Court No. - 58 Case :- WRIT - A No. - 6125 of 2013 Petitioner :- Dr.Krishna Dutta Gautam Respondent :- State Of U.P.Thru Secy And Ors. Counsel for Petitioner :- Hitesh Pachori,S.K. Gaur Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
1. Petitioner claims to have been appointed on the post of Statistician in T.B. Demonstration Training Centre Chest Institute, Agra, a medical department of the State of U.P. on 2.3.1965 and his services are stated to have been confirmed as such on 16.10.1982. Having worked continuously as such, petitioner retired from service on 31.7.2004 and has also received all his retiral benefits. Petitioner is also receiving pension etc. Much after his retirement, a claim has been raised by the petitioner for grant of pay scale of the post of Lecturer-cum-Statistician, which is stated to have been created vide Government Order dated 13.9.1974. According to petitioner, after such post was created, he was instructed to work as Lecturer as he was qualified for the post and he continued to work till he attained the age of superannuation In the year 2004. As per the petitioner having worked on the post of Lecturer-cum-Statistician, petitioner was entitled to the post and pay scale of Lecturer-cum- Statistician and that denial of such benefit to him, in the facts and circumstances of the case, is arbitrary.
2. Reliance is placed upon a communication sent by the Director/ Pramukh Adhikshak T.B. Demonstration and Training Center and Chest Institute, Agra to the Director General, Medical& Health Services, U.P. Lucknow dated 11.1.1993, according to which petitioner is entitled to be promoted on the post of Lecturer-cum-Statistician w.e.f. 1.9.1991.
3. Learned Counsel for the petitioner submits that petitioner has pressed his claim for appointment/ promotion to the post of Lecturer-cum- Statistician in the year 1983. A representation dated 10.3.1983 is annexed as Annexure-19 to the writ petition, in which petitioner admits that he is working as Statistician at T.B. Demonstration and Training Center and Chest Institute Agra since the year 1965. Petitioner in this letter further asserts that he has done his Ph.D. in Statistician and as a post of Lecturer-cum-Statistician is lying vacant in the institute, therefore, he be posted against it. The Director, on such representation, is alleged to have made a recommendation for petitioner to be posted as such as he possessed requisite qualification. However, no order of the competent authority has been placed on record permitting the petitioner to work on the post of Lecturer-cum-Statistician. The petitioner cannot assert that his request, conveyed in his letter on 10.3.1983, as forwarded by the Director, was accepted by the Director General or that any order was passed by the competent authority, permitting the petitioner to work on the post of Lecturer-cum-Statistician in the Institute. Various representations are said to have been made and as final decision was not taken, petitioner approached this Court in the year 2013 i.e. after 9 years of his retirement, for grant of promotional post of Lecturer-cum-Statistician from 10.3.1983, as has been revised from time to time. Benefit of payment of salary, admissible to an Associate Professor has also been claimed. A further direction has been sought against the State to pay the amount due and payable to him, in that regard, alongwith 18% interest.
4. A Counter affidavit has been filed in the writ petition as also to the amendments introduced subsequently therein. Respondents assert that the petitioner's appointment was on the post of Statistician and he was paid salary as such. It is also asserted that the petitioner continued to work as Statistician and has also superannuated in the year 2004. So for as petitioner's upgradation/ promotion on the post of Lecturer-cum- Statistician is concerned, it is asserted by the respondents that the post of Lecturer-cum-Statistician was a post to be filled by way of direct recruitment through the Public Service Commission and that the competent authority never passed any order, accepting petitioner's claim in that regard. It is also stated that having worked on the post of Statistician and after receiving all service and retiral benefits due and payable to him, the claim raised now, after 9 years of his retirement, is clearly barred by un-explained latches and, is otherwise an after thought.
5. Rejoinder affidavit has been filed reiterating averments made in the writ petition.
6. I have heard Sri S.K. Gaur, learned counsel for the petitioner and learned Standing Counsel for the Respondents.
7. Learned counsel for the petitioner places reliance upon the judgments of the Apex Court in Council of Scientific and Industrial Research Vs. K.G.S. Bhatt, AIR 1989 S.C. 1972; State of Tripura Vs. K.K. Roy, AIR (SC) 2004 page 1249; Union of India and another Vs. Hemraj Singh Chauhan and others, 2010 AIR (SC) 1682; P.N. Premachandran Vs. State of Kerala, AIR (SC) 2004 page, 255 as also Division Bench judgment of this Court in Brijesh Kumar Upadhyaya Vs. State of U.P. and another, 2017 (9) ADJ, 468. Reliance is also placed upon judgments of this Court in A.K. Gupta Vs. State of U.P. , 2003 (2) UPLBESR, 549; Ravi Kund Singh Vs. State o U.P. and other, 2013(31) LCD, 2013; Santosh Kumar Dubey Vs. State of U.P., 2009 ADJ (10), 495; and Narendra Singh Solanki Vs. State of U.P., ADJ (10),756.
8. Before adverting to the judgments, which have been cited on behalf of the petitioner, it would be necessary to take note of the factual aspects that arise for consideration in the present case.
9. Petitioner admits that he was appointed on the post of Statistician in the year 1965 and he was confirmed as such on 16.10.1982. Specific pleadings in that regard is made in para-3 of the writ petition. It is, therefore, clear that petitioner admits his appointment as Statistician in the department and his continuance as such till he was confirmed on 16.10.1982.
10. Learned counsel for the petitioner has emphatically submitted that petitioner was allowed to work as Lecturer-cum-Statistician and continued uninterruptedly as such till he retired from service in the year 2004. Reliance is placed upon a Government Order of the year 1974, wherein the post of Lecturer-cum-Statistician, at a higher grade of pay, was temporarily created by the State Government in the office concerned at Agra.
11. The argument that petitioner was allowed to continue on the promoted post, is not substantiated by any credible material brought on record. The averments made in para-3 of the Writ Petition virtually defeats the claim set up by the petitioner during the course of argument. There is no order on record which may demonstrate that the petitioner was allowed to work on the newly created post of Lecturer-cum-Statistician in the year 1974, onwards. The fact that petitioner's services were confirmed as Statistician in the year 1982, would clearly go against the petitioner's contention that he was working on the post of Lecturer-cum-Statistician since 1974. It is also admitted on record that no claim for payment of salary of the higher post of Lecturer-cum-Statistician was ever raised by the petitioner in the year 1974 or thereafter till his confirmation in service on 16.10.1982. The claim of petitioner that he had been allowed to work on the post of Lecturer-cum-Statistician from the year 1974 onwards, is therefore not liable to be accepted.
12. On record of this petition, there exists a letter of petitioner dated 10.3.1983, which is reproduced below:
“Sir, I have the honour to say that I have been working as Statistician at T.B. Demonstration Training Centre & Chest Institute, Agra since 1965.
I have done Ph. D. in Statistics from Agra University.
Sir, a post of Lecturer cum Statistician is lying vacant at T.B. Demonstration Training Centre & Chest Institute, Agra, under your kind control. So I request you to kindly post me as Lecturer-cum-Statistician at T.B. Demonstration Training Centre & Chest Institute, Agra.”
13. This letter has been recommended by the Director and his recommendation is also reproduced below:-
“Recommended and forwarded to the Director of Medical & Health Services, U.P., Lucknow, with the request that Dr. K.D. Gautam may please be posted as Lecturer-cum-Statistician instead of Statistician as the post of Lecturer-cum-Statistician is lying vacant.
Dr. Gautam fulfills the requisite postgraduate qualification and experience needed for the above post.”
14. The aforesaid letter of petitioner dated 10.3.1983 again admits the fact that the petitioner was working as Statistician since the year 1963 till 1983. This is petitioner's own application and does not state that the petitioner was ever allowed to work as Lecturer-cum-Statistician in the centre after 1974, as is said to be alleged now during the course of argument. Petitioner's letter merely is a request to post him as Lecturer- cum-Statistician against the post which has been created in the Institute. This letter, although has been forwarded, but there is nothing on record to show that the competent authority i.e. Director General has ever accepted the recommendation made or allowed the petitioner to work against the post of Lecturer-cum-Statistician.
15. Learned counsel for the petitioner has also placed reliance on letter of the Director of the Institute dated 11.1.1993, which also requires reference at this stage. This letter also mentions that petitioner is working as Statistician in the Institute and that he is entitled to be paid promotion pay scale w.e.f. 1.7.1991. The letter further records that there exists a post of Lecturer-cum-Statistician in the Institute and petitioner's claim for promotion against such post is pending before the State Government. This letter dated 11.1.1993 again reinforces the fact that till 1993 also there was no authorisation issued by the competent authority in favour of petitioner, accepting his claim for being allowed to work on the post of Lecturer-cum-Statistician. The subsequent correspondence, which is there on record, would also show that petitioner continued to work on the post of Statistician till he retired in the year 2004. No specific order has been brought on record of the writ petition, which may go to show that the petitioner was ever promoted / authorised by the competent authority to work on the pot of Lecturer-cum-Statistician.
16. The pleadings of the writ petition, particularly introduced by way of amendment, permitted by the Court on 3.1.2018, would also go to show that the aforesaid letter dated 11.1.1993 has been treated by the petitioner to be the order whereby his claim for promotion to the post of Lecturer- cum-Statistician has been accepted by the department. This premise, on which the writ petition itself has been filed, is again found to be misconceived, inasmuch as the recommendation merely is for consideration of petitioner's claim for promotion. No Government Order or statutory rule has otherwise been placed on record before this Court by the petitioner, which may suggest that the post of Lecturer-cum- Statistician was a promotional post, which had to be filled by way of promotion from the post of Statistician. As a matter of fact the respondents in their counter affidavit specifically state that the post of Lecturer-cum-Statistician was a post to be filled by direct recruitment through the Public Service Commission. The claim of petitioner for grant of promotion to the post of Lecturer-cum-Statistician had otherwise not been accepted by any competent authority. The claim advanced on behalf of the petitioner for promotion to the post of Lecturer-cum-Statistician, therefore, cannot be accepted.
17. One or other aspect that cannot be lost sight of is the fact that petitioner, though claims entitlement to the post and salary of Lecturer- cum-Statistician yet at no point of time ever raised any claim before the appropriate forum or this Court within a reasonable time. It is orally submitted on behalf of the petitioner that he was allowed to function as Lecturer-cum-Statistician since the year 1974 but no such claim is on record. Petitioner's admitted plea, as emerges from the record, is contrary to the arguments advanced orally before this Court. Petitioner has also attained the age of superannuation in the year 2004 and has accepted all his retiral benefits. Filing of the writ petition, thereafter, claiming right and entitlement on the post of Lecturer-cum-Statistician is clearly found to be an after thought, which otherwise is not substantiated or made out from the materials placed on record. Although various judgments have been cited on behalf of the petitioner, which have been referred to above, but this Court finds that on facts of the present case, none of these judgments are applicable. Once petitioner has not been able to demonstrate that he actually had been appointed on the post of Lecturer- cum-Statistician or had actually performed work with the consent of the authority concerned, his claim for entitlement to the post, cannot be accepted. The individual facts of the cases which have been referred to, have not been shown to be having any applicability in the facts of the present case.
18. Writ petition fails and is consigned to records.
19. At the end, learned counsel for the petitioner has raised another argument. It is alleged that the petitioner was appointed as a Statistician and has retired as such in the year 2004. According to the petitioner, he was denied benefit of promotion or promotional pay scale through out his service career. Reliance is placed upon various Government Orders, according to which, a government servant is atleast entitled to two to three promotional pay scale during his entire service tenure if he is not promoted. It is stated that such claim of petitioner has also not been considered so far.
20. In the opinion of the Court, grievance of the petitioner in that regard is required to be examined. It would, therefore, be appropriate to observe that in case petitioner approaches respondent no. 2 alongwith certified copy of this order, his claim for grant of promotional pay scale, in terms of the applicable Government Orders particularly Government Order dated 3.6.1989, would be examined within a period of 4 months from the date of presentation of certified copy of this order if such benefit has not been extended already, and the fact that his claim for promotion to the post of Lecturer-cum-Statistician has been rejected, would not come in his way for consideration of such claim.
Order Date :- 22.1.2019 n.u.