Allahabad High Court
Syed Javed Haider vs State Of U.P. And 2 Others on 18 September, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:152158 Court No. - 52 Case :- WRIT - A No. - 11565 of 2023 Petitioner :- Syed Javed Haider Respondent :- State Of U.P. And 2 Others Hon'ble Vikas Budhwar,J.
In Re:- Civil Misc. Delay Condonation Application No. 02 of 2023
1. There happens to be a certain delay in filing the appeal condonation application seeking recall of the order dated 20.07.2023.
2. Shri Shashank Shekhar Singh learned counsel appearing on behalf of the respondent University has no objection to the same.
3. Delay in filing the recall application is allowed.
In Re: Civil Misc. Recall Application No. 03 of 2023 The present recall application has been preferred under the following caption "Civil Misc. Recall/Restoration Application" for recalling the order dated 20.07.2023 passed by this Court in compliance of the Writ A. No. 11565 of 2023.
Basically by means of the present recall application, recall has been sought of an order dated 20.07.2023 passed in the above noted writ petition. The orders passed thereon is quoted hereunder:-
"Sri Anand Kumar Upadhyay and Ms. Husnaara Khatoon, learned counsels for the writ petitioner submits that since with regard to the grievance while not permitting the writ petitioner to assume the duties in the University concerned, the writ petitioner had filed Writ-A No. 26534 of 2005, Dr. S. Javed Haider Vs. Aligarh Muslim University and others, in which on 05.05.2016, the following orders were passed:
"1. Called in revised. None appeared on behalf of petitioner. However, we have ourselves perused record.
2. By means of present writ petition, petitioner has sought following relief:
"(i) issue a writ, order or direction in the nature of mandamus directing the respondents to enable the petitioner to resume his duties at least 6 months before forthcoming academic session i.e. July of every year.
(ii) issue a writ, order or direction in the nature of mandamus directing the respondents to allow the petitioner to resume his Extra Ordinary Leave upto 7 years and consequently passed order giving him reasonable time to resume his duties at least 6 months before forthcoming academic session."
3. Having gone through entire writ petition, we do not find any ground entitling petitioner for grant of any of above reliefs. No interference, therefore, is called for.
4. Dismissed.
5. Interim order, if any, stands vacated."
Learned counsel for the writ petitioner submits that his appeal has been rejected by the University on 06.06.2006 and thus as per the instructions received by him, the writ petitioner shall be filing a restoration application seeking a restoration of the writ petition and an amendment application challenging the order dated 06.06.2006 taking the legal and factual grounds in this regard.
At this juncture, Sri Shashank Shekhar Singh submits that the relief which the writ petitioner would be claiming by filing an amendment application would be inordinately and enormously barred by limitation, so he would take those objections in case the amendment application is filed.
Considering the submission of rival parties, the writ petition is dismissed as withdrawn according liberty to the writ petitioner to prefer an appropriate application in Writ A No. 26534 of 2005 as and and when it stands occasioned not only challenging the appellate order, but also the relief with regard to payment of pension itself."
A preliminary objection has been raised by Shri Shashank Shekhar Singh who appears for the respondent University that a recall application may not be maintainable particularly in view of the fact that the order dated 20.07.2023 passed in the present writ petition was after hearing the learned counsel for the respective parties and in case the writ petitioner, applicant was aggrieved against the order then the proper course open for them was to file a review application. The said fact has been disputed by the learned counsel for the writ petitioner. However, looking into the matter from a different perspective the matter is being heard on merit.
Though the writ petition was filed by their counsel Shri Anand Kumar Upadhyay, Ms. Neha F. Azad and Ms. Husnaara Khatoon but at the time of the arguments of the matter on 20.07.2023 only Mr. Anand Kumar Upadhyay and Ms. Husnaara Khatoon were present. However, the court finds that the recall application has been preferred by Ms. Neha F. Azad who had not argued the matter when the writ petition was decided. Nonetheless this Court is also not going into the said aspect of the matter and deciding the matter on merits by learned counsel for the writ petitioner-applicant.
For the sake of clarity some important facts sans unnecessary details are being referred to. It appears from the record that the writ petitioner who happens to be a Professor in the respondent University proceeded on extraordinary leave (EOL) for three years from 01.02.1984 to 21.01.1987 and thereby extensions were also accorded. However, according to the University when the period of extension stood evaporated then to, without there being any sanctioned leave the writ petitioner/applicant did not joint the duty. That resulted into series of culminating to an order dated 16.10.2006 page 79 of the writ petitioner whereby the Assistant Registrar (Administration) of University proceeded to cease the services of the writ petitioner/applicant w.e.f. 01.07.2003. Records reveal that even prior to it when the writ petitioner/applicant was not accorded joining, he preferred a Writ A No. 26534 of 2005 (Dr. S. Javed Haider Vs. Aligarh Muslim University and others) in which on 05.05.2016 the following orders has been passed:-
"1. Called in revised. None appeared on behalf of petitioner. However, we have ourselves perused record.
2. By means of present writ petition, petitioner has sought following relief:
"(i) issue a writ, order or direction in the nature of mandamus directing the respondents to enable the petitioner to resume his duties at least 6 months before forthcoming academic session i.e. July of every year.
(ii) issue a writ, order or direction in the nature of mandamus directing the respondents to allow the petitioner to resume his Extra Ordinary Leave upto 7 years and consequently passed order giving him reasonable time to resume his duties at least 6 months before forthcoming academic session."
3. Having gone through entire writ petition, we do not find any ground entitling petitioner for grant of any of above reliefs. No interference, therefore, is called for.
4. Dismissed.
5. Interim order, if any, stands vacated."
The order dated 16.10.2006 ceasing the services of the writ petitioner/applicant has not been put to challenge as in the present writ petition. The relief sought in the present writ petition is as under:-
"A writ, order or direction in the nature of mandamus, ordering the Aligarh Muslim University Management to release the pension, gratuity and other accumulated retiral benefits in favour of the petitioner owing him to the services rendered by him to the Aligarh Muslim University from October 1979 to July 2003."
Learned counsel for the writ petitioner-applicant on the strength of the recall application has sought to argue that the writ petitioner is entitled to pensionary benefits including the gratuity. She seeks to rely upon the provisions contained under the Payment of Gratuity Act 1972 so as to content that the Act being a Special Act would prevail over the Aligarh Muslim University Act and the statutes framed thereunder and on account of not permitting the writ petitioner to join the services, her entire service period which she has undergone in the University cannot be wiped out. Reliance has also been placed upon the judgment in State of Jharkhand and others Vs. Jitendra Kumar Srivastava and others, AIR 2013 SC 3383, so as to contend that depriving of pension partakes the character infringement of fundamental right and it is violative of Article 300A of the Constitution of India. Reliance has also been placed upon the decision in D.V. Kapoor Vs. Union of India AIR 1990 SC1923, so as to contend that pension cannot be deprived and while further relying upon the decision in Deokinandan Prasad Vs. State of Bihar, 1971 AIR 1409, it is further contended that pension could not have been deprived and it is right of the writ petitioner to receive pension for the services undergone by him. While driving force from the provisions contained under the CCS(CCA) Rules 2021, the learned counsel for the writ petitioner-applicant submits that the writ petitioner is entitled to compassionate allowance for the period, he had worked.
Countering the said submissions, Shri Shashank Shekhar Singh who appears for the respondent-University has submitted that the provisions of Payment of Gratuity Act 1972, would not apply in view of the provisions contained under Statute 61 Clause 18 of the Aligarh Muslim University Act which primarily deals with gratuity, according to which employee who has competed not less that five years of qualified service in the University will be granted gratuity. However, there is a caveat attached there to according to which no gratuity shall be payable on resignation, dismissal/removal from service of the University.
Reliance has also been placed upon Clauses 14 & 15 of the Statute 61 of the University so as to contend that after period minimum ten years of qualified service in the University, pension is admissible while further driving force from the Clause 15 of the said statute, it is being contended that subject to minimum qualifying service an employee shall be eligible under one or other clauses of pension depending upon circumstances of the case, compensation pension, invalid pension, superannuation pension, retiring pension and voluntary retirement pension.
He seeks to rely upon the judgment in the case of C.Jacob Vs. Director of Geology & Mining and another, (2008) 10 SCC 115, paragraph 20 so as to contend that in order to claim pension or any other benefits an employee/ officer has to carve out the case as to under which provision he is entitled for pension. He also relies upon the decision in State of Madhya Pradesh and others Vs. Hitkishore Goswami, (2015) 11 SCC 199, that payment of pension is governed by the statute and no indefeasible right stand crystallized until it is as per statute and not de hors the statute.
While further relying upon the decision in the case of Union of India Vs. Syed Sarwar Ali and others, (1998) 9 SCC 426, it is contended that there are only three circumstances under which an employee or an officer is entitled to pension either when as person retires, resigns or his death. However, in the present case none of the said contingencies stands attracted particularly when here the writ petitioner services stood ceased by an order of the University which has not been subject matter of challenge.
I have heard the learned counsel for the parties and perused the record. Interestingly the order dated 16.10.2006 ceasing the services of the writ petitioner/applicant has not been put to challenge despite, the fact that the same happens to be appended as Annexure-11 at Page 79 of the paper book. So far as the issue with regard to gratuity is concerned the same is to be regulated by the rules, regulations or the statute governing the subject. Here in the present case, there happens to be a specific statute being Statute 61 Clause 18 which forbids payment of gratuity to those who have been ceased of their services/ dismisses or removed. In so far as the question of pension is concerned the same is not entitled to be paid to the writ petitioner particularly when none of the provisions which debar payment of pension have been put to challenge and it is case case of the ceasing of the services. Nonetheless in absence of any challenge to the provisions as noticed above, this Court does not find appropriate to issue in blanket direction de hors the provisions. Apart from the same, this Court in its order dated 20.07.2023 had granted opportunity to the writ petitioner who were represented through his counsels on their request to challenge the order dated 16.10.2006 but for the reasons best known to them the said order has not been challenged. Since the order dated 16.10.2006 is intact till today, thus on the face of it this Court does not find it appropriate to issue any directions in this regard.
Accordingly, the present recall application stands rejected.
Order Date :- 18.9.2024 Sharad/-