Punjab-Haryana High Court
State Of Haryana And Another vs Dr.Rajender Parsad on 11 December, 2012
Bench: A.K. Sikri, Rakesh Kumar Jain
LPA No.2374 of 2011 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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LPA No.2374 of 2011 (O&M)
Date of Decision: 11.12.2012
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State of Haryana and another
. . . .Appellants
Versus
Dr.Rajender Parsad, Lecturer
. . . . Respondent
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CORAM: HON'BLE MR.JUSTICE A.K. SIKRI, CHIEF JUSTICE
HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: Mr.B.S. Rana, Addl. A.G. Haryana.
None for the respondent.
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A.K. SIKRI, C.J. (ORAL)
CM No.6430-LPA-2011 For the reasons mentioned in the application, the same is allowed and the delay of 196 days in filing the appeal is condoned.
CM stands disposed of.
LPA No.2374 of 2011 (O&M) This intra-Court appeal is preferred against the judgment dated 27.4.2011 rendered by learned Single Judge of this Court in the writ petition filed by the respondent herein seeking mandamus to protect the pay and continuance of service.
LPA No.2374 of 2011 (O&M) -2-
The brief facts, which need to be taken note of, are that the respondent initially joined as Lecturer in Regional Engineering College, Kurukshetra, in the year 1966. He resigned from service on 26.10.1978. However, after a gap of less than three months i.e. on 10.1.1979, he was again appointed as Lecturer in All India Jat Heroes' Memorial College, Rohtak. While giving him appointment, the said College gave him the starting salary of `1060/-, thereby protecting his pay which was being drawn by him while working as Lecturer in Regional Engineering College, Kurukshetra.
Thereafter, the selection was made on regular basis against the regular vacancy which fell in the meantime. The respondent also applied for the post on regular basis and was given appointment against the regular vacancy on 21.9.1980 which post he joined on 17.10.1980. It was treated as fresh appointment in the pay scale of `700-1600 and his pay was fixed at the initial of the said pay scale being fresh appointment. Ten years after the fixation of the pay in the aforesaid manner, the respondent filed the aforesaid writ petition in this Court seeking pay protection which was given to him when he was appointed against leave vacancy. The respondent in this petition did not implead All India Jat Heroes' Memorial College, Rohtak as a party. Insofar as the LPA No.2374 of 2011 (O&M) -3- appellant-State of Haryana is concerned, it contested the petition on the ground that for appointment in a College against a sanctioned post sanction of the Government is required and since the appointment given on 21.09.1980 was fresh appointment, there was no question of any pay protection. It was also the contention of the appellant herein that when the respondent was working as Lecturer in Regional Engineering College, Kurukshetra, there he joined in the year 1966, a departmental enquiry was initiated against him, he in fact admitted the charge and wanted to resign and under these circumstances his resignation was accepted. On this ground also there was no question of protecting his pay when he was taken as Lecturer in the All India Jat Heroes' Memorial College, Rohtak. The learned Single Judge has not accepted the submission of the appellant herein and allowed the writ petition on the ground that he ranked second in the merit list and has been appointed against the regular vacancy to which post he was originally appointed on leave vacancy on 10.1.1979 and therefore, his pay could not have been fixed at a lower level. The learned Single Judge was of the view that the break in service was definitely, therefore, artificial and manipulated to deny the petitioner a right to insist that he was entitled to be protected in the salary which he was LPA No.2374 of 2011 (O&M) -4- drawing previously in the leave vacancy to which he was made permanent after a selection process.
In this appeal, notice of motion was issued for 7.3.2012 and thereafter for 24.5.2012, however, in spite of service no body has appeared on behalf of the respondent. In these circumstances, we have left with no option but to hear the arguments of learned counsel for the State/appellant in the absence of the respondent.
Highlighting the facts, taken note of above, counsel for the State has submitted that once the respondent had resigned from service while serving as Lecturer in Regional Engineering College, Kurukshetra, after he was facing departmental proceedings, there was no question of giving him any pay protection while taking him as Lecturer against leave vacancy. It is submitted that the State does not come into picture when a college appoints a Lecturer against leave vacancy, therefore, the action of the All India Jat Heroes' Memorial College, Rohtak, was not proper and valid in law, and in addition it was not with the approval and consent of the State of Haryana, therefore, the aforesaid wrong act on the part of the College cannot bind the State.
We find sufficient force in the aforesaid argument of counsel the State/appellant because of the fact that the respondent after resigning from service on 26.10.1978 from LPA No.2374 of 2011 (O&M) -5- Regional Engineering College, Kurukshetra, joined All India Jat Heroes' Memorial College, Rohtak, within two and a half month thereafter and was given pay protection by the College, that consideration has prevailed with the learned Single Judge. Learned Single Judge further proceeded on the premise as if pay protection was given to the respondent by the College was in order and on these presumptions it is observed that break in service was artificial and manipulated to deny the respondent a right to insist that he was entitled to be protected in the salary which he was drawing previously in the leave vacancy. Once we find that facts involving in the manner mentioned above, it cannot be said that there was any manipulation on the part of the appellants in denying the respondent protection of the salary when such a protection was wrongly given while giving appointment to the respondent as lecturer against leave vacancy. In any case, it was for the College to explain as to under what circumstances the aforesaid protection of the salary was given without the blessings of the appellants herein, but the said College was not even made party. A wrong act on the part of the College cannot bind the State. We have found from the record that though the pay was fixed in the pay scale of `700-1600 on 17.10.1980 treating it as fresh appointment on regular basis and the respondent continued to draw this pay for almost a LPA No.2374 of 2011 (O&M) -6- decade, he challenged the non-protection of the pay by filing the writ petition only in the year 1990. The respondent had, thus, acquiesced to the action in fixing his pay and it was not permissible for him to file such a writ petition when he drawn the pay in this manner for a period of 10 years. Even when the respondent had made a representation, his representation was also rejected in the year 1985 and 5 years thereafter he approached the Court.
We, thus, allow the present appeal and set aside the order of the learned Single Judge and dismiss the Civil Writ Petition filed by the respondent herein.
(A.K. SIKRI)
CHIEF JUSTICE
(RAKESH KUMAR JAIN)
DECEMBER 11, 2012 JUDGE
Vivek