Hon'ble Pankaj Naqvi,J.
(Delivered by Hon'ble Pankaj Naqvi,J.)
1. Essentially the sole dispute involved in both the aforesaid connected writ petitions is as to whether the services rendered as a lecturer in a degree college outside the State of U.P. can be considered for the grant of senior scale/selection grade as Lecturers in State of U.P. or not. Accordingly both the petitions are being disposed off by a common judgment.
2. Civil Misc. Writ Petition No. 23342 of 2009 has been filed by Dr. Sunil Vikram Singh seeking a writ of certiorari to quash the order dated 4.2.1999 passed by the Director (Higher Education) U.P., whereby the representation filed by the petitioner has been rejected and also a writ of mandamus commanding the respondents to grant the pay protection and the senior scale/selection grade to the petitioner with effect from the date it became due after counting the services of the petitioner rendered in Tilakmanjhi Bhagalpur University, Bhagalpur, State of Bihar for the period 15.11.1996 to 9.5.2000 along with arrears regularly.
3. Similarly Civil Misc. Writ Petition No. 13118 of 2007 has been filed by Dr. Vikas Sharma for seeking a writ in the nature of certiorari for quashing an order dated 4.12.2006 whereby the representation filed by the petitioner has been rejected by Director (Higher Education) and also a writ of mandamus commanding the respondents to count the past service rendered by the petitioner in the seniority list for the purposes of preservation of senior pay scale/selection grade.
4. As common issues of law are involved in both the petitions, hence facts of the first writ petition i.e. C.M.W.P. No. 23342 of 2009 are taken up as a leading case and are enumerated hereunder:-
5. The petitioner claims to have been selected by the Bihar State University Service Commission and was appointed on the post of lecturer in Tilakmanjhi Bhagalpur University, Bhagapur, State of Bihar on 7.11.1996 and had joined the said post on 15.11.1996. His services came to be confirmed vide a notification dated 7.11.2003 with effect from 15.11.1996. Subsequently, petitioner was selected as a lecturer by U.P. Higher Education Commission, Allahabad in pursuance of the select list which was approved and published on 3.3.2000 and accordingly an appointment letter was issued to the petitioner on 15.4.2000 by the Committee of Management of Tilakdhari Post Graduate College, Jaunpur. On 8.5.2000 an order was issued by the Registrar, Tilakmanjhi Bhagapur University, Bhagalpur, State of Bihar whereby the petitioner was relieved from his place of posting i.e. Hari Singh Mahavidyalay, Haveli Kharagpur, Munger, State of Bihar and the requisite permission was granted to the petitioner to join the post of lecturer at Tilakdhari Post Graduate College, Jaunpur affiliated to Respondent No. 3. After relieving from the institution on 9.5.2000 the petitioner joined on the post of lecturer on 11.5.2000 in Tilakdhari Post Graduate College, Jaunpur and since then he has been performing his regular duties.
6. As per the guidelines issued by the University Grant Commission and the Government Order dated 13.3.2001 issued by the State of U.P., with regard to the Career Advancement Scheme (CAS), the petitioner is entitled for pay protection and seniority for the pay scale of the post of lecturer (senior scale) and thereafter lecturer (selection grade) by including his earlier service rendered by him as Lecturer in Tilakmanjhi Bhagalpur University, Bhagalpur, State of Bihar, in the college where the petitioner is presently working which is affiliated with Veer Bahadur Singh Purvanchal University, Jaunpur. Statute 17.10 (e) of the First Statutes of the Veer Bahadur Singh Purvanchal University read as under:-
SENIORITY OF PRINCIPALS AND TEACHERS OF AFFILIATED COLLEGES 17.10. The following rules shall be followed in determining the seniority of Principals and other teachers of affiliated colleges : [Section 49 (0)].
(a) -
(b) -
(c) -
(d) -
(e) service in a substantive capacity in another University or another degree or post-graduate college whether affiliated to or associated with the University or another University established by law shall be added to his length of service.
7. Accordingly the petitioner through the Manager of Committee of Management of Tilakdhari Post Graudate College, Jaunpur submitted a representation dated 14.10.2007 before respondent no. 2 wherein it was indicated that presently the petitioner is working as lecturer in Tilakdhari Post Graduate College, Jaunpur with effect from 11.5.2000 and that prior to the said period he was in service at Tilakmanjhi Bhagalpur University, Bhagalpur, State of Bihar from 15.11.1996 to 9.5.2000 and therefore, in terms of the UGC norms and the First statutes of the University the said substantive period of service rendered as Lecturer in State of Bihar is liable to be included in the present service of the petitioner and thereafter senior scale and selection grade be offered to him. However, the Director (Higher Education) U.P. has rejected the claim of the petitioner vide impugned order dated 4.2.2009, on the strength of the Government Order dated 26.12.1988, hence this writ petition.
8. A counter affidavit has been filed on behalf of the State Authorities wherein it is contended that the Government Orders dated 16.5.1995 and 26.11.1988 deals with the matter of counting of services rendered in other institutions of Higher Education, within the State of U.P. and therefore, the said Government Orders would not apply in the case of petitioners. It is further contended in the said counter affidavit that the issue as to whether such services of teachers which are rendered outside the State of U.P. are to be included with the State of U.P. or not has been referred to a larger bench in the case of Dr. A.P. Paliwal, which is presently pending and therefore, no relief can be granted to the petitioners. A rejoinder affidavit was filed by the petitioners to the aforesaid affidavit wherein once again it was relied that the aforesaid Government Orders would not be applicable in the case of petitioners and it was also stated that in the aforesaid full bench decision of Dr. A.P. Paliwal Vs. State of U.P. and others, reported in (2010) 3 U.P.L.B.E.C. 2365, it has been held that computation of the services rendered outside the State of U.P. shall not be counted towards the services rendered by an employee in the State of U.P. for the grant of pension and the issue of inclusion of outside services, in the State of U.P. for the purposes of grant of senior scale/selection grade to the petitioners was not an issue in the said full bench decision. A counter affidavit has also been filed on behalf of the University and from the contents therein it appears that the University is supporting the case of the petitioners.
9. Heard S/Sri Vimlendu Tripathi, Intekhab Alam Khan, N.K. Mishra, Sudhir Dixit, learned counsel for the petitioners, S/Sri Anurag Khanna, V.K. Upadhyay, Anil Tiwari, learned counsel for the respondents and learned Chief Standing Counsel for the State-respondents, in both the connected petitions.
10. The submission of the learned counsel for the petitioners is that the impugned orders rejecting the representations of the petitioners is based on a Government Order dated 26.12.1988, a copy whereof has been filed as Annexure-21 to the writ petition and in fact the subject matter of the said Government Order is such that the same will not applicable on the facts of the present case. A perusal of the Government Order dated 26.12.1088 would reveal that the subject dealt with the transfer of teachers from one affiliated/associated/private aided P.G. College to another college and with regard to pay protection on such transfers. Thus the said Government Order will not apply in the case of the petitioner as the petitioner is seeking the inclusion of that period of service as a Lecturer which has been rendered outside the State of U.P. This court is in complete agreement with the submissions of the learned counsel for the petitioners that the respondents have wrongly non suited the petitioner on the strength of the aforesaid Government Order. Accordingly the impugned order dated 26.12.1988 (Annexure-21 to the writ petition) becomes vulnerable in law and is liable to be set aside.
11. The next submission of the learned counsel for the petitioners is that service benefits on the post of lecturer (senior scale) and lecturer (selection grade) require 4 years and 5 years length of service respectively and that there is neither any requirement either in the U.P. State University's Act 1973 or in the First Statute of the University or in the Government Order dated 13.3.2001 for Career Advancement Scheme that the earlier substantive service should be only from the Universities and the Colleges situate within the State of U.P.
12. Learned counsel for the petitioners have substantiated their arguments with a decision of the Apex Court reported in AIR 1988 SC 335 Shardhendu Bhushan Vs. Nagpur University wherein the Hon'ble Apex Court has held that in terms of the criteria laid down by the University Grant Commission itself, a teacher is entitled to the benefits of higher grade if he has the teaching experience of not less than 5 years. The emphasis is on the experience gained by a teacher while in the employment of a University or any other institution irrespective of its geographical location and not on the continuity of service. Even the U.G.C. scheme or the first statutes of the University do not refer to any continuity in service.
13. A Division Bench of this Court in Civil Misc. Writ Petition No. 30104 of 2006, Dr. Pradeep Kumar Singh Purush Vs. State of U.P. and others reported in 2009(5) E.S.C. 3469 and Civil Misc. Writ Petition No. 45957 of 2006 Harish Kumar Sharma Vs. Director of Education decided on 24.2.2006, have also taken a similar view, relying upon the law laid down in the case of Shardhendu Bhushan.
14. Thus in view of the aforesaid decisions of the Hon'ble Apex Court and that of this Court, this Court has no option but to follow the dicta of the Hon'ble Apex Court, and that of this Court.
15. Since the basic fact that the petitioner was in substantive employment as a lecturer in Tilakmanjhi Bhagalpur University, Bhagalpur, State of Bihar from 15.11.1996 to 9.5.2000 have not been disputed or controverted and therefore, the petitioner is fully entitled to claim the benefits of said service rendered in State of Bihar i.e. from 15.11.1996 to 9.5.2000 to be included in his service rendered with respondents.
16. Writ Petition No. 23342 of 2009 succeeds and is allowed. The order dated 4.2.2009 (Annexure-18 to the writ petition) is quashed and a mandamus is issued to the respondents to include the services of the petitioner as Lecturer outside State of U.P. from 15.11.1996 to 9.5.2000 and to grant senior scale/selection grade on the post of Lecturer.
17. Similarly for the facts and reasons stated in W.P. No. 23342 of 2009, Writ Petition No. 13118 of 2007 also stands allowed and accordingly the impugned order dated 4.12.2006 (Annexure-9 to the writ petition) is quashed and a mandamus is issued to the respondents to include the past services of the petitioner as Lecturer outside State of U.P. for the grant of Lecturer senior scale/selection grade.
18. No order as to costs.
Dt- January 6, 2012 Masarrat