1. Heard Sri Ajay Kishor Pandey, learned counsel for the petitioner, Sri S.P. Singh, learned Chief Standing Counsel-I for the State-respondents and Sri Virendra Mishra, learned counsel for the opposite party No.3.
2. By means of this writ petition, the petitioner has impeached the order dated 04.10.2010 passed by the Deputy Secretary, Government of U.P., Department of Technical Education, Civil Secretariat, Lucknow addressing to the Secretary, Board of Technical Education, U.P., Lucknow, whereby the State Government has refused to pass an order under Section 22 (E) of U.P. Technical Education Act, 1962 (here-in-after referred to as the "Act, 1962") relaxing the educational qualification of the petitioner observing that such decision could have been taken at the very inception when the petitioner was initially appointed and not after 33 years of his service, therefore, the recommendation so given by the Board of Technical Education regarding relaxation in qualification of the petitioner, is rejected. The petitioner has not annexed the order in the writ petition submitting that the said order has not been provided to him till filing of the instant writ petition despite the due efforts being taken by him to obtain such order, however, such order has been annexed with the short counter affidavit filed by the State-respondents as Annexure No.SCA-4.
3. The brief facts of the case are that the petitioner was initially appointed on the post of Instructor (Civil), Class-III post on 01.10.1977 on ad hoc basis. As per the learned counsel for the petitioner, the petitioner was appointed on the said post strictly in accordance with law as prescribed by the Act, 1962. Further, after the completion of one year satisfactory service of probation period, the petitioner was confirmed on the said post on 01.10.1978 and thereafter on completion of 10 years service he was granted one additional increment.
4. The petitioner was not given the promotional pay-scale for the reason that his services are not regularized. The nomenclature for the post of the petitioner was changed pursuant to the Government Order dated 31.12.1987 as Assistant Lecturer. Learned counsel for the petitioner has also drawn attention of this Court towards Annexure No.5 of the writ petition, which is an order being passed by the Principal, Hewett Polytechnic, Mahanagar, Lucknow dated 21.01.1988 changing the nomenclature of various Instructors as Assistant Lecturer and the name of the petitioner finds place at serial No.11.
5. Admittedly, the Competent Authorities forwarded the matter of the petitioner for regularisation of his services before the duly constituted Committee which deals with the regularisation of ad hoc employees. The aforesaid Committee considered the matter of the petitioner and made recommendation that since the petitioner at the time of his initial appointment was not having 65% marks in his diploma in Civil Engineering as required vide Government Order dated 22.12.1972 for appointment on the post of Instructor (Civil), and his services could have not been regularised so his qualification may be relaxed for the purposes of regularisation.
6. Learned counsel for the petitioner has drawn attention of this Court towards Annexure No.3 to the writ petition, which is a gradation list of Instructors issued pursuant to the direction of the Director, Board of Technical Education, U.P., Kanpur dated 15.02.1983, wherein the name of the petitioner finds place at serial No.22. In the said gradation list, it has categorically been indicated that the date of initial appointment of the petitioner on the post of Instructor is 01.10.1977 and the date of confirmation is 01.10.1978. Therefore, learned counsel for the petitioner has submitted that when the petitioner was being treated as confirmed Instructor with effect from 01.10.1978 then how his regularisation could have been denied on the pretext that his qualification was not sufficient.
7. Learned counsel for the petitioner has further drawn attention of this Court towards Annexure No.6 to the writ petition whereby the Committee of the Technical Education recommended the case of the petitioner for regularisation indicating the fact that the petitioner was having diploma in Civil Engineering having marks of 64.58% whereas the requisite qualification was 65%. In the said recommendatory letter, it has categorically been indicated that on account of the aforesaid fact the services of the petitioner was not regularised earlier, however it may be regularised providing him relaxation. The petitioner has also drawn attention of this Court towards Annexure No.7 to the writ petition, which is a letter dated 11.09.2006 preferred by the Principal, Hewett Polytechnic, Mahanagar, Lucknow to the Director, Technical Education, U.P., Kanpur recommending the candidature of the petitioner for relaxation of his qualification.
8. As per learned counsel for the petitioner when no decision has been taken by the State Government till 20.06.2010 the duly constituted Committee of the Board of Technical Education again recommended the candidature of the petitioner on 20.06.2010, which is contained as Annexure No.9 to the writ petition, for recommending relaxation in the qualification of the petitioner and also considering the long service of the petitioner, it has also been recommended that his services may be regularised but no decision has been taken by the State Government till 30.06.2010 i.e. the date of his superannuation. Admittedly, the impugned decision has been taken on 04.10.2010 i.e. after retirement of the petitioner.
9. Learned counsel for the petitioner has further drawn attention of this Court towards Annexure No.10 to the writ petition, which is a letter dated 05.12.2016 preferred by the Director, Technical Education, U.P., Kanpur addressing to the Special Secretary, Department of Technical Education, Anubhag-2, Government of U.P., Lucknow wherein the entire facts and circumstances relating to the petitioner as well as his bonafide grievance has been narrated with the request that since the petitioner has discharged his 33 years long service and he was already made confirmed on 01.10.1978, therefore, his educational qualification may be relaxed so that his entire services could be regularised and he could get his post retiral benefits. Learned counsel for the petitioner has given a specific recital to that effect in para-20 of the writ petition and in paras-21 and 22 of the writ petition he has submitted that since the copy of letter dated 05.12.2016 was not forwarded to the petitioner, therefore, he could not know about the letter dated 05.12.2016. As per learned counsel for the petitioner, had he been provided the copy of the aforesaid letter dated 05.12.2016, he would have assailed the inaction on the part of the opposite parties whereby the bonafide and genuine claim of the petitioner has been turned down. The aforesaid recommendatory letter clearly reveals that at the time of initial selection the marks of the petitioner in diploma in Civil Engineering i.e. 64.58% were rounded off as 65%, meaning thereby the qualification of the petitioner was considered appropriate as per the law.
10. Per contra, Sri S.P. Singh, learned Chief Standing Counsel-I has submitted that the petitioner has filed this writ petition assailing the order dated 04.10.2010 and there is much delay in filing the instant writ petition and on account of the aforesaid delay this writ petition is liable to be dismissed.
11. Sri S.P. Singh has referred the dictums of Hon'ble Supreme Court in re: State of Orissa vs. Damodar Nayak reported in 1997 4 SCC 560, State of Orissa vs. Mamta Mohanty reported in 2011 3 SCC 436, State of Gujarat and others vs. Arvind Kumar Tiwari and another reported in 2012 9 SCC 545, Pramod Kumar vs. U.P. Secondary Education Service Commission and others reported in AIR 2008 SC 1817 and M.S. Patil vs. Gulbarga University and others reported in AIR 2010 SC 3783 by submitting that since the petitioner was not fulfilling the requisite qualification at the time of his initial appointment, therefore, his initial appointment was void ab initio, hence, the State Government has rightly rejected the claim of the petitioner. Sri Singh has also submitted that the educational qualification could have been relaxed at the very inception but not after 33 years of his service.
12. On being confronted as to why the specific objection was not raised when the marks of the petitioner were rounded off from the 64.58% to 65% by the duly constituted committee while selecting the petitioner on the post of Instructor (Civil) on 01.10.1977 and as to why the objection was not made when the services of the petitioner was made confirmed on 01.10.1978 and as to why no such objection was raised when the petitioner was paid one additional increment after completion of his 10 years service when the payment of salary was being made to the petitioner from the State Exchequer with effect from 01.10.1977, learned Chief Standing Counsel-I has submitted that the said fact was not properly considered by the State Authorities at that point of time, however, when the matter was put up in the year 2006 a conscious decision was taken and lastly the order dated 04.10.2010 has been passed rejecting the claim of the petitioner. I think that this explanation of learned Chief Standing Counsel-I may not be considered as valid and appropriate explanation.
13. Again a specific query was put to the learned Chief Standing Counsel-I as to why no proper decision has been taken on the letter dated 05.12.2016 preferred by the Director, Technical Education, U.P., Kanpur addressing to the Special Secretary, Department of Technical Education, Anubhag-2, Government of U.P., Lucknow, which is contained as Annexure No.10 to the writ petition, the learned Chief Standing Counsel-I has submitted that since already a conscious decision was taken on 04.10.2010, therefore, no further decision was required to be taken as the State Government may not review its own decision.
14. The aforesaid submission of Sri Singh may be correct to the extent that the State Government may not review its own decision but there is one more fact which is worth considerable is that earlier all facts and circumstances were not properly put up before the State Government, particularly, the fact that the qualification of the petitioner was treated appropriate by the duly constituted Committee by rounding off the marks of the petitioner for his qualification i.e. the diploma in Civil Engineering and the services of the petitioner was made confirmed on 01.10.1978 and he was paid one additional increment after completion of his 10 years service, therefore, it was required from the State Government to pass appropriate order disposing of the letter dated 05.12.2016 preferred by the Director, Technical Education, U.P., Kanpur.
15. The State-respondent has admitted the fact that the letter dated 05.12.2016 was preferred. In the counter affidavit, it has nowhere been averred as to what decision has been taken by the Competent Authority on the letter dated 05.12.2016 preferred by the Director, Technical Education, U.P., Kanpur. Only this much has been stated that since the claim of the petitioner was rejected vide order dated 04.10.2010, therefore, the State Government has not reviewed its order.
16. So as to adjudicate the present issue, it would be apposite to deal with the contents of letter dated 05.12.2016, which is contained as Annexure No.10 to the writ petition. The aforesaid letter, as per my opinion, covers each and every aspects of the present issue. This letter categorically provides that initially the appointment of the petitioner was made pursuant to the Government Order dated 22.12.1972 wherein the minimum qualification was prescribed as 65% in Engineering diploma and the petitioner was having such diploma with 64.58%. Since the qualification of the petitioner was lacking by 0.42%, therefore, the committee rounded off the said qualification of the petitioner and treated the same as 65%. This letter further provides that treating the qualification of the petitioner as appropriate after rounding off the same the petitioner was not only appointed on the post of Instructor on 01.10.1977 but he was also made confirmed on 01.10.1978. As per this letter since the petitioner was made confirmed, therefore, his case could not have been put up before the Committee for regularisation on 06.08.2006. This letter also says that the petitioner was granted one additional increment after completion of 10 years of service. The aforesaid letter further says that if any employee fulfills three conditions i.e. (i) the post in question is created by the State Government, (ii) the employee has been paid his salary and other benefits from the Public Exchequer duly sanctioned by the State Government and (iii) the employee has completed 10 years regular service, the employees may be entitled for pensionery benefits. As per the aforesaid letter, the petitioner is fulfilling (i) & (ii) conditions inasmuch as the post on which the petitioner was functioning is a post created by the State Government and the petitioner has been paid his salary and other benefits from the State Exchequer duly sanctioned by the State Government. So far as the condition no.(iii) is concerned, since the matter of the petitioner was sent before the State Government for regularisation, which was not granted, therefore, this condition has not been satisfied by the petitioner. As per this letter, since the petitioner has already been made confirmed on 01.10.1978 and if the relaxation of the educational qualification is required, the same can be done strictly in terms of Section 22-A of the Act, 1962. Therefore, it has been recommended that the educational qualification of the petitioner may be relaxed, which was lacking 0.42% and was admittedly rounded off at the time of his selection and the services of the petitioner be regularised so that he may be paid his entire post retiral benefits.
17. The aforesaid letter dated 05.12.2016 preferred by the Director, Technical Education, U.P. appears to be reasonable and appropriate and the recommendation so given in favour of the petitioner is bonafide and are suited to the concept of welfare State as enshrined under the Constitution of India. The employees of the State Government may not be deprived of their genuine and bonafide claims in the garb of technicalities. It has been the State Policy as per the Constitution of India that unless there is any cogent reason which may not be avoided legally, the employees of the State Government should not be discriminated. Since no decision has been taken by the authority of the State Government pursuant to the letter dated 05.12.2016, therefore, it would be appropriate that the State Government should take any appropriate decision strictly in terms of the recommendation of letter dated 05.12.2016 and should pass appropriate order considering the fact that the petitioner has discharged about 33 years continuous service and after his retirement on 30.06.2010 he has not been paid a single penny in the name of his post retiral benefits for the reason that his educational qualification was not relaxed by the State Government despite the fact that the State Government was having such powers to relax the same. Even otherwise in view of the facts and circumstances of the present issue, the Director, Technical Education, U.P., has himself submitted that at the time of initial appointment of the petitioner on the post of Instructor, his marks 64.58% in Civil Engineering diploma has been rounded off as 65% and thereafter the petitioner was appointed on the said post. If the State Government had got any objection from the said rounding off being done by the duly constituted committee, any objection should have been raised at that point of time since the relevant papers were sent to the State Government for the reason that salary etc. is paid from the State Exchequer but admittedly no such objection has been raised. Not only the above, even the petitioner was made confirmed on 01.10.1978 and thereafter after completion of his 10 years service he was paid one additional increment and admittedly the State Government has not raised any objection to that effect.
18. Admittedly, the State Government was making payment of salary etc. to the petitioner till his retirement and it is not the case wherein the State Government could have said that since the qualification of the petitioner was not appropriate at the very inception, therefore, no relaxation could have been given to him after 33 years of his service. The employee may not be subjected to hostile discrimination for the lapse on the part of the State instrumentality and the entire 33 years service of the petitioner may not go in vain for the technical ground that the petitioner was not fulfilling his educational qualification. Being a model employer the endeavour of the State Government should be to provide appropriate benefits to its employees without making any discrimination and if the employee is subjected to discrimination for no cogent and valid reasons, the said inaction on the part of the State agencies would be considered as illegal, arbitrary and uncalled for.
19. Since no appropriate decision has been taken by the State Government on the letter dated 05.12.2016 preferred by the Director, Technical Education, U.P. addressing to the Special Secretary, Department of Technical Education, Anubhag-2, Government of U.P., Lucknow, therefore, it would be appropriate and also in the interest of justice that the State Government be directed to take appropriate decision on the aforesaid letter dated 05.12.2016 and pass appropriate order considering the contents of the letter dated 05.12.2016 carefully ignoring the order dated 04.10.2010. So far as the ground of delay in filing the present petition has been taken by the learned Chief Standing Counsel-I, I find that the petitioner has properly explained the reason of delay in challenging the order dated 04.10.2010, therefore, such ground of delay is hereby rejected.
20. Since the direction to take appropriate decision on the letter dated 05.12.2016 is being issued, therefore, the order dated 04.10.2010, which is contained as Annexure No.SCA-4 is not sustainable in the eyes of law.
21. Accordingly, the order dated 04.10.2010, which is contained as Annexure No.SCA-4 to the short counter affidavit, passed by the Deputy Secretary, Department of Technical Education, Anubhag-2, Government of U.P, Lucknow addressing to the Secretary, Board of Technical Education, U.P., Lucknow is hereby quashed.
22. A writ in the nature of mandamus is issued commanding the Principal Secretary/ Secretary/ Special Secretary, Department of Technical Education, Anubhag-2, Government of U.P., Civil Secretariat, Lucknow to consider and pass appropriate order on the letter dated 05.12.2016 preferred by the Director, Technical Education, U.P., Kanpur, which is contained as Annexure No.10 to the writ petition, such order should be speaking and reasoned one and the factum of 33 years continuous service of the petitioner, which was made confirmed on 01.10.1978, should be dealt strictly in accordance with law and if the State Government finds that the grievance of the petitioner is bonafide, as per the settled proposition of law, appropriate order shall be passed with promptness preferably within a period of six weeks from the date of production of a certified copy of this order and the decision thereof shall be communicated to the petitioner forthwith.
23. It is made clear that this Court expects the promptness on the part of the State Authorities for the reason that more than nine years period have lapsed since the retirement of the petitioner and he has not received a single penny in the name of post retiral benefits.
24. The writ petition is disposed of finally in view of the aforesaid terms.
25. No order as to costs.