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Uttarakhand High Court · body

2016 DIGILAW 917 (UTT)

Rajendra Prasad Thapliyal v. Union of India

2016-12-05

ALOK SINGH, RAJIV SHARMA

body2016
JUDGMENT : RAJIV SHARMA , J. This petition is instituted against the order dated 04.06.2011 passed by the Registrar, H.N.B., Garhwal University. 2. Key facts, necessary for adjudication of this petition, are that the post of Chemist was created vide Government Order dated 26.07.1990. Thereafter, under advertisement No.3/1990, applications were invited for filling up the post of Chemist in the Zoology Department in the State H.N.B. Garhwal University. 3. Petitioner, being eligible and qualified, participated in the selection process. He was offered appointment to the post of Chemist in the Zoology Department of the University on 30.10.1990. Since then, petitioner was teaching in Zoology Department of the University as Chemist and consequently, the petitioner since the date of appointment is also teaching Biochemistry (Theory & Practical). Petitioner has placed time table which was certified by Head of the Zoology Department of the University to prove that he was teaching Biochemistry. He also placed on record the copy of office order dated 12.04.1993 which reads as under :- “Vide Government order No.Nil Development section-2 Lucknow dated 26th July, 1990, 3932/26-02-1990-5 (65)/89 T.C. a post of Chemist was created for the Zoology Department Birla Constituent College H.N.B. Garhwal, Srinagar with the justification that the incumbent will teach the Biochemistry part included in the syllabus of Zoology and will conduct the practical work and will initiate the Biochemist research. So the incumbent Dr. R.P. Thapliyal who is approached against the teaching post chemist will get benefit at part to the teaching.” 4. It is evident from the language of Office Order dated 12.04.1993 that the post of chemist was created for the Zoology Department with the justification that the incumbent will also teach the Biochemistry included in the syllabus of Zoology and will conduct the practical work and initiate the Biochemist research. Petitioner has obtained D.Phil and Ph.D. degree. 5. The conditions of the service of the petitioner were regulated at the time of appointment under the U.P. State University Act, 1973 (hereinafter referred to as “the Act”). Section 2(18) of the Act defines, “teacher” to mean, a person employed [for imparting instruction and guiding or conducting research in the University or in any institute or in a constituent, affiliated or associated college] and includes a Principal or a Director. Section 2(18) of the Act defines, “teacher” to mean, a person employed [for imparting instruction and guiding or conducting research in the University or in any institute or in a constituent, affiliated or associated college] and includes a Principal or a Director. Section 2(19) also defines “teacher of University” to mean, a teacher employed by the University for imparting instruction and guiding or conducting research either in the University or in any institute or in a constituent college maintained by the University. 6. Ministry of Human Resource Development Department of Higher Education has issued a Government order on 23.03.2007 whereby the age of retirement of teacher was enhanced to 65 years. 7. H.N.B. University was made the Central University on 15.01.2009. The fact of the matter is that petitioner was retired from his service vide order dated 04.06.2011, annexure 9 to the writ petition with effect from 01.02.2011. 8. Reply has been filed by the respondent Nos. 2 & 3 wherein it is stated that petitioner was appointed as a chemist and was assigned the practical work in the Zoology Department and to encourage the research work in the Zoology Department. The post of Chemist is a non-teaching post. Reference has been made to the Government Order dated 31.12.2008 issued by Ministry of Human Resource Development, Government of India, whereby there are only three designations in respect of teachers in Universities and Colleges, ,namely Assistant Professor, Associate Professor and Professor. 9. Petitioner was teaching Biochemistry which is one of the subject of Zoology in the University. The petitioner has also placed on record the syllabus of B.Sc.II and M.Sc.-I as well as time table. It is evident from these documents that the petitioner was teaching Biochemistry to the students of B.Sc.II and M.Sc. I classes. 10. According to the annexure No.7, the petitioner has been directed to teach Bio-chemistry with practical work. In support of his contention, other documents have also been placed on record by the petitioner. 11. The petitioner had made representation seeking his superannuation at the age of 65 years on the basis of Government Order dated 23.03.2007. The case of the petitioner was duly recommended by Head of Department vide annexure 11 to the writ petition. 12. According to the letter dated 07.06.2011, petitioner was regularly teaching Biochemistry since the initial date of appointment i.e. 30.10.1990. The case of the petitioner was duly recommended by Head of Department vide annexure 11 to the writ petition. 12. According to the letter dated 07.06.2011, petitioner was regularly teaching Biochemistry since the initial date of appointment i.e. 30.10.1990. Thus, the petitioner was to retire at the age of 65 years as per Government Order dated 23.03.2007, as he was teaching Biochemistry since the initial date of appointment i.e. 30.10.1990. According to letter dated 12.04.1993, annexure No.7 to the writ petition, the post of Chemist was created in the Zoology Department with the justification that the incumbent will also teach the Biochemistry which is included in the syllabus of Zoology and will conduct the practical work as well as initiate the Biochemistry research. Petitioner is also teaching Biochemistry on the basis of letter dated 12.04.1993 which is placed on record. Petitioner was a teacher. He was regularly teaching Biochemistry. He was arbitrarily retired from his service from 01.02.2011 instead of permitting him to discharge his duties till attaining the age of 65 years. 13 Needless to mention that in this case, the principle of “no work no pay” shall not be applicable since the petitioner was illegally retired vide order dated 04.06.2011 that too with retrospective effect from 28.02.2011. 14. Accordingly, the writ petition is allowed. Impugned order dated 04.06.2011 is quashed and set aside. Petitioner shall be deemed to be in service with effect from 28.02.2011 till attaining the age of 65 years with all the consequential benefits, to be paid within a period of eight weeks with 9% interest per annum.