The judgment emphasized the importance of actual service rendered, performance appraisal reports, and suitability and merit of the employee in determining entitlement to selection grades.

1. - The instant writ petition has been filed for issuing a direction to the respondent to grant senior and selection scale to the petitioner with effect from 1.1.1986 and 5.2.1994 respectively; i.e. after completion of 8 and 16 years service, by way of Career Advancement Scheme in terms of the Ordinance 317 of the respondent University.

2. The facts and circumstances giving rise to this case are that petitioner, after acquiring the Degree of Bachelor of Engineering, was appointed as Lecturer in Structure Engineering in the respondent University vide order dated 3.2.1977. He had been involved in a criminal case, thus could not attend the University and his services were terminated by the respondent University vide order dated 13.11.1982. He remained in jail from 5.1.1983 to 26.7.1991. After being released from jail, he preferred Writ Petition No. 3888/1991 before this Court challenging the order of removal dated 13.11.1982, which was allowed vide judgment and order dated 28.8.1991. The said Judgment stood confirmed by the Appellate Courts and attained finality. In pursuance of the same, petitioner was reinstated and claimed that as the termination order had been set-aside by this Court, he would be deemed in continuous service and, therefore, entitled for the aforesaid selection grades after completion of 8 and 16 years' service. However, the respondent University, while calculating the required period, excluded the period not actually served by him. Hence this writ petition.

3. While allowing the aforesaid petition, this Court issued following orders-

(i) Termination order dated 13.11.1982 is quashed.

(ii) Reinstate petitioner forthwith with continuity of past service with all consequential benefits.

(iii) He shall not be entitled to any salary for the period he remained incarcerated during pendency of the criminal case and further remained gainfully employed.

4. In view of the aforesaid judgment, the consequential order was passed by the University on 5.12.1997 (Annx. 2) and while considering his case for grant of selection grades, vide order dated 9.1.1999, it was held that as petitioner joined the service on 5.2.1977, he would be eligible for first selection grade with effect from 1.1.1994 (excluding the period he remained incarcerated in criminal case from 5.1.1983 to 26.7.1991). Mr. Mridul, learned Senior Advocate appearing on behalf of the petitioner, has submitted that the judgment and order of this Court has to be complied with in its true spirit and as petitioner had been allowed to be reinstated with continuity of service, the question of excluding the period not actually served is not permissible for the reason that he shall be deemed to be in continuous service even for the purpose of getting the selection grades.

5. Mr. J.M. Bhandari, learned Counsel for respondent University, has vehemently opposed the submission contending that in view of the statutory provisions of the relevant Rules, the actual rendered service is to be reckonded.

6. I have considered the rival submissions made on behalf of the parties.

7. It is settled proposition of law that unless the statute provides for a deeming clause, the Court should be very slow in accepting such a contention, as laid down by a Constitution Bench of the Allahabad High Court in Rana Pratap Singh v. State of U.P. 1995 (1) Civil & Revenue Cases 732 . The Court held that had the intention of the legislature been to provide for fiction/deeming sanction/refusal, specific provision could have undoubtedly been made for it in the Act or the Rules. In absence of any statutory provision/rule, it should not be construed as to provide for a fiction in such an eventuality.

8. Moreso, creating a fiction by judicial interpretation may amount to legislation, a field exclusively within the domain of the legislature. Vide State of Jammu & Kashmir v. Triloki Nath Khosa, AIR 1994 SC 1 ; and Ajaib Singh v. Sirhind Coop. Marketing-cum-Processing Service Society Ltd., (1999) 6 SCC 82 .

9