Allahabad High Court
Dr. Chandrakant Sharma vs State Of U.P. And 4 Others on 21 June, 2022
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved On:- 20.05.2022
Delivered On:- 21.06.2022
Case :- WRIT - A No. - 1999 of 2022
Petitioner :- Dr. Chandrakant Sharma
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Siddharth Khare, Sr. Advocate
Counsel for Respondent :- C.S.C.,Vivek Kumar Rai
Hon'ble Siddharth, J.
1. Heard Shri Ashok Khare, learned Senior Counsel assisted by Shri Jigar Khare, learned counsel for the petitioner, learned Standing Counsel appearing for respondent nos. 1 and 2 and Ms. Shambhavi Tiwari, learned counsel for the respondent nos. 3, 4 and 5.
2. This writ petition has been filed praying for quashing of the communication dated 08.04.2019 issued by the Registrar, Dr. Bhim Rao Ambedkar University, Agra. Further prayer has been made for direction to the respondents to sanction the benefit of Career Advancement Scheme from the date of entitlement of the petitioner by sanctioning the pay scale applicable to the post of Librarian / Professor on completion of 10 years of service from the date of sanction of pay scale of University Grants Commission to the petitioner. Prayer has also been made for direction to the respondents for payment of the arrears of salary of the petitioner and for making payment of revised pension and other retiral dues along with penal interest to the petitioner as may be specified by this Court.
3. The brief facts of the petition are that the petitioner has educational qualification of M.A, Bachelor of Library Science and Master of Library Science. The petitioner was selected for appointment as Deputy Librarian in Dr. Bhim Rao Ambedkar University, Agra (hereinafter referred to as "University" only) in the year 1980 and he got retired at the age of 60 years on 31.01.1997. At the time of his retirement, the petitioner was drawing salary in the pay scale of 3700-5700 fixed by University Grants Commission with effect from 01.01.1986. As per Government Order dated 29.02.1996 three pay scales were applicable to the cadre of Librarian. Pay scale of Rs. 2200-4000 was applicable to the post of Assistant Librarian; Rs. 3700-5700 was applicable to the post of Deputy Librarian and Rs. 4500-7300 was applicable to the post of Librarian. The three pay scales were also applicable to the post of Lecturer, Reader and Professor respectively. Paragraph 1 of the Government Order dated 29.02.1996 excluded the applicability of Merit Promotion Scheme to the incumbent on the posts of Librarian / Deputy Librarian / Assistant Librarian and it was extended to the teachers enjoying University Grants Commission pay scale with effect from 01.01.1986. The Uttar Pradesh Librarian Association filed Writ Petition No. 1303 (S/B) of 2005 before Lucknow Bench of this Court praying for grant of pay parity to the Librarian / Deputy Librarian / Assistant Librarian with those of Central Government / Central University and extension of benefit of Merit Promotion Scheme by quashing the paragraph 1 of the Government Order dated 29.01.1996 to this effect. In the writ petition parity was also claimed with regard to the Teachers and Lecturers in Physical Education who were accorded such benefits.
4. The aforesaid writ petition was allowed by the Lucknow Bench of this court vide judgment and order dated 12.01.2007 holding the petitioners are covered under Merit Promotion Scheme now known as Career Advancement Scheme which was affirmed by the Hon'ble Supreme Court by the order dated 19.12.2008 passed in S.L.P. No. 14535 of 2007. The State Government issued a Government Order dated 13.05.2009 whereby the petitioner was held covered under the Career Advancement Scheme. Immediately after the Government Order dated 13.05.2009 was passed by the State Government the petitioner applied for sanction of benefit of Career Advancement Scheme with effect from 01.01.1996. The copy of representations made on 23.06.2010 to the Personal Assistant to the Finance Officer of the University, representations made before the Chancellor and communications dated 17.08.2017, 01.11.2018 and 21.09.2020 from the office of Chancellor have been brought on record. Representations made from the year 2018-2020 to the Prime Minster's Officer; Lok Ayukt; Uttar Pradesh; Human Right Commission and Secretary, Department of Higher Education have been brought on record. The petitioner appeared before the Lok Ayukt in response to communication sent to him. The Registrar of the University sent his report to the Lok Ayukt stating that the claim of the petitioner is unjustified. The Lok Ayukt has forwarded the communication of the Registrar of University dated 08.04.2019 to the petitioners along with letter dated 01.09.2021 which is impugned in the writ petition.
5. A counter affidavit has been filed on behal of the University wherein it has been stated that the Executive Council of the University has not passed any order declaring the petitioner, who retired from the post of Deputy Librarian, to be at par to the post of reader in the University. The petitioner retired on 31.01.1997 and therefore the Government Order dated 13.05.2009 would not apply to him retrospectively for grant of benefit of Career Advancement Scheme to the petitioner. For extending the benefit of Career Advancement Scheme certain procedures are required to be complied such as holding of selection committee, interview, etc., which cannot be done after more than 20 years of retirement of the petitioner. It has further been stated that there was allegation of misappropriation of funds against the petitioner while working as Librarian in the University and a Writ Petition No. 29310 of 2002 was filed by the petitioner wherein by the order dated 06.09.2016 whereby Rs. 1 lakhs was withheld from retiral benefits of the petitioner during the pendency of vigilance inquiry against him.
6. A supplementary counter affidavit has also been filed on behalf of the University whereby the relevant part of First Statute of the University regarding procedure for providing benefit of Career Advancement Scheme has been brought on record.
7. Learned Senior Counsel for the petitioner has submitted that the petitioner was entitled to the benefit of Career Advancement Scheme but it was wrongly denied to him during the period of his service and only after the judgment of Lucknow Bench dated 12.01.2007 affirmed by the Apex Court on 19.12.2008 his rights were acknowledged by the Government by the Government Order dated 13.05.2009 and he his agitating his right since then. He has submitted that the objection of the respondents that since the petitioner has retired on from service on 31.01.1997, therefore, he is not entitled to the benefit of Government Order dated 13.05.2009 is misconceived since the Government Order dated 29.02.1996 has been amended by the Government Order dated 13.05.2009 and hence the right of the petitioner flows from the Government Order datd 29.02.1996 which was passed prior to the date of his retirement. The Career Advancement Scheme stood implemented with effect from 01.01.1986 and the petitioner was sanctioned the salary in pay scale of 3700-5700. He was entitled for next higher pay scale after completion of 10 years of further service with effect from 01.01.1996 which was denied to him.
8. This Court finds from the pleadings on record that the Division Bench judgment of Lucknow Bench of this Court was passed on 12.01.2007, affirmed by the Apex Court on 19.12.2008 and Government Order was issued accordingly by the State Government on 13.05.2009. The petitioner made a representation dated 23.06.2010 (Annexure 4 to the writ petition) to the Finance Officer of the University and thereafter representation dated 17.08.2017 to the Chancellor. Thereafter the Chancellor of the University has sent some communications to the University for taking appropriate decision in the case of petitioner.
9. There is no explanation in the writ petition as to the delay caused by the petitioner from 23.06.2010 to 17.08.2017 in making the representation for getting the relief as per Career Advancement Scheme. The right of the petitioner to claim benefit of Career Advancement Scheme, which was earlier clouded, became clear with the issuance of Government Order dated 13.05.2009 and even his claim was turned down by the Registrar of the University by the impugned communication dated 08.04.2019. This writ petition has been filed on 24.01.2022. There is inordinate delay and laches on the part of the petitioner in approach to this Court and also before the University and other authorities earlier. The petitioner has on account of laches on his part permitted his claim to die and by filing his belated writ petition he has tried to revive his dead and stale claim. The Apex Court in the case of C. Jacob vs. Director of Geology and Mining Indus. Est. and Ors. MANU/SC/8145/2008, has depicted the practice of the litigants of making belated representations and approaching the Court for relief after rejection of such representation in paragraph nos. 7 and 11 which are quoted hereinbelow :-
" 7. Every representation to the government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the department, the reply may be only to inform that the matter did not concern the department or to inform the appropriate department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.
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11. The present case is a typical example of `representation and relief'. The petitioner keeps quiet for 18 years after the termination. A stage is reached when no record is available regarding his previous service. In the representations which he makes in 2000, he claims that he should be taken back to service. But on rejection of the said representation by order dated 9.4.2002, he filed a writ petition claiming service benefits, by referring the said order of rejection as the cause of action. As noticed above, the learned Single Judge examined the claim, as if it was a live claim made in time, finds fault with the respondents for not producing material to show that termination was preceded by due enquiry and declares the termination as illegal. But as the appellant has already reached the age of superannuation, the learned Single Judge grants the relief of pension with effect from 18.7.1982, by deeming that he was retired from service on that day. We fail to understand how the learned Single Judge could declare a termination in 1982 as illegal in a writ petition filed in 2005. We fail to understand how the learned Single Judge could find fault with the department of Mines and Geology, for failing to prove that a termination made in 1982, was preceded by an enquiry in a proceedings initiated after 22 years, when the department in which appellant had worked had been wound up as long back as 1983 itself and the new department had no records of his service. The appellant neither produced the order of termination, nor disclosed whether the termination was by way of dismissal, removal, compulsory retirement or whether it was a case of voluntary retirement or resignation or abandonment. He significantly and conveniently, produced only the first sheet of a show cause notice dated 8.7.1982 and failed to produce the second or subsequent sheets of the said show cause notice in spite being called upon to produce the same. There was absolutely no material to show that the termination was not preceded by an enquiry. When a person approaches a court after two decades after termination, the burden would be on him to prove what he alleges. The learned Single Judge dealt with the matter as if he the appellant had approached the court immediately after the termination. All this happened, because of grant of an innocuous prayer to `consider' a representation relating to a stale issue."
10. In view of the above consideration of laches on the part of the petitioner and also the fact that the process of promotion given under the Career Advancement Scheme for Library cadre of the University in paragraph 11.12 (C)(5) of First Statute of University cannot be conducted now no relief can be granted to the petitioner. Deputy Librarian is required to fulfil the other conditions of eligibility as per API scoring system and PBAS methodology as per paragraph 11.12(C)(5) of First Statute of University. This court finds that more than 20 years of retirement have passed and the Screening Evaluation Committee for Career Advancement Scheme promotion cannot evaluate the suitability of the petitioner now. Further the Writ - A No. 29310 of 2002 filed by the petitioner is still pending and the fate of vigilance inquiry against the petitioner has not been brought on record. The petitioner has also concealed the fact of filing of the aforesaid writ petition earlier and its pendency or disposal in the present writ petition and therefore he is further not entitled to any relief.
11. The writ petition is devoid of merit, besides being barred by laches and is hereby dismissed.
Order Date :- 21.06.2022 Rohit