (South Africa). In that regard he has placed reliance on the UGC Promotion Guidelines dated 23.11.1982, which were accepted by the Executive Council of the appellant-University on 19.2.1984. He has reiterated the argument concerning discrimination by citing various examples.
27. We have bestowed our thoughtful consideration on the whole controversy and are left with an impression that the petitioner- respondent has not been treated fairly at the hands of the appellant- University. It is high time for the appellant-University to shun bureaucratic approach and deal with its teachers fairly. The judgment rendered in CWP No. 7180 of 1999 allowed by the learned Single Judge on 18.5.2005, is subject matter of challenge in LPA No. 27 of 2006. In that petition the petitioner-respondent has asked for the relief of (a) counting his service rendered by him at Regional Engineering College, Kurukshetra as qualifying service for retiral benefit i.e. from 1.12.1965 to 9.10.1967. He has also prayed for similar benefits from 5.7.1970 to 30.9.1973 in lieu of service rendered by him at the then Panjab University Post Graduate Regional Centre, Rohtak; from 1.10.1973 to 20.7.1977 for service rendered as Assistant Director, Haryana Police Forensic Science Laboratory, Madhuban (Karnal); and for further service rendered at Kurukshetra University, Kurukshetra from 21.7.1977 to 18.10.1977.
28. The petitioner-respondent has also relied upon clause 17 of a notification issued by the UGC on 24.12.1998 as well as another notification dated 24.12.2001 issued by the Haryana Government. The relevant clauses of these notifications read as under:-
Portion of UGC Notification dated 24.12.1998 L.P.A. No. 27 of 2006 21 "17.0.0 SUPERANNUATION BENEFITS 17.1.0 The benefit in service, upto a maximum of 3 years, should be provided for the teachers who have acquired Ph.D. degree at the time of entry, so that almost all teachers get full retirement benefits which are available after 33 years of service, subject to the overall age of superannuation.
17.2.0 Other conditions with respect to Superannuation Benefits may be given as per Central/State Government Rules."
Haryana Government Notification dated 24.12.2001 "Subject: Implementation of Pension Scheme in M.D.U. Rohtak.
The State Govt. has considered and agreed for counting of service rendered by the employees of the University in Punjab University/Kurukshetra University/ M.D. University as qualifying service for the purpose of pension subject to the following terms and conditions:-
1- The service rendered by the said employees in these institutions is without any break and is continuous.
2- That the employer's share of the CPF in respect of
these employees has been transferred to the
pension fund even with respect to the
service rendered in Punjab
L.P.A. No. 27 of 2006 22
University/Kurukshetra University as
required under the pension rules of the
University. Further, that all other
requirement of the pension rules are fulfilled in respect of these employees. Kindly take necessary action accordingly."
29. At this stage it would also be pertinent to refer to the Maharshi Dayanand University Employees Pension Scheme, 1997 (for brevity, 'the Pension Scheme') as contained in Chapter-XLVIII of the Maharshi Dayanand University Calendar, Volume-III (2002). Relevant clauses of the Pension Scheme i.e. 2(viii), 4(i), (ii) and (vii) are reproduced as under:-
"2. Definition: Unless there be anything repugnant in the subject or context, the terms in these rules carry the meaning as under:-
viii) Competent Authority
a) Executive Council of the University would be competent to adopt the Pension rules for Maharshi Dayanand University Employees as approved by the State Govt.
b) Competent authority means the authority competent to sanction pension to the employees of University. Competent authority for the purpose of this scheme will be Vice-Chancellor of the University. He may further delegate his powers to sanction the Pensionary benefits to the persons not L.P.A. No. 27 of 2006 23 less than a rank of Registrar in the University.
c) Any change(s) in grant of pensionary benefits as made by the Haryana Govt. to its employees from time to time shall be made applicable to the University employees with the approval of the Vice-Chancellor." "4. Qualifying Service:
i) All service interrupted or continuous paid by the University and for which University share is contributed towards Pension Fund shall be treated as qualifying service. The period of break shall be omitted while working out aggregate service.
ii) E.O.L. (Without Pay) counted towards increment under rule 4.9(b)(ii) of Pb. C.S.R. Vol. I, Part-I will be counted towards service qualifying for pension, provided that University contributes its share towards pension fund for this period.
iii) to vi) xxx xxx xxx
vii) The period of service rendered by an employee in any State Govt. or Govt. aided Private College or in any University/Autonomous body against aided post prior to joining in the University shall not count as qualifying service for pensionary benefits.
However, as per Haryana Finance Dept. letter No. 1/2(4) 96-2 FR-II dated 7.1.2002, the cases for the L.P.A. No. 27 of 2006 24 purpose of grant of benefit of past qualifying service towards pension to the State Government Employees going over to State Autonomous Body or vice versa and employees of State Autonomous Body moving to another Autonomous Body (both under the Govt. of Haryana), will be regulated as per the provisions contained herein.
Definition of Statutory Body/Autonomous Body:-
In order to be eligible for the benefits under this officer Memorandum, an employee must have rendered service in a State Autonomous/Statutory Body:
i) that has been created under a Statute/Act of a State/Central Government; and
ii) is financed wholly or substantially from the cess or Central/State Government grants "substantially"
means that more than 50% of the expenditure of the Autonomous Bodies is met through cess or Central/State Government grants.
EXPLANATION:
A State Autonomous Bodies includes a State University but does not include a Public Sector undertaking/Public Enterprise/Company registered under the companies Act/Society registered under the Societies Registration Act/and private bodies and managements." (emphasis added)
30. A perusal of clause 4(i) of the Pension Scheme framed by L.P.A. No. 27 of 2006 25 the appellant University postulates that all service interrupted or continuous paid by the University and for which University share is contributed towards Pension Fund, must be treated as qualifying service. It further clarifies that the period of break must be omitted while working out aggregate service. In respect of Extra Ordinary Leave (EOL), which is ordinarily without pay, it has been provided that such period of EOL which is counted towards increment under Rule 4.9(b)(ii) of the Punjab C.S.R. Volume-I, Part-I, could also be counted towards qualifying service for pension. Sub-clause (vii) of clause (4) of the Pension Scheme adopts a letter of Haryana Government, dated 7.1.2002, which is squarely applicable to the case of the petitioner-respondent. Perusal of clause 4(vii) of the Penshion Scheme show that the period of service rendered by an employee in any State Government or a Government Aided Private College or in any University, Autonomous Body against aided post prior to joining in the University is not to be counted as qualifying service for pensionary benefit. However, sub-clause (vii) refers to the Finance Department letter dated 7.1.2002, which regulate counting of qualifying service towards pension in respect of State Government employees going over to State Autonomous Body or vice-versa. In the definition of 'Statutory Body/Autonomous Body' it has been clarified that such a body might be created under a Statute/Act of a State/Central Government and is financed wholly or substantially by the Central/State Government grants. The explanation further clarifies that State Autonomous Body would include State University but are not to include the Public Sector Undertaking or the Company registered under the Companies Act. This letter covers the case of the L.P.A. No. 27 of 2006 26 petitioner-respondent because the service rendered by the petitioner- respondent is either to the Regional Engineering College, Kurukshetra or Panjab University or the Forensic Science Laboratory, Madhuban, which is a Government Department, or the appellant University. It is, thus, obvious that the whole service rendered by the petitioner-respondent would qualify for pensionary and other retiral benefits. Accordingly, we endorse the view taken by the learned Single Judge and hold the petitioner-respondent entitled to the benefit in respect of the period specified in the preceding paras.
31. The argument of Dr. Balram Gupta that sub-clause (vii) of clause 4 of the Pension Scheme, in fact, exclude the whole service and dis-entitled the petitioner-respondent from making any such claim, has failed to impress us because it is obvious from the Pension Scheme that letter dated 7.1.2002 would entitle the petitioner- respondent to claim all such benefits. In such like matters, Hon'ble the Supreme Court has repeatedly recommended for adopting a liberal approach. In that regard reliance is placed on the judgment of Hon'ble the Supreme Court rendered in the case of D. S. Nakara v. Union of India, AIR1983 SC 130. The other argument of Dr. Gupta in this regard that the petitioner-respondent might have obtained benefit of Contributory Provident Fund, also does not cut any ice in view of the specific statement made by Dr. Jahan Singh that he has not obtained any such benefit. Even otherwise if any such benefit has been obtained then it would not dis-entitle the petitioner-respondent from counting of that period as qualifying service because adjustment in accounting could always be made by the appellant-University while calculating the amount due to the petitioner-respondent. L.P.A. No. 27 of 2006 27
32. We also approve the view taken by the learned Single Judge on the basis of notification dated 24.12.2001 (supra), which postulate that the service rendered by the employees of the Maharshi Dayanand University, the Panjab University/Kurukshetra University was to be considered as qualifying service for the purpose of pension. The provision has to be read with sub-clause (i) of clause (4) of the Pension Scheme, which provides that all service interrupted or continuous has to be treated as qualifying service for the purpose of pension and the break have to be ignored while working out aggregate service. The petitioner-respondent admittedly has rendered service from 1.12.1965 to 9.10.1967 as Lecturer in Physics at the Regional Engineering College, Kurukshetra and he was a confirmed Lecturer in Physics at the Panjab University Post Graduate Regional Centre from 5.7.1970 to 30.9.1973. The gap from October 1967 to June 1970 would be condonable in view of the fact that he was working as a Research Assistant in the Department of Physics, University of Birmingham, England. From the post of Lecturer he went on to join as Assistant Director, Forensic Science Laboratory, Madhuban (Karnal) and worked there w.e.f. 1.10.1973 to 20.7.1977. He also worked for about three months as Lecturer at Kurukshetra University, Kurukshetra from 21.7.1977 to 18.10.1977. Thereafter, he was appointed as Reader in Physics at the appellant-University on 19.10.1977. Therefore, by reading clause 4(i) of the Pension Scheme with letter/notification dated 24.12.2001 it cannot be said that the petitioner-respondent would not be entitled to counting the aforesaid period as qualifying service for the purpose of pension and other retiral benefits.
L.P.A. No. 27 of 2006 28
33. The learned Single Judge has also adopted correct approach by placing reliance on clause 17 of the UGC notification dated 24.12.1998, which has already been reproduced in para 27 above. It is also not in dispute that the Haryana Government accepted the revision of pay scale in respect of the University and College teachers. Clause 17.1.0 in clear terms postulate that three years benefit be provided to the teachers who have acquired Ph.D. degree at the time of entry into service so as to enable them to get full retiral benefits, which are available after 33 years of service, subject to the overall age of superannuation. Accordingly, the petitioner- respondent would be entitled to the aforesaid benefits, as has been rightly held by the learned Single Judge, particularly in view of the judgment of Hon'ble the Supreme Court rendered in the case of University of Delhi v. Raj Singh, AIR 1995 SC 336. According to the ratio of the aforesaid judgment the notifications issued by the UGC are binding on the Universities.
34. The relief granted by the Division Bench while deciding C.W.P. No. 5093 of 1999, has to be granted to the petitioner- respondent. The Division Bench in unmistakable terms has issued direction to the appellant-University to re-fix the pay of the petitioner-respondent from 20.6.1979 till 4.10.1983 by treating him in service and granting him benefit of annual increments which he would have earned during that period. The aforesaid direction was issued in pursuance to the resolution passed by the Executive Council condoning the break in service and the SLP (C) No. 10849 of 2000 was dismissed. The Division Bench had also issued direction to re- fix his pay for the period after he was re-appointed till the date of his L.P.A. No. 27 of 2006 29 promotion as Professor and pay him arrears of pay for that period. The Division Bench clarified that the petitioner-respondent was not to be paid any arrears of pay for the period from 20.6.1979 to 4.10.1983. However, he was held entitled to all the consequential retiral benefits i.e. pension and gratuity on the assumption that he was in service for the aforesaid break period. The arrears were required to be paid to the petitioner-respondent within a period of one month with interest @ 15% per annum. The aforesaid relief granted by the learned Single Judge based on the Division Bench judgment cannot possibly be open to challenge and the argument contrary to the aforesaid view, raised by Dr. Gupta, are hereby rejected.
35. There is only one aspect which remained to be noticed in view of the judgment rendered by Hon'ble the Supreme Court in the case of Vice Chancellor, M.D. University, Rohtak v. Dr. Jahan Singh, (2007) 3 SLR 381. Dr. Jahan Singh had pointed out that factual background noticed for reaching the aforesaid conclusion by Hon'ble the Supreme Court was not correctly placed before their Lordships', inasmuch as, the petitioner-respondent has been considered to be in service as Reader in Physics since 19.10.1977 at the appellant-University, although his services were terminated w.e.f. 20.6.1979. Be that as it may, we cannot go into that aspect. The matter has been concluded by their Lordships' of the Supreme Court and the judgment in LPA No. 2 of 2002 has been reversed. Accordingly the writ petition filed by the petitioner-respondent was dismissed. It is appropriate to mention that the petitioner-respondent has sought direction for implementation of the letter dated 6.2.1995 issued by the appellant-University in terms of clause 26(c) of the L.P.A. No. 27 of 2006 30 Leave Regulations of the Maharshi Dayanand University Calendar Volume-III (1991). Further relief was sought for counting extra ordinary leave period towards annual increments by declaring the Vice-Chancellor's notification dated 2.4.1998 as unjust and contrary to the law. Hon'ble the Supreme Court has held that the petitioner- respondent could have become entitled to the benefits despite grant of extra ordinary leave in terms of Regulation 26(ii) had he fulfilled all the conditions. He did not fulfill those conditions, therefore, withdrawal of increments, arising from extra ordinary leave, were upheld. In so far as the period of extra ordinary leave for pension is concerned, the same was not scope of the dispute raised before this Court in LPA No. 2 of 2002, which eventually reached Hon'ble the Supreme Court.
36. For the reasons stated above, LPA Nos. 27, 45 and 46 of 2006 are hereby dismissed with the only modification that the petitioner-respondent would not be entitled to the increments emerging from the extra ordinary leave in respect of the period when he worked at the University of Zambia, Lusaka (South Africa) from 30.11.1983 to 14.8.1985
37. We hope and trust that with the dismissal of the LPAs, all controversies between the appellant-University and the petitioner- respondent would come to an end and the petitioner-respondent who is already a senior citizen may be allowed to live in peace in the evenings of his life. He had retired more than nine years ago and still clamouring for payment of his dues. Accordingly, we direct that all his dues be settled within a period of two months from the date of receipt of a certified copy of this order.
L.P.A. No. 27 of 2006 31
(M.M. KUMAR)
JUDGE
(H.S. BHALLA)
May 26, 2009 JUDGE
Pkapoor