Research › Search › Judgment

Rajasthan High Court · body

2015 DIGILAW 1003 (RAJ)

UNIVERSITY OF RAJASTHAN v. STATE OF RAJASTHAN

2015-05-06

AJIT SINGH, SUNIL AMBWANI

body2015
JUDGMENT : SUNIL AMBWANI, J. 1. This intra-Court D.B. Special Appeal arises out of the judgment of learned Single Judge, dated 15.05.2014, by which he has allowed the writ petition, and while setting aside the order dated 16.05.2005, denying the benefit of two advance increments granted to the petitioner from February, 2006, directed the University of Rajasthan to extend the benefit of Career Advancement Scheme of the UGC, under UGC Regulations, 2002, to the petitioner by counting the services rendered by him from the date of his initial appointment, ensuring compliance within two months. 2. Dr. Anil Kumar Bhargav, the petitioner, filed a Writ Petition No.6432 of 2013, for a direction to the respondents to extend the benefit of Career Advancement Scheme(CAS), provided under the UGC Regulations, 2002, in pursuance to Ordinance 141-I of the University of Rajasthan, and to consider the candidature of the petitioner for giving the benefit of Lecturer (Selection Scale) from 10.02.1979; the benefit of Lecturer(Selection Grade) with effect from 15.02.1994; promotion to the post of Reader/Associate Professor with effect from 15.02.1994, or any other suitable date from which the petitioner is entitled, according to the Scheme, with consequential benefits of pay fixation, increment, salary and post retiremental benefits, with interest @ 12% p.a. 3. The petitioner further prayed for giving the benefit of two advance increments, given to him vide order dated 16.05.2005, on acquiring the qualification of Ph.D. during service, which was discontinued/withheld without any order from February, 2006; to make the payment of the withheld two advance increments for the period from February, 2006 to November, 2006, and to make fixation according to his pay, and to fix his post retiremental benefits accordingly, and to make the payment thereof with interest @ 12@ p.a. 4. Brief facts, giving rise to the writ petition, were that the petitioner was initially appointed on the post of Surveyor in the Department of Sociology, University of Rajasthan, Jaipur, vide Office Order dated 09.02.1973, on the recommendations of the Selection Committee. He was confirmed on the post of Surveyor with effect from 26.01.1981 vide Office Order dated 03.04.1981. He was promoted and appointed on the post of Assistant Professor, on adhoc basis, in regular pay scale, vide order dated 15.12.1988. He was confirmed on the post of Surveyor with effect from 26.01.1981 vide Office Order dated 03.04.1981. He was promoted and appointed on the post of Assistant Professor, on adhoc basis, in regular pay scale, vide order dated 15.12.1988. By Resolution No.9(iii), dated 29.03.2003, the Syndicate of the University of Rajasthan, regularized the services of the petitioner on the post of Assistant Professor, vide order dated 24.06.2003, with effect from 29.03.2003. 5. As per CAS, made applicable vide Ordinance 141-I of the University Hand Book Part II, an Assistant Professor, who has completed 6 years of service after regular appointment as Assistant Professor, is eligible for Senior Scale. A person possessing Ph.D. Degree, is exempted in experience by two years. An Assistant Professor, who is running in the Senior Scale and possesses Ph.D. Degree with five years service, is eligible for promotion under CAS, on the post of Associate Professor. In this manner, a candidate having Ph.D. Degree with 9 years of service as Assistant Professor, is eligible, to be granted the Selection Scale on the post of Associate Professor. 6. The petitioner was given the benefit of two advance increments on account of having Ph.D. Degree, vide Office Order dated 16.05.2005. Later on, the benefit was withdrawn by the University of Rajasthan, on the basis of the report of the Account Section of the University, from all such persons. The petitioner retired, on attaining the age of superannuation, on 28.11.2006. 7. The University of Rajasthan defended the writ petition on the grounds that as the Ordinance 141-I of the University Hand Book, Part II, was made applicable in the University of Rajasthan for grant of CAS with effect from 19.05.2001, the petitioner was not entitled to the benefit of Selection Scale as Associate Professor, as he was designated as Assistant Professor with effect from 29.03.2003. He could have qualified for the Selection Scale under CAS, applicable to the Associate Professor, only after he had rendered 4 years of service as Assistant Professor, and thereafter 5 years in Senior Scale i.e. if he was in service upto 29.03.2012. The petitioner retired on 28.11.2006, and thus, he was not eligible for grant of Selection Scale under CAS on the post of Associate Professor. The petitioner retired on 28.11.2006, and thus, he was not eligible for grant of Selection Scale under CAS on the post of Associate Professor. The University of Rajasthan stated in its reply, that the matter relating to withdrawal of two advance increments on account of having Ph.D. Degree in the year 2006, however needs reexamination, in view of the decisions taken by the University in the years 2010, 2011, 2012, 2013, and a clarification received from the State Government in December, 2013. While granting the benefit of Senior/ Selection Scale and promotion on the post of Associate Professor to 272 Assistant Professors in compliance of the order passed in Writ Petition No.15964/2010, the petitioner's case was not found covered, and thus, he was not considered by the University. 8. Learned Single Judge held that so far as grant of two advance increments is concerned, the respondents had admitted that the matter required re-examination, in view of the subsequent decisions taken by the University, and the clarification received from the State Government in December, 2013. While granting the benefit of Senior/Selection Scale and promotion on the post of Associate Professor to 272 Assistant Professors, in compliance of the judgment dated 28.05.2012 in Writ Petition No.15964/2010, deciding 19 writ petitions, the Court had considered the case of the persons similarly situate to the petitioner. They were appointed under Section 3(3) of the Rajasthan University Teachers and Officers (Selection for Appointment) Act, 1974. Initially, some of those persons were appointed in pursuance to the advertisement, and some were given appointment directly, without issuing any advertisement, but they were working for last about 10-15 years. The State Legislature enacted the Rajasthan University Teachers(Absorption of Temporary Teachers) Act, 2008. The University then issued an order on 05.08.2008, to absorb all the Assistant Professors, working on ad hoc/temporary basis, with clarification that prior to 05.08.2008, they will not be entitled to any financial benefit under CAS, and consequential promotions. The writ petitions were allowed with direction to count the entire length of service and all consequential benefits, for the period earlier to 05.08.2008, on notional basis and actual benefits to be paid, only after that date. Learned Single Judge found that since the earlier judgment had been complied with, and an appeal filed before a Division Bench was dismissed, the petitioner is also entitled to the same benefit, and thus, allowed the writ petition. 9. Learned Single Judge found that since the earlier judgment had been complied with, and an appeal filed before a Division Bench was dismissed, the petitioner is also entitled to the same benefit, and thus, allowed the writ petition. 9. In the present case, after retiring on 28.11.2006, the petitioner did not raise any grievance, nor made any representation until 15.03.2013, just before filing the writ petition in the year 2013, after a period of 7 years. There was no explanation in the writ petition, as to why the petitioner kept quiet and waited for 7 years for seeking relief for grant of CAS, and against the withdrawal of two advance increments. In the entire body of the writ petition from paragraphs 1 to 14, there was no explanation for the laches. 10. It is submitted by learned counsel appearing for the University of Rajasthan, that the writ petition was grossly barred by laches, and that learned Single Judge had granted the relief on the basis of a writ petition, decided in 2012, in respect of some other University teachers, without considering that the writ petition was barred by gross laches and in any case, the petitioner was not entitled to any relief, as he had not completed the qualified service. 11. A person, who approaches the Court for relief under Article 226 of the Constitution of India, must satisfy that he was vigilant over his rights. The principle that equity comes to the aid of the vigilant, and not the slumbering, is applicable to the writ proceedings. Although there is no limitation to file writ petition, a person must establish that he/she was vigilant and did not give up his rights on the principles of estoppel. The law of repose requires a person to be alive and conscious of his rights which he should assert. Vigilantibus et non dormientibus jura subservient is a maxim, which has been accepted as a principle by the Writ Courts in India. The law help those who are watchful, and not to those who go to sleep. 12. In the present case, we repeatedly asked learned counsel appearing for the respondent, as to whether the petitioner had made any representation after he retired on 28.11.2006 and before 15.03.2013, before filing the writ petition. The law help those who are watchful, and not to those who go to sleep. 12. In the present case, we repeatedly asked learned counsel appearing for the respondent, as to whether the petitioner had made any representation after he retired on 28.11.2006 and before 15.03.2013, before filing the writ petition. His only answer is that since a wrong has been committed, in denying him the promotion on the post of Associate Professor under CAS, and that two advance increments were wrongly withheld, the petitioner is entitled to the relief as the other teachers were also agitating the same issue. 13. We do not find that the other teachers were raising the same issue as of the petitioner, and in any case, the judgment of this Court in the previous writ petition was considered by the Hon'ble Supreme Court in University of Rajasthan And Another Vs. Prem Lata Agarwal, (2013) 3 SCC 705 , in which it was held that the Assistant Professors/Teachers in different subjects continued for more than two decades, were not entitled to the University Pension Regulations, 1990, as they were appointed on ad hoc basis. The doctrine of deemed confirmation was erroneously applied by the High Court, since respondents were never in officiating service and could not be treated as confirmed. They were not entitled to pension. 14. Learned counsel appearing for the University has placed reliance on the opinion of the Supreme Court in University of Rajasthan And Another Vs. Prem Lata Agarwal(supra), in submitting that the Assistant Professors, who were not appointed regularly, were not entitled to the benefit for counting of their services for any purpose. 15. Ordinance 141-I, in Chapter XXIX, for providing eligibility for grant of Senior Scale to the Lecturers, provided as follows:- “D- Lecturer(Senior Scale): A lecturer will be eligible for placement in a senior scale through a procedure of selection if she/he has: (i) Complete 6 years of service after regular appointment with relaxation of one year and two years, respectively, for those with M.Phil and Ph.D. (ii) Participated in one orientation course and one refresher course of approved duration, or engaged in other appropriate continuing education programme of comparable quality as may be specified or approved by the University Grants Commission. (Those with Ph.D. Degree would be exempted from one refresher course). (iii) Consistently satisfactory performance appraisal reports.” 16. (Those with Ph.D. Degree would be exempted from one refresher course). (iii) Consistently satisfactory performance appraisal reports.” 16. In the present case, the petitioner was appointed as Surveyor, an isolated post, on 09.02.1973,. He was confirmed on the post on 26.01.1981, and was promoted on the post of Assistant Professor, on ad hoc basis, on 15.12.1988. His services were regularized as Assistant Professor with effect from 29.03.2003, and thus, he could claim, to be appointed in regular service, only on 29.03.2003. Under Ordinance 141-I of the University Hand Book, Part II, he could became eligible for grant of Senior Scale on completing 6 years of service after regular appointment with relaxation of two years for Ph.D. Degree. He could thus be considered for placement in a Senior Scale on 29.03.2007. He however had retired on 28.11.2006, and was, thus, not entitled for consideration for placement in a Senior Scale under CAS, which was brought into force in the year 2002. 17. Learned Single Judge committed an error in law in failing to consider that the reliefs, as prayed for by the petitioner, for consideration for placement in a Senior Scale under CAS, and against the order passed by the University withdrawing his two advance increments, could not be adjudicated as the writ-petitioner had slept over his rights for 7 long years before making a representation and then approaching the High Court. The writ petition was barred by gross unexplained laches. The principles of estoppel evolved by the Courts to avoid stale claims did not entitle the petitioner of any relief. 18. Consequently, the Special Appeal is allowed and the judgment of learned Single Judge, dated 15.05.2014, is set aside.