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Allahabad High Court · body

1986 DIGILAW 909 (ALL)

S. P. Gupta v. University of Roorkee

1986-12-02

A.P.MISRA, B.D.AGARWAL

body1986
JUDGMENT A.P. Misra, J. - The petitioner by means of this writ petition has challenged the order dated 3rd January 1986, passed by the Vice-Chancellor by virtue of which, on account of his attaining the age of sixty years, he is retired with effect from 28th August, 1986. He also sought for a direction in the nature of mandamus directing the respondents to allow the petitioner opportunity to opt for pension in pursuance to Government Order dated 22nd September, 1984 (Annexure-VI to the writ petition.) 2. The petitioner is working as Research Technician in the department of Earthquake Engineering University of Roorkee. The said University is constituted under the Roorkee University Act, 1947, and is governed by the said Act, Rules and Regulations framed thereunder. The petitioner was initially appointed as a routine grade clerk and worked up to 31st August, 1953 and then on 1st September, 1953, he was selected to the cadre of Lab. Assistant in the department of Civil Engineering. On 1st January, 1958, he was selected to the cadre of Junior Lab. Technician and thereafter was selected to the cadre of Senior Lab. Technician in the said department where he joined on 1st October, 1958. On 6th February, 1967, he was then selected to the cadre of Research Technician and was in exclusive charge of Earthquake Engineering Laboratory. According to the petitioner, the establishment of the University, which dealt with the Earthquake Engineering, was later on segregated from the department of Civil Engineering and conferred the status of a separate department under the University and it ultimately came to be known as department of Earthquake Engineering. 3. According to the petitioner, he was born on 29th August, 1926, and he completed the age of sixty years on the 28th August, 1986. The case of the petitioner is that under Regulation 34.4 as amended by the University the word "semester" occurring earlier has been replaced with the word "session" by virtue of which he is entitled to continue in service till 30th June, 1987. The case of the petitioner is that under Regulation 34.4 as amended by the University the word "semester" occurring earlier has been replaced with the word "session" by virtue of which he is entitled to continue in service till 30th June, 1987. Relevant portion of Regulation 34.4 is quoted hereunder "Subject to the provisions of the Rorkee University Act and the regulations ail appointments to posts under the University shall ordinarily be made on probation for a period of one year after which period the employee, if confirmed, shall continue to hold his office subject to the provisions of the said Act, Rules and Regulations, till the close of the academic session in which he attains the age of sixty years when he shall retire." It is not in dispute that if this regulation is applicable to the petitioner he would retire on 30th June, 1987, which is the close of the academic session in which the petitioner attained the age of sixty years. 4. The only argument raised by the respondent University was the Regulation 34.4, only applies in the case of a teacher and not to the other employees. This argument is unsustainable and cannot be accepted. It is significant that this Regulation used the words "all appointments to post under the University." This does not speak only about teachers. The word `posts' in the context of Chapter 34 is bound to be wider than merely the teachers. Chapter 34 deals with terms and conditions of service. Regulation 34.1 states that all teachers, officers and other employees of the University shall be contract employees and has been categorized therein. In view of this the use of the words "appointments to posts under the University" used under Regulation 34.4 will include as aforesaid the teachers, officers and other employees of the University. It is not disputed by the respondents that the petitioner joined the post under the University. The only argument was that this Regulation is applicable only in the case of teacher. 1 he petitioner has stated that tine respondent University itself took the stand in his letter dated 14th September, 1979, which is Annexure-11 to the writ petition, that not only teachers but other employees would also be covered under it. The only argument was that this Regulation is applicable only in the case of teacher. 1 he petitioner has stated that tine respondent University itself took the stand in his letter dated 14th September, 1979, which is Annexure-11 to the writ petition, that not only teachers but other employees would also be covered under it. However, it has been argued on behalf of the respondent that the Government did not modify its earlier order dated 17th March, 1977, by virtue of which benefit was given only to the teachers. The Government Order dated 19th March, 1977, is Annexure-2 to the counter affidavit. The said order did not go into the question whether the said Regulation applies only to teachers or to other posts, but only clarified in respect the teachers. In view of this no question arises about any modification of the said order. Irrespective of this the Regulation 34.4 is very clear and any order passed either by the University or the Government cannot modify the said Regulation so long the said Regulation stands, which has not been amended. There cannot be any other interpretation except that it is applicable not only to the teachers but to the other employees who have been appointed to the post under the University. Regarding this regulation no other argument was placed on behalf of the respondent University. In view of this, we are of clear opinion that the petitioner is entitled to the benefit of this Regulation and he is entitled to be retained on the said post till 30th June, 1987. 5. The second argument raised on behalf of the petitioner was that he is entitled to the benefit of person as has been made available to the employees of University by the Government Order dated 22nd September, 1984. The case of the petitioner is that he has been working the cadre of Research Technician in the department of Earthquake Engineering since last about nineteen years, from 6th February, 1967 till date and the petitioner has been offered the salary in the revised scale of Research Technician with effect from 1st April, 1974. However, it seems the stand of the respondent is that benefit of the aforesaid Government Order cannot be availed by the petitioner as he was on the temporary post. However, it seems the stand of the respondent is that benefit of the aforesaid Government Order cannot be availed by the petitioner as he was on the temporary post. In respect of this tire petitioner made a representation t.o the Registrar through the Head of the Department vide letter dated 17th March, 1986, that he should be supplied with the option form, so that he may opt for pension. However, it seems that the Registrar by means of letter dated 17th May, 1986, informed the petitioner that pension benefit extended and the Government Order could not be made available to the petitioner as he was holding the temporary post. Similar representations subsequently, it seem had also been rejected by the Registrar. In the present case, the petitioner apart from alleging that since he is working as Research Technician for more than 19 years would be deemed to be confirmed by virtue of Regulation 34.5. He has also annexed along with the Rejoinder Affidavit Annexures-2 and 3 which are extract from the; budget estimate.for 1981-82 and letter dated 16th January, 1985, respectively showing that the petitioner's name was included in the said budget showing the increment received by him and also that he was given the benefit of the revised scale in the case of Research Technician. The question whether the said post held by him was a temporary post or not is a question of fact which cannot be properly decided in the present writ petition. However, since the petitioner has brought certain facts in the rejoinder affidavit we feel expedient in the interest of justice that the petitioner may make a fresh representation to the Vice-Chancellor giving all the details along with annexures enclosed in the rejoinder affidavit for his consideration whether the post held by him was a temporary post or not. We have no doubt on proper representation being made by the petitioner the Vice-Chancellor would consider the case of the petitioner whether on the facts and circumstances of his case the petitioner is entitled to the pension or not in pursuance of the Government Order dated 22nd September, 1984. In view of the very short period of service left in the case of the petitioner, we hope he would decide the same within six weeks of the representation being made by the petitioner along with the certified copy of this order. 6. In view of the very short period of service left in the case of the petitioner, we hope he would decide the same within six weeks of the representation being made by the petitioner along with the certified copy of this order. 6. In view of the aforesaid, we allow the petition in part and issue a mandamus to the respondent to treat the petitioner in service till 30th June, 1987. Regarding second relief, the petitioner may make a representation to the Vice-Chancellor for appropriate relief.