Hon'ble Ifaqat Ali Khan,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. Sole petitioner Dr. Kalpana Maheshwari has preferred this writ petition under Article 226 of Constitution of India being aggrieved by letter/order dated 02.12.2014 issued by Dr. Dheeraj Singh, Secretary, A.K.P. (P.G.) College, Khurja (Bulandshahar) (hereinafter referred to as "the College") stopping payment of salary to petitioner till a decision is taken by Regional Higher Education Officer, Meerut (hereinafter referred to as "RHEO") in a complaint made against petitioner. A writ of mandamus has also been prayed commanding respondents to release arrears of Fifth and Sixth Pay Commission to petitioner.
2. Facts in brief giving rise to present writ petition are, that selection for the post of Lecturer (Hindi) in the pay scale of Rs. 8000-15500/- was held by U.P. Higher Education Services Commission (hereinafter referred to as "U.P.H.E.S.C.") in accordance with the provisions of Uttar Pradesh Higher Education Services Commission Act, 1980 (hereinafter referred to as "Act, 1980").
3. Advertisement No. 26 was issued by U.P.H.E.S.C. for recruitment of Lecturers in various Degree Colleges and in the aforesaid recruitment, petitioner was selected and placed in merit list at serial no. 17. Vide letter dated 22.03.2000, it selected and recommended petitioner's appointment on the post of Lecturer (Hindi) in the College.
4. Consequential letter was issued by Director of Education (Higher Education) (hereinafter referred to as "DE-HE") on 28.03.2000 requesting Secretary of the College to issue letter of appointment to petitioner in accordance with Section 14(1) of Act, 1980. Reminder letter was also issued by DE-HE on 05.02.2001 requiring that petitioner must join College by 20.02.2001, failing which an alternative arrangement shall be made. Secretary of the College also issued issued letter dated 10.02.2001 requiring petitioner to join on the post of Lecturer (Hindi) by 20.02.2001, failing which her appointment shall be deemed to have been cancelled.
5. Writ Petition No. 9880 of 2001 was filed by petitioner seeking a mandamus to direct DE-HE to issue fresh letter appointing her as Lecturer (Hindi) in K.A. Degree College, Kasganj, Etah and cancel order of appointment issued to petitioner appointing her as Lecturer (Hindi) in the college. In that writ petition, she alleged that she was appointed as Lecturer (Hindi) on adhoc basis in K.A. Post Graduate College, Kasganj, Etah where she joined on 07.03.2000.
6. During pendency of Writ Petition No. 9880 of 2001, petitioner submitted her joining in the College on 20.02.2001. Copy of joining letter is Annexure No. 6 to the writ petition. Thereafter, Secretary of the College sent a letter dated 22.02.2001 to DE-HE informing that petitioner has joined on the post of Lecture (Hindi) on 20.02.2001. A copy of said letter was also forwarded to RHEO.
7. DE-HE sent a letter dated 29.10.2001 informing Additional Legal Remembrancer, U.P. Government, Allahabad that there is no necessity of contesting Writ Petition No. 9880 of 2001 (Dr. Kalpana Maheshwari vs. Director of Higher Education and others), since petitioner Dr. Kalpana Maheshwari has already joined the college on 20.02.2001.
8. We may place on record that Writ Petition No. 9880 of 2001 filed by petitioner has already been dismissed by a detailed judgment dated 11.01.2007 holding that in vacancy on the post of Lecturer (Hindi) in which K.A. Post Graduate College, Kasganj, District Etah was not advertised by U.P.H.E.S.C., vide Advertisement No. 26 and that being so, from the selection made pursuant to Advertisement No. 26, petitioner cannot be appointed on the post which was not advertised and made part of the said selection. In fact the aforesaid post in K.A. Post Graduate College, Kasganj was advertised subsequently vide Advertisement No. 29. Select panel of one selection cannot be utilized for filling up the vacancies of another selection. Relevant extract of the judgment reads as under :-
"In the present case the petitioner was selected by the Commission against the post advertised by Advertisement No. 26. She alleges that although the post of Hindi lecturer in the college at Etah was not advertised under the Advertisement No. 26 yet three posts fell vacant on retirement of its previous incumbents prior to the selection of the petitioner hence she could be placed at Etah instead of at Bulandshahar. Her further case is that the three posts of lecturer in Hindi of the college at Etah were advertised in a subsequent Advertisement No. 29 wherein after selection by the Commission only two posts have been filled up and one post is still lying vacant. She therefore claims appointment on the said vacant post at Etah which was subject matter of the subsequent Advertisement No. 29.
It has been held by this court that the select panel of one selection cannot be utilized for filling up the vacancy, may be unforeseen or otherwise of another selection, therefore the contention of the petitioner for being given placement at the college at Etah on a post which was subject matter of another Advertisement No. 29 cannot be accepted.
In the present case the petitioner's case is not that she was prevented from joining the post at the college at Bulandshahar and therefore no direction can be issued by this court with respect to payment of salary to the petitioner from 5.2.2001 i.e. the date she was asked to join at Bulandshahar upto date.
In so far as the appointment of another similar circumstanced candidate namely Smt. Mithilesh Kumari is concerned this court finds that when the law is settled that such an appointment as claimed cannot be made and that the order of the Director of Education appointing the selected candidate in a particular college cannot be disobeyed by the Committee of Management hence such a relief on the ground that another person has been adjusted cannot be granted by this court. Personal circumstances of the petitioner as canvassed in the writ petition would not give her a right to seek to be appointed in the college of her choice where she had been working as adhoc lecturer and which post was not advertised in the Advertisement No. 26 but was subsequently advertised by Advertisement No. 29. Therefore, no benefit can be derived by the petitioner from the decision of the Hon'ble Supreme Court in the case of Kamlesh Kumar Sharma (supra).
For the reasons stated above, this writ petition has no merit and is accordingly dismissed. No order is passed as to costs."
(Emphasis added)
9. Petitioner after joining on 20.02.2001, worked for about ten days and absented from duty. This is admitted by petitioner herself in para 13 to writ petition which reads as under :-
"13. That it is relevant to mention here that after joining the aforesaid post, due to certain personal problem, the petitioner after serving the institution approximately more than ten days could not be above to attend the institution further."
10. After about more than four years, petitioner submitted joining on 25.04.2005 and worked upto May, 2005. Again, she absented herself and then submitted her joining after about two years i.e. on 24.05.2007.
11. Secretary of the Colleges sent a letter dated 24.05.2007 i.e. on the same day, on which petitioner was allowed to join the College, requesting DE-HE to issue necessary instructions to District Inspector of Schools, Bulandshahar (hereinafter referred to as "DIOS") for payment of salary to petitioner. Petitioner was also confirmed by Secretary of the college on the post of Lecturer (Hindi), vide order dated 30.10.2008.
12. Petitioner claimed that she was continuously working in the College and getting salary but arrears of Fifth and Sixth Pay Commission have not been paid. In this regard she had made several representations dated 08.05.2013, 09.05.2013, 18.06.2013, 11.07.2013, 07.02.2014 and 28.06.2014. On 02.12.2014, REHO visited the college and orally directed Secretary to stop payment of salary till inquiry against petitioner is conducted.
13. Pursuant thereto, petitioner was communicated through letter dated 02.12.2014 (Annexure-1 to the writ petition) by Secretary, stopping her salary. Petitioner made objection vide letters dated 04.12.2014, 09.12.2014 and 09.02.2015 and thereafter has filed present writ petition, on the ground that stoppage of salary is patently illegal, since no inquiry has been conducted, no show cause notice has been issued to her and there is no provision under which payment of salary could be stopped. Order dated 02.12.2014 (Annexure-1 to the writ petition) has been challenged and a mandamus has also been sought directing respondents for payment of arrears of salary as per recommendations of Fifth and Sixth Pay Commission to petitioner.
14. This writ petition was entertained on 15.05.2015 when this Court required learned Standing Counsel, who had accepted notice on behalf of respondents no. 1, 2, 3 and 7, to seek instructions, under what circumstances, salary of petitioner was directed to be kept on hold.
15. Consequently, a counter affidavit on behalf or respondents 1, 2, 3 and 7 sworn by Dr. Satyendra Singh, Assistant Director in the Directorate of Higher Education U.P., Allahabad was filed, wherein it has been stated that petitioner was duly selected by U.P.H.E.S.C. and recommended for appointment as Lecturer (Hindi) in the College. Petitioner did not join, hence, by letter dated 05.02.2001, college was required to inform petitioner to join the College by 20.02.2001 else and it will be considered to be a case covered by section 15 of Act, 1980 and consequential action would be taken. Thereafter, in para 3(d) to the counter affidavit, it was specifically averred that petitioner on 20.02.2001 requested Management to allow her joining duties but there is nothing on record to show that such permission was granted. On the same day, petitioner left the College without any sanctioned leave and filed Writ Petition No. 9880 of 2001. She remained absent for about 6 years and presented in the college on 24.03.2007 and claimed salary for the period. College vide letters dated 08.08.2001, 01.08.2003 and 29.06.2004 informed that petitioner did not join the College and requested for placement of another duly selected candidate against relevant posts, hence by order dated 09.08.2004, a new candidate was recommended for appointment as Lecturer (Hindi) in the College. The new incumbent joined on the post on 31.08.2004 and she was being paid salary from State Exchequer. It is also said that since petitioner did not join the College at all, she has no right to earn or acquire salary from State Exchequer and claim benefit under Section 60(E) of U.P. State Universities Act, 1973 (hereinafter referred to as "Act, 1973"). Para 3(h) of counter affidavit reads as under :-
"3(h). That petitioner did not join her duties in the college at all. Even it is presumed for sake of argument only that she joined she absented herself in the manner amounting to relinquishment of the job. Salary is earned by performing duties in accordance with terms and conditions of employment. Petitioner did not join at all or did not work at all, so she did not earn or acquire any right under Section 60E of the Universities Act, 1973 to be paid salary."
16. It is also stated that there are many versions, out of which one is that petitioner joined on 20.02.2001 and thereafter remained absent and College management requested for her replacement vide letters dated 08.08.2001, 01.08.2003 and 29.06.2004. Since, petitioner did not join, it amounts to relinquishment of job. New selected candidate has been appointed in her place and, therefore, petitioner has no right to claim salary.
17. This Court noticed from record that there was a letter dated 22.02.2001, sent by Secretary of the College to DE-HE informing him about joining of petitioner and in these circumstances, original record was summoned for Court's perusal.
18. Record was produced and we find that copy of letter dated 22.01.2001 sent by Management to DE-HE was available therein. Thus, statement in the counter affidavit, that Management did not inform about petitioner's joining as there is no record available with respondents 1, 2, 3 and 7 was found false.
19. It is in these circumstances, notices were issued to deponent of counter affidavit to explain, how he could sworn such an affidavit. Management of the College also was issued notices to explain why and how it could tell DE-HE that petitioner did not join the College in its letter dated 08.08.2001 when petitioner had already joined on 20.02.2001.
20. An affidavit was filed by Dr. Satyendra Singh purported to be on behalf of respondents 1, 2, 3 and 7 stating that there was some error in drafting of counter affidavit in as much as deponent of counter affidavit wanted to convey that after joining on 20.02.2001, petitioner did not work till she rejoined on 24.05.2007 and, therefore, acquired no right for salary under Section 60(E) of Act, 1973. It was admitted that Management sent letter conveying that petitioner has joined on 20.02.2001, however, thereafter, she absented herself from duty as admitted in paras 13 and 14 to writ petition. She filed Writ Petition No. 9880 of 2001. After its dismissal on 11.01.2007, again submitted joining on 16.04.2007 which showed that petitioner was not interested to join and work in the College. It is also said that after such long absence, it was not permissible to the College to allow petitioner to join/resume her duties particularly when vacancy of the post on which petitioner was appointed, was again notified to U.P.H.E.S.C. who advertised it, vide Advertisement No. 32 and recommended names of Smt. Rekha Chaudhary and Dr. Sushma Godiyal for appointment in the College. It is also said that wrong information was given by Principal and Secretary of the College vide letters dated 08.08.2001, 01.08.2003 and 29.06.2004 that petitioner had not joined the College and request was also made for fresh requisition of the vacancy to be filled in by U.P.H.E.S.C.
21. On behalf of respondent-5 also, an affidavit has been filed by Dr. Dheeraj Singh, Secretary of the Committee of Management of the College and Dr. Shashi Prabha Tyagi, Principal of the college reiterating that though petitioner joined on 20.02.2001 but she was never interested to continue to work in the College and absented in an unauthorized and illegal manner.
22. It is thus evident from record that in a very casual and reckless manner, counter affidavit was filed on behalf of respondents 1, 2, 3 and 7 and correct information was not properly conveyed to Court but in the facts and circumstances of the case, we do not find it appropriate to proceed on this aspect further except placing a word of caution on record that officials must be extremely careful and cautious whenever they file affidavit before Court, in narrating fact, in clear, explicit and unequivocal language.
23. Heard Sri Umesh Narain Sharma, learned counsel for petitioner, Sri Bheem Singh, Sri Jitendra Singh holding brief of Sri Krishan Pahal, Advocate and learned Standing Counsel for respondents.
24. Learned counsel for petitioner contended that once petitioner had joined on 20.02.2001, she is entitled to full salary and all consequential benefits.
25. Per contra, learned Standing Counsel urged that the petitioner having remained absent for years together, unless this period is directed to be treated in a particular manner, there is a break in service and the benefits claimed by petitioner cannot be allowed.
26. Facts must be mentioned in straight without mixing words so that there may not be an occasion of misinterpretation, misunderstanding or miscommunication. Coming to facts of present writ petition, selection of petitioner on the post of Lecturer (Hindi) in the College through U.P.H.E.S.C and issue of letter of appointment is not in dispute. Petitioner joined the post of Lecturer (Hindi) in the College on 20.02.2001. She could not serve the College for more than 10 days and absented herself from duties. It is not the case of petitioner that before absenting from duties, she informed the College Management or Principal or sought any leave sanctioned. Her absence, therefore, is clearly unauthorized.
27. It is also interesting that as a new entrant, she had served the College only for 10 days and thereafter remained absent that too unauthorizedly for more than four years. As said in para 15 of the writ petition, she again joined on 25.04.2005 and worked till May, 2005 i.e. about a month and five days. Again she absented herself and this time also neither it is the case of petitioner that she sought any permission of Competent Authority in the College for such absence nor submitted any leave application nor even communicated about her absence to the College or Educational Authorities. This time again, she absented herself for almost two years and when her Writ Petition No. 9880 of 2001 was dismissed on 11.01.2007 only thereafter, she claimed to have submitted her joining in the College again on 24.05.2007.
28. College Management, however was quite charitable and allowed her to join. On the same day Secretary of the College sent a letter to DE-HE for payment of salary to petitioner without informing all the facts regarding continuous absence of petitioner, in the first spell for more than four years and in the second spell for almost two years.
29. We also find it difficult to appreciate how petitioner was allowed to join and no disciplinary action was taken against her for remaining unauthorizedly absent for such a long time and how after her joining on 24.05.2007 salary was paid without regularizing period of absence. Management also appeared to have proceeded in quite haste and we have no hesitation in observing that such haste shows vexed favour by Management to petitioner when she was confirmed also by letter dated 30.10.2008.
30. We have not been shown any provision under which a person, newly entering into service, can remain absent from duty for years together just after working for ten days in the first spell and about one months and five days in the second spell and still no action is taken against such a person. Attitude and conduct of respondent authorities of the College are also evidently quite dubious reflecting much concession, relaxation and undue favour to petitioner.
31. Though we do not find any provision authorizing respondents to stop payment of salary to petitioner when she was allowed to work and the salary was also being paid but simultaneously absence of any departmental inquiry against petitioner for such long unauthorized absence, also reflects upon the arbitrary conduct of all the respondents including even Educational Authorities who had also not issued any direction in this regard to the College authorities, though admittedly, salary was being paid to petitioner from State Exchequer.
32. In view of above facts and circumstances and taking into consideration the facts in its entirety and conduct of petitioner as well as respondents, we dispose of this writ petition in following manner :-
(i) Order dated 02.12.2014 (Annexure-1 to the writ petition) passed by Secretary of the College stopping payment of salary to petitioner is hereby set aside.
(ii) Respondents' competent authorities are directed to ensure appropriate disciplinary proceeding into issue of absence of petitioner after joining on 20.02.2001 till she rejoined ultimately on 24.05.2007 in accordance with law and to pass appropriate order after completing proceedings within six months.
(iii) Competent Authority shall also take a decision in accordance with law as to how aforesaid absence shall be dealt with.
(iv) In case, any financial burden has to be borne by the State Exchequer towards payment of salary to petitioner for the period she has not discharged duties, the same can be recovered from Management of the College after giving opportunity of hearing to Management.
(v) Continuance of petitioner in service as also current payment of salary on the post of Lecturer (Hindi) in the College shall be subject to final order passed by Competent Authority pursuant to inquiry as directed above.
Order Date :- 18.09.2018 sailesh