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Punjab High Court · body

2021 DIGILAW 1869 (PNJ)

Iqbal Preet Kaur v. Panjab University

2021-12-02

RAJBIR SEHRAWAT

body2021
Judgment Mr. Rajbir Sehrawat, J. :-The petitioners have filed this petition under Articles226/227 of the Constitution of India, praying for issuance of anappropriate writ for quashing the impugned speaking order dated25.09.2017 (Annexure P-17) and all incidental proceedings passed by therespondents in withholding the benefits of Senior Scale/Selection Gradeand Associate Professor Grade from due date to the petitioners, wherebythe ad-hoc/temporary service period from 27.08.2001 to 10.07.2006,(including summer vacation break) followed by regular service w.e.f.11.07.2006, is being ignored by the respondents; along with certain otherprayers. 2.The facts in brief; as can be delineated from the writpetition; are that the petitioners had applied for the posts of Lecturer inPhysics which were advertised on temporary basis as per theadvertisement dated 01.06.2001 issued by respondent No.4. Thepetitioners participated in the process of selection. Both the petitionerswere selected through a due process and accordingly they were issuedappointment letters on 27.08.2001. They joined their duties pursuant tothe appointment letter w.e.f. 27.08.2001 only. The petitioners continuedin the same capacity for about six years. Thereafter, the respondent-collegeissued another advertisement dated 16.05.2006 vide which theposts were advertised on permanent basis. The petitioners again appliedfor the said post. Having undergone the process of selection, thepetitioners were selected for the said posts and the appointment orderswere issued to them on 19.09.2006. Since the petitioners were alreadycontinuing in their temporary appointments, therefore, pursuant to theseappointment letters they entered into their permanent appointment. Sincethey were already continuing on temporary basis, therefore, after joiningin permanent capacity, both the petitioners prayed for continuation oftheir previous service for the purpose of pay protection and grant ofincrement. Vide order dated 03.03.2011 (Annexure P-8), that benefit wasalso granted to the petitioners. Accordingly, the pay of the petitionerswas fixed vide order dated 21.11.2012, which has been attached with thepetition as Annexure P-9. The regulations issued by the University GrantCommission (UGC) as a scheme of upgradation of pay scales of theteachers; vide notification of the year 1998, are attached with the petitionas Annexure P-15. As per this notification the Lecturers are entitled toSenior Scale on completion of six years of service and are further entitledto Selection Grade on completion of further five years’ service in SeniorScale. Since both the petitioners had completed about 14 years of serviceas lecturer, therefore, they requested the authorities to grant them fromdue date the Senior Scale, as well as, the Selection Grade; by countingtheir past service rendered on temporary basis. Since both the petitioners had completed about 14 years of serviceas lecturer, therefore, they requested the authorities to grant them fromdue date the Senior Scale, as well as, the Selection Grade; by countingtheir past service rendered on temporary basis. That request of thepetitioners was recommended; by respondent No.4-College torespondents No.2 & 3; to be granted in favour of the petitioners.However, vide order dated 09.11.2015 the said request has been declinedby respondents No.2 and 3 on the ground that there was a break inservice of the petitioners, immediately before their regular appointmentsand that their regular appointments were not in continuity with theirearlier ad-hoc/contractual service. Hence, they are not covered under therelevant clause of the above said regulations of the UGC. 3.Arguing the case, the learned counsel for the petitioners hassubmitted that the service of the petitioners has been continuous since theyear 2001. The said service continued till the petitioners joined in theirregular capacity. Although the respondent-College used to infuseartificial breaks in the service of the petitioners during summer vacationsand before the start of the new sessions, just to save the salary for thatperiod, however, the service of the petitioners were never terminated interms of their temporary appointments. Therefore, for all legal purposes,the service of the petitioners is continuous throughout. The counsel hasfurther submitted that even if there was some break, as perceived byrespondents No.2 & 3, that also stood condoned by the fact that therespondents themselves have counted the previous service of thepetitioners for the purpose of pay protection and the grant of the annualincrements. The counsel has also submitted that although therespondents are referring to the alleged break in service from 01.04.2006till 10.07.2006, however, even this break was only an artificial break ofsummer vacations and before start of the new session. The service of thepetitioners was never terminated before the start of their regular service.It was only that the petitioners were not paid salary for this period.Although, the order of regular appointment was issued by the respondent-College w.e.f. 19.09.2006, a date on which the petitioners were actuallyworking on temporary basis in continuation of their earlier service,however, the appointment of the petitioners on regular basis have beenshown in record with effect from retrospective date of 11.07.2006. Butthe fact remains that the petitioners were appointed on permanent basisvide appointment letters dated 19.09.2006 and the petitioners wereworking in temporary capacity immediately before that on 18.09.2006.Hence, as a matter of fact, there is no break in service of the petitioners,immediately preceding their appointment on regular basis. Hence, thepetitioners are entitled to their temporary service being counted towardsgrant of the Senior Scale and the Selection Grade. The counsel for thepetitioner has relied upon the judgment rendered by this court in the caseof Rupinder Kaur Versus State of Punjab & others,passed in CWPNo.9922 of 2013 on 21.04.2016, to contend that the artificial breaks inthe service cannot be interpreted to the prejudice of an employee. 4.On the other hand, the counsel for the respondent-Collegehas submitted that although the petitioners worked in temporary capacityfrom the year 2001 till the year 2006 when they were regularlyappointed, however, there have been breaks in their service. Keeping inview the fact that the previous service of the petitioners had been countedtowards pay protection and grant of increments, the respondent-Collegehad recommended the case of the petitioners for counting of the previousservice for grant of Senior Scale and Selection Grade as well. However,the respondents No.2 & 3 have declined the same. Therefore, therespondent-College cannot grant the said pay scale to the petitioners.The posts, against which the petitioners have been appointed onpermanent basis, being the grant in aid posts, the College is bound by thedirections issued by respondents No.2 & 3. 5.There is no representation on behalf of respondents No.2and 3, therefore, this court does not have the benefit of the assistancefrom their side. However, the written statement filed by respondentsNo.2 & 3 is very much there on record. The perusal of written statement,filed by respondents No.2 & 3, shows that they have denied the benefit ofcounting of previous temporary service of the petitioners; towards grantof Senior Scale and Selection Grade; on the ground that their regularappointment was not in continuity of their previous service. Hence, theircase is not covered under the regulations of the UGC. 6.Since the dispute relates to the provisions of the regulationsissued by the UGC, therefore, it would be appropriate to have a referenceto the relevant clauses of the said scheme, which are reproducedhereinbelow: “UGC Notification on revision of Pay Scales,minimum qualifications for appointment of teachers inUniversities & Colleges and other measures for themaintenance of standards, 1998. xxx…. xxx…. xxx…. 6.Since the dispute relates to the provisions of the regulationsissued by the UGC, therefore, it would be appropriate to have a referenceto the relevant clauses of the said scheme, which are reproducedhereinbelow: “UGC Notification on revision of Pay Scales,minimum qualifications for appointment of teachers inUniversities & Colleges and other measures for themaintenance of standards, 1998. xxx…. xxx…. xxx…. 7.0.0 CAREER ADVANCEMENT 7.1.1 Minimum length of service for eligibility tomove into the grade of Lecturer (Senior Scale)would be four years for those with Ph.D., fiveyears for those with M.Phil, and six years forothers at the level of Lecturer, and for eligibilityto move into the Grade of Lecturer (SelectionGrade)/Reader, the minimum length of serviceas Lecturer (Senior Scale) shall be uniformlyfive years. 7.1.2 For movement into grades of Reader and above,the minimum eligibility criterion would be Ph.D. Those without Ph.D. can go up to the level ofLecturer (Selection Grade). 7.1.3 A Reader with a minimum of eight years ofservice in that grade will be eligible to beconsidered for appointment as a Professor. 7.1.4 The Selection Committees for CareerAdvancement shall be the same as those forDirect Recruitment for each category. 7.1.5 The existing scheme of Career Advancement fornon academic staff namely, Assistant Director ofPhysical Education, Assistant, Registrar,Assistant Librarian would continue. 7.2.0 LECTURER (SENIOR SCALE) A Lecturer will be eligible for placement in asenior scale through a procedure of selection, ifshe/he has: (i) Completed 6 years of service after regularappointment with relaxation of one year and twoyears, respectively, for those with M.Phil andPh.D. (ii) Participated in one orientation course and onerefresher course of approved duration, orengaged in other appropriate continuingeducation programmes of comparable quality asmay be specified or approved by the UniversityGrants Commission. (Those with Ph.D. degreewould be exempted from one refresher course) (iii) Consistently satisfactory performance appraisalreports. 7.3.0 LECTURER (SELECTION GRADE) Lecturers in the Senior Scale who do not havePh.D. degree or equivalent published work, andwho do not meet the scholarship and researchstandards, but fulfill the other criteria givenabove for the post of Reader, and have a goodrecord in teaching and, preferably, havecontributed in various ways such as to thecorporate life of the institution, examinationwork, or through extension activities, will beplaced in the Selection Grade, subject to therecommendations of the Selection Committeewhich is the same as for promotion to the post ofReader. They will be designated as Lecturers inthe Selection Grade. They will be designated as Lecturers inthe Selection Grade. They could offerthemselves for fresh assessment after obtainingPh.D. and/or fulfilling other requirements forpromotion as Reader and, if found suitable,could be given the designation of Reader. xxx…. xxx…. xxx…. 8.0.0 COUNTING OF PAST SERVICE Previous service, without any break as Lectureror equivalent, in a university, college, nationalLaboratory, or other scientific organizations, e.g.CSIR, ICAR, DRDO, UGC, ICSSR, ICHR andas a UGC Research Scientist, should be countedfor placement of lecturer in SeniorScale/Selection Grade provided that: 8.1.0 The post was in an equivalent grade/scale of payas the post of Lecturer. 8.2.0 The qualifications for the post were not lowerthan the qualifications prescribed by the UGCfor the post of Lecturers; 8.3.0 The candidates who apply for direct recruitmentshould apply through proper channels; 8.4.0 The concerned Lecturers possessed theminimum qualifications prescribed by the UGCfor appointment as Lecturers, 8.5.0 The Post was filed in accordance with theprescribed selection procedure as laid down bythe University/State Government/CentralGovernment/Institution’s regulations; 8.6.0 The appointment was not ad-hoc or in a leavevacancy of less than one year duration. Ad-hocservice of more than one year duration can becounted provided- (a) the ad hoc service was of more than one yearduration; (b) the incumbent was appointed on therecommendation of duly constituted SelectionCommittee; and (c) the incumbent was selected to the permanentpost in continuation to the ad hoc service,without any break. xxx…. xxx…. xxx….” 7.Having heard counsel for the parties and having gonethrough the record, this court finds substance in the argument of thecounsel for the petitioners. It is not even in dispute by either of theparties that petitioners were appointed on temporary basis in the firstinstance; after the posts having been advertised and after having beenselected in a competition through a duly constituted SelectionCommittee. A perusal of the appointment orders dated 27.08.2001,issued to the petitioners in their temporary appointment, show that fortermination of their services at least one month’s notice was required tobe given. Moreover, the perusal of the appointment letters also showsthat it was not on ad-hoc or leave vacancy. The clause 2 of theappointment letters show that the appointment was on temporary basis.Hence, it is clear that the temporary appointment of the petitioners couldnot have been terminated except by giving a one month notice asstipulated in their terms of appointment. Moreover, the perusal of the appointment letters also showsthat it was not on ad-hoc or leave vacancy. The clause 2 of theappointment letters show that the appointment was on temporary basis.Hence, it is clear that the temporary appointment of the petitioners couldnot have been terminated except by giving a one month notice asstipulated in their terms of appointment. However, this is not even thecase of any one of the respondents that at the time of infusing of thebreaks during the summer vacations, any notice was ever given to eitherof the petitioners. In that situation, the break infused by the respondent-College is nothing but an attempt to save the salary for the period forwhich the petitioners were not actually taking the classes, although theymight be performing some other works in the college. Such an attempt ateconomy by the College, cannot be interpreted to the prejudice of thepetitioners, whose temporary appointment has never been formallyterminated. Hence, there is nothing on record to support the contentionof the respondents that there was actually a break in service of thepetitioners. It deserves to be emphasized that mere denial of salary of aperiod cannot be taken as break in service; as such. 8.Moreover, if at all, the said duration is to be taken as break,of any kind and colour, the said break also stood condoned by none otherthan the respondents No.2 & 3 themselves. The previous service of thepetitioners was permitted to be counted towards increment and payprotection. The letter granting this benefit, as well as, the actual payfixation of the petitioners after protecting their previous salary, is dulyplaced on record. Once the respondents themselves have condoned thebreak period even for the purpose of protection of pay and grant ofincrements, then there is no justification left with the respondents not togrant the benefit of the said period of service in temporary appointmentfor the purpose of grant of Senior Scale and Selection Grade. On thiscount, as well, the petitioners are entitled to the benefit of counting oftheir previous service for the purpose of Senior Scale and the SelectionGrade. 9.Still further, a perusal of the UGC scheme and of the recordsof the petitioners shows that the petitioners fulfill all the conditions asrequired under Clause 8.0.0 and up to the Clause 8.6.0 (b) even as per therespondents. Respondent No.2 and 3 has tried to take shelter under sub-Clause (c) of Clause 8.6.0 of the aforesaid scheme. 9.Still further, a perusal of the UGC scheme and of the recordsof the petitioners shows that the petitioners fulfill all the conditions asrequired under Clause 8.0.0 and up to the Clause 8.6.0 (b) even as per therespondents. Respondent No.2 and 3 has tried to take shelter under sub-Clause (c) of Clause 8.6.0 of the aforesaid scheme. However, even thisClause cannot be interpreted as an impediment in the way of thepetitioners. The said clause requires that the incumbent should have beenselected for the permanent post in continuation of the ad-hoc service. Itis not even in dispute that the petitioners were issued the appointmentletters on 19.09.2006 for their regular appointments and immediately onthe date preceding to this date, the petitioners were actually inemployment on temporary basis. Therefore, this condition is otherwisealso fulfilled. Although the respondents have shown the regularappointment w.e.f. 11.07.2006 just to take it to the point of artificialbreak, however, the respondents cannot go behind the reference date ofregular selection and appointment; as prescribed in this Clause, to takeany break into consideration and just to deny the benefit of the scheme tothe petitioners. Even otherwise, as held above, the said break was not abreak in service, it was only the break in payment of salary to thepetitioners and even that stood condoned by the respondents by grantingthe benefit of this period for the purpose of increment and the payfixation. This court finds the reliance of the petitioners on the judgmentin the case of Rupinder Kaur(Supra), to be well placed. 10.In view of the above, the present petition is allowed and theimpugned order passed by the respondents is set aside. The respondentsare directed to grant benefit of counting of past service of the petitionersrendered in their temporary appointments, towards grant of Senior Scaleand the Selection Grade in accordance with the provisions of the Schemeof the UGC, by treating them as eligible for the same in all respects. Letthe needful be done within a period of three months from today. Thepetitioners shall also be entitled to receive all the arrears arising from re-fixationof the pay on account of grant of this benefit.