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2003 DIGILAW 313 (GAU)

Bimal Kumar Chanda v. State of Tripura

2003-07-21

AFTAB H.SAIKIA

body2003
JUDGMENT A.H. Saikia, J. 1. Heard Mr. A.L. Saha, learned Counsel appearing for the Petitioner. Also heard Mr. S. Chakraborty, learned State Counsel, appearing for the State Respondents. 2. This is the third round of litigation launched by the Petitioner pertaining to his extension of age of superannuation from 58 years to 60 years for rendering his service as Reader in B.B. Evening College, Agartala. In the first instance, the Petitioner approached this Court through Civil Rule No. 239 of 1995 alleging that his prayer for extension of his age of superannuation from 58 years to 60 years was illegally and arbitrarily refused by the authority. His case is that as per University Grants Commission (for short UGC) guideline a teacher is entitled to for 2 years extension from his original date of superannuation. In other words, an extension is generally allowed for 2 years from 58 years, being the age of superannuation, up to the age 60 years. The Petitioner's date of superannuation was on 30.04.1994. Prior to his retirement, the Petitioner applied on 15.03.1994 for his extension. But his application was not attended to within the period before his retirement for the reason best known to the authority, and it was on 02.06.1994 he was informed that his prayer for extension was rejected on the ground that at the time of consideration of his case for extension, there was no vigilance clearance in his favour. On inspection of material available on record, it is seen that the UGC in its guideline has prescribed 3 conditions, essential for consideration of extension of services of the teachers after superannuation which may be noticed as under: (i) Vigilance clearance from Administrative Reforms Department of the officer concerned; (ii) Medical Fitness Certificate; (iii) Recommendation of the Principal of the College in which the Teacher is working. Further in para 19 of the UGC guideline, it is specifically provided that the age of superannuation for teacher will be 58 years and thereafter extension in service may be considered for period of 1 year each up to the age of 60 years depending upon the merit of each. 3. Further in para 19 of the UGC guideline, it is specifically provided that the age of superannuation for teacher will be 58 years and thereafter extension in service may be considered for period of 1 year each up to the age of 60 years depending upon the merit of each. 3. this Court upon hearing the learned Counsel for the parties and having regard to the forenoted UGC guideline, rejected the prayer of the Petitioner on 14th August, 1996, holding that since the Petitioner's case for extension could not be considered by the authority due to the absence of vigilance clearance which was, in the opinion of the Court, a very fatal to the Petitioner's case, though he satisfied other two criteria i.e. medical fitness certificate and recommendation of the Principal of the College in which the Teacher is working, there was no illegality in not considering the Petitioner's case as extension of service was not automatic. Being dissatisfied with the judgment, the Petitioner carried the matter in his second leg of litigation to the Writ Appellate Court in Writ Appeal No. 80 of 1996 claiming enhancement of superannuation age and the Hon'ble Division Bench by its order dated 20.12.1996 dismissed the appeal without interfering with the findings of the learned Single Judge. 4. Thereafter a disciplinary proceeding was initiated against the Petitioner on 24.07.1997 after 3 years of his superannuation and the same was culminated on 01.07.1998 with the date of findings, holding him guilty of the Article of Charge No. III. Feeling aggrieved by such finding, the Petitioner approached this Court again by filing W.P.(C) No. 268 of 2000 and this Court by order dated 26.11.2001 allowed the Writ Petition exonerating him from all the charges. 5. Now, since the Petitioner has been exonerated from the charges levelled against him in the disciplinary proceeding after his retirement, he has once more moved this Court for the third time through this writ petition making a similar prayer as that of in earlier Civil Rule No. 239 of 1995 claiming the extension of service for 2 years i.e. up to the age of 60 years. The contention of the Petitioner, this time, is that as his case for extension was not considered earlier for want of Vigilance clearance, now once he is being exonerated from all the allegations levelled against him by this Court's order dated 26.11.2001 as referred above, he is entitled to such extension and accordingly, he may be allowed to get all the financial benefits holding him to be in service till 30.04.1996. 6. Praying for such 2 years extension in service, Mr. A.L. Saha, learned Counsel has forcefully argued that if this Departmental proceeding would have been initiated and disposed of earlier prior to his retirement, he would, in all probability, have got the vigilance clearance and resultantly he could have got the benefit of extension as prayed for; but due to non-challant attitude of the authority in disposing of the departmental proceeding, his case could not be considered by the authority at the relevant time. His clear case is that his prayer for extension has, at no point of time, been rejected by the authority as reflected from the record but could not be considered for non-availability of the vigilance clearance being one of the pre-conditions for consideration of the case of extension as indicated above. According to Mr. Saha, once the Petitioner had been exonerated from all the charges by this Court on 26.11.2001, that can be treated as his vigilance clearance and now the authority may be directed to consider his case. 7. To bolster up his submission Mr. A.L. Saha, learned Counsel for the Petitioner has relied on two decisions of the Apex Court, namely Mohinder Singh Gill and Anr., Appellant v. The Chief Election Commissioner, New Delhi and Ors., Respondents, reported in AIR 1978 SC 831 and All India Judges Association and Ors., Petitioners v. Union of India and Ors., Respondents, reported in AIR 1993 SC 2493 . 8. Controverting the contentions made in this writ petition, the State Respondent has responded by filing affidavit-in-opposition (for short affidavit). Relying on the averments made in the affidavit. Mr. 8. Controverting the contentions made in this writ petition, the State Respondent has responded by filing affidavit-in-opposition (for short affidavit). Relying on the averments made in the affidavit. Mr. Chakraborty, learned State Counsel has submitted that the present writ petition itself is hit by principle of resjudicata inasmuch as the issue raised herein has been directly and substantially in issue in the former writ proceeding i.e. Civil Rule 239 of 1996 between the same parties wherein the Petitioner made exactly similar and identical prayer for extension of his age of superannuation to 60 years as made in this petition. Since the said issue has already been heard and finally decided, there is no scope for this Court to re-open the same matter in this writ proceeding. learned Counsel for the State has further contended that the extension as claimed by the Petitioner is not a matter of right and the authority is duty bound to consider the prayer of such extension in accordance with law i.e. on merit taking into consideration the three criteria as already mentioned above. Since the Petitioner's case was not considered due to non-availability of vigilance clearance and by this time the Petitioner also retired, the Petitioner is not entitled to any relief from this Court. 9. I have given my thoughtful consideration to the rival submissions advanced on behalf of the parties at length and also perused the materials available on record including the judgment and order dated 14.08.1996, 20.12.1996 and 26.11.2001 passed by this Court pertaining to the issue at hand. On overall consideration of the factual situation of the case and having regard to the judicial decisions referred above, it appears that the Petitioner's case could not be considered by the authority for want of vigilance clearance and such action of the authority has got the judicial approval of this Court as already noticed. For mere exoneration from the disciplinary proceeding vide Court's order dated 26.11.2001, the Petitioner cannot be permitted to reagitate the same issue which was earlier decided finally by this Court and, as such, this Court does find enough force in the submission of the learned State Counsel that this matter is hit by the doctrine of resjudicata. For mere exoneration from the disciplinary proceeding vide Court's order dated 26.11.2001, the Petitioner cannot be permitted to reagitate the same issue which was earlier decided finally by this Court and, as such, this Court does find enough force in the submission of the learned State Counsel that this matter is hit by the doctrine of resjudicata. Apart from that, it is admitted position that the Petitioner already retired on 30.04.1994 and the enhancement of age of superannuation under Service Jurisprudence, being a discretionary one, cannot be extended after the actual date of superannuation of the incumbent. The case of All India Judges Association (supra) cited above by Shri Saha, learned Counsel for the Petitioner, speaks of the said proposition of law. The Apex Court, in the said judgment in paragraph 10(b) observed that the case of enhancement of superannuation age should be assessed and evaluated well within the time before the incumbent attains the age of superannuation. Moreso, an extension of service after superannuation cannot be claimed as a matter of right. The competent authority is always at liberty to consider the merit of each case whether to grant extension or not. In that view of the matter, this Court is disinclined to approve the submissions made on behalf of the Petitioner. 10. For the foregoing reasons, discussions and observation, I may of the considered view that this present writ petition is devoid of merit and accordingly the same stands dismissed. No costs. Petition dismissed