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2022 DIGILAW 578 (HP)

Ajay Kapoor S/o Sh. Inder Kumar Kapoor v. State Of Himachal Pradesh Through Principal Secretary (Education) To The Government Of Himachal Pradesh

2022-09-22

VIVEK SINGH THAKUR

body2022
JUDGMENT : Petitioner has approached this Court seeking direction to respondents to sanction and release requisite grant-in-aid for payment of his salary for the period from 01.12.2019 to 30.06.2020, to which he served after attaining age of 60 years in November 2019. 2. Admitted facts in pleadings are that on 01.08.1985, petitioner was appointed as a Lecturer in Physics in respondent No.4’s private college, affiliated to Himachal Pradesh University, and his appointment was approved by respondent No.3-Himachal Pradesh University (HPU), vide order dated 01.04.1986. 3. It is also an admitted fact that respondent No.4-College has been receiving financial assistance from the respondent State/Department of Higher Education, Himachal Pradesh, as per provisions of Grant-in-Aid Rules which include grant-in-aid for payment of salary of duly appointed teaching staff, and petitioner was getting his salary with 95% contribution out of grant-in-aid being released to the respondent No.4-College. 4. It is also undisputed that service conditions of petitioners were governed by provisions of Himachal Pradesh University Act, 1970 and Statutes, Ordinances and Regulations made thereunder and in terms of Handbook, Volume-II (The First Ordinances of Himachal Pradesh University, 1973) Appendix-A, Chapter XXXVIII, paragraph 38.5 B(d) Part-I, Rule 12, a teacher of non-government affiliated colleges is to be allowed to continue in service till end of semester or academic session, even though, he may have attained age of 60 years. Provisions of Rule 12 read as under : “12. Every teacher shall retire at the age of 60 years. However, a teacher shall be allowed to continue in service till the end of semester or the academic session even though he/she may have attained the age of 60 years.” 5. As per date of birth, petitioner was going to attain age of 60 years on 20.11.2019 and in normal course he had to retire on 30.11.2019, however, in terms of Rule 12, he was to be continued till the end of semester or academic session, as the case may be. 6. Vide notification dated 27th September, 2017 (Annexure-P2), Himachal Pradesh University had notified that with introduction of RUSA system from academic session 2013-14 for under-graduate classes the end of academic session for these classes in affiliated/associated colleges will be 30th June instead of 31st March, as decided by Executive Council, vide Resolution No.9 passed in its meeting held on 17.08.2017. 6. Vide notification dated 27th September, 2017 (Annexure-P2), Himachal Pradesh University had notified that with introduction of RUSA system from academic session 2013-14 for under-graduate classes the end of academic session for these classes in affiliated/associated colleges will be 30th June instead of 31st March, as decided by Executive Council, vide Resolution No.9 passed in its meeting held on 17.08.2017. Therefore, petitioner was entitled to be continued in service till end of the academic session i.e. 30.06.2020. 7. Claim of the petitioner to continue in service till end of academic session i.e. 30.06.2020 was affirmed by the Division Bench of this High Court, vide decision dated 28.11.2019, passed in CWP No.3301 of 2019, titled Ajay Kapoor Vs. State of Himachal Pradesh, operative portion whereof is as under: “Accordingly, the present petition is allowed and the petitioner is permitted to continue in service till the end of the academic session, i.e. 30.06.2020. Learned counsel representing respondents No.3 & 4, is directed to communicate this judgment to the said respondents for compliance, forthwith.” 8. The aforesaid decision of the Court was accepted and implemented by the respondents but partially. In this regard, Director Higher Education had issued communication dated 13th January, 2020 to the Principal of respondent No.4-College with request to take further necessary action as per orders of the Court under intimation to the Directorate. 9. Thereafter, petitioner was continued up to 30.06.2020, however, consequential benefits were not extended to the petitioner. For release of consequential benefits, including salary with contribution of 95% grant-in-aid by the respondents-State, petitioner had made representation to the Director Higher Education, vide communication dated 21.01.2020 and 15.06.2020 and ultimately petitioner superannuated on 30th June, 2020 without disbursement of admissible salary to him and thereafter filed present petition for redressal of his grievance. 10. Respondents No.3 and 4 have admitted the claim to the petitioner in their replies. Respondents-State has admitted the claim of the petitioner but with qualification that salary to the petitioner beyond the age of 60 years and till the end of academic session is to be paid by College Management which allowed him to continue in its service but not from the State, as Management of the College is the appointing, controlling and disciplinary authority of the petitioner. However, in reply, release of grant-in-aid to one Sh. However, in reply, release of grant-in-aid to one Sh. Pawan Kumar Jamwal officiating Principal of the same college i.e. respondent No.4- College for the period of extension i.e. 01.07.2018 to 31.03.2019 has been admitted and communications dated 31.07.2018 and 27.10.2018, granting extension of tenure till end of the academic session and release of grant-in-aid/salary for the said period have also been placed on record along with reply. 11. Learned Deputy Advocate General has submitted that vide decision dated 28.11.2019, passed in CWP No.3301 of 2019, the Court had only permitted the petitioner to continue in service till the end of academic session i.e. 30.06.2020 but had not accepted the prayer seeking direction to respondents No.1 & 2, i.e. respondents-State to continue contributing 95% grant-in-aid towards his salary up to retirement till the end of academic session. 12. Petitioner has been continued till 30.06.2020 as the academic session was ending on 30.06.2020. His such continuation was not a bounty either by the respondent No.4-College or by the State, but it was in terms of provisions contained in the relevant Ordinances governing the provisions of retirement of the petitioner and the said right of the petitioner has been endorsed and affirmed in the judgment dated 28.11.2019, passed in CWP No.3301 of 2019. 13. Continuation in service does not mean mere continuation, either without salary or with changed norms, but it means continuation on the same terms as were existing before such continuation unless specifically ordered otherwise. Continuation of petitioner was in terms of the norms providing such continuation till the end of academic session. 14. It is also apt to record here that in normal course, had petitioner been serving in some other department having 60 years age of superannuation, he would not have been retired on 20.11.2019 but on 30.11.2019 with entitlement of full salary for the period from 21.11.2019 to 30.11.2019 as he was receiving till 20.11.2019. Because normal rule is that an employee after attaining the age of retirement during a month shall retire from the service on the last date of that month by allowing him to work till end of the month. Because normal rule is that an employee after attaining the age of retirement during a month shall retire from the service on the last date of that month by allowing him to work till end of the month. Similarly, where a person is to be allowed to continue in service as teacher, after attaining age of superannuation, till the end of semester or academic session, he shall be entitled for wages and salary on the same terms as he was getting before attaining the age of superannuation. Therefore, verdict of the Court in decision dated 28.11.2019, permitting the petitioner to continue in service till end of the academic session i.e. 30.06.2020, also includes right of the petitioner to receive the salary as he was getting before attaining the age of superannuation. 15. Aforesaid norm is also known to the respondent-State and for that reason only, in earlier case of Pawan Kumar Jamwal, grant-in-aid fund/budget for granting salary to Pawan Kumar Jamwal, for the period of extension, was approved by the Government. 16. The extension in present case is not a normal extension granted to an employee after his retirement but this extended period of service is a period allowed to be continued in service as provided in Rule 12 of Ordinance of Himachal Pradesh University, referred supra. The said extended period of service is similar to the extended period provided to Government employee during the month in which such employee attains age of superannuation in the mid of the said month. 17. Therefore, petitioner is entitled for grant-in-aid of salary out of grant-in-aid fund/budget to be provided by respondent-State by releasing 95% grant-in-aid for payment thereof for the period from 01.12.2019 to 30.06.2020. 18. Accordingly, respondent-State is directed to release the grant-in-aid for disbursement of dues and admissible salary to the petitioner on or before 31st October, 2022, failing which State shall also be liable to pay interest @ 5% from the date of accrual of right to receive salary till final payment thereof. Petition is allowed and disposed of in aforesaid terms. Pending applications, is any, also stands disposed of.