Hon'ble Manish Mathur,J.
Heard learned Additional Chief Standing Counsel on behalf of petitioner.
In view of order being proposed to be passed, notices to opposite party stand dispensed with.
Petition has been filed against the judgment and order dated 28.03.2019 passed by the U.P. State Public Services Tribunal in Claim Petition No.460 of 2009(Sarika Sircar vs. State of U.P. & Ors.).
From a perusal of the judgment under challenge, the factual situation which emerges is that the petitioner was appointed as ad-hoc lecturer by the State Government through a Selection Committee headed by Director Higher Education on the post of Lecturer History at Government Girls Degree College Jhansi on 06.04.1998. In 2001, the Government issued U.P. Regularization of Ad-hoc Appointment [On the posts within the purview of Public Service Commission) (Third Amendment)] Rules, 2001. According to this Rule, all employees of the State Government who had been appointed before 2001 on various posts on ad-hoc basis were to be regularized.
In pursuance of this rule a Selection Committee considered the case of the teachers who had been appointed along with petitioner in 1998 for regularization. According to petitioner, at the time of meeting of the Regularization Committee on 04.01.2005, complete records in respect to her were not available and hence she was not accorded the benefit of regularization. 61 ad-hoc teachers were found fit and orders regarding their regularization were issued on 03.02.05 including Sri Krishna, Km. Meera and Sri Indrajeet, who were junior to the petitioner.
Later on, the petitioner was regularized on 06.07.2005 vide order bearing the same date. The petitioner states that this delayed regularization was absolutely arbitrary, unreasonable and unjustified as she could not be held responsible for the non-availability of any record at the time of Regularization Committee meeting on 04.01.05. She has contended that unless she is provided regularization from 03.02.05, she would be placed lower than her juniors in the seniority list in violation of Rule 5 of the U.P. Government Servant (Seniority) Rules, 1991.
Furthermore, between 03.02.2005 and 06.07.2005, a major development took place, by which rules known as U.P. Retirement Benefit (Amendment) Rules 2005, came into effect and enforced on 07.04.2005. The said Rule covers all the substantive appointments made on or after 01.04.2005. The new appointees after 01.04.2005 are covered by the New Pension Scheme. As a result of enforcement of these Rules, the petitioner became disentitled from the benefits of old pension scheme, which is however, available to her counterparts who had been regularized before 01.04.2005, by order dated 03.02.2005.
Petitioner preferred two representations dated 02.09.2007 and 15.07.2007 for redressal of her grievance but they were not disposed of in time. As a result petitioner preferred a W.P. No.1601(S/B) of 2007 (Sarika Sircar Vs. State of U.P. & Others) in which the Hon'ble High Court directed the State Government to consider and dispose of the representation preferred by the petitioner within a maximum of two months from the date of receipt of certified copy of the judgment and order dated 20.12.2007. After this order of the Hon'ble High Court, the Government heard the petitioner in person on 16.06.2008, but again no order was passed till October 2008. Petitioner filed Contempt Petition Cr. Misc. Case No.1720 (C) of 2008 and the Hon'ble High Court issued contempt notices to Principal Secretary Higher Education. On receipt of contempt notices the opposite party passed the impugned order dated 07.11.2008, rejecting the representation of the petitioner without any cogent reason. In the impugned order, it was mentioned that as the petitioner had availed a leave of 257 days which was treated as break in service, she had not been found suitable for regularization by the Regularization Committee in its Meeting dated 04.01.2005. This statement has been denied by the petitioner who has stated that she was never communicated anything in this regard that she had not been found suitable for regularization.
According to the petitioner the leave taken by the petitioner was duly sanctioned by the competent authority on 10.03.2005 and therefore the period of leave was automatically regularized. As such, there was no break in her service and hence she was entitled to be regularized from the same day as other similarly situated persons were regularized."
Apparently, no counter affidavit was filed by the opposite parties to the Claim Petition and therefore, the petition was directed to be heard ex parte vide order dated 27.01.2010. Subsequently, the petition was dismissed in default of appearance and an application for restoration of petition to its original number was filed, to which the opposite parties to the claim petition filed their response but no counter affidavit was filed to the original Claim Petition. It appears that even after restoration of the petition, the ex parte order dated 27.01.2010 was also not sought to be recalled. In these circumstances, the Claim Petition was decided by means of the impugned judgment on an ex parte basis.
Learned counsel appearing on behalf of petitioner has vehemently submitted that it was incumbent upon the tribunal to have afforded an opportunity of hearing to the petitioner herein and therefore the judgment under challenge is vitiated on that account alone. It has further been submitted that the claim petitioner did not have continuous service and therefore she could not have been considered for regularization with effect from 03.02.2005 and even otherwise since her date of substantive appointment/regularization is July 2005, she cannot be granted seniority over and above other employees whose date of substantive appointment is 03.02.2005. It is submitted that the aforesaid factors were not considered by the tribunal while passing the impugned judgment.
From a perusal of the impugned judgment, it is apparent that the claim petitioner was appointed as Ad hoc Lecturer on 06.04.1998 and her claim for regularization was considered by a Selection Committee constituted in terms of the U.P. Regularization of Ad hoc Appointment (on the posts within the purview of Public Service Commission) (Third Amendment) Rules, 2001. In the meeting of the Regularization Committee held on 04.01.2005, the consideration of claim petitioner's regularization was deferred in view of the fact that complete records with respect to her were not available, although 61 other Ad hoc Teachers were found fit and orders pertaining to their regularization in service were issued on 03.02.2005. As noticed by the tribunal, the claim petitioner had submitted that the persons such as, Sri Krishna, Km. Meera and Sri Indrajeet, who were junior to the petitioner were regularized with effect from 03.02.2005 whereas petitioner was subsequently regularized on 06.07.2005.
It has been noticed by the Tribunal that between 03.02.2005 and 06.07.2005, a major development took place by the notification of U.P. Retirement Benefit (Amendment), Rules 2005 which came into effect on 07.04.2005 whereby new appointees after 01.04.2005 were to be covered by the new pension scheme. The grievance of claim petitioner was that due to her regularization being effected from 06.07.2005, she would be deprived of the old pension scheme benefits.
The tribunal in its impugned judgment has recorded the fact that in the First Selection Committee Meeting held on 04.01.2005, the leave of absence of 257 days by the petitioner was treated as a break in service due to which she was not found suitable for regularization. From the order dated 07.11.2008 impugned in the claim petition, however, it emerged that the said 257 days of absence of the claim petitioner was subsequently duly regularized as leave without pay vide order dated 10.03.2005.
The tribunal, in view of aforesaid, has categorically recorded that once the decision to grant her leave without pay was taken, the very ground on which the claim petitioner had been denied regularization by the earlier departmental committee, vanished. It has also been recorded that there is nothing on record to show that there was anything else adverse to the claim petitioner to have effective her suitability for regularization.
The factual situation as recorded by the Tribunal has not been disputed in the Writ Petition.
Upon consideration of submissions advanced by learned counsel for petitioner and upon perusal of material available on record, particularly the impugned judgment, it is admitted that the leave of 257 days taken by claim petitioner although treated as a break in service in the First Selection Committee Meeting on 04.01.2005, was subsequently regularized as leave without pay vide order dated 10.03.2005. In our considered opinion, the tribunal came to the correct finding that once leave of the claim petitioner was regularized by the authorities themselves, the petitioner became entitled to regularization from the date when other similarly situated persons were regularized in service on 03.02.2005. The tribunal has also correctly come to the conclusion that time taken in reconsidering the case of claim petitioner and issuing a final order of regularization on 06.07.2005 cannot be used as a tool to deprive the claim petitioner of her just rights. It is trite that a party cannot claim benefit of its own wrong.
A perusal of the present petition also does not indicate that there was anything else adverse to the claim petitioner which would have affective her suitability for regularization in service. It is therefore held that the tribunal correctly came to the conclusion that once the period of 257 days of leave taken by the claim petitioner was regularized by the opposite parties themselves, she would definitely have a right to be regularized in service on the date when similarly situated persons were regularized in service.
We have also taken note of the fact that there is considerable laches in filing the present petition in view of the fact that the impugned judgment is dated 28.03.2019 and the present petition has been filed on 13.01.2021. The reasons for laches have been sought to be explained by the petitioner in the writ petition. However, in view of the explanation advanced by petitioner, the laches in filing the present petition are condoned and therefore the petition has been decided on merits at the admission stage itself.
In view of aforesaid, the petition being devoid of merits is dismissed at the admission stage itself.
Order Date :- 19.1.2021 Subodh/-