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Judgment
Amitava Roy, C.J.—The common judgment and order dated 28.4.2006 rendered in S.B. Civil Writ Petition No. 5441/2002 has been separately assailed by the National Institute of Ayurveda, Jaipur and the State of Rajasthan through its Ayurveda Department. By the decision impugned, the respondent-writ-petitioner''s claim for being granted the service benefits following his promotion to the post of Professor under the State Government with effect from 9.12.1976 has been sustained. As thereby the consequential liability has been apportioned between the National Institute of Ayurveda (for short, hereafter referred to as "the Institute") and the State Government to the extent as indicated therein, both being aggrieved seek redress.
We have heard Mr. M.D. Agarwal, learned counsel for the appellant-Institute and Mr. S.K. Gupta, learned Additional Advocate General for the appellant-State. We have also heard Mr. R.L. Jain, learned counsel for the respondent-writ-petitioner.
The facts in bare essentials as can be gathered from the rival pleadings outline the backdrop of the debate. The respondent-writ-petitioner, who was initially appointed as Lecturer in the Ayurveda Vishwa Bharti College, Sardarsahar with effect from 8.7.1959 was following the closure of the said College on 13.7.1971, absorbed in the services of the State by order dated 16.6.1972, whereupon he joined the post of Lecturer under it on 1.7.1972. The Institute was established on 7.2.1976 and following a tripartite agreement involving the State of Rajasthan, Central Government and the Institute, his services were placed on deputation with the Institute on and from 7.2.1976. Clause-15 of the agreement dated 1.6.1976 was in the following terms:--
"(15). The terms and conditions of services of the State Government employees transferred to the services of the Institute shall not be less advantageous as compared to the conditions of services under the State Government."
As the records would reveal, the respondent-writ-petitioner continued on deputation with the Institute and eventually he having finally opted to that effect, was absorbed/confirmed with effect from 1.4.1983 and his lien with the State Government stood terminated on and from the said date. Significantly, he had been taken on deputation with the Institute as Assistant Professor. Meanwhile, the respondent-writ-petitioner by the order of the State Government in the Ayurveda Department had been promoted to the post of Professor with effect from 27.4.1981. He having unsuccessfully represented before the State Government that his said promotion ought to be from 1976, preferred an appeal before the Rajasthan Civil Services Appellate Tribunal, Jaipur (for short, hereinafter referred to as "the Tribunal"), which by its order dated 7.9.1998 directed that he be provided with promotion to the post of Professor with effect from 9.12.1976. Noticeably, the Institute was not made a party in the appeal. Be that as it may, the State Government being aggrieved by this determination instituted S.B. Civil Writ Petition No. 2668/2000 before this Court, which was dismissed on 3.7.2000 and the decision of the learned Tribunal was affirmed. It was thereafter, that the State Government by its order dated 18.1.2001 promoted the respondent-writ-petitioner to the post of Professor with effect from 9.12.1976. In the writ proceedings as well, the Institute was not arrayed as a party. The respondent-writ-petitioner being armed with this adjudication represented before the Institute to release the financial and other benefits consequent upon his promotion to the post of Professor with effect from 9.12.1976. He eventually turned to this Court seeking to invoke its writ jurisdiction for redress.
The Institute in its reply admitted that its Screening Committee following an interview of the then teaching staff of the Government Ayurvedic College of Jaipur and the Government Ayurvedic College, Udaipur had submitted its recommendation on 9.7.1977 inter-alia proposing the absorption of the respondent-writ-petitioner as Assistant Professor in its rolls. The recommendation was approved by the Governing Body of the Institute and accordingly, he was offered appointment vide memorandum dated 24.6.1978 in which it was amongst others categorically mentioned that he would have to obtain the benefits of his past services rendered in the State Government from it (State Government) and that the Institute would not have any responsibility in this regard. The answering respondent averred that the respondent-writ-petitioner accepted the offer and assumed the charge of the post of Assistant Professor on 29.12.1978. It admitted further that he was finally absorbed alongwith other staff with effect from 1.4.1983 vide order dated 24.11.1983 and his lien with the State Government stood terminated on and from 1.4.1983. The Institute averred further that the respondent-writ-petitioner was thereafter promoted as Associate Professor and subsequent thereto as Professor vide orders dated 30.4.1985 and 3.4.1992 respectively and that he was superannuated on 30.6.1995 and since then he is receiving his pension from it as per the relevant Rules.
Apart from pleading that it had not been made a party in the appeal before the learned Tribunal or in the writ proceedings initiated by the State Government for which it is not liable to be saddled with any financial or other burden by way of service benefits qua the respondent-writ-petitioner following his promotion as Professor with effect from 9.12.1976, it repugned as well the said promotion to be illegal. According to the Institute, it was not bound by that promotion and that, therefore, in law, could not be held liable to dole out any financial or other service benefits to the respondent-writ-petitioner as a consequence thereof. The Institute averred further that in terms of Clause-15 of the agreement, the terms and conditions of service of the respondent-writ-petitioner were protected only at the time of his induction with the Institute and that protection did not stand extended beyond that point of time.
By the impugned judgment and order, the learned Single Judge, however, held the State Government to be liable to grant the benefits to the respondent-writ petitioner on his promotion as Professor for the period from 9.12.1976 to 1.4.1983. The Institute was held liable therefor after 1.4.1983.
Mr. Agarwal has urged that the respondent-writ-petitioner''s initial induction with the Institute was based on a process of screening, and on being recommended for the post of Assistant Professor, was offered appointment to the said post, subject to the condition that the past service benefits, if any, would have to be claimed from the State Government, and that, it (Institute) would not be liable to meet the same. Apart from contending that the pay scale of the Assistant Professor offered to the respondent-writ-petitioner, at the time of his initial appointment, was higher than that of Professor in the State services, the learned counsel has urged that Clause-15 of the agreement to protect the terms and conditions of service of the appointees, like the respondent-writ-petitioner, was contemplated and understood by the parties to be vis-�-vis the time of initial induction, and not subsequent thereto. According to Mr. Agarwal therefore, the Institute could not have been held liable to release/grant the financial and other benefits, consequent upon the retrospective operation of the respondent-writ-petitioner''s promotion to the post of Professor with the State Government on and from 9.12.1976. Moreover, as neither in the appeal nor in the writ proceedings, wherein his promotion to the post of Professor under the State Government had been directed to be made from 9.12.1976, the Institute was made a party, it is even otherwise in law, not bound by such determination, he urged. In course of the arguments however, the learned counsel admitted that the Institute had released/granted to the respondent-writ-petitioner financial and other benefits pursuant to the promotion accorded to him to the post of Professor in the State service in the year 1981, before he was absorbed in its (Institute) services w.e.f. 1.4.1983.
Per contra, Mr. Jain has urged, with reference to Clause-15 of the agreement, that the Institute was obligated in law to protect the conditions of service, including promotion and other benefits consequential thereto, involving the respondent-writ-petitioner and other appointees/transferees at par with him, and thus, it (Institute) was liable in law to release/grant him the financial and other service benefits, consequent upon his promotion to the post of Professor in the State service on and from 9.12.1976. The stipulation contained in this clause of the tripartite agreement had a binding and overriding effect, and that, all stipulations to the contrary, as referred to in other communications of the Institute to the contrary, as suggested, are wholly inconsequential, he maintained.
Mr. Gupta, while endorsing this assertion on behalf of the respondent-writ-petitioner, has urged that on this count, the impugned judgment and order, to the extent it burdens the State Government with the requirement of discharging its liability to meet the financial and other service benefits qua the respondent-writ petitioner following his promotion to the post of Professor w.e.f. 9.12.1976, ought to be interfered with.
Upon hearing the learned counsel for the parties and on a consideration of the pleaded averments and the documents available on record, we feel inclined to sustain the stand taken on behalf of the respondent-writ-petitioner.
Admittedly, at the time when the respondent-writ-petitioner was taken in the rolls of the Institute, he had been in the service of the State Government, and being recommended for the post of Assistant Professor, he was offered appointment thereto in the pay scale of Rs. 700-1300. The memorandum dated 24.6.1978 to that effect contained a stipulation that the benefit of the past services with the State Government would have to be obtained from it (State Government), and that, the Institute would not have any liability in that regard. The respondent-writ-petitioner accepted the terms and conditions and joined the post. Noticeably however, his drafting into the service of the Institute had been on deputation, and eventually, he having exercised his option, he was finally absorbed with it (Institute) on and from 1.4.1983. The order dated 21.1.1984 of the Government of Rajasthan, Medical & Public Health Department (GR.IV), amply demonstrates this event. As a corollary therefore, the respondent-writ-petitioner had been on deputation from the State Government to the Institute till 1.4.1983 and his lien with it (State Government) stood terminated on and from that date. As the records would reveal, the respondent-writ-petitioner, on the recommendation of the Departmental Promotion Committee, was promoted to the post of Professor in State service on and from 27.4.1981. Vide the office order dated 30.4.1985, he was also promoted to the post of Associate Professor with the Institute and was confirmed in the said post on and from 4.9.1987 thereafter. Subsequent thereto, he was promoted as well to the post of Professor by office order dated 3.4.1992 in the Institute.
Be that as it may, contending that his promotion to the post of Professor in the State service ought to be given from 1976, instead of 1981, he finally approached the learned Tribunal with Appeal No. 997/96, which was allowed by the judgment and order dated 7.9.1998 directing that his promotion to the post of Professor in the State service ought to be from 9.12.1976. This determination was sustained by this Court in S.B. Civil Writ Petition No. 2668/2000 vide its judgment and order dated 3.7.2000, and in compliance of the said verdict, the respondent-writ-petitioner''s promotion to the post of Professor was given effect to from 9.12.1976.
Having regard to the text of Clause-15 of the agreement, as quoted hereinabove, we do not feel persuaded to hold that the protection, as envisaged therein for the prospective appointees who eventually joined the Institute, was contemplated by the parties thereto to limit it to the point of time of initial entry and not thereafter, even if they were to be conferred further benefits for the past services rendered to the State. The stipulation contained in the offer of appointment dated 24.6.1978 to the effect that all claims relating to the past service, prior to the appointment with the Institute, would have to be claimed and realized from the State Government therefore, has to be construed in the above perspective. By no means, in our comprehension, such a stipulation can and ought to be given an interpretation superseding Clause-15 of the agreement intending to protect the conditions of service of the prospective appointees. That the Institute had admittedly released the financial and other service benefits to the respondent-writ-petitioner following his promotion as Professor from 27.4.1981 is, in our estimate, an unimpeachable testimony of the fact that it (Institute) had interpreted Clause-15 of the agreement in the manner, as indicated hereinabove. As the respondent-writ-petitioner continued to be on deputation upto 1.4.1983, in our considered opinion, the Institute in terms of the agreement was liable exclusively to meet the financial and other service benefits due to him and relatable to the services rendered by him to the State Government, prior thereto. The adjudication made by the learned Tribunal and in S.B. Civil Writ Petition No. 2668/2000 per se cannot be repudiated to be non est in law, merely because the Institute had not been made a party in the related proceedings. Understandably, the claim for retrospective promotion of the respondent-writ-petitioner was vis-�-vis the State Government. Noticeably, the determination made by this Court in S.B. Civil Writ Petition No. 2668/2000 affirming the decision of the learned Tribunal directing the respondent-writ-petitioner''s promotion to the post of Professor w.e.f. 9.12.1976 has remained unassailed thereafter and has thus, attained finality. On this count as well, the Institute''s endeavour to contest his claim for realization of the consequential financial and other service benefits from it, lacks in persuasion.
In the result, the appeal (No. 861/2006) filed by the State is allowed and the appeal (No. 801/2006) of the Institute is dismissed. The Institute would work out the financial and other service benefits due to the respondent-writ-petitioner consequent upon his promotion to the post of Professor in State service w.e.f. 9.12.1976 and release/grant the same to him within a period of three months therefrom. The State Government cannot, in the above conspectus of fact, be held liable to meet any portion of such financial and other benefits. Understandably, as the respondent-writ-petitioner stands retired on and from 30.6.1995, the benefits would be construed accordingly and would be further adjusted against those, already released/granted to him, meanwhile.
A copy of this judgment be placed in both the files.