# Dr. Sunil Vikram Singh v. State of U.P. and others

- **Citation:** (2012) 1 ILRA 225
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-06
- **Case number:** Civil Misc. Writ Petition No. 23342 of 2009
- **Bench:** S.K.Singh, Pankaj Naqvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-sunil-vikram-singh-v-state-of-u-p-and-others-42105
- **Pages:** 5

## Headnote

Constitution of India , Article 226-Carrier
Advance Scheme under G.O. 13.03.2001as
well
as
statute
No.
1710
of
Purvanchal University-provides to count
the previous working on substantial
capacity
in
another
University
or
recognized Degree College on PostGraduate
College
duly
affiliated
to
University-Petitioner while working on
substantive capacity and confirmed as
post of Lecturer in University situated in
State of Bihar from 15.11.1996 to
09.05.2000-to be counted for purpose of
higher pay scale and other purpose-as
nothing whisper regarding word 'outside'
226 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

University-law laid down by Apex Court
in
"Shardhendu
Bhushan"-equally
binding-order
quashed-consequential
directions issued.

Held: Para 15

Since the basic fact that the petitioner
was in substantive employment as a
lecturer
in
Tilakmanjhi
Bhagalpur
University, Bhagalpur, State of Bihar
from 15.11.1996 to 9.5.2000 have not
been
disputed
or
controverted
and
therefore, the petitioner is fully entitled
to claim the benefits of said service
rendered in State of Bihar i.e. from
15.11.1996 to 9.5.2000 to be included in
his service rendered with respondents.

## Text

1 All] Dr. Sunil Vikram Singh V. State of U.P.and others

225
from the delinquent officer passed the
impugned order imposing penalty thinking
it to be a minor penalty. If it is considered,
as stated earlier, that it would be only a
minor penalty, the procedure followed
certainly meets the test of the principles of
natural justice and it would be a sufficient
compliance with the procedure. In view of
the finding that the impugned order is a
major penalty certainly then a regular
enquiry has got to be conducted and so the
impugned order is clearly illegal. The Trial
Court rightly granted the decree. The
judgment and the decree of the High Court
is vitiated by manifest illegality. At this
distance of time it is not expedient to direct
an enquiry under rules 8 and 9 of the Rules.
The appeal is accordingly allowed and the
judgment and decree of the High Court is
set aside and that of the trial court is
restored but in the circumstances without
costs."

18. The same view has been taken by
the Supreme Court in the case of
Jagdamba Prasad Shukla v. State of U.P.
and others reported in J.T. 2000 (9) SC
457.

19. In the background of the aforesaid
facts I am of the considered view that the
disciplinary proceedings has vitiated, as the
procedure laid down in 1999 Rules has not
been followed and the petitioner has not
been given appropriate opportunity of
hearing.

20.

Orders
dated
17.4.2008
(Annexure-1 to the writ petition) passed by
the respondent no.1 and the order dated
8.1.2008 (Annexure-2 to the writ petition)
passed by the respondent no.2 are hereby
set aside.

21. Respondent no.2 is directed to
hold a fresh enquiry after giving fullest
opportunity of hearing to the petitioner in
the light of procedure laid down under the
U.P. Government Servants (Discipline and
Appeal) Rules, 1999.

22. With the above observations and
order, the writ petition is finally disposed of
.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 06.01.2012

BEFORE
THE HON'BLE S.K.SINGH,J
THE HON'BLE PANKAJ NAQVI,J

Civil Misc. Writ Petition No. 23342 of 2009

Dr. Sunil Vikram Singh
....Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Vimlendu Tripathi
Sri Intekhab Alam Khan
Sri Seemant Singh

Counsel for the Respondents:
Sri Anil Tiwari
C.S.C.

Constitution of India , Article 226-Carrier
Advance Scheme under G.O. 13.03.2001as
well
as
statute
No.
1710
of
Purvanchal University-provides to count
the previous working on substantial
capacity
in
another
University
or
recognized Degree College on PostGraduate
College
duly
affiliated
to
University-Petitioner while working on
substantive capacity and confirmed as
post of Lecturer in University situated in
State of Bihar from 15.11.1996 to
09.05.2000-to be counted for purpose of
higher pay scale and other purpose-as
nothing whisper regarding word 'outside'
226 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

University-law laid down by Apex Court
in
"Shardhendu
Bhushan"-equally
binding-order
quashed-consequential
directions issued.

Held: Para 15

Since the basic fact that the petitioner
was in substantive employment as a
lecturer
in
Tilakmanjhi
Bhagalpur
University, Bhagalpur, State of Bihar
from 15.11.1996 to 9.5.2000 have not
been
disputed
or
controverted
and
therefore, the petitioner is fully entitled
to claim the benefits of said service
rendered in State of Bihar i.e. from
15.11.1996 to 9.5.2000 to be included in
his service rendered with respondents.

(Delivered by Hon'ble Pankaj Naqvi,J.)

1. Essentially the sole dispute
involved in both the aforesaid connected
writ petitions is as to whether the services
rendered as a lecturer in a degree college
outside the State of U.P. can be considered
for the grant of senior scale/selection grade
as Lecturers in State of U.P. or not.
Accordingly both the petitions are being
disposed off by a common judgment.

2. Civil Misc. Writ Petition No. 23342
of 2009 has been filed by Dr. Sunil Vikram
Singh seeking a writ of certiorari to quash
the order dated 4.2.1999 passed by the
Director (Higher Education) U.P., whereby
the representation filed by the petitioner has
been rejected and also a writ of mandamus
commanding the respondents to grant the
pay protection and the senior scale/selection
grade to the petitioner with effect from the
date it became due after counting the
services of the petitioner rendered in
Tilakmanjhi
Bhagalpur
University,
Bhagalpur, State of Bihar for the period
15.11.1996 to 9.5.2000 along with arrears
regularly.

3. Similarly Civil Misc. Writ Petition
No. 13118 of 2007 has been filed by Dr.
Vikas Sharma for seeking a writ in the
nature of certiorari for quashing an order
dated 4.12.2006 whereby the representation
filed by the petitioner has been rejected by
Director (Higher Education) and also a writ
of mandamus commanding the respondents
to count the past service rendered by the
petitioner in the seniority list for the
purposes of preservation of senior pay
scale/selection grade.

4. As common issues of law are
involved in both the petitions, hence facts of
the first writ petition i.e. C.M.W.P. No.
23342 of 2009 are taken up as a leading
case and are enumerated hereunder:-

5. The petitioner claims to have been
selected by the Bihar State University
Service Commission and was appointed on
the post of lecturer in Tilakmanjhi
Bhagalpur University, Bhagapur, State of
Bihar on 7.11.1996 and had joined the said
post on 15.11.1996. His services came to be
confirmed
vide
a
notification
dated
7.11.2003 with effect from 15.11.1996.
Subsequently, petitioner was selected as a
lecturer
by
U.P.
Higher
Education
Commission, Allahabad in pursuance of the
select list which was approved and
published on 3.3.2000 and accordingly an
appointment letter was issued to the
petitioner on 15.4.2000 by the Committee
of Management of Tilakdhari Post Graduate
College, Jaunpur. On 8.5.2000 an order was
issued by the Registrar, Tilakmanjhi
Bhagapur University, Bhagalpur, State of
Bihar whereby the petitioner was relieved
from his place of posting i.e. Hari Singh
Mahavidyalay, Haveli Kharagpur, Munger,
State of Bihar and the requisite permission
was granted to the petitioner to join the post
of lecturer at Tilakdhari Post Graduate
1 All] Dr. Sunil Vikram Singh V. State of U.P.and others

227
College, Jaunpur affiliated to Respondent
No. 3. After relieving from the institution
on 9.5.2000 the petitioner joined on the post
of lecturer on 11.5.2000 in Tilakdhari Post
Graduate College, Jaunpur and since then
he has been performing his regular duties.

6. As per the guidelines issued by the
University Grant Commission and the
Government Order dated 13.3.2001 issued
by the State of U.P., with regard to the
Career Advancement Scheme (CAS), the
petitioner is entitled for pay protection and
seniority for the pay scale of the post of
lecturer (senior scale) and thereafter lecturer
(selection grade) by including his earlier
service rendered by him as Lecturer in
Tilakmanjhi
Bhagalpur
University,
Bhagalpur, State of Bihar, in the college
where the petitioner is presently working
which is affiliated with Veer Bahadur Singh
Purvanchal University, Jaunpur. Statute
17.10 (e) of the First Statutes of the Veer
Bahadur Singh Purvanchal University read
as under:-

SENIORITY OF PRINCIPALS AND
TEACHERS OF
AFFILIATED COLLEGES

17.10. The following rules shall be
followed in determining the seniority of
Principals and other teachers of affiliated
colleges : [Section 49 (0)].

(a) -

(b) -

(c) -

(d) -

(e) service in a substantive capacity in
another University or another degree or
post-graduate college whether affiliated to
or associated with the University or
another University established by law shall
be added to his length of service.

7. Accordingly the petitioner through
the Manager of Committee of Management
of Tilakdhari Post Graudate College,
Jaunpur submitted a representation dated
14.10.2007 before respondent no. 2 wherein
it was indicated that presently the petitioner
is working as lecturer in Tilakdhari Post
Graduate College, Jaunpur with effect from
11.5.2000 and that prior to the said period
he was in service at Tilakmanjhi Bhagalpur
University, Bhagalpur, State of Bihar from
15.11.1996 to 9.5.2000 and therefore, in
terms of the UGC norms and the First
statutes
of
the
University
the
said
substantive period of service rendered as
Lecturer in State of Bihar is liable to be
included in the present service of the
petitioner and thereafter senior scale and
selection grade be offered to him. However,
the Director (Higher Education) U.P. has
rejected the claim of the petitioner vide
impugned order dated 4.2.2009, on the
strength of the Government Order dated
26.12.1988, hence this writ petition.

8. A counter affidavit has been filed
on behalf of the State Authorities wherein it
is contended that the Government Orders
dated 16.5.1995 and 26.11.1988 deals with
the matter of counting of services rendered
in other institutions of Higher Education,
within the State of U.P. and therefore, the
said Government Orders would not apply in
the case of petitioners. It is further
contended in the said counter affidavit that
the issue as to whether such services of
teachers which are rendered outside the
State of U.P. are to be included with the
State of U.P. or not has been referred to a
larger bench in the case of Dr. A.P. Paliwal,
which is presently pending and therefore, no
relief can be granted to the petitioners. A
rejoinder affidavit was filed by the
petitioners to the aforesaid affidavit wherein
once again it was relied that the aforesaid
228 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

Government
Orders
would
not
be
applicable in the case of petitioners and it
was also stated that in the aforesaid full
bench decision of Dr. A.P. Paliwal Vs. State
of U.P. and others, reported in (2010) 3
U.P.L.B.E.C. 2365, it has been held that
computation of the services rendered
outside the State of U.P. shall not be
counted towards the services rendered by an
employee in the State of U.P. for the grant
of pension and the issue of inclusion of
outside services, in the State of U.P. for the
purposes of grant of senior scale/selection
grade to the petitioners was not an issue in
the said full bench decision. A counter
affidavit has also been filed on behalf of the
University and from the contents therein it
appears that the University is supporting the
case of the petitioners.

9. Heard S/Sri Vimlendu Tripathi,
Intekhab Alam Khan, N.K. Mishra, Sudhir
Dixit, learned counsel for the petitioners,
S/Sri Anurag Khanna, V.K. Upadhyay, Anil
Tiwari, learned counsel for the respondents
and learned Chief Standing Counsel for the
State-respondents, in both the connected
petitions.

10. The submission of the learned
counsel for the petitioners is that the
impugned
orders
rejecting
the
representations of the petitioners is based on
a Government Order dated 26.12.1988, a
copy whereof has been filed as Annexure21 to the writ petition and in fact the subject
matter of the said Government Order is
such that the same will not applicable on the
facts of the present case. A perusal of the
Government Order dated 26.12.1088 would
reveal that the subject dealt with the transfer
of
teachers
from
one
affiliated/associated/private
aided
P.G.
College to another college and with regard
to pay protection on such transfers. Thus the
said Government Order will not apply in the
case of the petitioner as the petitioner is
seeking the inclusion of that period of
service as a Lecturer which has been
rendered outside the State of U.P. This court
is in complete agreement with the
submissions of the learned counsel for the
petitioners that the respondents have
wrongly non suited the petitioner on the
strength of the aforesaid Government Order.
Accordingly the impugned order dated
26.12.1988 (Annexure-21 to the writ
petition) becomes vulnerable in law and is
liable to be set aside.

11. The next submission of the
learned counsel for the petitioners is that
service benefits on the post of lecturer
(senior scale) and lecturer (selection grade)
require 4 years and 5 years length of service
respectively and that there is neither any
requirement either in the U.P. State
University's Act 1973 or in the First Statute
of the University or in the Government
Order
dated
13.3.2001
for
Career
Advancement Scheme that the earlier
substantive service should be only from the
Universities and the Colleges situate within
the State of U.P.

12. Learned counsel for the petitioners
have substantiated their arguments with a
decision of the Apex Court reported in AIR
1988 SC 335 Shardhendu Bhushan Vs.
Nagpur University wherein the Hon'ble
Apex Court has held that in terms of the
criteria laid down by the University Grant
Commission itself, a teacher is entitled to
the benefits of higher grade if he has the
teaching experience of not less than 5 years.
The emphasis is on the experience gained
by a teacher while in the employment of a
University
or
any
other
institution
irrespective of its geographical location and
not on the continuity of service. Even the
1 All] Malik Zafar Lari V. State of U.P.and others

229
U.G.C. scheme or the first statutes of the
University do not refer to any continuity in
service.

13. A Division Bench of this Court in
Civil Misc. Writ Petition No. 30104 of
2006, Dr. Pradeep Kumar Singh Purush Vs.
State of U.P. and others reported in 2009(5)
E.S.C. 3469 and Civil Misc. Writ Petition
No. 45957 of 2006 Harish Kumar Sharma
Vs. Director of Education decided on
24.2.2006, have also taken a similar view,
relying upon the law laid down in the case
of Shardhendu Bhushan.

14. Thus in view of the aforesaid
decisions of the Hon'ble Apex Court and
that of this Court, this Court has no option
but to follow the dicta of the Hon'ble Apex
Court, and that of this Court.

15. Since the basic fact that the
petitioner was in substantive employment as
a
lecturer
in
Tilakmanjhi
Bhagalpur
University, Bhagalpur, State of Bihar from
15.11.1996 to 9.5.2000 have not been
disputed or controverted and therefore, the
petitioner is fully entitled to claim the
benefits of said service rendered in State of
Bihar i.e. from 15.11.1996 to 9.5.2000 to be
included in his service rendered with
respondents.

16. Writ Petition No. 23342 of 2009
succeeds and is allowed. The order dated
4.2.2009 (Annexure-18 to the writ petition)
is quashed and a mandamus is issued to the
respondents to include the services of the
petitioner as Lecturer outside State of U.P.
from 15.11.1996 to 9.5.2000 and to grant
senior scale/selection grade on the post of
Lecturer.

17. Similarly for the facts and reasons
stated in W.P. No. 23342 of 2009, Writ
Petition No. 13118 of 2007 also stands
allowed and accordingly the impugned
order dated 4.12.2006 (Annexure-9 to the
writ petition) is quashed and a mandamus is
issued to the respondents to include the past
services of the petitioner as Lecturer outside
State of U.P. for the grant of Lecturer senior
scale/selection grade.

18. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.02.2012

BEFORE
THE HON'BLE VINEET SARAN, J
THE HON'BLE RAN VIJAI SINGH, J

Civil Misc. Writ Petition No. 25548 of 2008

Malik Zafar Lari

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri A.B. Singh

Counsel for the Respondents:
C.S.C.

Civil
Services
Regulations-Regulation
351-A-withholding post retiral benefitsin
garb
of
disciplinary
proceedingchargesheets much after retirementwithout sanction of Governor under
regulation
351-A-admittedly
no
disciplinary
proceeding
was
pending
prior to retirement-pension gratuity and
other amounts be paid within 3 month.

Held: Para 6

In our considered opinion, the retiral
dues of the petitioner ought to have
been paid to him immediately after his
retirement and the same has wrongly
been
withheld
by
the
respondentauthorities under the garb of an enquiry
being
contemplated
against
the