1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: Ramesh Ukawat Vs. Mohan Lal Sukhadia University & Anr. (D.B.Civil Special Appeal (W) No.100/2002) DATE OF JUDGMENT :::: 22nd March 2010 PRESENT HON’BLE THE CHIEF JUSTICE MR.JAGDISH BHALLA HON’BLE MR.JUSTICE DINESH MAHESHWARI Ms.Abhilasha Bora, for the appellant. Mr.Jagdish Vyas, for the respondents. .... BY THE COURT: (Per Hon'ble Dinesh Maheshwari,J.) This intra-court appeal is directed against the order dated 04.01.2001 whereby the learned Single Judge of this Court has dismissed the writ petition (CWP No.88/1999) preferred by the petitioner-appellant seeking directions against the respondent- University to continue with his ad hoc appointment on the post of Assistant Professor in Rajasthani Department. The petitioner-appellant filed the writ petition aforesaid with the averments that after having taken Masters Degree in Rajasthani in the year 1989, he had qualified the National Eligibility Test and was pursuing his Ph.D. course; that after having applied pursuant to an advertisement issued by the respondent University on 14.09.1991, he was selected by the Screening Committee and was appointed 2 as Assistant Professor (Rajasthani) on ad hoc basis by the order dated 02.01.1992; that though the initial appointment was effective until 06.05.1992 but thereafter, the period was extended from time to time by further orders issued for every academic session; and that lastly, he worked on the said post until 27.06.1998. While stating that he had continuously worked on the said post from the month of June 1992 to the month of June 1998 on ad hoc basis except a few days' gap between each academic session and while pointing out that there were 20 other persons working on the post of Assistant Professor in different Departments on ad hoc basis and 19 of them had been given extension, the petitioner-appellant voiced the grievance that his services were not extended after 27.06.1998. The petitioner-appellant, while pointing out the other set of facts that he was put to explanation on some complaint about medical bills, submitted that the Vice-Chancellor did not feel satisfied with the explanation and ordered preliminary inquiry; and thereafter, a detailed inquiry was recommended and a charge-sheet was served upon him. The petitioner-appellant further pointed out that he had preferred a writ petition (CWP No.1904/1998) challenging the said charge-sheet wherein this Court granted an ad interim stay order dated 24.06.1998 restraining the respondents from passing final orders in the inquiry; and alleged that the respondents deliberately denied him extension for having moved the Court. The petitioner- appellant contended that the respondents had been wholly unfair in not according him extension because of pendency of the said other writ petition against departmental proceedings even while granting 3 extension to other incumbents; and that he had purportedly been punished without completing the inquiry. The petitioner-appellant further averred that as per the requirements of the Rajasthan Universities Teachers and Officers (Selection for Appointment) Act, 1974, the University had no right to make stop-gap appointments for a period more than a year and hence, he was being given the fresh appointment order every academic session but then, the respondents failed to carry out their duty of making regular selections. The petitioner-appellant contended that he was entitled to get the extension until regularly selected persons joined while relying upon an order dated 19.04.1996 as passed by this Court in a batch of petitions led by D.B. Civil Writ Petition No.530/1996: Dr. Irfan Mehar and Ors. Vs. State of Rajasthan & Anr. The petitioner stated the grievance that the representation made by him was not attended to; and, invoking the writ jurisdiction, prayed for the relief that,- “respondents may be directed to give extention/appointment to the petitioner on the post of Assistant Professor in the department of Rajasthani till the regular selection is made with all consequential benefits.” The respondents submitted a reply to the petition contending, inter alia, that the petitioner-appellant had not been a regularly selected person and merely for having worked on ad hoc basis and in the stop-gap arrangement, no right accrued in his favour. It was alleged that during the course of employment, it came to the notice of the University that the petitioner-appellant submitted a wrong medical reimbursement claim with a forged bill where the amount 4 was altered from 'Rs.49.50' to 'Rs.149.50'. It was pointed out that in the other writ petition questioning the inquiry proceedings, a detailed reply had been filed but the said petition was rendered infructuous for the petitioner being no more in service and was dismissed as such. It was also submitted that merely for the extension having been given to some other persons, the petitioner-appellant could not claim extension of his ad hoc and stop-gap service as a matter of right. The petitioner-appellant contended before the learned Single Judge that for his having continued in service for almost six years from 1992 to 1998, it was legitimately expected of the respondents to continue him in service particularly when the others were continued; and the decision of the Hon'ble Division Bench of this Court in Dr. Irfan Mehar's case (supra) was relied upon. The learned Single Judge, however, referred to the decisions of the Hon'ble Supreme Court including those in the cases of State of Punjab Vs. Surinder Singh: AIR 1992 SC 1593 and Director of Institutions, Lucknow Vs. Pushpa Srivastava: (1992) 4 SCC 33 and observed that merely because of extension service of some other professors, no right was created in the petitioner-appellant whose appointment would be governed by the terms and conditions of the appointment letter; and when the appointment was for a fixed period and the respondent- University was of opinion that services were not required to be extended, the Court would not sit in appeal over such a decision for it was upto the University to decide as to whether his services were to be extended or not even though regularly selected candidates 5 were not available. The learned Single Judge did not find the decision of the Hon'ble Division Bench of this Court to be that of a binding precedent in view of the law declared by the Hon'ble Supreme Court in the decisions noted above. Assailing the order passed by the learned Single, the learned counsel for the appellant submitted that the appellant had been continuously in service from the year 1992 to the year 1998, even if it was called a stop-gap arrangement; and the similarly situated persons were indeed continued beyond 25.06.1998. Thus, the learned counsel strenuously contended, there was no reason or justification that the appellant was singled out for different treatment and was not continued in service. According to the learned counsel, it was impermissible for the respondents to have dispensed with the services of the appellant without regular selections having been made and without the regularly selected persons having joined. The learned counsel has referred to and relied upon the decisions in the cases of Dr.Irfan Mehar (supra), Rattan Lal Vs. State of Haryana: AIR 1987 SC 478 and Rajvinder Singh Vs. State of Punjab: 1988 (1) JT SC 31. Per contra, the learned counsel for the respondents has duly supported the order passed by the learned Single Judge. Having given an anxious consideration to the submissions made by the learned counsel and having perused the record with reference to the law applicable, we do not feel persuaded to show interference in this case; and we are clearly of the view that in the given status of record, the present one was not a case where the writ jurisdiction of this Court was to be exercised in favour of the 6 appellant so as to direct the respondent-University to continue with his ad hoc appointment by way of stop-gap arrangement. Though at this length of time and in the given circumstances, we would not like to make any other comment in relation to the inquiry proceedings that were taken up against the petitioner- appellant but it is noticed that there were allegations of the petitioner- appellant making a false claim for medical reimbursement with alteration of the amount of the bill; and, primarily, the factum of such alteration was verified by the University after obtaining photo copy of the carbon copy of the bill from the concerned Medical Store. There were further allegations of the appellant having drawn salary until 12.07.1992 in relation to his previous employment as Senior Teacher at the Government Secondary School, Motagaon although he had joined as Assistant Professor with the respondent University on 08.01.1992. The petitioner-appellant questioned the proceedings for inquiry into these allegations by way of the writ petition (CWP No.1904/1998) and it is noticed that the said writ petition was not decided on merits but was dismissed as infructuous on 21.07.2000 only after taking note of the submissions on behalf of the respondent-University that they were not interested in passing any order against the petitioner for he was not in service any more; and that his appointment was on ad hoc basis which came to an end by efflux of time. It is, thus, evident that the respondent-University chose to drop the matter relating to inquiry only because the term of appointment of the petitioner had come to an end and he was no more in service; and the University stated so specifically before the 7 learned Single Judge in CWP No.1904/1998 and the learned Single Judge dismissed the said writ petition as infructuous only after taking note of such submissions. In the aforesaid position of the record and looking to the subject matter of the two writ petitions filed by the appellant, there was left a little justification after passing of the order dated 21.07.2000 in CWP No. 1904/1998, for issuing any direction against the respondent-University so as to continue with his ad hoc appointment; and the appellant was, obviously, disentitled to any relief in the writ petition wherefrom this intra-court appeal has arisen. We are further clearly of view that looking to the nature of appointment of the appellant, an ad hoc one by way of stop-gap arrangement, if the respondents chose after expiry of the term under the last appointment order, not to accord another such appointment to him for the next academic session even while according such appointment to the other persons, the matter cannot be considered to be of infringement of any legal or fundamental right of the appellant. It may be pointed out at this juncture that while going through the relevant records, we have noticed another shortcoming in the case of the appellant and so also in his conduct that although in the writ petition wherefrom this appeal has arisen (CWP No.88/1999), the appellant projected the case as if his last appointment order had been dated 26.06.1997 (Annex.P/4) whereunder he worked until 27.06.1998 but in the writ petition preferred in challenge to the inquiry proceedings (CWP No.1904/1998), the appellant filed an order dated 06.05.1998 as 8 Annexure-11 whereby the term of his ad hoc appointment was extended from 07.05.1998 to 27.06.1998 or till selected candidate joined or till further orders or till the departmental inquiry against him was completed, whichever be the earlier. The petitioner chose not to file this relevant order dated 06.05.1998 with the later writ petition (CWP No.88/1999). In any case, it is but apparent that the appellant’s appointment had only been an ad hoc one with specific stipulations regarding its term; and in the totality of the facts and circumstances, the respondent University cannot be faulted at if they had not accorded another such appointment to the appellant after 27.06.1998. The learned counsel for the appellant has endeavoured to make out a case for grant of relief to the appellant with reference to the decision rendered on 19.04.1996 by the Hon'ble Division Bench of this Court in Dr.Irfan Mehar's case (supra). It is noticed that the decision in Dr.Irfan Mehar's case (supra) was rendered essentially on the theory of “reasonable expectancy” with the following observations:- “....as the University has, by continuing them in service for two or more than two academic sessions, created in them a reasonable expectancy that they will be continued in the employment of the University till regularly selected candidates are available. Such expectancy cannot be called illegal.'' (Underlining supplied) With respect, the said observations on the principles of legitimate expectation as made by the Hon'ble Division Bench of this Court cannot be taken as that of binding ratio particularly in view of the principles enunciated and expounded by the Hon'ble Supreme 9 Court to the contrary. In the case of Official Liquidator Vs. Dayanand & Ors.: (2008) 10 SCC 1, the Hon'ble Supreme Court has further explained unavailability of the theory of legitimate expectation in such matters with reference to several decided cases including the one in Dr. Chanchal Goyal Vs. State: (2003) 3 SCC 485 wherein the Hon'ble Court had said,- ''23. On the facts of the case delineated above, the principle of legitimate expectation has no application. It has not been shown as to how any act was done by the authorities which created an impression that the conditions attached in the original appointment order were waived. Mere continuance does not imply such waiver. No legitimate expectation can be founded on such unfounded impressions. It was not even indicated as to who, if any, and with what authority created such impression. No waiver which would be against requisite compliances can be countenanced. Whether an expectation exists is, self-evidently, a question of fact. Clear statutory words override any expectation, however founded.'' (Underlining supplied) On the principles noticed above, we are unable to agree that the petitioner could have been granted relief on the theory of legitimate expectation so as to direct the respondents to continue him on such ad hoc appointment in stop-gap arrangement. Even if the petitioner-appellant had been issued the appointment orders from time to time, the fact nevertheless remains that such orders had been of stop-gap arrangement and of appointment on ad hoc basis with the stipulation that the appointment would be effective until the last working day of relevant academic session or until regular selected candidates joining or until further orders, whichever be the earlier. We are unable to find any overt act on the part of the respondent-University to even create an impression that the 10 conditions attached with the appointment orders were waived; and, as held by the Hon'ble Supreme Court, mere continuance does not imply such waiver. Looking to the nature of appointment and stipulations in the appointment orders, if the respondents chose, after expiry of the term under the last appointment order, not to accord another appointment by way of stop-gap arrangement to the petitioner-appellant in the Rajasthani Department in the next academic session even while according such appointment to the other persons, it cannot be said that there has been a direct violation of any of the legal or fundamental right of the petitioner-appellant so as to issue mandamus against the respondent-University. It is also noticed that the stop-gap arrangement on which the petitioner was granted ad hoc appointment for some time by the University was never continued after the month of June 1998. We do not find any reason or justification to consider granting any relief in this appeal at this stage. In view of what has been observed and discussed above, the directions as issued by the Hon'ble Supreme Court in the cases of Rattan Lal and Rajvinder Singh (supra) in view of large number of persons being in ad hoc service for sufficiently long period of time, do not make out a case for issuing any writ, order or direction at the instance of the petitioner-appellant in the present case. In the result, the appeal fails and is, therefore, dismissed. However, in the circumstances, there shall be no order as to costs. MK (DINESH MAHESHWARI).J. (JAGDISH BHALLA), CJ. 11