Rakesh Chandra Mittal vs State of U.P. and Others

R.A. Sharma, J.—Petitioner was appointed on 1.11.1976 as officiating Lecturer in Physics in Ewing Christian College, Allahabad (hereinafter referred to as the college), which is an affiliated college of the Allahabad University, in a vacancy caused by grant of leave to the regular incumbent of that post, namely, Sri R.P. Khare. On 14.7.1978, Dr. R.C. Tripathi. who was also a Lecturer on a permanent post in the Physics Department of the College, resigned. After the resignation of Dr. R.C. Tripathi, Petitioner claimed that post u/s 31(3)(b) of the State Universities Act (hereinafter referred to as the Act). Head of the Physics Department of the College recommended the Petitioner''s case to the Principal. Director of Higher Education, however, vide letter dated 1.9.1978 refused to grant permission to make any appointment against the post of Dr. R.C. Tripathi. The Principal of the College vide his letter dated 3.11.1978 informed the Head of the Physics Department about the said order of the Director of Higher Education. Being aggrieved by it, Petitioner has filed this writ petition.

While enter training this writ petition on 10.11.1978, this Court passed an interim order, staying the operation of the order dated 1.9.1978 of the Director, Higher Education and giving liberty to the Management of the College either to terminate the Petitioner''s service after giving him an opportunity to show cause or to appoint him In a substantive capacity In the post held by R.C. Tripathi. This order is reproduced herein below:

Issue notice.

Notice on behalf of Respondents 1 and 2 has already been served on the standing counsel. There has been no compliance of Article 226(4) of the Constitution as far as Respondents 3 and 4 are concerned. Apart from notice being issued to Respondents 3 and 4 by registered post, the Petitioner will serve them personally also and file an affidavit of service within ten days. This application shall be put up for further orders on 27th of November, 1978 and notice issued to Respondents 3 and 4 shall indicate that they may file counter-affidavits by that date. Till 27Lh of November, 78 the operation of the impugned order of the Director of Education (Higher Education), U.P., Allahabad dated 1.9.1978 (Annexure IV to the writ petition) shall remain stayed. It is, however, made clear that the Committee of Management of the College concerned Is at liberty either to terminate the Petitioner''s services after giving him an opportunity to show cause or appoint him in a substantive capacity in the post, which it is alleged has fallen vacant as a result of resignation of Dr. R.C. Tripathi.

This Court vide its order dated 27.11.1978 has directed the above interim order to continue until further orders. This order is still in operation and the Petitioner has been working as a Lecturer in Physics in the College regularly after he was appointed in 1976.

Counter-affidavits have been filed both on behalf of the Director of Higher Education and the Principal of the College. Petitioner has filed rejoinder affidavits in reply thereto. We have heard learned Counsel for the parties.

Sri L.P. Naithani, learned Counsel for the Petitioner has made two submissions, namely, ft) in view of the provisions of Section 31(3)(b) of the Act, Petitioner is entitled to be appointed in substantive capacity as Lecturer in Physics against the permanent post held by Dr. R.C. Tripathi, who had resigned on 14.7.1978 ; and (ii) Petitioner has been working in the College for the last about 20 years and if he is removed from services now he will suffer great prejudice and irreparable loss. Apart from disputing the above contentions, the case of the Respondents is that the post of Dr. R.C. Tripathi was kept in abeyance due to lack of workload and, therefore, no appointment could have been made against such a post.

Section 31 has said down that teachers of affiliated or associated colleges are to be appointed by the Management of those colleges on the recommendation of the Selection Committee and every such appointment shall in the first instance be on probation for one year, which may be extended for a period not exceeding one year. Clause (a) of Sub-section(3) of the said section provides for short-term officiating appointment in a vacancy caused by grant of leave to an incumbent for a period not exceeding ten months without reference to the Selection Committee. This provision, however, prohibits the appointment to any other post, which Is likely to last for more than six months without such reference. Clause (b) of Sub-section(3) enables the Management of the College to appoint a temporary officiating Lecturer In substantive capacity, if the post against which the temporary officiating appointment was made has subsequently been converted into a permanent post or has become permanently vacant or a new permanent post has been created In the same cadre and grade. Sub-section (3) of Section 31 of the Act, being relevant, is reproduced below:

Appointment of Teachers.(3)(a) In the case of teacher of the University other than a Professor, the Vice-Chancellor in consultation with the Dean of the Faculty and the Head of the Department concerned and an expert nominated by the Chancellor in that behalf and in the case of a teacher of an affiliated or associated college the Management in consultation with an expert nominated by the Vice-Chancellor in that behalf may make officiating appointment in a vacancy caused by the grant of leave to an incumbent for a period not exceeding ten months without reference to the Selection Committee, but shall not fill any other vacancy or post likely to last for more than six months without such reference.

(b) Where before or after the commencement of this Act, any teacher is appointed (after reference to a Selection Committee) to a temporary post likely to last for more than six months, and such post is subsequently converted into a permanent post or to a permanent post in a vacancy caused by the grant of leave to an incumbent for a period exceeding ten months and such post subsequently becomes permanently vacant or any post of same cadre and grade is newly created or falls vacant in the same department, then unless the Executive Council or the Management, as the case may be, decides to terminate his services after giving an opportunity to show cause, it may appoint such teacher in a substantive capacity to that post without reference to a Selection Committee:

Provided that this clause shall not apply unless the teacher concerned holds the prescribed qualifications for the post at the time of such substantive appointment, and he has served continuously for a period of less than two years, shall be on probation for one year which may be extended for a period not exceeding one year ; and the provisions of Sub-section(2) shall apply accordingly.

Clause (b) of Sub-section(3) of Section 31 covers the cases where appointment Is made after reference to Selection Committee either to a temporary post likely to last for more than six months or to a permanent post in the vacancy caused by the grant of leave to an incumbent for a period exceeding ten months and such post subsequently becomes permanently vacant or any post of same cadre or grade is newly created or falls vacant in the same department. The admitted position is that the Petitioner was appointed on 1.11.1976 after a reference to a Selection Committee to a permanent post in vacancy caused by the grant of leave to Sri R.P. Khare and a permanent post of same cadre and grade in the same department held by Dr. R.C. Tripathi had fallen vacant on 14.7.1978. In paragraphs 4 and 7 of the writ petition, it has been stated by the Petitioner that the post held by Dr. R.C. Tripathi was a permanent post created before April 1, 1975 with the permission of the Vice-Chancellor. In paragraphs 3 and 5 of the counter-affidavit of Shahzade Khan, filed on behalf of the Director of Higher Education, above position has been admitted. In paragraph 6 of the writ petition, Petitioner has stated that he was appointed against the leave vacancy after reference to a Selection Committee. This Is also admitted in paragraph 4 of the aforesaid counter-affidavit, In which it has been stated that the Petitioner was appointed after reference to a Selection Committee with the approval of the Vice-Chancellor. Therefore, Under Clause (b) of the said Sub-section, unless the Management of the College decides to terminate his services after giving him an opportunity to show cause, Petitioner is liable to be appointed in substantive capacity to the post of Dr. R.C. Tripathi without reference to a Selection Committee provided he holds the prescribed qualifications for the post at the time of substantive appointment and he has served continuously for a period of not less than one year after his appointment made after reference to Selection Committee. In the instant case, it has been pleaded by the Petitioner that he holds the prescribed qualifications for the post and he has served continuously for a period of not less than one year after his appointment made after reference to a Selection Committee. These allegations have not been disputed by the Respondents in their counter-affidavit. Petitioner''s case is, therefore, fully covered by Clause (b). The Management of the College has on 25.11.1978 already appointed the Petitioner in substantive capacity u/s 31(3)(b) of the Act with effect from 25.11.1978 itself. This appointment was made in view of the liberty given to the Management by the interim order dated 10.11.1978, passed by this Court in this writ petition. Since then he is working in the College in substantive capacity.

Respondents have opposed the appointment of the Petitioner on two grounds, nanifely. (i) the post of Dr. R.C. Tripathi was not approved by the Director of Higher Education ; and (10 the post of Dr. Tripathi having become surplus due to reduction in workload in the Department, appointment against that post by the Impugned order has been prohibited by the Director of Higher Education. Both these contentions cannot be accepted. u/s 60A (vi) of the Act, a ''teacher'' In relation to a college means a person, who is employed with the approval of the Vice-Chancellor of the University to a post created before April 1, 1975 with the permission of the Vice-Chancellor or to a post created after 31.3.1975 with the permission of the Director, Higher Education. In the instant case, the admitted position is that the post of Dr. R.C. Tripathi was created before April 1, 1975 with the permission of the Vice-Chancellor and for such a post the permission of the Director, Higher Education is not required. A Division Bench of this Court in Chhedan Lai Rastogi v. State U.P., Lucknow and others 1987 UPLBEC 1561 has, in view of the above provisions, laid down as Under:

The question of approval of Director of Higher Education, could arise only if the post, as per provisions of Section 60A (vi), was created after March 31, 1975 when the permission of the Director of Education (Higher Education) was required.

As regards the other plea relating to the reduction of workload In the Department and the post held by Dr. R.C. Tripathi becoming surplus is concerned, the parties have disputed each others'' version. It is not necessary to go Into this question after about eighteen years, because things must have changed by now. As mentioned earlier, Petitioner was appointed in 1976 and on 25.11.1978 he was appointed in substantive capacity by the Management against the post of Dr. R.C. Tripathi. His substantive appointment was not in pursuance of any direction of this Court. This Court merely gave liberty to the Management either to terminate his services or to appoint him in substantive capacity against the post of Dr. R.C. Tripathi. It has appointed him In the substantive capacity in exercise of its power Under Clause (b) of Sub-section(3) of Section 31 of the Act. This appointment has not been challenged before us. It will, therefore, stand. That apart, the Petitioner has been working in the College for the last about 20 years. It will be highly unfair, if he is removed now from his service. He cannot now get any other Job being over-age. Supreme Court in H.C. Puttaswamy and others Vs. The Hon''ble Chief Justice of Karnataka High Court, Bangalore and others, , highlighted the human problem and the untold miseries when a person having worked for considerable long time Is removed from service. The relevant extract from the said judgment of the Supreme Court in this connection is reproduced below:

There is good sense in the plea put forward for the Appellants. The human problem stands at the outset in these cases and it Is that problem that motivated us In allowing the review petitions. It may be recalled that the Appellants are in service for the past 10 years. They are either graduates or double graduates or post graduates as against the minimum qualification of S.S.L.C. required for Second Division Clerks in which cadre they were originally recruited. Some of them in the normal course have been promoted to higher cadre. They are now over-aged for entry Into any other service. It seems that most of them cannot get the benefit of age relaxation Under Rule 6 of the Karnataka Civil Services (General Recruitment) Rules, 1977, one could only imagine their untold miseries and of their family if they are left at the midstream. Indeed, it would be an act of cruelty at this stage to ask them to appear for written test and vice versa to be conducted by the Public Service Commission for fresh selection (See Lila Dhar Vs. State of Rajasthan and Others, .

Instant case is neither a case where a better candidate was ignored in order to appoint the Petitioner nor is it a case where the appointment has been made in surreptitious manner. Nobody else''s interest has been affected by the appointment of the Petitioner. Here the Petitioner is being denied the appointment in substantive capacity on the ground of reduction of workload in the department rendering the post surplus. Apart from the fact that this position has been seriously disputed by the Petitioner, it has become irrelevant after about 20 years during which period Petitioner has continued to work as Lecturer. If the workload in the department had gone down, the Management of the College would not have appointed the Petitioner in substantive capacity. There is also nothing on the record so as to indicate the present position. Therefore, even if there was some infirmity or Irregularity In the appointment of the Petitioner, it has to be ignored. Petitioner cannot be permitted to be thrown out of the job after having served the department for such a long period.

For the reasons given above, this writ petition is allowed with costs. The Impugned order dated 1.9.1978 (Annexure IV of the writ petition) is quashed. The Respondents are directed not to Interfere with the working of the Petitioner as Lecturer of Physics Department of Ewing Christian College, Allahabad on the basis of the impugned order.