ABDUL LATIF AL HINDI Vs. UNIVERSITY OF ALLAHABAD

JUDGEMENT

(1.) THE petitioner, Head of Department of Arabic and Persian in University of Allahabad, has filed this petition for direction to opposite parties to continue him as professor and Head of Department till he attains the age of 62 years. It is claimed that petitioner was appointed as a lecturer in the University in 1950 and he was confirmed in 1952. At that time the Executive Council of the University by resolution dated 18th November 1950 had fixed the age of retirement at 62 years. THErefore, under terms of his employment he was entitled to continue till he attained age of 62 years. THE other limb of the claim is that petitioner after enforcement of new scale of pay in 1974 exercised his option for the old scale and retirement at 62.

(2.) THAT the petitioner was appointed as lecturer in 1950 and was confirmed in 1952 is not disputed. Nor it is disputed that at the time of his appointment the retirement age of a teacher in the University was 62 years. But in 1973 the Allahabad University Act was repealed by State University Act of 1973. In December, 1974 the government by an order enforced new scales of pay for the University teachers, enhancing the salary substantially in all grades. For instance, from copy of order produced by learned counsel for petitioner, it is clear that pay of lecturer was increased from Rs. 400-950 to Rs. 700-1600 of Reader from 700-1200 to 1200-1900 and of Professor from 1100-1600 to 1500-2500. It was subject to certain conditions one of the conditions being that the age of retirement shall be 60. years. Therefore, when first Statutes of the University under State Universities Act were framed statute 16.23 and 16.24 provided that every University teachers shall have the option either to accept the new or old scale of pay. The option was to be exercised in particular form and the particular manner. And if no option was exercised then the proviso enacted a rule of presumption that the teacher shall be deemed to have opted for new scale. It is claimed that by means of letter dated 22nd August, 1975 the petitioner exercised the option to retire at the age of 62 years and to continue in old scale. It is denied in counter-affidavit. It is averred that the option dated 22nd April, 1975 is neither available on record of University nor it is in personal file of petitioner. To counter it the petitioner had filed receipt of the letter of option by the then Record Keeper of the University. He has also filed affidavit of the then office assistant of Arabic and Persian department who received the letter of option to be forwarded for onward submission. It is a question of fact which cannot be gone into by this court in writ jurisdiction. Apart from it the circumstances are against petitioner. It indicates that even after alleged exercise of option the petitioner had been receiving salary under new scale till he superannuated in 1986 without any objection. The petitioner being lecturer, then reader and ultimately professor who is alleged to have exercised option must be assumed to be aware of the consequences of getting new scale of pay. He cannot be heard after nearly eleven years of getting new scale of pay that he had exercised option in September, 1975 for the old scale. Further in 1986 the petitioner had filed writ petition for a writ of mandamus for direction to the Vice Chancellor to call a meeting of Executive Council to consider the recommendation of selection committee before 12th August, otherwise he shall suffer grave injury as he was going to retire on that date. The petition was allowed by a Bench of this Court of which one of us (R. M. Sahai, J.) was a member. The petitioner cannot now go back on his own affidavit filed in this court. Not only that be himself wrote a letter on 18th August 1986 to the Registrar that despite his superannuation on 12th August 1986 he was entitled to be re-employed and continue till 30th June, 1987, in accordance with government order dated 21st March, 1984 applied to the University by Resolution No. Ill of the Executive Council dated 17th May, 1984. And petitioner, admittedly was re-employed and continued till 30th June, 1987. Even in this letter the petitioner did not claim that he was seeking re-employment even though he was entitled to continue till August, 1988. We do not propose to say any further. But we have no hesitation in saying that the petitioner by his own conduct is precluded from claiming that his age of retirement should be determined at 62 instead of 60 as he had exercised the option to continue in old Scale in 1975.