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Gujarat High Court · body

2016 DIGILAW 1375 (GUJ)

Meenakshi G. Buch v. Registrar

2016-07-19

J.B.PARDIWALA

body2016
JUDGMENT : J.B. Pardiwala, J. 1. By this writ application under Article 227 of the Constitution of India, the petitioner calls in question the legality and validity of the order dated 26th February 1999 passed by the Gujarat University services Tribunal at Ahmedabad in the application No. 22 of 1994 filed by the respondent No. 1 herein. 2. The facts of this case may be summarized as under: 2.1. The petitioner herein was promoted on the post of the Technical Assistant by the Saurashtra University at Rajkot. The respondent No. 4 herein, being dissatisfied with such promotion, preferred an application before the Tribunal challenging the decision of the University to promote the petitioner on the post in question. 2.2. The Tribunal, by the impugned order, quashed and set aside the promotion of the petitioner on the post of the Technical Assistant and issued mandatory directions to the University to promote the respondent No. 4 on the post of the Technical Assistant. 2.3. As a consequence of the judgment and order passed by the Tribunal, the petitioner was reverted to the post of Junior Clerk (Assistant). 2.4. Hence, this petition. 3. On 19th April 1999, the following order was passed: "1. Heard the counsel for the parties on the prayer made by the petitioner for grant of interim relief Challenge has been made by the petitioner in this Special Civil Application to the order of the Gujarat Universities Services Tribunal at Ahmedabad in Application No. 22/94 dated 24.2.1999. In this Special Civil Application the petitioner has prayed for the stay of execution and implementation of the judgment and order dated 24.2.1999, 25.2.1999 and 26.2.1999 passed in Application No. 23/94. From the order of the Tribunal I find that the order is to be taken of 26.2.1999 as the Tribunal appears to have started dictation of judgment from 24.2.1999 which it has completed on 26.2.1999. On 25.2.1999 judgment appears to have been partly dictated by the Tribunal. So the date of judgment has to be taken 26.2.1999, i.e. the date on which it has been pronounced. 2. In Application No. 23/94 respondent No. 4 challenged the promotion of the petitioner made by the University on post of Technical Assistant. On 25.2.1999 judgment appears to have been partly dictated by the Tribunal. So the date of judgment has to be taken 26.2.1999, i.e. the date on which it has been pronounced. 2. In Application No. 23/94 respondent No. 4 challenged the promotion of the petitioner made by the University on post of Technical Assistant. Under the impugned order the Tribunal has quashed and set aside the promotion of the petitioner on the post of Technical Assistant and further issued mandatory directions to the University to promote respondent No. 4 on the post of Technical Assistant. As a consequence of this judgment the petitioner has to be reverted to the post of Junior Clerk (Assistant). In this Special Civil Application the petitioner has mentioned that she applied for the copy of the order of the Tribunal on 27.2.1999 and the copy of the same was delivered on 6.4.1999 and immediately this petition has been filed. In paragraph 7 of Special Civil Application the petitioner averred that till date i.e. date on which this petition has been filed, she has not been reverted back to the original post of Assistant and still she is discharging her services as Technical Assistant i.e. promotional post. It is not the case of the petitioner that the judgment of the Tribunal impugned in this Special Civil Application was not pronounced in her presence. If, we go by the pleadings of the petitioner which are made in paragraph No. 8 it is clear that the petitioner knew about the judgment of the Tribunal in all the eventuality on 27.2.1999 on which date she applied for certified copy thereof. This judgment has been pronounced and the order of the promotion of the petitioner has been quashed and set aside by the Tribunal on 26.2.1999, the petitioner immediately on knowing of this order should have withdrawn herself from this promotional post. The order of the Tribunal became effective on pronouncement thereof and no order of reversion of the petitioner needs to be passed by the University. Once the order of promotion has been cancelled, its effect is that the petitioner ceased to be on the post of Technical Assistant from 27.2.1999 in all the eventuality. Continuation of the petitioner on the post of Technical Assistant from 27.2.1999 cannot be taken to be legal and justified. Once the order of promotion has been cancelled, its effect is that the petitioner ceased to be on the post of Technical Assistant from 27.2.1999 in all the eventuality. Continuation of the petitioner on the post of Technical Assistant from 27.2.1999 cannot be taken to be legal and justified. It is understandable and it can be accepted that she has right to challenge this order before this Court, but that right does not give her a right to continue to work on the higher post on which she has been appointed by promotion and that order of her promotion has been quashed and set aside by the Tribunal. In all fairness it is expected of the employee to give effect to the orders of the courts and the Tribunals immediately and not to wait for obtaining certified copy or for consequential executing order to be passed by the employer. She has right to challenge that order, and if, the court considers it to be a fit case where interim relief is to be granted in her favour, the Court will grant the same. The Court will not decline to grant interim relief only on the ground that the petitioner has relinquished promotional post. It is a matter of experience and the knowledge and notice can also be taken of the fact that Courts and Tribunals are taking reasonable time to provide certified copy of the order to the parties concerned. But, that is matter for the concern of the Court and where the employee relinquishes the charge of the post still as stated earlier in the appropriate case, the Court has all the powers to protect the petitioner by grant of interim relief. This conduct of the petitioner to give total disregard and disobedience to the order of the Tribunal itself is sufficient to decline interim relief to her as prayed in this Special Civil Application. 3. The Tribunal has found promotion of the petitioner to be invalid. As a consequence of the order of the Tribunal, the petitioner will be reverted to the post of Assistant. So, it is only the case of reversion. In case in such matter interim relief is not granted by this Court the petitioner will not suffer any irreparable injury which cannot be compensated in terms of money, nor she will put in irretrievable position. So, it is only the case of reversion. In case in such matter interim relief is not granted by this Court the petitioner will not suffer any irreparable injury which cannot be compensated in terms of money, nor she will put in irretrievable position. In case ultimately the petitioner succeeds in this Special Civil Application, certainly the Court has ample power to order for her restoration to the higher promotional post with all the consequential benefits. Grant of interim relief to the petitioner in such matter is otherwise not in favour of the institution. If, ultimately she fails in this Special Civil Application, it is not reasonable and desirable that the order may be passed for returning by her of all the promotional benefits which she enjoyed under the interim order of this Court. She will work on the post of Technical Assistant under the interim order and on general and broad principles of salary for the post on which work will be attracted. So though the petitioner may not be entitled for the continuation on the higher post, she will get benefits of promotional post. Not only this, grant of interim relief of the nature as prayed for by the petitioner in this matter will amount to granting final relief to her at the interlocutory stage. Time and again Their Lordships of the Apex Court have deprecated this practice of grant of final relief, by granting interim relief at the stage where the matter has only been admitted. So taking into consideration the matter from any angle, I do not find it to be a fit case to permit the petitioner to continue to work on the post of Technical Assistant. 4. Under the impugned order the Tribunal directed to give promotion to the respondent No. 4 on the temporary basis on the post of Technical Assistant. This direction prima facie of the Tribunal is not correct. In such matter directions cannot be given in the mandatory form of giving promotion by the employer. Promotion is not a right, but right of consideration for promotion is certainly fundamental right as the employer may or may not be found suitable and that exercise has to be undertaken by the employer. Though, prayer has been made by the petitioner for grant of stay of implementation and operation of the order of the Tribunal, but that prayer cannot be granted in toto. Though, prayer has been made by the petitioner for grant of stay of implementation and operation of the order of the Tribunal, but that prayer cannot be granted in toto. However, in the facts of the case respondent No. 4 cannot be allowed to be promoted by the University to the post of Technical Assistant pending the disposal of this Special Civil Application. Shri J.D. Ajmera, learned counsel for the respondent No. 4 contended that respondent No. 4 in case ultimately succeeds in this Special Civil Application, would suffer loss of the promotion. I do not find any substance in this contention. If, ultimately respondent No. 4 succeeds on consideration of her case for promotion, if she is found suitable, certainly she can be given benefits of promotion from the date of the order of the Tribunal. To the extent of direction of the Tribunal to give promotion to the respondent No. 4 on the post of Technical Assistant, the same is stayed." 4. Thus, it appears that by virtue of the order passed by this Court referred to above, the petitioner did not get any interim relief, but at the same time the Court held that the respondent No. 4 also cannot be allowed to be promoted by the University to the post of the Technical Assistant pending the final disposal of this writ application. The learned Single Judge clarified that if ultimately the respondent No. 4 succeeds, then she may be given the benefit of promotion from the date of the order passed by the Tribunal. 5. I take notice of another order passed by this Court dated 21st December 2012. The same reads as under: 1. Learned Advocate for the respondent-University Mr. Thacker states that, respondent No. 4, who was original applicant before the Tribunal, is not getting any pension today, even for the lower post, from where she has retired. According to Mr. Thacker, the pension case could not be prepared, since the pay verification unit of Local Fund Office raised certain objections vide communication dated 23rd February, 2012. On reading the said letter dated 23rd February, 2012, it transpires that the objection raised by the Local Fund, Rajkot on 23rd February, 2012, was pursuant to the pay verification case sent by the Saurashtra University on 6th February, 2012. On reading the said letter dated 23rd February, 2012, it transpires that the objection raised by the Local Fund, Rajkot on 23rd February, 2012, was pursuant to the pay verification case sent by the Saurashtra University on 6th February, 2012. From the said letter, it further transpires that the said pay verification is for revision of pay of 1998 (effective from 1.1.1996), which was sent to Local Fund in February, 2012. Respondent-Saurashtra University may file affidavit giving details as to when the cases of other employees (teaching and non teaching), were sent to Local Fund, Rajkot, for such pay verification. Be it noted that after pay revision effective from 1.1.1996, next revision also came into force w.e.f. 1.1.2006. Therefore, the respondent-University is directed to place on record details of the said pay revision and correspondence with Local Fund in that regard also. On the face of the above two informations, the delay if any, that University may find in sending the pay fixation case of respondent No. 4 to Local Fund, Rajkot may also be explained. 2. Mr. Thacker further states that on the suggestion of Local Fund, Rajkot papers for provisional pension were sent to the office of Commissioner, Higher Education, on 13th June, 2012. There is nothing on record as to what has happened to the said proposal of provisional pension, which is claimed to have been forwarded to the office of Commissioner of Higher Education, Government of Gujarat. 3. Mr. Thacker further states that after the proposal for provisional pension was forwarded to the Commissioner, Higher Education, no further action is taken with regard to preparation of regular pension case of respondent No. 4. According to him, it is pending, since as per understanding given by the Local Fund Office of Rajkot, until the present petition is decided, final pension case can not be prepared and only provisional pension can be paid. 4. The Respondent No. 4 has retired on attaining the age of superannuation in June, 2012 after serving for 27 years. The main controversy is as to whether the promotion denied to her was justified or not. At this stage the situation is that the respondent No. 4 does not get any pension, even for the cadre from which she has actually retired and where she would be even after loosing in this petition. The main controversy is as to whether the promotion denied to her was justified or not. At this stage the situation is that the respondent No. 4 does not get any pension, even for the cadre from which she has actually retired and where she would be even after loosing in this petition. It is further noted that it is not being paid under the guise of pendency of petition. 5. It is reported that Local Fund, Rajkot, functions under the Administrative Control of Finance Department, Government of Gujarat and for respondent-University, office of the Commissioner Higher Education, would have Administrative Control for such matters. The responsible officer from both these department, not below the rank of Deputy Secretary, who can reconcile and resolve this issue, may be required to be directed to remain present before this Court on 27.12.2012. On that day the Registrar of Saurashtra University may also be required to remain present before this Court. However, appropriate orders giving such direction may be passed on 24th December, 2012. 6. At the request of Mr. Soni, learned A.G.P., list the matter on 24th December, 2012 to take appropriate step." 6. It appears that during the pendency of this writ application, the respondent No. 4 has already retired from service. Unfortunately, due to the pendency of the present proceedings, her pension has not been finalized. 7. Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that no error, not to speak of any error of law could be said to have been committed by the Tribunal in passing the impugned order. 8. I also take notice of the fact that on 23rd June 2005, the petitioner was promoted from the post of the Assistant to the post of the Senior Assistant in the pay scale of Rs. 4,000-6,000/- and thereby was posted in the Coordination Branch. In the same way, by order dated 7th November 2005, the respondent No. 4 was promoted from the post of the Assistant (Library) to the post of the Senior Assistant in the pay scale of Rs. 4,000-6,000/- and was posted in the General Store Department. 9. I take notice of the further affidavit filed on behalf of the respondent No. 1 stating as under: "6. 4,000-6,000/- and was posted in the General Store Department. 9. I take notice of the further affidavit filed on behalf of the respondent No. 1 stating as under: "6. I say that the promotion of respondent No. 4 as ordered by the respondent-University is outside the cadre of respondent no. 4, i.e. from technical post non-technical post. Therefore, I was not agreeable for the said promotion. Vide letter dated 09.11.2005 I informed the Registrar of the respondent-University that I do not want to go on promotion on the post of Senior Assistant. A copy of the said letter dated 09.11.2005 is annexed hereto and marked Annexure-R-8. 7. I further say that I had already completed 9 years of service. Therefore, I was paid salary of Higher Grade in the pay scale of Rs. 4000-6000/-. It may be stated that the aforesaid pay scale of Rs. 4000-6000/- was given on the basis as if I am an Assistant (Library), a technical post. It may be stated that had I been given higher pay scale on the post of Assistant (Library), a technical post, then I would have been paid salary in the basic pay of Rs. 5500/- plus usual allowances. In stead of that I was placed in the pay scale of Rs. 4000-6000/- at the basic pay of Rs. 4000/-. Here also injustice has been done to me by the respondent-University. It may be stated that with a view to do further injury to respondent No. 4, the respondent-University issued an Officer Order dated 28.02.2007, wherein it is stated that as respondent no. 4 refused to accept promotion to the post of Senior Assistant and therefore, higher pay scale which was given to her in the year 1994 is cancelled and her pay was fixed with effect from 12.12.2005 at basic pay of Rs. 4270/- in the pay scale of Rs. 3050 to 4590/-. A copy of the said order dated 28.02.2007 is annexed hereto and marked Annexure R-9. I have objected to the aforesaid impugned order and reduction in salary effected. 8. I further say that it is thus, clear that at every stage the respondent-University has made efforts to injustice to respondent no. 4 and whenever there is an opportunity, the respondent-University has favoured the petitioner as is clear from the aforesaid factual background. 9. I have objected to the aforesaid impugned order and reduction in salary effected. 8. I further say that it is thus, clear that at every stage the respondent-University has made efforts to injustice to respondent no. 4 and whenever there is an opportunity, the respondent-University has favoured the petitioner as is clear from the aforesaid factual background. 9. I submit that therefore, the judgment and order passed by the Tribunal is legal and valid. Respondent No. 4 is entitled to be promoted to the post of Technical Assistant as per the judgment and order of the Tribunal with all consequential benefits as ordered by the Tribunal." 10. Mr. Tanna, the learned senior advocate appearing for the petitioner submitted that the Court may not go into the merits of the matter in the wake of the subsequent developments which have occurred during the pendency of this writ application. He submitted that so far as the respondent No. 4 is concerned, the authority concerned should finalize her pension and other retiral dues, as directed by the Tribunal. 11. In the result, this writ application is disposed of with a direction that the authority concerned shall finalize the pension of the respondent No. 4 and also the other retiral dues if not paid in accordance with the regulations. It is clarified that the pension shall be fixed on the basis of the salary which she would have otherwise drawn if she would have been promoted on the post, as directed by the Tribunal. All other benefits shall also be calculated accordingly. Let this entire exercise be completed within a period of four weeks from the date of receipt of this order. Direct service is permitted.