HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 34 Case :- WRIT - A No. - 30837 of 1990 Petitioner :- K.M.Tripathi Respondent :- D.I.O.S. & Others Petitioner Counsel :- D.S.M.Tripathi,Rakesh Pandey Respondent Counsel :- S.C.,M.C.Chaturvedi,P.K. Tripathi Hon'ble Arun Tandon, J.
In paragraph 3 of the present writ petition it has been stated that one Shyam Krishna Lal had proceeded on long leave in the year 1989 and, therefore, the Committee of Management decided to make appointment against the leave vacancy. The vacancy was advertised and applications were invited. The petitioner applied in response to the advertisement (paragraph 4 to the present writ petition). In paragraph 13 it has been stated that the petitioner has been appointed in accordance with the provisions of para 11.21 of the First Statutes of the Sampurna Nand Sanskrit University, Varanasi.
The Manager of the institution however forwarded a letter to the petitioner stating that it is now proposed to make ad hoc appointment in accordance with the provisions of para 11.21 of the First Statutes of the University, therefore, the services of the petitioner are being brought to an end. It is against this order of the Manager dated 20.11.1990 that the present writ petition has been filed.
On record is an order of the University dated 31.07.1990 whereby the appointment has been directed to be made in accordance with the provisions of para 11.21 of the First Statutes of the University by the management afresh.
This writ petition is liable to be dismissed on one short ground alone that the consequential action taken by the Manager, could not be challenged without challenging the main order of the University. However, the petitioner on the basis of the statement made in paragraph 3, 4 and 13 of the present writ petition, misled the Court to believe that the appointment of the petitioner was earlier made in accordance with the provisions of para 11.21 of the First Statutes of the University and on that basis succeeded in contending that an ad hoc appointee cannot be replaced by another. This resulted in an interim order dated 26.11.1990 directing payment of salary to the petitioner. This has continued for nearly 20 years together. During this period the petitioner did not take any steps to serve the University. It was only when the Court on 04.04.2011 noticed the aforesaid fact directed the Registry of the High Court to serve a notice upon the University with a further direction upon the University to produce the original records available qua selection/appointment of the petitioner.
A counter affidavit has been filed by the Vice Chancellor of the University. From the counter affidavit it is apparent that it has been stated in paragraph 7 that approval was granted to the appointment of the petitioner under the provisions of para 11.21 of the First Statutes of the University (Reference Annexure-3 to the writ petition).
The statement so made on the face of record is false. The appointment of the petitioner was earlier approved vide order dated 30.01.1990 which specifically records that the same has been made under Statute 11.33 of the First Statute of the University.
The relevant Statute reads as follows :
"11-33 ¼1½ egkfo|ky; dk izcU/kra=] dqyifr }kjk bl fufer uke& fufnZ"V fo'ofo|ky; ds lEcfU/kr foHkkxk/;{k ds ijke'kZ ls] nl ekl ls vuf/kd vof/k ds fy, fdlh in/kkjh dks Lohd`r NqV~Vh ds dkj.k gqbZ fjfDr esa p;u&lfefr dks vfHkns'k fd;s fcuk fdlh v/;kid dks LFkkukiUu :i ls fu;qDr dj ldrk gS( fdUrq fdlh ,slh fjfDr ;k in dks ftlds N% ekl ls vf/kd cus jgus dh lEHkkouk gks] fcuk ,slk vfHkns'k fd;s] ugha HkjsxkAß The University was aware of the said fact and, therefore, it vide order dated 31.07.1990 directed that since the leave vacancy was for a period of more than 10 months, the same be filled afresh in accordance with the provisions of para 11.21 of the First Statutes of the University which provides for the vacancy being advertised and a selection committee being constituted for appointment on the post in question. Para 11.21 of the Statutes of University is being quoted herein below :
"11-21 fdlh ,slh fjfDr esa ¼tks fdlh v/;kid dks nl ekl ls vuf/kd ds fy;s NqV~Vh fn;s tkus ds dkj.k gqbZ fjfDr u gks½ ftlds N% ekl ds vf/kd cus jgus dh lEHkkouk gks] fu;qfDr ds fy;s dksbZ p;u ¼de ls de nks ,sls lekpkj&i= es½a ftldk lEc) jkT; ;k la?k&{ks= esa i;kZIr ifjpkyu gks] foKkiu fn;s fcuk ugha fd;k tk;xk vkSj foKkiu esa ml lekpkj&i= ds] ftlesa foKkiu izdkf'kr fd;k tk;] fudyus ds fnukad ls de&ls&de rhu lIrkg dk le; lkekU;r% vH;fFkZ;ksa dks fn;k tk;xkAß"""
Selections referred to Statute 11.21 has to be made by the Selection Committee constituted under Statute 11.16 in the manner prescribed under the Statute.
From the records produced today, it is further apparent that neither there is any advertisement on record of the University in respect of the earlier appointment of the petitioner nor there is any recommendation of the Selection Committee referable to Statute 11.21.
It is in this background that the approval order dated 30.01.1990 specifically recorded that the appointment is being approved under Statute 11.33 (1) of the University.
It is thus clear that not only the petitioner has mislead this Court, the Vice Chancellor of the University has also filed a false affidavit. (Reference paragraph 13 of the counter affidavit).
Let the petitioner and the Vice Chancellor show cause as to why proceedings for contempt be not initiated for misleading the Court. The original records may be retained by the Bench Secretary of this Court.
Both the persons may appear before this Court along with their affidavit on 04.05.2011.
List on 04.05.2011 in first ten cases, peremptorily.
The petitioner may also show cause as to why the entire salary obtained under an interim order passed in this petition, may not be directed to be recovered from his personal assets.
Dated : 19.04.2011 VR/30837/90