Shiv Gian Singh vs Union Territory, Chandigarh and Others

Sanjay Kishan Kaul, C.J.—The petitioner joined as Physical Training Instructor in the Punjab Engineering College on regular basis in 1954, a post which was re-designated as Lecturer in Physical Education on 19.12.1974, as per the order of the Chandigarh Administration. The petitioner was placed in the University Grants Commission pay scale of Rs. 700-1600, which was further revised to Rs. 2200-4000 with effect from 1.1.1986. The petitioner superannuated on 31.3.1987, after the revision of pay scales.

It is the case of the petitioner that in terms of Chandigarh Administration (Education Department) letter dated 28.2.1989 (Annexure P-7), a senior scale of Rs. 3000-5000 was admissible to such persons who had completed 8 years of service, as per paras 8(b) and 9(d) of Appendix-II. The objective of this was set out in this letter i.e. need to attract and retain the best talent in the country as teachers in institutions of technical education and in order to encourage research. Similarly, the selection grade of Rs. 3700-5700 was admissible for those who had completed 16 years of service, and had participated in two Refresher Courses/Summer Institutes, each of the duration of four weeks or engaged in other appropriate continuing education programme of comparable quality, as may be prescribed by the University Grants Commission.

The petitioner claims that he was entitled to the grant of the senior scale as he had completed 16 years of service as on 1.1.1986, prior to his retirement. A representation in this behalf was made on 4.8.1999, which was rejected on 26.6.2000. This is stated to have given cause of action to approach the Court by filing a civil suit. The civil suit was decided on 18.9.2002 by the Civil Judge (Junior Division), Chandigarh holding in favour of the petitioner on merits, but against the petitioner on the issue of jurisdiction. The appeal filed by the petitioner, however, succeeded vide judgment dated 28.11.2003. The department carried the matter further in Regular Second Appeal which was decided on 8.9.2004 reversing the appellate court''s order on the ground of jurisdiction.

The petitioner, faced with the aforesaid position, filed Original Application No. 956/CH of 2004 before the Central Administrative Tribunal, Chandigarh Bench. The petition was resisted by the respondents on merits pleading that for grant of selection grade of Rs. 3700-5700, it was incumbent upon a person to have completed 16 years of regular service. Not only that, condition 8(b) stipulated that four weeks Refresher Course be attended by the concerned employee for being eligible for the senior scale though that condition was relaxable on completion of 16 years of service. The petitioner is stated to have never attended any four weeks Refresher Course right till he demitted office. The total period as a Lecturer which is to be counted for the grant of selection grade is stated to be less than 16 years and, thus, the claim of the petitioner is alleged to be unsustainable. The petitioner, it is, however, conceded fulfills the requirement of 8 years of service for senior scale but did not attend the Refresher Course and did not have consistent satisfactory reports and, thus, there was no occasion to claim the relief before the Tribunal. Another aspect which has been noted is that there were certain waivers granted in terms of letter dated 25.4.1991, but the same are stated to be not admissible to the petitioner on account of the fact that the petitioner retired on 31.3.1987, much prior to that date and without completing 16 years of service.

The Tribunal, vide impugned order dated 18.10.2006, dismissed the Original Application. On the issue of limitation, which was examined by the Tribunal, it was opined that since the petitioner had been pursuing a wrong remedy, that time period was liable to be excluded from consideration and, thus, the delay was liable to be condoned. In any case, it was observed that payment of monetary benefits, particularly pay scale, is recurring cause of action. However, on merits of the controversy, the plea of the respondents was accepted that the petitioner was not granted the senior scale of Rs. 3000-5000 on completion of 8 years of service as Lecturer and not having completed 16 years of service, was not entitled to the benefit of selection grade of Rs. 3700-5700, having not even attended the Refresher Courses as prescribed, till his retirement. The revision of pay scales is stated to have been granted to the Teachers, Librarians and Physical Education Instructors by way of career advancement and the post occupied by the petitioner was re-designated as Lecturer in Physical Education with effect from 1.1.1973. The period of 8 years or 16 years of service for purposes of grant of senior scale/selection grade was, thus, opined to require counting from the date of such designation and not the entire length of service, as alleged by the petitioner. The scheme in question being one of career advancement, it was admissible only to Lecturers and, thus, the period could be counted only from the date of designation of the petitioner as a Lecturer in the year 1973. On completion of 8 years of service as Lecturer in the year 1981, the senior scale of Rs. 3000-5000 would have been admissible, but since the petitioner had not participated in two Refresher Courses as provided in Clause 12 of the Office Memorandum dated 28.2.1989, he was held not entitled to such benefit. The advantage of the circular dated 25.4.1991 (Annexure P-2, herein) was held not admissible as it could not retrospectively apply with effect from 1987 when the petitioner demitted office.

We have heard learned counsel for the parties and have perused the record.

We had called upon the respondents to produce the service record of the petitioner while concluding hearing yesterday but that is stated to be not available on account of lapse of time. We would, thus, have to go by the pleadings of the parties before the Tribunal.

First, coming to the issue of delay and limitation, undoubtedly, the petitioner is entitled to the exclusion of the period spent in litigation before the civil court which is from the year 2000 to 2004. That seems to have been the reason for the Tribunal to ignore the delay and entertain the Original Application. However, what appears to have been lost sight of is that the cause of action arose when the Circular dated 28.2.1989 (Annexure P-7) was issued. The petitioner has placed nothing on record to show any representation made by the petitioner till 1999 i.e. a decade after the Circular was issued, and based on the rejection of that representation in the year 2000, the civil suit was filed. The petitioner, thus, in our view, was liable to be non-suited on this account alone and this aspect, irrespective of the absence of plea of the respondents in this behalf, had to be examined by the Tribunal.

Now, coming to the merits of the controversy, relevant para-12 dealing with career advancement of Circular dated 28.2.1989 reads as under:-

Career Advancement

Every Lecturer will be placed in a senior scale of Rs. 3000-5000 if he has

-completed 8 years of service after regular appointment with relaxation in service as provided in para 11 above:

-participated in two refresher courses or summer institutes each of approximately four weeks duration or in other comparable continuing education programmes approved by the All India Council for Technical Education; and

-consistently satisfactory performance appraisal reports.

All lecturers in the existing scale of Rs. 700-1600 who have completed 8 years of service on 1.1.1986, will be placed through process of screening/selection in the scale of Rs. 3000-5000. The benefit of service provided in para 11 will be available for the initial placement also.

A bare reading of the aforesaid shows that it is applicable to the post of a Lecturer. That being so, there can be no question of the petitioner being entitled to the benefit of the same till he was appointed as a Lecturer, which was only with effect from 1.1.1973. It is, thus, not permissible for the petitioner to plead that he would be entitled to the period being counted from his initial date of appointment when he was a Physical Training Instructor. We, thus, find no fault with the findings in the impugned order in this behalf.

The written statement filed by the respondents categorically avers that the petitioner never participated in any four weeks Refresher Course throughout his period of employment, while the pre-requisite for application of the aforesaid in case of completion of 8 years of service is such Refresh Course. Even if the petitioner completes 8 years of service (as he did), the senior scale was not admissible to him, having not participated in two Refresher Courses of approximate 3/4 weeks duration.

Insofar as the Circular dated 25.4.1991 (Annexure P-2) is concerned, the benefit of grant of senior scale of Rs. 3000-5000 and selection grade of Rs. 3700-5700 in respect of those having completed 8/16 years of service up to 31.3.1990 after regular appointment, is admissible. The petitioner had never completed 16 years of service if the period is counted from the date of his appointment as a Lecturer. This Circular was applicable in respect of such of the persons who completed the regular service of the requisite period up to 31.3.1990 and is not applicable retrospectively to persons who may have already demitted office. Thus, this Circular also does not come to the aid of the petitioner.

We may note another aspect though it is stated that it is not noted in the impugned order i.e. in case of fulfilling the requirement of 8 years of service for senior scale coupled with the requirement of attending Refresher Courses, as stated aforesaid, the petitioner did not even satisfy the test of consistent satisfactory reports. This requirement is noticed in para-3 of the impugned order but the averments made in the written statement in this behalf appear to have escaped notice of the Tribunal. No replication was filed to this denying the same. This is the reason that we had called for the service record of the petitioner to make ourselves doubly sure of this aspect but, in the absence of availability of the record, we have no option but to go by the pleadings of the respondents, in the absence of any specific denial.

We, thus, find no merit in the writ petition, which is accordingly dismissed leaving the parties to bear their own costs.