AI Structured Summary
Not yet generated for this judgment
Judgment
J.S. Khehar, C.J.—Respondent No. 4 was inducted into the service of the composite State of Uttar Pradesh on 26.6.1948 as Agriculture Inspector Grade-II. During the course of his employment as such, he was confirmed against the aforesaid post.
During the course of his employment, he was appointed by way of deputation in the Tarai State Farm. He assumed his duties as such on 20.9.1961. His appointment by way of deputation, admittedly, came to an end on 30.4.1975, whereupon, he was reverted to his parent organisation i.e. the Agriculture Department of the State Government, wherefrom he retired on attaining the age of superannuation in 1977.
In order to claim deputation allowance permissible to respondent No. 4 during the period he rendered service at the Tarai State Farm, respondent No. 4 in the first instance he addressed a few representations, and thereafter, having not been released any deputation allowance, approached the State Public Services Tribunal by preferring Claim Petition No. 425/F/III/1990. The Claim Petition preferred by respondent No. 4 was allowed by the State Public Services Tribunal vide an order dated 16.4.1993. A perusal of the aforesaid order reveals, that respondent No. 4 besides being allowed deputation allowance under the mandate of the then existing Government Order, was also allowed interest at the rate of 12 per cent.
The order passed by the State Public Services Tribunal dated 16.4.1993 has been impugned by the G.B. Pant University through the instant Writ Petition. During the course of hearing of the instant Writ Petition, service could not be effected on respondent No. 4. Resultantly, as a consequence of the Motion Bench Order dated 10.4.2008, service on respondent No. 4 was required to be effected by publication in a newspaper. In furtherance of the directions issued on 10.4.2008, the petitioners issued the required publication in the Amar Ujala newspaper dated 30.4.2008. Despite the publication of the aforesaid notice, respondent No. 4 has not entered appearance to contest the present Writ Petition. On account of the publication of the aforesaid notice, as mentioned hereinabove, respondent No. 4 shall be deemed to be duly served. Since he has not entered appearance either in person or through counsel, it is imperative for us to proceed against him ex parte. Respondent No. 4 is accordingly proceeded against exparte.
Insofar as the claim of respondent No. 4 for payment of deputation allowance is concerned, the same was not seriously contested at the hands of the learned Counsel for the petitioners on account of the fact, that it was acknowledged, that respondent No. 4 was actually appointed by way of deputation with the petitioner University and he continued to discharge his duties as such from 20.9.1961 to 30.4.1975. In the aforesaid view of the matter, there is hardly any justification for us to interfere in the determination rendered by the State Public Services Tribunal, granting deputation allowance to respondent No. 4 for the period he rendered service as such.
To the benefit of learned Counsel for the petitioners, it is imperative for us to notice, that it was vehemently asserted by him, during the course of hearing, that during the period of his deputation from 20.9.1961 to 30.4.1975, respondent No. 4 had been granted a promotion, and as such, he was disentitled to deputation allowance after availing the benefit of promotion in the employment of the petitioner University. The instant contention advanced by the learned Counsel for the petitioners is wholly unacceptable, inasmuch as, reference has not been made to any Government Order or other Policy Instructions, whereby deputation allowance can be denied to an individual, who has been allowed further promotion during the tenure of his deputation.
Besides the contest at the hands of the learned Counsel for the petitioners on merits, it is also the vehement contention of the learned Counsel for the petitioners, that respondent No. 4 was not entitled to the benefits claimed by him before the State Public Services Tribunal in view of the fact, that the claim raised by respondent No. 4 was for the period from 1961 to 1975. In this behalf, it was pointed out, that rather than raising the aforesaid claim at the relevant time, he did not even raise it till his retirement on attaining the age of superannuation in 1977. Even thereafter, it is contended, that respondent No. 4 raised the claim of payment of deputation allowance by filing the Claim Petition only in the year 1990. Because of the delay in filing the Claim Application, it is submitted by the learned Counsel for the petitioners, that respondent No. 4 had, by virtue of his own action of delay and latches, foregone his claim for payment of deputation allowance through the process of judicial redressal.
We have considered the contention advanced by the learned Counsel for the petitioners on the issue of delay and latches. While dealing with the issue raised by the learned Counsel for the petitioners, reference must necessarily be made to Section 4(6) of the U.P. Public Services (Tribunal) Act, 1976. Section 4(6) aforementioned is accordingly being extracted hereunder:
(6) For the purpose of Sub-section (5) a public servant shall be deemed to have availed of all the remedies available to him if a final order has been made by the State Government, an authority or officer thereof or other person competent to pass such order under such rules or regulations or contract rejecting any appeal preferred or representation made by such public servant in connection with the grievance:
Provided that where no final order is made by the State Government, authority officer or other person competent to pass such order with regard to the appeal preferred or representation made by such public servant within six months from the date on which such appeal was preferred or representation was made, the public servant may, by a written notice by registered post, require such competent authority to pass the order and if the order is not passed within one month of the service of such notice, the public servant shall be deemed to have availed of all the remedies available to him.
A perusal of the aforesaid provision reveals, that limitation has been provided for on some limited aspects of the matter, in respect whereof the State Public Services Tribunal is vested with jurisdiction. On this aspect of the matter, reference must also necessarily be made to Section 5(1)(b) of the U.P. Public Services (Tribunal) Act, 1976. The same is also being extracted hereunder:
[(b) The provisions of the Limitation Act, 1963 (Act 36 of 1963) shall mutatis mutandis apply to reference u/s 4 as if a reference where a suit filed in civil court so, however, that
(i) notwithstanding the period of limitation prescribed in the Schedule to the said Act, the period of limitation for such reference shall be one year ;
(ii) in computing the period of limitation the period beginning with the date on which the public servant makes a representation or prefers an appeal, revision or any other petition (not being a memorial to the Governor), in accordance with the rules or orders regulating his conditions of service, and ending with the date on which such public servant has knowledge of the final order passed on such representation, appeal, revision or petition, as the case may be, shall be excluded:
Provided that any reference for which the period of limitation prescribed by the Limitation Act, 1963 is more than one year, a reference u/s 4 may be made within the period prescribed by that Act, or within one year next after the commencement of the Uttar Pradesh Public Services (Tribunals) (Amendment) Act, 1985 whichever period expires earlier :
Provided further that nothing in this clause as substituted by the Uttar Pradesh Public Services (Tribunal) (Amendment) Act, 1985, shall affect any reference made before and pending at the commencement of the said Act.]
In the counter affidavit filed by the petitioners before the State Public Services Tribunal, the petitioner University did not contest the claim raised by respondent No. 4 on the plea of limitation either u/s 4(6) or u/s 5(1)(b) of the Uttar Pradesh Public Services (Tribunal) Act, 1976. It is, therefore, no longer open to the petitioner University to assail the determination rendered by the State Public Services Tribunal on the basis of delay and latches. Be that as it may, it is quite apparent, that the claim raised by respondent No. 4 was for deputation allowance for the period from 1961 to 1975, whereafter respondent No. 4 was reverted to his parent department and he continued to discharge his duties as such till 1977. Having retired on attaining the age of superannuation in 1977, he waited for another thirteen years before a Claim Petition was preferred by him before the State Public Services Tribunal demanding deputation allowance. Obviously delay and latches were liable to be taken into consideration while determining the interest payable by the petitioner University to respondent No. 4. Since respondent No. 4 himself was guilty of belatedly raising the said claim, there could hardly be any justification for the State Public Services Tribunal to award interest to him. The award of 12 per cent interest to respondent No. 4 by the State Public Services Tribunal, in our considered view, was totally unjustified. The said determination is accordingly hereby set aside.
In view of the above, the instant Writ Petition is dismissed, insofar as, the determination on merits at the hands of the State Public Services Tribunal is concerned, whereby it arrived at the conclusion, that respondent No. 4 was entitled to deputation allowance for the period, he discharged his duties with the Tarai State Farm under the petitioner University. The instant Writ Petition is, however, allowed to the extent that interest was awarded to respondent No. 4 on the payment of deputation allowance at the rate of 12 per cent by the State Public Services Tribunal, which has been set aside.
In view of the determination rendered hereinabove, the petitioner University is directed to calculate and release all payments due to respondent No. 4 on account of deputation allowance for the period from 1961 to 1975 within three months from today, keeping in mind the then prevailing Government Orders in respect of payment of deputation allowance.