IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No. 27 of 2006 Date of Decision: May 26, 2009 The Vice-Chancellor, Maharshi Dayanand University, Rohtak and another …Appellants Versus Dr. Jahan Singh ...Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE H.S. BHALLA Present: Dr. Balram Gupta, Senior Advocate, with Ms. Anamika Negi, Advocate, for the appellants. Dr. Jahan Singh, respondent-in-person. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. This order shall dispose of L.P.A. No. 27 of 2006 in C.W.P. No. 7180 of 1999, L.P.A. No. 45 of 2006 in C.W.P. No. 4142 of 2000 and L.P.A. No. 46 of 2006 in C.W.P. No. 11923 of 1999, which involves common facts. These appeals have been filed under Clause X of the Letters Patent challenging judgment dated 18.5.2005 (in L.P.A. No. 27 of 2006) and common judgment dated 23.3.2005 (in L.P.A. Nos. 45 and 46 of 2006) passed by the learned Single Judge. 2. In the first writ petition bearing C.W.P. No. 7180 of L.P.A. No. 27 of 2006 1999, the prayer made by the petitioner-respondent was to count 31 years and 6 months of service rendered by him to the State of Haryana or the Universities in Haryana for the purposes of retiral benefits. In the second C.W.P. No. 11923 of 1999, the petitioner- respondent had sought a direction to the appellant-University for grant of consequential benefits, such as, Pension, Gratuity, Earned Leave for the period he spent on Extra-ordinary leave from 30.11.1983 to 14.8.1985. He also sought a direction to count the period of Extra-ordinary Leave from 30.11.1983 to 14.8.1985 towards promotion as Professor in Physics under the Merit Promotion Scheme devised by the University Grants Commission. In the third C.W.P. No. 4142 of 2000, the petitioner-respondent had sought fixation of pay and payment of arrears of salary w.e.f. 1.1.1996 till 31.1.2000. A further direction was sought to the respondents to pay arrears of gratuity, leave encashment and pension according to the basic pay of Rs. 20,000/- as on 31.1.2000 and also according to the revised pay scale of the University Grants Commission. 3. In order to put the controversy in its proper perspective it would first be necessary to notice the skelton facts. The petitioner- respondent has claimed to be a brilliant academician. He has secured First Division in all the examinations from Matric to M.Sc. and he holds a Ph.D. degree in Nuclear Physics. He has published several research papers in reputed journals in India and abroad and has also been invited to attend, participate and deliver lectures in Seminars and Science Conferences at national and international level. He was awarded Merit Scholarship for study from Matric to M.Sc. in India and also in England. 2 L.P.A. No. 27 of 2006 4. The petitioner-respondent has worked as a Lecturer in Physics from 1.12.1965 to 9.10.1967 in the Regional Engineering College, Kurukshetra. He then worked as Research Assistant from October 1967 to June 1970 at the Department of Physics, University of Birmingham, England. On 5.7.1970, the petitioner-respondent came back to India and worked till 30.9.1973 as confirmed Lecturer in Physics, Panjab University Post Graduate Regional Centre, Rohtak. On 1.10.1973, the petitioner-respondent joined as Assistant Director, Haryana Police Forensic Science Laboratory, Madhuban (Karnal) and worked there till 20.7.1977. He then worked as Lecturer in Physics at Kurukshetra University, Kurukshetra, from 21.7.1977 to 18.10.1977. Thereafter, on 19.10.1977, he joined as Reader in Physics, M.D. University, Rohtak, after the approval of his selection by the 3rd Executive Council in its meeting held on 15.10.1977. The Executive Council of the appellant-University passed a resolution and services of Dr. Jahan Singh were terminated w.e.f. 20.6.1979 allegedly on misrepresentation of facts. On 17.8.1979, Government of Haryana appointed a Commission of Enquiry under the Chairmanship of Justice S.S. Dulat (Retd.). 5. The term of reference of Justice Dulat Commission of Enquiry was to enquire into the alleged acts of omission and commission committed by the then Vice Chancellor, Shri Hardwari Lal. The case concerning the termination of service of the petitioner- respondent was also referred to the Commission who submitted its report to the Government of Haryana on 30.6.1980. The conclusion about the petitioner-respondent has been set out in the report, which reads thus:- 3 L.P.A. No. 27 of 2006 “The only conclusion to my mind is that Shri Hardwari Lal was so upset about and so annoyed with Dr. Jahan Singh that he permitted himself to present as dark a picture of Dr. Jahan Singh’s work and conduct as he could. I cannot, therefore, escape the conclusion that the Vice-Chancellor Shri Hardwari Lal failed to deal with Dr. Jahan Singh fairly.” 6. The report of Dulat Commission was laid before the State Assembly and it was duly accepted. The report was sent to the Chancellor recommending necessary action as under:- “A copy of the report has been sent to the Governor of Haryana who is also the ex-officio Chancellor of the Maharshi Dayanand University, Rohtak, inviting his attention to the acts of Omission and Commission committed by Shri Hardwari Lal and requesting him to take necessary action in the matter.” 7. After the acceptance of Dulat Commission Report by the Government of Haryana and Chancellor of the University, Shri Hardwari Lal had accepted his mistakes and praised the work and conduct of the petitioner-respondent in his statement put up before the Executive Council meeting held on 29.1.1982, vide item No. 72. Thereafter, on 5.10.1983, Shri Hardwari Lal, had allowed the petitioner-respondent to rejoin the University as Reader in Physics on the same post which was held by him before the termination of his services. Accordingly, the petitioner was appointed as Reader in Physics vide appointment letter No. ET-2/83/19683, dated 5.10.1983. The action taken by the Vice-Chancellor was approved by the 4 L.P.A. No. 27 of 2006 Executive Council vide its Resolution No. 26 in its meeting held on 6.10.1983. 8. While the petitioner-respondent was out of service, the then Vice-Chancellor, University of Kashmir, recommended his case to Head of Physics Department, University of Zambia for assignment as Senior Lecturer. Thereafter, the Secretary of the University of Zambia, vide letter dated 27.9.1983, offered the post of Senior Lecturer in Physics to the petitioner-respondent. On the basis of the report of the Dulat Commission, the petitioner-respondent was reinstated in service and he joined his post of Reader in Physics on 5.10.1983 from which his services were terminated. The petitioner- respondent submitted an application to the appellant-University for grant of leave, which was sanctioned by the Executive Council vide their Resolution dated 21.11.1983. On 29.11.1983, the petitioner- respondent went on two years leave to work as Senior Lecturer in Physics in the University of Zambia, Lusaka (South Africa). 9. He came back and again joined the appellant-University on 14.8.1985. On 29.9.1985, the petitioner-respondent submitted an application to the Vice-Chancellor of the appellant-University for grant of three increments by counting the period of extra-ordinary leave as duty period. The petitioner-respondent was promoted as Professor in Physics w.e.f. 31.3.1986. 10. Later on a dispute with regard to treating the period spent by the petitioner-respondent in Zambia arose. On 25.3.1991, the Executive Council of the appellant-University decided that the break in service of Dr. Jahan Singh be condoned with all consequential benefits of continuous service. Except for the financial benefits, his 5 L.P.A. No. 27 of 2006 original position as Reader in Physics was restored. The decision was communicated on 10.4.1991. The original seniority of the petitioner- respondent w.e.f. his initial date of appointment was restored in the Department of Physics. The seniority of the petitioner-respondent in the cadre of Reader was fixed vide letter dated 29.5.1991 by taking into consideration his total service in that cadre. On 18.7.1991, the Executive Council of the appellant-University decided to count the period of extra-ordinary leave of the petitioner-respondent towards annual increments. The said decision was again reiterated in its meeting held on 7.3.1992. On 28.12.1991, a communication was sent to the petitioner-respondent promoting him as Professor of Physics w.e.f. 31.3.1986. On 23.1.1993, the position of the petitioner- respondent as Professor was restored. 11. The Vice-Chancellor of the appellant University granted approval to the counting of extra-ordinary leave from 30.11.1983 to 14.8.1985 towards annual increments in terms of Clause 26(c) of the Leave Regulations, which was conveyed to the petitioner-respondent vide letter dated 6.2.1995. On 31.3.1998, the petitioner-respondent represented that benefits of service rendered by him in other institutions before joining the appellant-University be granted. The Executive Council of the appellant-University passed Resolution No. 35 in its meeting held on 11.6.1998, approving the Pension Scheme in the University w.e.f. 1.4.1995. On 20.7.1998, options for the pension scheme from the teachers of the appellant-University were invited. The petitioner-respondent submitted his option for the pension scheme on 21.8.1998 (P-20). 12. The petitioner-respondent also claimed additional three 6 L.P.A. No. 27 of 2006 years’ benefit in service in terms of Clause 17 of the notification dated 24.12.1998, issued by the University Grants Commission, which stipulates that benefit in service upto a maximum of 3 years could be provided to the teachers who have acquired Ph.D degree at the time of entry. On 6.4.1999, the petitioner-respondent submitted another application for counting the service rendered by him in the State of Haryana towards retirement benefits i.e. gratuity and pension etc. 13. Since the concerned authority did not implement the decision of the Executive Council, dated 25.3.1991, regarding condonation of break in service, the petitioner-respondent filed CWP No. 5093 of 1999, which was allowed by a Division Bench of this Court vide order dated 27.1.2000 holding that the petitioner- respondent is entitled to re-fixation of his pay by treating the period from 20.6.1979 to 4.11.1983 so as to include the increments that accrued to him during this period. The petitioner-respondent retired from service on attaining the age of superannuation w.e.f. 31.1.2000. The SLP filed by the appellant-University against the order dated 27.1.2000 passed in CWP No. 5093 of 1999, was dismissed on 6.11.2000. 14. The petitioner-respondent also filed CWP No. 7272 of 1998, claiming the relief of re-fixation of his pay during the break period by treating his service continuous, which was dismissed by the learned Single Judge. Letters Patent Appeal No. 2 of 2002 against the said judgment, filed by the petitioner-respondent was also dismissed. The matter was taken to Hon’ble the Supreme Court by the petitioner-respondent and while disposing of Civil Appeal No. 7 L.P.A. No. 27 of 2006 1568 of 2004 arising out of S.L.P. (C) No. 10941 of 2003, matter was remanded back to this Court to hear the appeal afresh and pass a reasoned order by taking into consideration all relevant aspects of the matter after giving opportunity of hearing to the parties. After remand, LPA No. 2 of 2002 was decided again on 29.11.2004 in favour of the petitioner-respondent. The appellant-University was directed to give the benefit of annual increments to the petitioner- respondent in lieu of the period of extra-ordinary leave from 30.11.1983 to 14.8.1985. The appellant University challenged order dated 29.11.2004 before Hon’ble the Supreme Court and Civil Appeal No. 853 of 2006 (Vice Chancellor, M.D. University, Rohtak v. Jahan Singh, 2007 (3) SLR 381). On 8.3.2007, Hon’ble the Supreme Court set aside the order of Letters Patent Bench passed in L.P.A. No. 2 of 2002, dated 29.11.2004 and restored the order of learned Single Judge. 15. After considering the aforementioned factual matrix and the contentions raised by the parties in detail, the learned Single Judge allowed C.W.P. No. 7180 of 1999 vide judgment dated 18.5.2005 and C.W.P. No. 11923 of 1999 & C.W.P. No. 4141 of 2000 vide common judgment dated 23.3.2005. 16. Learned Single Judge vide his order dated 18.5.2005 held that the petitioner-respondent was entitled to continuity of service from the date his services were terminated i.e. 20.6.1979 till the date of his re-instatement on 5.10.1983. The observation of learned Single Judge in that regard reads thus:- “……The aforesaid sequence of events would make it abundantly clear that the petitioner is entitled to 8 L.P.A. No. 27 of 2006 continuity of service from the date his services were terminated and reappointment on 05.10.1983. In fact, this matter is no longer res-integra. The matter has been considered by Division Bench of this Court in CWP No. 5093 of 1999 decided on 27.01.2000. It has been held that the period between 20.06.1979 to 04.10.1983 would be treated as the period spent on duty. The petitioner was only denied monetary benefits. ……” 17. In respect of gratuity, learned Single Judge placed reliance on Regulation 41(1)(a) and in respect of pension he has sought support from the Maharshi Dayanand University Pension Scheme, 1977. Accordingly, it has been held that the petitioner- respondent was entitled to count the entire service rendered by him in different institutions for pension and gratuity. The claim of the petitioner-respondent for grant of three increments was also upheld by placing reliance on clause 17 of the notification dated 24.12.1998 issued by the University Grants Commission. After placing reliance on the judgment of Hon’ble the Supreme Court in the case of Purshottam Lal v. Union of India, AIR 1973 SC 1088, learned Single Judge held that the petitioner-respondent was entitled to be given the benefit of clause 17 of the UGC notification and accordingly directions were issued in the following terms:- “ In view of the above, the writ petition is allowed. The respondents are directed to re-determine the pension and the gratuity payable to the petitioner by giving benefit of the entire service rendered by the petitioner in different institutions as enumerated in the writ petition 9 L.P.A. No. 27 of 2006 i.e. the petitioner is entitled to the benefit of service as follows:- (i) Lecturer in Physics, Regional Engg. Regional Engg. College, Kurukshetra from 1.12.1965 to 9.10.1967. (ii) Lecturer in Physics, Punjab University, Post Graduate Regional Centre, Rohtak from 5.7.1970 to 30.9.1973. (iii) Assistant Director (Class-I) Gazetted Officer) Haryana Police Forensic Science Laboratory, Madhuban (Karnal) from 1.10.1973 to 20.7.1977. (iv) Lecturer in Physics, Kurukshetra University, Kurukshetra from 21.7.1977 to 18.10.1977. The aforesaid period is total 9 years and 2 months in addition to the benefit of service which has already been granted to the petitioner from 19.10.1977 to 31.1.2000. The petitioner shall also be entitled to the benefit of three years service for possessing the qualification of Ph.D. The respondents are directed to re-determine the retiral benefits of the petitioner and release the same within a period of three months from the date of receipt of a certified copy of this order.” 18. The other two appeals namely LPA Nos. 45 and 46 of 2006 emerge from CWP No. 4142 of 2000 and CWP No. 11923 of 1999 respectively. The learned Single Judge has placed reliance on the observations made by a Division Bench of this Court in its 10 L.P.A. No. 27 of 2006 judgment dated 27.1.2000 rendered in CWP No. 5093 of 1999, which is between the same parties. The observations of the Division Bench reads thus:- “The grievance now made before us is that even though the petitioner is about to retire in a couple of days the University has not so far re-fixed his pay during the break period by treating his service continuous. In the written statement filed by the University, it is no where pleaded that the pay of the petitioner was re-fixed for the break period or that the increments to which he became entitled were paid to him. It is averred in the reply that on his re-appointment the petitioner was granted pay which he was drawing before his services were terminated on 20.06.1978. It is, thus, clear that the resolution passed by the Executive Council condoning the break in service has not been implemented in its entirety and the petitioner has not been granted the consequential benefits. A bare reading of the resolution passed by the Executive Council makes it clear that the petitioner is entitled to have his service from 20.6.1979 to 4.10.1983 counted and his pay re-fixed after calculating the increments which he would have earned during the said period. This not having been done, we have no hesitation in allowing the writ petition which we hereby do and direct the University to re-fix the pay of the petitioner from 20.6.1979 till 4.10.1983 treating him in service and giving him the benefit of annual 11 L.P.A. No. 27 of 2006 increments which he would have earned during that period. We further direct the University to re-fix his pay for the period after he was re-appointed till the date of his promotion as Professor and pay him the arrears of pay for that period. For the sake of clarification, we may mention that the petitioner would not be entitled to the arrears of pay for the period from 20.6.1979 to 4.10.1983. We may also observe that the petitioner will be entitled to all the consequential retiral benefits by treating him in service for the aforesaid break period. He will also be entitled to gratuity and pension by treating him in service during that period. The University is further directed to pay the arrears to the petitioner within a period of one months together with interest thereon @ 15% per annum. The Vice-Chancellor of the University shall fix the responsibility of the office concerned who was responsible for re-fixing the pay of the petitioner and the amount of interest paid by the University shall be recovered from that officer without debiting the amount to the account of the University. Petitioner is entitled to have his costs which are assessed at Rs. 5000/-.” 19. It is, thus, obvious that the petitioner-respondent became entitled to have his service counted from 20.6.1979 to 4.10.1983. He also became entitled to his pay fixation after calculating the increments which he would have earned otherwise during that period. He was, thus, deserved to be treated in service from 20.6.1979 to 4.10.1983. A further direction was also issued to the University- 12 L.P.A. No. 27 of 2006 appellant to refix his pay for the period he was re-appointed till date of his promotion as Professor and pay him arrears of pay for that period. He was, however, not held entitled to arrears of pay for the period 20.6.1979 to 4.10.1983 but was otherwise held entitled to all the consequential retiral benefits by treating him in service for the aforesaid break period. He was also held entitled to gratuity and pension by treating him in service during that period. The arrears were required to be paid along with interest at the rate of 15% per annum. 20. The learned Single Judge then refers to the entitlement of the petitioner-respondent for promotion with effect from 31.3.1986 as the entire period in dispute has been treated to be period spent on duty and went on to observe as under:- “……He was promoted on the post of Professor of Physics by order dated 19.02.1991 in the pay scale of Rs. 4500-150-5700-200-7300/-. Subsequently, by order dated 28.12.1991 the petitioner was ordered to be promoted with effect from 31.03.1986 i.e. cut of date on which the petitioner became eligible for promotion. It was made clear in the order that the promotion shall be for the limited purpose of pay fixation and no arrears shall be paid. However, for future promotion under the Scheme, the period shall be counted from the cut of date of the eligibility year. In view of the clarification dated 18.08.1984 and the communication dated 28.12.1991, there shall be no justification to deny the promotion to the petitioner on the post of Professor with effect from 13 L.P.A. No. 27 of 2006 31.03.1986. xxx xxx xxx xxx xxx xxx xxx xxx xxx On 18.08.1984, the University Grants Commission had issued the following directions to the Vice- Chancellor of the respondent-University:- “UNIVERSITY GRANTS COMMISSION BAHADUR SHAH ZAFAR MARG, NEW DELHI. Y.D. Sharma Deputy Secretary D.O. No. F.1-7/83 (MP) Dated 18th August 1984. Dear Vice-Chancellor The University Grants Commission at its meeting held on 7th July, 1984 on reference from a university considered the question of counting the period of study leave/extra-ordinary leave availed of by a teacher towards computation of eight years of continuous service in the cadre of promotion under the Merit Promotion Scheme. The Commission agreed that the period of leave which entitles a teacher to earn annual increment would be counted towards computation of eight years of continuous service in the cadre of promotion under the merit Promotion Scheme. The above decision of the Commission may also be brought to the notice of colleges affiliated to the 14 L.P.A. No. 27 of 2006 University. With regards, Yours sincerely, Sd/- (Y.D. Sharma) Shri Hardwari Lal Vice-Chancellor Maharshi Dayanand University, Rohtak-124 001.” These directions make it abundantly clear that the petitioner has to be granted the benefit of the period of leave towards computation of eight years of continuous service in the cadre for promotion under the Merit Promotion Scheme. The petitions are allowed in the aforesaid terms. The respondents are directed to grant the entire consequential relief to the petitioner within a period of two months from the date of receipt of a certified copy of this order. No costs.” 21. Dr. Balram Gupta, learned Senior counsel for the appellant University has argued that according to clause VII, the period of service rendered by an employee in any State Government or Government aided private college or in any University/ Autonomous Body shall be counted as qualifying service for pensionary benefits. He has further pointed out that clause 4(1) dealing with qualifying service include all service interrupted or continuous paid in the University and for which University share is 15 L.P.A. No. 27 of 2006 contributed towards pension is to be treated as qualifying service. The period of break is also to be omitted while working out aggregate service. Accordingly, it has been submitted that the learned Single Judge has grossly erred in not appreciating the specific provision relating to the pensionary benefits. In support of his submission, learned counsel has also pointed out that a University employee may have drawn the benefit in the form of Contributory Provident Fund or otherwise and his past service benefit are permitted then it would amount granting double benefit. 22. The second submission of Dr. Gupta is that the petitioner-respondent could not be granted benefit of entire period of service from October 1977 to January 31, 2000 when he superannuated because his services were terminated by resolution of the Executive Council, dated 20.6.1979 and he could rejoin only on 5.10.1983. Even after re-joining the petitioner-respondent proceeded on extra ordinary leave from 30.11.1983 to 14.8.1985. For the aforesaid purposes, the petitioner-respondent had filed C.W.P. No. 7272 of 1998, which after various rounds of litigation, has been dismissed by Hon’ble the Supreme Court. Accordingly, the petitioner-respondent could not be held entitled to the benefit of service for the period from 30.11.1983 to 14.8.1985. In that regard, he has placed reliance on the judgment of Hon’ble the Supreme Court dated 8.3.2007 (supra) and argued that the petitioner-respondent would be entitled to increment for the period of extra ordinary leave only if he fulfilled the requirement of clause 26(ii)(a) to (c) of the Maharshi Dayanand University Calendar, Volume-III Leave Regulations. Learned counsel has further argued that grant of three 16 L.P.A. No. 27 of 2006 years service on the basis of Ph.D. degree is also unsustainable. According to the learned counsel, the petitioner-respondent had joined the service as Lecturer on 1.12.1965 at Regional Engineer College, Kurukshtra and acquired the degree of Ph.D in the year 1971. According to the learned counsel the petitioner-respondent was required to have acquired the degree of Ph.D at the time of joining initial service in contrast to the joining of the service of the University and, therefore, learned Single Judge has grossly erred by granting him the benefit of