Heard learned counsel for the petitioner, learned State Counsel for the opposite party nos.1 to 3.
Notices to opposite party no.4 had been issued vide order dated 31.05.2019 and as per Office Report dated 17.08.2019, notice has been deemed sufficient upon the said opposite party under Chapter VIII Rule 12 of the Allahabad High Court Rules, 1952.
This petition has been filed assailing the order dated 09.05.2019, whereby petitioner's claim for grant of service benefits regarding continuity in service by counting the entire services rendered by him in ad hoc capacity till the date of regularization has been rejected.
Learned counsel for the petitioner submits that the petitioner was appointed on ad hoc basis as Lecturer in subject of Sanskrit in T.N.P.G. College, Tanda, Ambedkar Nagar from 07.07.1990 till 30.06.1999 on the basis of new affiliation granted by Dr. Ram Manohar Lohiya Avadh University, Faizabad to the Institution concerned in Sanskrit subject.
During the aforesaid period, petitioner's case for regularization was considered in terms of the provisions contained in Section 31-C of the U.P. Higher Education Services Commission Act and accordingly his services were regularized under the order passed by the Director of Higher Education, Allahabad vide order dated 06.03.1998, which has been annexed as Annexure 6 to the writ petition. The petitioner, however, was not allowed to continue to discharge his duties at T.N.P.G. College, Tanda, Ambedkar Nagar after 30.06.1999 which led him to file a Writ Petition No.170 (S/B) of 2002, wherein an order was passed on 28.01.2002 directing the Authorities concerned to take appropriate decision in respect of the petitioner for his placement as the petitioner stood regularized vide order dated 06.03.1998.
The Director, Higher Education, Allahabad vide his letter dated 29.05.2004, which has been annexed as Annexure-8 to the writ petition, passed a placement order in respect of the petitioner placing him to work as Lecturer in Sanskrit in B.N.K.B.P.G. College, Akbarpur, Ambedkar Nagar. Pursuant to the said order dated 29.05.2004, the petitioner was permitted to join at B.N.K.B.P.G. College, Akbarpur, Ambedkar Nagar on 10.07.2004 and since then he has been working as a teacher in the said institution. However, while fixing his pay, the services rendered by him in ad hoc capacity prior to his regularization were not counted, neither the benefit of any annual increments was given to him.
The petitioner, being aggrieved by non-reckoning of his services rendered by him in ad hoc capacity prior to his regularization, had filed the Writ Petition No.415 (S/B) of 2001, which was finally disposed of by means of an order passed by a coordinate Bench of this Court on 08.03.2011, whereby the Authority concerned was directed to decide the representation preferred by the petitioner, in accordance with law, after taking into account the relevant Government Order. In compliance of the said order dated 08.03.2011 passed by this Court the order dated 17.08.2011 had been passed by the Director, Higher Education, Allahabad, whereby claim of the petitioner was rejected.
Thereafter, the petitioner filed writ petition no.268 (S/B) of 2013, which was allowed vide judgment and order dated 20.08.2018, directing the Competent Authority to consider petitioner's claim for grant of service benefits. The operative portion of the judgment and order dated 20.08.2018 is as follows:-
"13. Resultantly, we allow the writ petition and issue a direction to the Director, Higher Education, Allahabad to consider the case of the petitioner for grant of the service benefits as are available / admissible to the petitioner by granting him continuity in service by counting the entire services rendered by him in ad hoc capacity till the date of his regular appointment i.e. till 10.07.2004 in the light of the observations made herein above.
14. Consequences, including monetary benefits, will thus follow.
15. The decision, under this order, by the Director, Higher Education, Allahabad shall be taken within ten weeks from the date a certified copy of the order is produced before him."
In pursuance to the direction issued by this Court, the opposite parties have passed the impugned order dated 09.05.2019, whereby the petitioner's claim has again been rejected on the ground that for the period 07th July, 1990 till 30th June, 1999 the petitioner was working on a post which was not sanctioned nor was he paid any salary from the State Exchequer and therefore, the petitioner's case was not covered by Section 60(E) of the Uttar Pradesh State Universities Act, 1973.
Learned counsel for the petitioner has submitted that the aforesaid aspect regarding counting of Ad-Hoc services rendered by the petitioner for the aforesaid period right till the date of his regular appointment on 10th July, 2004 has already been dealt with by this Court in judgment and order dated 20.08.2018 and therefore, it was not open to the opposite parties to have taken a contrary view once a specific finding has been recorded by this Court and directions thereupon had been issued.
It is also submitted that the opposite parties had challenged the judgment and order dated 20.08.2018 in Special Leave Petition (Civil) Diary No.11059 of 2019, which was dismissed vide order dated 29.04.2019 on the ground of delay. As such, it is submitted that the judgment and order dated 20.08.2018, having become final in nature, was required to be complied with by the opposite parties in letter and spirit. It has also been submitted that in the aforesaid writ petition filed by the petitioner earlier, no such plea had been taken in the counter affidavit as has been indicated in the impugned order. As such the opposite parties would also be barred by Order II Rule 2 of the Code of Civil Procedure, 1908 from taking this plea subsequently.
Learned State Counsel appearing on behalf of opposite parties has refuted the submissions advanced by learned counsel for the petitioner with the submission that the factor as to whether the petitioner was employed with effect from 07th July, 1990 on sanctioned basis or not has not been dealt with by the Division Bench in it's judgment. The said fact came to the knowledge of the opposite parties only after the matter was remitted by the Division Bench and as such the principle of Order II Rule 2 of the Code of Civil Procedure, 1908 would be inapplicable in the present case.
Upon consideration of material on record and submissions advanced by the learned counsel for the parties, it is apparent that the Division Bench in it's judgment and order dated 20.08.2018 has dealt with the entire aspect of the matter, particularly the services of the petitioner rendered in Ad-Hoc capacity prior to regularization in 2004. The observations of the Division Bench are as follows:-
"9. It is not in dispute that petitioner having been appointed on 07.07.1990 on ad hoc basis in T.N.P.G. college was covered by the cut off date as mentioned in Section 31 C for the purpose of regularization of his services. The order of regularization dated 06.03.1998, which is available as annexure-6 to the writ petition clearly states that petitioner has been regularized against the post available on account of new affiliation granted by the University. It is also not in dispute that vide order dated 01.06.1998, new affiliation to the Institution in Sanskrit subject was accorded by the University as is clear from the perusal of Annexure-4 to the writ petition. Thus, the petitioner's regularization in services made vide order dated 06.03.1998 was perfectly in tune with the provisions contained in Section 31 C for the reason that it is not only that the petitioner fulfilled the requisite qualification but also that he was regularized against the third category of post as categorized in Section 31 C i.e. a post which became available pursuant to terms of new affiliation. However, we find it strange that despite the regularization of the services of the petitioner by means of order dated 06.03.1998, petitioner was not allowed to continue to work in regular capacity at T.N.P.G. College, Tanda itself. The petitioner was ultimately placed at B.N.K.B.P.G. college, Akbarpur, Ambedkar Nagar vide order dated 29.05.2004 passed by the Director pursuant to which he submitted his joining on 10.07.2004 at B.N.B.K.P.G. college, Akbarpur, Ambedkar Nagar. We do not see any reason, much less any plausible justification, for not permitting the petitioner to work on regular basis in pursuance to the order dated 06.03.1998 whereby his services were regularized. The petitioner has been made to run from pillar to post despite armed with regularization order for submission of his joining and assignment of work in regular capacity right from 01.07.1999 till 10.07.2004, when he was permitted to join at B.N.K.B.P.G. college, Akbarpur, Ambedkar Nagar in pursuance to the order passed by the Director dated 29.05.2004.
10. In view of the aforesaid facts, one is unable to agree with the reasons indicated in the impugned order for denying the petitioner continuity of service on the ground that there has been a break of service of about five years. The said break of service has been caused on account of absolute inaction on the part of the authorities both, the authorities of the State as well as the management of T.N.P.G. college, Tanda and for no fault of the petitioner, he cannot be permitted to suffer.
11. The State-respondents have not denied the fact that petitioner was regularized vide order dated 06.03.1998 against the vacancy which became available on account of new affiliation of Sanskrit subject as is apparent from a perusal of order of regularization dated 06.03.1998 itself. It is also not in dispute that petitioner had worked in ad hoc capacity with effect from 07.07.1990 till 30.06.1999 at T.N.P.G. college. So far as the gap/ break of service from 01.07.1999 till 10.07.2004 is concerned, it is already observed above that the said break cannot be attributed to the petitioner in any circumstance; rather the break appears to have occurred on account of inaction on the part of the authorities for the reason that petitioner stood regularized way back on 06.03.1998 i.e. much prior to 30.06.1999 and despite his services having been regularized, he was not allowed to join."
It is also a relevant fact that the aspect whether the petitioner had rendered service with effect from 07th July, 1990 on a sanctioned post or otherwise, was relevant only for the purposes of regularization in service and not for any other purpose. Once the opposite parties themselves regularized the petitioner in service on 10th July, 2004, the aspect whether the petitioner was working on a sanctioned post or not becomes irrelevant for the purpose of counting of the service rendered from 07th July, 1990 till 10th July, 2004.
Paragraph no.13 of the judgment and order dated 20.08.2018 clearly issues a direction to the Competent Authority to consider the case of the petitioner for grant of service benefits regarding continuity in service by counting the entire services rendered by him in Ad-Hoc capacity till the date of his regular appointment, i.e., till 10th July, 2004 in the light of observations made herein-above.
Once the Division Bench of this Court has given a specific direction to the opposite parties clearly indicating that the entire service rendered by the petitioner in ad hoc capacity till the date of regular appointment in 2004 is to be considered for grant of service benefits such as continuity in service, it is neither open for this Court and certainly not for the opposite parties to take a contrary view since the observations and directions of Division Bench of this Court are binding particularly in view of the fact that the Special Leave Petition in the said judgment and order was dismissed.
In view of the aforesaid, the impugned rejection orders having been passed contrary to the observations and directions of the Division Bench of this Court, are clearly unsustainable.
As a consequence, a writ in the nature of Certiorari is issued quashing the impugned order dated 09.05.2019. Further, a writ in the nature of Mandamus is issued commanding the Director, Higher Education, Allahabad to pass necessary order as directed by the Division Bench in it's judgment and order dated 20.08.2018 for counting the entire services rendered by the petitioner in ad hoc capacity till 10th July, 2004. Necessary orders with regard to the same shall be passed within a period of six weeks from the date a copy of this order is produced before the said Authority.
In view of the aforesaid, this Writ Petition stands allowed.
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(Manish Mathur, J.) Order Date :- 6.1.2021 Arnima