Punjab-Haryana High Court
State Of Haryana & Others vs Bhupinder Singh Kundu on 8 February, 2010
Author: Ranjit Singh
Bench: Ranjit Singh
C.M. Nos.9793&9794 C of 2009
Regular Second Appeal No.3196 of 2009 (O&M) :1:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: February 08, 2010
State of Haryana & others
...Appellants
VERSUS
Bhupinder Singh Kundu
...Respondent
CORAM: HON'BLE MR.JUSTICE RANJIT SINGH
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?
Present: Mr.Deepak Jindal, DAG, Haryana,
for the appellants.
None for the respondent.
*****
RANJIT SINGH, J.
There is 162 days delay in filing the appeal and 20 days in refiling the same.
The judgment and decree under appeal is dated 3.11.2008. As per the averments in the application, L.R, Haryana, after considering the material facts, asked the Department to file this C.M. Nos.9793&9794 C of 2009 Regular Second Appeal No.3196 of 2009 (O&M) :2:
Regular Second Appeal on 31.3.2009. There is no explanation forthcoming as to what all happened between 3.11.2008 to 31.3.2009. The copy of this letter initiated by L.R was received in the office on 9.4.2009. It is thereafter the copies of judgments and decrees were applied and obtained on 11.5.2009. The case was then sent to the office of Advocate General on 15.5.2009. Accordingly, it is stated that sufficient time was taken in obtaining the certified copies and, thus, delay of 162 days took place in filing the Regular Second Appeal. The reason, as stated in the application, would not disclose sufficient cause to condone the delay. The application seeking condonation of 20 days delay in refiling the appeal is not supported by any affidavit. It is stated that this delay occurred due to administrative exigencies in removing the objections.
Delay in refiling, therefore, is condoned. However, the appeal deserves to be dismissed on the ground of delay in filing the same. The reason which has mainly weighed with the Court not to condone the delay is that the case in the Regular Second Appeal is not meritorious enough as no substantial question of law is involved in this case. Still, the submissions made by the State counsel on merit have been considered and are dealt with hereinafter.
Respondent-plaintiff was Lecturer in Geography and was appointed on 19.12.2001. He is serving at Government College, Hisar. He was declared qualified for the degree of Doctor of Philosophy (Science) on 17.9.2003 by the University of Rajasthan Jaipur. The provisional certificate in this regard was issued on 20.9.2003. This was after the approval by the Vice-Chancellor of the C.M. Nos.9793&9794 C of 2009 Regular Second Appeal No.3196 of 2009 (O&M) :3:
University on 17.9.2003. As per clause No.10(11) of letter No.1-1-99 Edu.1(1) issued by the Financial Commissioner and Secretary to Government Haryana, Education Department and addressed to the Director of Higher Education, Haryana, Chandigarh dated 8.12.2000 incentive of one increment is admissible to those teachers with M.Phil, who acquired Ph.D. within two years of recruitment. Respondent-plaintiff applied for grant of increment on 8.12.2003 on the ground that he had completed Ph.D within 2 years of his recruitment. When the necessary increment was not granted despite reminders, he served a legal notice under Section 80 CPC and then filed the present suit. The suit was decreed. The State filed an appeal against the same which was dismissed and that is how the State has now filed this Regular Second Appeal.
The submission made before the Ist Appellate Court was that the advance increment would be available as per the Government instructions only when the person submits the degree of Ph.D. and since the respondent-plaintiff had not been awarded the degree of Ph.D. by the Rajasthan University nor any notification in this regard was issued, it could not be said that the respondent- plaintiff had completed his Ph.D.degree within the period of two years of recruitment. Same submission is repeated before this Court.
While dealing with this, the Ist Appellate Court found no force in this contention. Reference is made to Clause No.10(11) of the instructions, referred to above, that incentive of one increment is admissible to those teachers with M.Phil who acquired Ph.D. within two years of recruitment. It was established on record from the C.M. Nos.9793&9794 C of 2009 Regular Second Appeal No.3196 of 2009 (O&M) :4:
evidence that the respondent-plaintiff had completed Ph.D. within a period of two years from the date of his appointment. It is noticed that this fact was not disputed that the provisional certificate was issued to the respondent-plaintiff on 20.9.2003 after approval by the Vice-Chancellor of the Rajasthan University, Jaipur, which was granted on 17.9.2003. Madan Lal was examined as a first defence witness by the appellants. In his cross-examination, the witness (DW3) admitted that there is no difference between the provisional certificate and degree because both the documents indicated the qualification of the candidate. He also admitted that the respondent-
plaintiff was entitled to advance increment on the basis of his qualification of M.Phil and Ph.D. This defence witness further conceded that the advance increment was also given to Rajinder and Ravinder Kumar Beniwal on the basis of provisional certificate. Benefit of advance increment was given to Ravinder Kumar Beniwal since 1.7.1998 despite the fact that the degree was issued to him after 25.7.2002.
On the face of this evidence, which came through none other than the witness examined by the appellants, it would sound strange to observe that the State still would choose to file this Regular Second Appeal. Rather the State counsel would persist with his plea and refers to instructions dated 30.4.2001 issued by the Director of Higher Education, Haryana, Chandigarh and addressed to all the Principals of Government/Non- Government Colleges in the State, wherein it is stated that the benefits of M.Phil/Ph.D. increments and length of service for senior/selection grade is to be C.M. Nos.9793&9794 C of 2009 Regular Second Appeal No.3196 of 2009 (O&M) :5:
given from the date from which the University has certified successful completion of all examination requirements which means the date of issue of notification. The instructions issued by the Director of Higher Education cannot supersede the instructions issued on behalf of the State by the Secretary concerned. What is to be seen is the completion of Ph.D. Director would not be in any competent or authorised position to impose condition to provide as to when the Ph.D. is to be considered complete. In this regard, earlier procedure could not have been ignored. Once it is clear, as a matter of fact, that the respondent-plaintiff had completed his Ph.D., it would not lie with the State to deny him incentive increment.
One would be surprised to note that the State with all its might is contesting the grant of one increment required to be allowed as incentive to its employee on acquiring Ph.D. Having itself made a provision, the authorities of the State are now adopting unfair and unreasonable grounds to somehow deny the incentive. The State Government can not be allowed to be choosy for extending such benefit to the persons who acquired higher qualification. Other employees were allowed incentive under similar circumstances. Need would be to liberally construe these instructions to allow incentive liberally, rather than adopting rigid and hyper-technical approach. The State Government appears to be totally unfair in taking up this stand to deny the incentive to the respondent-plaintiff. Having failed before two courts, the State has still chosen to continue with its luxury litigation. The authorities can be expected to realise that this incentive was allowed to other similarly placed employees. If the C.M. Nos.9793&9794 C of 2009 Regular Second Appeal No.3196 of 2009 (O&M) :6:
officer authorising filing of the appeal had gone through the evidence given by their own witness, they would realise that no question of law would arise for filing this appeal. Filing of the appeal without application of mind, thus, is quite apparent.
The Regular Second Appeal is, thus, dismissed with costs of Rs.20,000/-.
February 08, 2010 ( RANJIT SINGH ) ramesh JUDGE