Allahabad High Court
Dr.S.P.Tiwari vs State Of U.P.Through Principal Secy. on 21 March, 2013
Author: Devi Prasad Singh
Bench: Devi Prasad Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved. Court No. 27. WRIT PETITION No. 1593 (S/B) of 2000. ***** Dr. S.P. Tiwari ----------Petitioner Vs. State of U.P. and others --------Respondents ***** Hon'ble Devi Prasad Singh, J.
Hon'ble Zaki Ullah Khan, J (Delivered by Hob'ble Zaki Ullah Khan, J)
1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner inter alia praying that a writ in the nature of mandamus be issued commanding the respondents to count the period of twelve years, three months and seventeen days for the purpose of computing the petitioner's pension, which he rendered as Medical Officer in Provincial Medical Services as Demonstrator in Kings George's Medical College, Lucknow and as Lecturer in Anatomy in Banaras Hindu University, Varanasi; the petitioner has also prayed that mandamus be issued commanding the respondents to decide the last representation made by the petitioner on 1.04.2000 by speaking order.
2. The brief facts giving rise to the writ petition are that the petitioner after completing his M.B.B.S. Course joined as Medical Officer in Provincial Medical Services (hereinafter referred to as 'P.M.S.') on 20.07.1954 and thereafter worked in the said capacity till 29.12.1958; that thereafter he was appointed as Demonstrator in Anatomy in Kings George Medical College, Lcuknow and worked on the said post with effect from 02.01.1959 to 02.05.1963 for a period of four years four months; that thereafter he was appointed as lecturer in Anatomy in B.H.U., Varanasi where he worked with effect from 06.05.1963 to 14.1.1966 i.e. for a period of three years, six months and eight days; that thereafter he was appointed as a Reader of Anatomy in Ganesh Shankar Vidyarthi, Medical College, Kanpur with effect from 17.11.1966 till he attained the age of superannuation; that the petitioner retired from the post of Professor of Anatomy from G.S.V. Medical College, Kanpur and this period alone was computed for getting pension; that the petitioner was subject to discrimination vis-a-vis other similar persons and his services were not counted for the purpose of computing the pension which he spent in P.M.S. and King George Medical College and B.H.U; that a total of twelve years, three months and seventeen days were left uncounted; the petitioner contention is that this period ought to have been included for calculation of pension on the basis of Pension Rules; that in the similar instance other Medical Officer who retired from Agra and other places were treated in rightful manner and were granted pensionary benefits for their period spent in continuation at different places; that the service in the P.M.S. is pensionable and the Government itself has admitted that the services in the P.M.S. ought to have been counted for pension purposes (Annexure No. 6 to the writ petition); that the Government admitted this facts in Annexure No. CA-1; that the petitioner alleged that the Government Order dated 04.10.1988 makes no mention of service in P.M.S. (CA-2). The petitioner, therefore, alleged that the order passed by the State Government is biased, illegal and without any basis.
3. The respondents in reply to the assertion of the petitioner replied in the counter affidavit that the petitioner was appointed on a temporary basis as Reader in G.S.V. Medical College on 03.11.1966 vide letter No. 8107 (1) S.I. ROV-802/1964 and the petitioner resumed his work with effect from 17.11.1966 in G.S.V. Medical College. The appointment was for one year on temporary basis and on 04.12.1968 with consultation of the commission his temporary post was regularized and he was promoted to the post of Professor Anatomy on 09.06.1972. That on 06.09.1986 the petitioner moved a representation before the State Government that his earlier service be counted for computing pension and he submitted the details with effect from 20.05.1954 till 14.11.1966 when he joined at the G.S.V. Medical College, Kanpur. As far as the service rendered by him, at G.S.V. Medical College from year, 1966 upto the date of superannuation, he was paid full pension but his earlier period was not counted towards the computation for pension. The respondents certified that as per records of the Director General Medical Health, the petitioner resigned from the P.M.S. and joined the King George Medical College as Demonstrator and therefore, there are no records regarding that period available in the State Government. The petitioner himself admitted that after submitting resignation from P.M.S. he joined the King George Medical College as Demonstrator and he has also admitted that after submitting resignation from the post of Demonstrator he joined as Lecturer in B.H.U. Varanasi, and after submitting the resignation from B.H.U. Varanasi he joined at G.S.V. Medical College, Kanpur and continued there upto superannuation. The respondents verified that the petitioner deposited that C.P.F. during his tenure in B.H.U., Varanasi since his services were less than five years, the B.H.U. Varanasi did not deposit any contribution in the C.P.F. And therefore no C.P.F. amount could have been deposited with the State Government. The respondents have submitted the relevant Government Orders dated 21.09.1987 and 04.10.1988 along with CA-1 & 2 for perusal of the Court. The respondents have reiterated that the Government Order after due consideration vide Government Order No. 2852 Sake-1/Five-Ka-281/86 dated 04.10.1988 rejected the representation of the petitioner for counting the period spent in P.M.S. The respondents submitted that the petitioner did not draw any salary from the State Government with effect from 02.01.1959 to 16.11.1966, the petitioner did not request that his service record to be transferred.
4. In the rejoinder affidavit, the petitioner maintain his assertions that he is entitled for the pension for the entire period spent either in P.M.S. or in Medical College. As far as P.M.S. is concerned, the petitioner submitted that the Government itself admitted that this period should be counted towards the pension.
5. Learned counsel for the petitioner argued vehemently and his main contention is that the averments made in the writ petition and the petitioner's supplementary affidavit dated 29.04.2007 and 02.03.2008 have not been rebutted, he made specific mention that the similar service in the P.M.S. and K.G.M.C and B.H.U. by his other colleagues have been counted in several cases and this fact has not been controverted, therefore, the learned counsel argued that this is to be taken for granted and as per decision reported in AIR 1993 SC 2592, this have to be taken as admitted and proved. The refusal to count services in the case of the petitioner is evidently illegal, unjustified, unfair and inequitable. Learned counsel argued that the ruling of the Apex Court that no parity can be claimed in respect of the illegality will not apply in the instant case. It is submitted that the counter affidavit does not reveal that the orders in other cases cited by the petitioner were illegal and were against the Rules. The petitioner claim only parity on the ground of Article 14 of the Constitution of India.
6. Learned Standing Counsel submitted that the Principal Secretary in compliance of the order passed by this Court dated 13.10.2000 decided the representation dated 11.04.2000 of the petitioner. A detailed order has been passed with reasons, the Principal Secretary mentioned that he has considered the representation dated 01.04.2000 and since there is no confirmation regarding record of the service of the petitioner in the P.M.S. from 20.07.1954 to 29.12.1958, therefore there is no question that his services were not counted for the purposes for computation of pension. The period spent as Demonstrator with effect from 02.01.1959 to 02.05.1963 cannot be counted for the purposes of computation of pension because of provisions contained under Article 352 of the Civil Services Regulations because the service was not the regular service and this is the policy decision and the Government cannot deviate from this policy decision, specially in the particular case of the petitioner. As far as the period of B.H.U. is concerned which is Central University and beyond the purview of the U.P. Government and there is separate Government Order dated 07.02.1986 regarding this fact. Learned counsel for the respondents argued that the respondents have obeyed the direction of this Court and passed a reasoned order on the representation vide order dated 05.09.2001. The petitioner cannot take liberty regarding the payments if any made to other persons which are beyond the legal domain because the instant writ petition is seeking mandamus and if the Government is not duty bound, it cannot be forced for granting parity. If any payment has been given to the others in certain circumstances and that was not according to the provisions of the petitioner cannot be equated, therefore, the writ petition liable to be dismissed.
7. Heard learned counsel for the petitioner and learned Standing Counsel and perused the record as well as the order dated 05.09.2001 passed on the representation dated 1.04.2000 in compliance of the order passed by this Court dated 13.10.2000. The point of contention here is that whether the period spent during service in P.M.S. as well as Demonstrator and K.G.M.C. and Lecturer in B.H.U., Varanasi to be counted towards computing or not ? I have also gone through the Government of India Government Order No. 28 (10)/84-P&PW-Vol. II dated 07.02.1986
8. The Government Order dated 07.02.1986 is direction of the Government of India to the Chief Secretaries all the State Governments but this is not applicable in the present set of circumstances because the mode of deduction of G.P.F. etc. are different in the B.H.U. There is provision for C.P.F. and where there is provision of C.P.F. the job is not pensionable because equal contribution has to be given by the employer and this will not be covered by Para 370 of the Civil Service Regulations because of the obvious reasons.
9. In our opinion the Government Order of the State Government dated 05.09.2001 is be fitting and is in accordance with the facts of the instant writ petition, the Principal Secretary, Medical Education after due consideration and deliberations rejected the representation of the petitioner. The Hon'ble Apex Court in (2002) 5 SCC 111 (7 JJ) held that the scope of Article 14 and consequently Article 16 have been widened by a process of judicial interpretation so that right to equality now not only means the right not to be discriminated against but also protection against any arbitrary or irrational act of the State. The case of the petitioner is not covered as he has never been discriminated or has been discarded. In fact, the treatment meted to him is in accordance with Rules and procedure establish by law. He does not have any right to seek parity with the other persons whose cases neither in issue nor attract the facts of this case. The Hon'ble Apex Court in AIR1991 SC 101 (CB) held that the absence of arbitrary power is the first essential of the Rule of Law upon which our whole constitutional system governed by the Rules of Law, discretion when conferred upon executive authorities must be confined within the defined limits. In (2003) 2 SCC 673 (CB) Hon'ble Apex Court has held that 'likewise, an arbitrary exercise of executive power deserves to be quashed, is a proposition which again does not require support of any precedent and the role model for governance in a civilized based on rule of law not only has to base on transparency by must create an impression that the decision making was motivated on the consideration of probity. The government has to rise above the nexus of vested interests and nepotism and eschew window dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious action'. In the instant writ petition the Government has acted in a rightful manner without any ill will and without any bias and decided the representation as directed by this Court in accordance with Article 352 of the Civil Services Regulations. The petitioner was never in counted regular service. He was initially in P.M.C., he resigned and joined the Medical College as Demonstrator which was entirely different service and then he joined the B.H.U., Varanasi which is the Central University and hence no pensionable assignment, therefore, the services cannot be clubbed in view of the Article 352 of the Civil Services Regulations. The petitioner did not adopt the procedure establish under the Rules, he did not seek any permission to change the service and the period spent in between the State Government and the Central Government services is a huge gap which has not been explained and the entire system was at a different mode. One who seeks equity must come with clean hands. The petitioner changed the position without adopting procedure establish by law did not follow the rules and regulations under the State Government and changed the service abruptly. He did not seek any permission at the time of submitting resignation. There is a vast difference between resignation and reliving. Resignation is a suo motu act whereas the reliving is a bilateral act were permission of employer is needed. The Hon'ble Apex Court in (1982) 3 SCC 24 (CB) held that the Rule of Law which excludes arbitrariness, its postulate is intelligence without passion and reason freed from desire, wherever we find arbitrariness or unreasonableness there is denial of the Rule of Law. The Hon'ble Apex Court in (1973) 1 SCC 380 held that the administrative authority should act fairly, impartially, and reasonably. Where administrative officer are concerned, the duty is not so much to act judicially as to act fairly. It is not accepted by the administrative officer to qualify the legal domains but he knows fair and unfair, therefore, he will have to act fairly. The Hon'ble Apex Court in AIR 2003 SC 2902 (para 62) (3 JJ) held that the guarantee of equal protection under Article 14 embraces the entire realm of the State action. It would extend not only when an individual is discriminated against in the matter of exercise of his right or in the matter of imposing liabilities upon him, but also in the matter of granting privileges etc...The Hon'ble Apex Court in the instant citation defined said action and if any individual discriminated against in the matter of exercise of his right then it has to be scrutinized in the ratio given by the Hon'ble Apex Court in AIR 2006 SC 2145 (Praa 34) held that the persons similarly situated should be meted same treatment, the petitioner tried to seek parity from the other persons but there is no certainty as to whether there were similarly situated or not. He has quoted different instance with regard to the State Medical Colleges but so far as the petitioner is concerned he stepped into for couple of years in the Central University which is beyond the domain of the State Government. The Government Order cited by him which purported to have been issued by the Central Government is not attracted to the facts of the instant writ petition.
10. Therefore, under these circumstances and in view of the aforesaid Rulings of Hon'ble Apex Court and Government Orders and Government Order dated 05.09.2001, we are of the opinion that the petitioner utterly fail to establish his case and the writ petition is liable to be dismissed for the aforesaid reasons.
11. Accordingly, the writ petition is dismissed. No order as to costs.
(Zaki Ullah Khan) (Devi Prasad Singh)
Date: 21/03/2013
Sharad/