Anant Lal Upadhyaya vs State of U.P.through Secretary Education Department

D.K. Seth, J.—The petitioner was appointed on 29121978 in the post of Cataloguer in the Sampurna Nand Sanskrit Vishwavidyalaya, Varanasi. By a letter dated 23121979 the petitioner service was terminated with immediate effect. Thereafter, the petitioner was posted on 24121990 on the Press Department of the University and after few months no work was allotted to him and the payment of salary was stopped. The petitioner made a representation on 2281984 to the Vice Chancellor alleging that he had made a representation to the ViceChancellor on 2071981. In the said representation he had pointed out that he worked in the Press Department till 25121981. Thereafter, by order dated 307 1987 the State Government requested the ViceChancellor to consider the petitioner''s application for reappointment in accordance with law. By a letter dated 20101987 the University intimated the Government that no application for appointment appears to have been made by the petitioner to the University, there a copy may be sent to the University. Through a letter dated 29101987 the University informed the petitioner with reference to his application that he may apply for recruitment pursuant to the attached advertisement. The petitioner appears to have made few more representations on 2531993, 541995 and 1051995. The petitioner had also applied before the Chancellor on 541995 under Section 68 of the State Universities Act. By an order dated 3151995 the representation of the petitioner dated 541995 was rejected on the ground that the case of the petitioner does not come within Section 68 of the said Act. By a letter dated 561995 the Chancellor requested the Vice Chancellor while forwarding a copy of the letter dated 541995 of the petitioner with the advice to take appropriate legal action. On the basis of the above facts, this writ petition has been filed claiming the relief to the extent that the orders dated 23121979, 3151995 and 561995 contained in Annexures 3,15 & 16 respectively be quashed and the petitioner be reinstated in the post of Cataloguer and be confirmed and regularised in his service with consequential benefit and to decide the representation contained in Annexures 9,11, 12 and 13 respectively in the light of the order dated 3151995 and 561995 passed by the Chancellor contained in Annexures 15 and 16 respectively.

Mr. B.B. Paul, learned counsel for the petitioner contends that the order dated 2312\\1979 has been passed without giving any opportunity of hearing to the petitioner in violation of Article 311 of the Constitution of India which is applicable even in respect of ad hoc employees. He further contends that the petitioner having been appointed in the post of cataloguer he cannot be reverted to the post in the Press Department. Neither he can be engaged in the examination department of daily wage basis seasonally. He further contends that the petitioner had been pursuing his remedy consistently through representations as pointed out therein, therefore, this court should intervene and make justice available to the petitioner which has since been denied by the respondents. He next contends that the rejection of his representation dated 541995 on the ground it does not fall within the scope of Section 68 of the Act cannot be sustained. He further contends that by reason of the order dated 561995 it was incumbent upon the ViceChancellor to give appointment to the petitioner. He further contends that in view of Section 35 (2) of the State Universities Act the petitioner''s appointment could not have been terminated without the approval of the ViceChancellor. Therefore, the petitioner should be deemed to be in employment continuously since the order of termination is invalid and void ab initio. He further contends that the right to continue in service is a right which flows from Article 21 of the Constitution and as such the same cannot be taken away in the manner it has been so done and the petitioner cannot be deprived of his employment during this long period of time. Therefore, the writ petition should be allowed.

Mr. Anil Tiwari, learned counsel for respondents on the other hand relying on the counteraffidavit filed by him that the initial appointment in the post of Cataloguer was a time bound class III post sanctioned by the University Grants Commission for lessening the work load of the University and the post was dependent on the sanction by the University Grants Commission. As soon the sanction by the University Grants Commission of the said post was not extended, there was no question of continuation of the petitioner in the said post which did not continue after the nonextension of the sanction of the grant by the University Grants Commission. In order to accommodate the petitioner, the petitioner was engaged as a seasonal clerk in the examination department, which ceased automatically at the end of its season. The petitioner could not be retained in the absence of existence of the post, the sanction whereof was time bound. His subsequent engagement a daily wage labour does not confer any right on him. In reply to the letter dated 3071987 sent by the Government the petitioner was informed that continuity in service was not possible but he could apply pursuant to the subsequent advertisement. But the petitioner had never applied. He contends further that the petitioner has been in the habit of making representation successively. Since he has not resorted to any (sic) appointed by law making of successive representations would not be a remedy appointed by law whereby the petitioner intends to explain the delay of almost 14 years in approaching this court. The representation dated 2071981, which was alleged to have been made in his representation dated 2281984 was admittedly made after the period stipulated in Section 68. Inasmuch as the order of termination was passed on 23121979 whereas the representation was made on 2071981. On these facts he contends that the petitioner has not been able to establish a legal right which he could enforce through this writ petition.

I have heard the learned counsel for the parties at length. Mr. Paul''s contention appears to be contradictory when he on one breath says that the orders dated 3151995 and 561995 should be quashed and in the same breath he says that the petitioner should be given appointment pursuant to the order dated 561995. If he prays for quashing of an order he cannot seek enforcement thereof in the same breath.

So far as application of Article 311 of the Constitution of India as contended by Mr. Paul is concerned, it appears that it is not a case where Article 311 could at all be brought into effect. In order to attract application of Article 311 it is necessary that the person must hold a civil post. A ''post'' in this context denotes an ''office''. A post under the State is an office or a position to which duties in connection with the affairs of the State are attached, an office or a position to which a person is appointed and which may exist apart from and independently of the holder of the post. A post is an employment, but every employment is not a post. Expression used in Article 310 (2) permitting abolition or requiring vacation of post, other than those mentioned therein emphasises the idea of existence of the post independent of the person. A causal labour is not a holder of a post. A person can be said to have right to a post only when he is substantively appointed to it. The State may create or abolish a post. The power to abolish a post is inherent in the right to create it. Whether or not a post should be retained or abolished is essentially a matter of policy decision. But such decision is required to be taken in good faith ar,i shall not be a pretence taken to get rid of an inconvenient incumbent. Article 311 (2) deals with cases of dismissal or removal as a measure of penalty.

Reference may be had to the decisions in the cases of State of Assam v. Kanak Chandra Dutta, AIR 1967 SC 884; Superintendent of Post Offices v. P.K. Rajamma, AIR 1977SC 1677; G.S. Gill v. State of Punjab, AIR 1974 SC 1898; K. Rajendran v. State of Tamil Nadu, AIR 1982 SC 1107, Mathuradas Mohanlal Kedia v, S.D. Munushaw & Ors., AIR 1981 SC 53; State of Gujarat v. Raman Lal KeshavLalSoni,AlR 1954 SC 181.

The facts of the present case, as discussed hereafter, does not satisfy the test of civil post in order to attract application of Article 311 since the post had no existence independent of the petitioner. It stood abolished due to non extension of the sanction. The abolition was neither mala fide nor a pretence to ease out the petitioner nor a penalty in disguise.

Mr. Paul''s attempt to extend of Article 311 in the facts of the present case, as discussed hereafter, would be stretching the principle too far, which is otherwise impermissible on the basis of the law settled. In the case of K. Rajendran (supra) it was held that Articles 38 and 43 of the Constitution insists that the State should endeavour to find sufficient work for the people so that they may put their capacity to work into economic use and earn a fairly good living. But these article does not mean that everybody should be provided with a job in the service of the State and if a person is provided with one he should not be asked to leave it even for a just cause. The question whether a person who ceases to be a Government servant according to law should be rehabilitated by giving an alternative employment is as the law stands today, a matter of policy on which the court has no voice.

The statement made in paragraph Nos. 2 and 5 of counter affidavit with regard to the time bound sanction of the post has since been dealt with in paragraphs 3 and 4 of the rejoinderaffidavit respectively. In the said paragraph the fact that the post was time bound and that the sanction for the said post was not extended by the University Grants Commission has not be denied or disputed. Therefore, the said fact as stated in paragraph Nos. 2 and 5 of the counteraffidavit has not been controverter which is presumed to be correct. Unless there is a post, there cannot be any question of appointment or regularisation. If the sanction is a time bound one and the sanction is not extended in that event the post automatically ceases. In case the service is terminated on account of abolition of the post on account of nonextension of sanction in that event there is no scope for continuing the petitioner. In such circumstances the provision of Section 35 (2) of the State Universities Act cannot be attracted. Then again the petitioner himself had accepted the job in the Press Department as well as in the examination Department which fact is also not in dispute. Therefore, there are every reason to believe that the petitioner had waved his right.

Be that as it may. The petitioner did not challenge the order dated 23121979 until this writ petition was filed. Even if he had made a grievance against the said order the same was alleged to have been made out in his representation dated 2281994 wherein he has pointed out that the first representation was made on 2071981. This representation dated 2071981 and the representation dated 2281994 were addressed to the ViceChancellor and as such they were not a representation within the meaning of Section 68 of the State Universities Act. Even if it was a representation within the meaning of Section 68 of the said Act it should have been made within three months from the date of the cause of action viz. ; 23121979 as is provided as time limit in Section 68, first proviso. The representation to the ViceChancellor under Section 68 of the Act appears to have been made on 541995 which was beyond time. Whether the matter comes within the purview of Section 68 or not may be not be necessary to go into because the same has not been made within the time limit and the Chancellor having not entertained the reference suo motu after expiry of the period, the representation is not maintainable. Even if it is refused on different ground it may not be necessary to go into in view of the above facts.

The fact remains that in view of successive correspondences as referred to here in the before, the petitioner was informed to apply pursuant to the advertisement but admittedly he had never applied for any such post. Then again the representations which are being made from time to time as appears from the facts disclosed were not a remedy provided by a law. Successive representations seeking a relief is not a remedy appointed by law and therefore, cannot be a ground on which the delay can be explained, a held following the decisions of the Apex Court as discussed in Motilal Jain v. Director Technical Education U.P. & Ors., 1996 (3) UPLBEC 2077. The petitioner is out of employment admittedly since after 1981 and the petitioner waited till 1995 to espouse his cause though he had referred to a decision by the Tribunal in case of another employee which was decided on 2841986 yet he had not resorted to legal remedy available to him during all these periods. Thus, the petitioner cannot claim any relief on account of the delay in seeking remedy.

In the circumstances, I do not find any reason to interfere with the impugned orders. This writ petition, therefore, fails and is accordingly dismissed. However, there will be no order as to cost.

Mr. B.B. Paul learned counsel for the petitioner at this stage contends that since the petitioner has served for almost three years his case may be considered in terms of the order dated 561995 passed by the Chancellor. The order dated 561995 is an administrative order which specifies that the petitioner case may be considered for appointment or reappointment. Mr. Paul has not been able to show that under which provision such an order could be passed by the Chancellor and how it would be binding on the ViceChancellor. When the Chancellor refused to exercise his power under Section 68 it is not open to issue any such order. There is nothing in the State University Act which empowers the Chancellor to issue such an order. Neither there is any provision in the said Act which makes such order binding on the Vice Chancellor or enforceable in law. The court cannot grant the relief of giving appointment of the petitioner in view of the facts and circumstances stated above. However, in case the petitioner applies pursuant to any advertisement against any vacancy in that event it will be open to the respondents to consider the petitioner''s case in accordance with law, if necessary by relaxing his age along with other candidates provided the petitioner is otherwise eligible.