Dr. (Smt.) Rajni Sinha @APPELLANT@Hash State Of Uttarakhand & Others

Ramesh Ranganathan, CJ

The petitioner herein filed the present writ petition on 06.08.2012 seeking a writ of certiorari to quash the orders dated 11.02.2005, 26.12.2005, and

17.11.2003 passed by the second respondent; a writ of mandamus directing the second respondent to accord senior scale of pay to the petitioner with

effect from 1990, and the selection grade with effect from 1994, in the post of lecturer as per the Scheme of 1989, the Scheme of 2001 read with

G.O. 16.10.1984; a writ of mandamus directing the third respondent to accord the designation of Reader to the to the petitioner after completion of the

requisite periods as per the above schemes, and Statute with effect from 1990, treating the date of appointment of the petitioner as 22.09.1985; a writ

of mandamus directing the second respondent to accord all benefits and privileges, including monetary benefits to the petitioner as if she has been

accorded the senior scale of pay with effect from 1990 and the selection grade scale of pay with effect from 1994; and a writ of mandamus directing

the second respondent to make payment of the senior scale of pay and selection grade scale of pay to the petitioner with effect from 1990 and 1994

respectively, along with interest.

Both the proceedings dated 11.02.2005 and 26.12.2005 issued by the second respondent relate to her appointment as a Reader with effect from

26.12.2005. While in the writ petition, the petitioner had claimed that her appointment as Reader vide proceedings dated 26.12.2005, is illegal, and she

is entitled to be appointed as a Reader treating her initial service to have commenced from 1985 and not 01.04.1991, during the course of hearing of

the writ petition, Mr.Vibhu Sinha, learned counsel for the petitioner, fairly stated that the petitioner was not pressing her claim for appointment as a

Reader from an earlier date, and her prayer in the writ petition is confined to her claim to be extended the benefits of senior scale of pay and selection

grade pay scales with effect from 1990 and 1994 respectively, treating her initial appointment as a lecturer from 1985. By proceeding dated

17.11.2003, the State Government had extended the petitioner the benefit of the senior scale of pay with effect from 01.04.1996 (five years after her

appointment as an ad hoc lecturer on 01.04.1991), and the selection grade pay scale with effect from 01.04.2000 (four years after she was treated as

being eligible for the senior scale of pay with effect from 01.04.1996).

Facts, to the limited extent necessary, are that the petitioner was selected for being appointed to the post of lecturer in B.Ed. on 22.09.1985. As she

was not appointed despite her selection, the petitioner approached the Allahabad High Court filing Writ Petition No. 5864 of 1986 and, by interim order

dated 06.01.1996, the Allahabad High Court directed the Committee of Management to consider the petitioner’s claim for appointment to the post

of lecturer pursuant to the recommendations of the Selection Committee dated 22.09.1985. The Committee of Management, vide proceedings dated

4.05.1996, and in compliance with the interim order passed by the Allahabad High Court in Civil Application No. 7045 of 1995 in Writ Petition No.

5864 of 1986, appointed the petitioner as a lecturer, in the Department of Education, on an ad hoc basis till a person was selected by the U.P. Higher

Education Service Commission Allahabad in the prescribed scale of pay with all other admissible allowances retrospectively with effect from

22.09.1985. While informing her that she would not be entitled to be paid any salary by the College, and her claim for salary was tenable only against

the State Government, the petitioner was called upon to accept the conditions and to submit a formal joining report. The petitioner joined the College

pursuant thereto.

Writ Petition No. 5864 of 1986 was disposed of by the Allahabad High Court on 27.09.1996 observing that, as the Committee of Management had

itself rectified its mistake and had made ad hoc appointment retrospectively with effect from 22.09.1985, the relevant provisions contained in Section

31-C of the Act stood complied with; the petitioner’s eligibility to be appointed on ad hoc basis in the year 1985 also stood established; subsequent

to her selection in the year 1985, and during the period elapsing by 1.04.1991, the petitioner was allowed to work only for some time on an honourary

basis; appointment on ad hoc basis, pursuant to the selection held in the year 1985, was granted to the petitioner only after the directions issued by the

Court; the petitioner had continuously worked against the substantive vacancy with effect from 01.04.1991 and, therefore, withholding of payment of

salary to the petitioner, as admissible to a lecturer on an ad hoc basis, at least from 01.04.1991 could not be justified.

The Division Bench of the Allahabad High Court further observed that, since the petitioner could not discharge the duties attached to the post of

lecturer in the subject of B.Ed. for want of a formal appointment order, the issuance whereof was withheld during the period elapsing between her

selection and the appointment granted by the Management to her initially with effect from 01.04.1991, there was no justification in directing payment

of salary for the aforesaid period as claimed by her; and the action of the respondent authorities, in withholding payment of salary to the petitioner

subsequent to 1.04.1991, could not be sustained in law.

The Division Bench was of the opinion that sufficient grounds had been made out for issuing a direction requiring the respondents to ensure that the

petitioner is paid her salary, for the post of lecturer in B.Ed., henceforth; the petitioner was also entitled for arrears of salary, with effect from

01.04.1991 till date, within a period of three months; the petitioner’s case for regularization and substantive appointment should be considered in

accordance with the provisions contained in Section 31-C of the Act; and, since the respondents were at fault, the petitioner on her being found

suitable for regular substantive appointment, would be entitled to have her inter-se seniority as a lecturer determined on a notional basis with effect

from 22.09.1985, which was the date on which appointment was granted to the petitioner pursuant to the directions of the Court.

As noted hereinabove, the Division Bench of the Allahabad High Court only granted the petitioner arrears of salary from the date on which she was

appointed on an ad hoc basis i.e. with effect from 01.04.1991. She was, however, held to be entitled for notional seniority from the date of her initial

selection on 22.09.1985, on her services being regularized but, however, without the benefit of arrears of salary from that date till 01.04.1991. Though

the Career Advancement Scheme in Uttar Pradesh was formulated by G.O. No.91 GI/14-11-88-14(5)/87, dated 07.01.1989, the petitioner neither

chose to amend her prayer in Writ Petition No. 5864 of 1986 which was then pending before the Allahabad High Court, nor did she invoke the

jurisdiction of the Allahabad High Court soon after Writ Petition No. 5864 of 1986 was disposed of by order dated 27.09.1996, claiming the benefit of

senior scale and selection grade scale of pay. The present writ petition, as noted hereinabove, was filed before this Court only on 06.08.2012.

In this context, it is also relevant to note that the Career Advancement Scheme notified by the Uttar Pradesh Government under G.O. No. 91

GI/14-11-88-14(5)/87, dated 07.01.1989 prescribed certain eligibility criteria for being given senior scale of pay under the Career Advancement

Schemes. They are (a) the candidate should be a lecturer in University or in an Affiliated / Associated College; (b) she or he must have completed

eight years of continuous and full time service after regular appointment; (c) this service must have been rendered on an approved post after regular

selection in permanent or temporary capacity; (d) she or he should have participated in two refresher courses / summer institutes each of

approximately four weeks duration or engaged in other appropriate continuing education programmes of comparable quality as may be specified by the

U.G.C; and (e) consistently satisfactory performance appraisal reports.

A Selection Committee was also constituted, under the said Scheme, for placement in the senior scale, and such a Committee was to be headed by

the Director of the Higher Education, with two experts of the subject to be nominated by the Vice-Chancellor, the Head of the Management and the

Principal of the College as its members. The Screening Committee was required to consider the candidate’s performance appraisal report, his /

her participation in refresher courses / summer institutes / continuing education programmes and such other relevant records as has been placed

before it. The Committee was also empowered to interview the candidates.

In so far as selection grade is concerned, the Career Advancement Scheme notified in G.O. No. 91 GI/14-11-88-14(5)/87, dated 07.01.1989

stipulated that the lecturer in an affiliated college, who does not have a Doctorate degree or equivalent published work and who does not meet the

scholarship and research standards of Reader but fulfills other criteria mentioned in Para 14 and has a good record in teaching and /or participation in

extension activities will be eligible for placement in selection grade. Para 14 requires the candidate to have completed eight years of service in the

senior scale as a lecturer for being promoted as a Reader. This condition could be relaxed, if the total continuous and full time service of the lecturer

was not less than 16 years. Further this service of 16 years must have been rendered on an approved post after regular selection in a temporary or

permanent capacity in any University or Post Graduate or Under Graduate degree college; and the candidate must have obtained a Doctorate degree

or an equivalent published work etc.

Under the U.P. Career Advancement Scheme, a lecturer was entitled to senior scale of pay on completing eight years of continuous and full time

service after regular appointment. A lecturer was entitled for selection grade on his or her completing eight years of minimum service in the senior

scale of pay i.e. for a total of 16 years. Even if the total period of sixteen years were to be reckoned from 22.09.1985, the petitioner would even then

have been entitled to be extended the selection grade only from 22.09.2001.

After the State of Uttarakhand came into being on 9. 11.2000, a separate Career Advancement Scheme was formulated and, thereafter, the U.P.

Career Advancement Scheme ceased to have application to lecturers in Government or aided colleges in the State of Uttarakhand. The Uttarakhand

Career Advancement Scheme, notified under G.O. No. 4078 / MSV-20013(163) dated 06.12.2001, enabled lecturers, who had completed four years

of service and who had a Ph.D. to be given the senior scale of pay; and those, who had completed five years’ service as a lecturer (senior scale)

to be given lecturer selection grade. The petitioner did not seek extension of the benefits, under this Career Advancement Scheme notified in G.O.

No. 4078 / MSV-20013(163) dated 06.12.2001, till the present writ petition was filed in the year 2012.

It is in terms of this G.O. No. 4078 / MSV-20013(163) dated 06.12.2001 that the State of Uttarakhand, by order dated 17.11.2003, gave the

petitioner the benefit of senior scale with effect from 01.04.1996, and selection grade with effect from 01.04.2000. In effect, the petitioner has been

given the benefit of selection grade from a date anterior to what she would have been entitled to get under the U.P. Career Advancement Scheme,

whereunder she would have been entitled to be extended the benefit of senior scale of pay only on completion of sixteen years of service, which even

if reckoned from 22.09.1985, would have been only from 22.09.2001.

On the question whether the petitioner is entitled to have her services reckoned from 22.09.1985 for being extended the benefit of the Career

Advancement Scheme notified in G.O. No. 4078 / MSV-20013(163) dated 06.12.2001, it must be borne in mind that the State of Uttarakhand had,

itself, not come into being when the petitioner had completed eight years of service from 22.09.1985 (i.e. on 22.09.1993) which was the minimum

service required to be put in as a lecturer, for being entitled to claim the senior scale of pay under the Uttar Pradesh Career Advancement Scheme.

She chose not to seek any such relief before the Allahabad High Court either. G.O. No. 4078 / MSV-20013(163) dated 06.12.2001 cannot be made

applicable from 22.09.1985, as the Government of Uttarakhand, which issued the said G.O. whereby the Career Advancement Scheme was

prescribed, itself came into being only on 09.11.2000. As noted herein above, even if the petitioner’s services are reckoned to have commenced

from 22.09.1985, she would have been entitled to get the senior scale of pay under the Uttar Pradesh Career Advancement Scheme only from

22.09.1993, and the selection grade under the said Scheme only with effect from 22.09.2001. Any grievance, which she may have, in not having her

services reckoned from 22.09.1985 under the U.P. Career Advancement Scheme, could only have been agitated before the Allahabad High Court,

since the State of Uttarakhand had not even come into existence in the year 1993 when the petitioner claims that she must be deemed to have

completed eight years’ service as a lecturer. In any event, the petitioner has, even after the proceedings dated 17.11.2003 were issued, chosen not

to invoke the jurisdiction of this Court for nearly nine years therafter till she filed the present writ petition on 06.08.2012.

It is also relevant to note that, both under the U.P. Career Advancement Scheme and under the Uttarakhand Career Advancement Scheme,

extension of the benefit of senior scale of pay / selection grade is not automatic. The petitioner’s claim is required to be examined by a duly

constituted Selection Committee, and it is only if the Selection Committee is so constituted, and recommends favourably, would such a lecturer be

entitled to be extended the benefits of senior scale of pay and selection grade. At this length of time, it would be wholly inappropriate for us to direct a

Selection Committee to be constituted, and for it to examine the petitioner’s entitlement for being extended the benefits of senior scale of pay, and

selection grade, from an anterior date with effect from 22.09.1985.

It is well settled that this Court would not come to the aid of the indolent and the lethargic. Unless the delay, in invoking the jurisdiction of this

Court under Article 226 of the Constitution of India, is satisfactorily explained, this Court would refrain from exercising its discretionary jurisdiction

under Article 226 of the Constitution of India to entertain the writ petition and grant the relief sought for.

In State of Madhya Pradesh vs. Nandlal Jaiswal and others (1986) 4 SCC 566, the Supreme Court observed:

“……………..

Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High

Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent of the acquiescent and the lethargic. If there is inordinate

delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and

grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court

does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public

inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition

filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ

jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which

always weighs with the High Court in deciding whether or not to exercise such jurisdiction…..â€​ (emphasis supplied)

Even on the ground of inordinate delay and laches, the petitioner is not entitled for the relief sought for by her in the writ petition.

Viewed from any angle, the writ petition as filed is devoid of merits and is, accordingly, dismissed.