c r, (oo' IN THE mOH COURT OF JUDICATURE AT BILASPUR (CHHATTISGARH) W.P?NOJ§^&/2QQ6 PETITIONER -\ >. Dr. YADAVENDRA PRASAD DUBEY, S/o Shri B P Dubey, Aged about 33 Years, Working as Lecturer ofMathematics in ~."~' ..•". ..••''/<>' 'x^'.-'''./ ^•'^''/ /z> _.--''{>fy / Guru Ghansidas Vishvavidyalay, Bilaspur. .•C')^-^'' ^^y<y . /^y ^yy VER8US ^•'^' ^^ /' ^'RESPQNDENTS : 1) GURU GHASIDAS VISHVAVIDYALAY, Through its Registrar, Bilaspur (C.G.) 2) Registrar, Giiru Ghansidas Vishvavidyalay, Bilaspur (C.G.) ^3) Head ofDepartment Mafhematics, University Teachmg Department, Guru Ghansidas Vishvavidyalay, Bilaspur (C.G.) / :-ws- PETITION UNDER ARTICLE 226 / 227 OF CONSTITUTION OFINDIA /r»s HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0. 3566 OF 2006 PETITIONER Dr. Yadavendra Prasad Dubey Versus RESPONDENTS Guru Ghasidas Vishvavidyalay & Others (Writ Petition underArticle 226/227 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri P.S. Koshy and Shri Vinod Deshmukh, Advocates for the petitioner. Shri Ashish Shrivastava, Advocate for the respondents No.1 &2. ORDER (ORAL) (Passed on this 8th day ofApril, 2010) 1. The petitioner, by this petition, seeks a direction/command to the respondents to remove the inconsistent conditions in the order of appointment dated 10-8-2001 (Annexure - P/3) whereunder the petitioner was appointed temporarily against the vacant post of Dr. A.S. Randive, further to pay the salary due to him from May, 2002 till filing of the petition. It was also prayed that the order dated 19-2-2003 (Annexure - P/10) whereby payment of his salary on the basis of being contract teacher was sanctioned till April, 2003 and the order dated 28-2-2006 (Annexure - P/13) rejecting the representation ofthe petitioner, may be quashed. 2. The indisputable facts, in nutshell, as projected by the petitioner, are that pursuant to the advertisement dated 26-6-2000 (Annexure - P/1), the petitioner made an application for selection and appointment on the post of Lecturer (G) in Mathematics. On the basis of recommendation of selection committee, the petitioner was appointed as Lecturer on temporary basis until further orders against the vacant post of Dr. A.S. Randive, who & c»u«w \€L^ was appointed as Reader in the Institute of Technology on 10.08.2001 (Annexure-P/3). The petitioner accepted . the appointment and continued to work on the post. Thereafter, the petitioner made a representation on 6-11-2001 (Annexure - P/5) stating that his appointment may be considered against the permanent post, not against the vacant post, which became available on appointment of Dr. Randive as Reader in the Institute of Technology. The petitioner was paid salary of Lecturer till he received an order dated 19-2-2003 (Annexure - P/10) whereby it was communicated to the petitioner that in viewof the resolution ofexecutive council in its meeting held on 26-12-2002, that the payment of pending salary, would be made on the basis of his appointment on contract basis till r\pril, 2003. Being aggrieved, the petitioner preferred a writ petition being W.P. No.1016 of 2003. This Court by order dated 23-1-2006 (Annexure - P/12) having noticed that the representations dated 20-2-2003 and 26-2-2003 were pending consideration before the Vice Chancellor of the University, the respondents were directed to consider and decide the said representations within a period of four weeks. Thereafter, the representations were rejected by impugned order dated 28-2-2006 (Annexure - P/13) holding that the petitioner was appointed against the vacant post caused by appointment of Dr. Randive as Reader' on contract basis in the Institute of Technology The appointment of the petitioner was against the vacant post in Mathematics Department, which was sanctioned by the University Grants Commission and on account of closure of grants-in-aid, the petitioner could not have been appointed ; %^y's!% § Yw-€^ under self-financing scheme, thus his term came to an end. Hence, this petition. 6. Learned counsel appearing for the petitioner submits that the appointment of the petitioner on vacant post caused due to appointment of Dr. Randive in the Institute of Technology was not the subject matter of recruitment. Under the scheme, the petitioner applied for recruitment and appointment on the regular vacant post. The petitioner's appointment was not temporary for two years contract, as in the advertisement it was clearly stated that from posts in S.No. 20 to 40 are temporary for two years on contract, but likely to continue. The post of Lecturer (Mathematics) was not in S.No.20, but at S.No.13. Learned counsel further submits that the committee was constituted under Section 49 of the University Act, 1973 and it was specifically mentioned that the service conditions of the petitioner would be governed under Statute 31 and Ordinence 4 of the University. Name of the petitioner was shown in the seniority list that also supports the fact that the appointment of the petitioner was against the permanent vacancy. The decision of the respondent University to treat theservice of the petitioner as on contract basis up to April, 2003 was arbitrary and illegal, as there was no appointment order on contract basis was ever issued to the petitioner and the petitioner was not appointed accordingly on the contract basis. 7. On the other hand, learned counsel appearing for the respondents No.1 & 2 submits that Dr. Randive was appointed for a period of two years on contract basis in the Institute of Technology, within the University, maintaining his lien on the "T~ f IssrfSKt ? ^a /-' .'? X.. '•s;.-^'' . regular post of Lecturer (Maths). The appointment of the petitioner was against the vacancy caused by the appointment of Dr. Randive for two years in the Institute of Technology under the University. The petitioner accepted the appointment letter and joined the post, thereafter he cannot be permitted to resile and question the terms and conditions of the appointment order. Since the appointment of Dr. Randive.was on contract basis, the appointment of the petitioner was also treated on contract basis and vide order dated 19-2-2003 appointment of the petitioner on contract basis continued up to April, 2003. Thus, the petitioner is not entitled to any relief. 8. I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. 9. On perusal of the appointment order, it is found that the appointment of the petitioner was on the post of Lecturer at the scale of Rs.8000-275-13500 on temporary basis against the vacant post caused by appointment of Dr. Randive on the post of Reader in the Institute of Technology on the basis of resolution dated 9-8-2001 passed by the University Executive Council. It appears that since the appointment of the petitioner was against the vacancy, which arose on account of appointment of Dr. Randive in the Institute of Technology for a period of two years on contract basis, the appointment of the petitioner was for a period of two years i.e.10-8-2001 to 9-8-2003 or till Dr. Randive joins back the post of lecturer in Mathematics. 10. It has not been brought to the notice of this Court by either party that the appointment of Dr. Randive for two years oncontract basis came to an end before completion of two years. Thus, the Yr ^ (P> petitioner was entitled to continue on the post of Lecturer at the pay scale, which was fixed by the appointment order with allowances, increments, which were fixed later on, by the University from time to time during the period. The claim of the petitioner that his appointment was against the permanent post deserves to be rejected on a simple ground that the petitioner has joined the service pursuant to the appointment letter dated 10-8-2001 (Annexure - P/3) on the terms and conditions stated therein. The subsequent representation for treating the petitioner as appointed against the regular post cannot improve the terms and conditions ofthe appointment, as the same was rejected. 11. The decision of the Executive Council to treat the appointment of the petitioner on contract basis till April, 2003 in its meeting dated 26-12-2002 is not sustainable. The Executive Council or the University cannot take a decision unilaterally to treat the appointment of the petitioner as on contract basis when it was clearly stated in the appointment order that the petitioner was appointed against the vacant post available on appointment of Dr,. Randive as Reader in the Institute of Technology. The pay scale in the appointment order of the petitioner was fixed at Rs.8000-275-13500. There is no other submission advanced by the University except that since the Executive Council has decided to treat the appointment of the petitioner as on contract basis on the ground that Dr. Randive was also appointed in the Institute of Technology on contract basis. The impugned order dated 19.02.2003 (Annexure-P/10) is bad and illegal. Thus, the decision dated 19-2-2003 treating the petitioner on contract basis ^ and then granting the pay scale on the basis of contract teacher is quashed. 12. The petitioner is entitled to the pay scale as granted to him in the appointment order dated 10-8-2001 till the post remains vacant or Dr. Randive joins back the post of Lecturer (Maths) in the University on completion of his contract appointment in the Institute ofTechnology. Dr. Randive has already maintainedhis lien on the post of Lecturer (Maths), therefore, the petitioner cannot continue on the post after Dr. Randive joins back the post of Lecturer (Maths) on completion of his contract period as Reader in Institute of Technology. 13. The Supreme Court in Vidyavardhaka Sangha and Another v. Y.D. Deshpande and Others , observed as under: "4. /(fs now well-settled principle of law that the appointment made on probation/ad hoc basis for a specific period of time comes to an end by efflux of time and the person holding such post can have no right to continue on the post. In the instant case as noticed above, the respective respondents have accepted the appointment including the terms and conditions stipulated in the appointment orders and joined the posts in question and continued on thesaid posts for some years. The respondents having accepted the terms and conditions stipulated in the appointment order and allowed the period for which they were appointed to have been elapsed by efflux of time, they are not now permitted to tum their back and say that their appointments could not be terminated on the basis of their appointment letters nor they could be treated as temporary emp/oyees or on contractbasis....." 1 (2006)12 SCC 482 ^^f 14. The facts of the instant case are similar and, as such, the ratio laid down by the Supreme Court in Vidyavardhaka Sangha (supra) is squarely applicable. 15. For the reasons mentioned hereinabove, the order dated 19-2-2003 (Annexure - P/10) treating the petitioner as contract appointee and grant of salary on the said basis is quashed. The petitioner is entitled to his salary on the basis of pay scale fixed in the appointmentorder with increments and other allowances as determined by the University from time to time during the period of working of the petitioner as Lecturer against the vacant post, which was available during the appointment of Dr. Randive as Reader in the Institute of Technology. The respondent University is accordingly directed to calculate the arrears of salary of the petitioner, if any, and make payment to him within a period of four weeks from the date of receipt of a copy of this order, with consequential benefits. 16. In the result, the writ petition is partly allowed. No order asto costs. _. Gowri Sd/- Satish K. Agnihotri Judge