Dr. Dinesh Rai vs State Of U.P. & Others
2011 Latest Caselaw 6410 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

																		Reserved
 
							In Chamber
 

 
		Civil Misc. Writ Petition No. 52693 of 2002
 
Dr. Dinesh Rai                                               ........ Petitioner
 
					Versus
 
State of U.P. and others                            ......... Respondents
 
				         ******* 
 
Hon'ble Rakesh Tiwari, J. 

Hon'ble Ramesh Sinha, J.

(Delivered by Hon'ble Ramesh Sinha, J.)

Heard Shri Aseem Kumar Rai, learned counsel for the petitioner, learned Standing Counsel for respondent Nos. 1 and 2 and Shri M.M. Sahai, learned counsel for respondent No. 3.

Counter and rejoinder affidavits have been exchanged between the parties.

By means of this writ petition, the petitioner made the following prayers in the writ petition which are quoted below :-

"(I) Issue a writ, order or direction in the nature of certiorari to quash the oral termination order July, 2002 issued by the concerned respondent.

(II) Issue a writ, order or direction in the nature of mandamus directing the respondents to regularise the services of the petitioner on the post of Lecturer in Dayanand Anglo Vedic Degree College, Varanasi from the initial date of appointment with all consequential benefits arising out of the regularisation.

(III)Issue a writ, order or direction in the nature of Mandamus directing the respondents to pay the salary to the petitioner as was advertised in Nation Wide circulated Daily Hindi News papers "Aaj" dated 18th August, 1991 and as is being paid to similarly situated lecturers are being paid.

(IV)Any other writ, order or direction as this Hon'ble Court deems fit and proper under circumstances of the case.

(V) Award the costs of writ petition to the petitioner."

Learned counsel for the petitioner argued that the petitioner applied for the post of Lecturer in Dayanand Anglo Vedic Degree College, Varanasi ( herein after referred to as "Degree College") against substantive post of Lecturer in Commerce advertised in Nation Wide circulated Daily Hindi News paper "Aaj" dated 18th August, 1991. The Advertisement and the application of the petitioner has been annexed as Annexures -1 and 2 to the writ petition. The petitioner discharged his duties as Lecturer continuously till the filing of the said writ petition without any appointment letter of Lecturer in the aforesaid Degree College and the petitioner is now being treated by the respondent on contract basis as part-time Lecturer on a fixed amount not exceeding in case of Rs.2000/- per month. It is then argued that the petitioner has rendered 11 years of continuous service in the Degree College He is entitled for regularisation on the post of Lecturer from the date of appointment.

The petitioner has relied upon a judgment of Hon'ble Apex Court in Ravi Narain Mahapatra Vs. State of Orissa, 1991 (2) SCC, 599 in which it has been held that a teacher, who appointed only for 89 days, but continued for 4 years with short break, directed the respondents to treat the appellant as the regularly appointed teacher from his initial appointment.

Another judgment relied upon by the petitioner of the Hon'ble Supreme Court in Karnataka State Private College Stop Gap Lecturers Associations Vs. State of Karnataka 1992 (1) SLR S.C. 643, it has been held that ad-hoc appointment and payment of fixed less salary than to admissible to any teacher appointed regularly violative of Articles 14 and 16, arbitrary, obnoxious and deprecated. The Hon'ble Supreme Court has clearly said in above mentioned judgment that services of those teachers who have worked for three years including the break shall not be treated as break. They shall be also absorbed as and when regularly vacancy arise.

The other judgment of the Hon'ble Supreme Court to which our attention has been drawn by the petitioner in State of Haryana Vs. Piara Singh, it has been held that when an employee has continuously worked for more than 2 to 3 years, it shall be presumed that there is a post.

The petitioner further relied upon an unreported judgment this Court passed Civil Misc. Writ Petition No. 4812 of 1998, Km. Ranu Tewari and others Vs. The Director Higher Education and others and Civil Misc. Writ Petition No. 27683 of 1993, Dr. Awadhesh Singh and others Vs. Director Education (Higher) Allahabad and other in which Government order dated 22.7.1986 was challenged by which a novel method has been adopted by the State Government, calling upon the qualified unemployed teachers to work on voluntary basis for taking Lecturers in the classes and the other prayer for with regard to consider the petitioner till regularisation are being made by the U.P. Public Service Commission. It was held that the Government Order dated 22.7.1986 is liable to be quashed and the petitioners are entitled at least the minimum of the pay scale of the regular Pay Scale for lecturer teaching in same colleges and issued direction for considering the petitioner for regularisation in accordance with law.

The petitioner also relies on the judgment of the Supreme Court in Vijay Kumar & others Vs. State of Punjab & others, 1995 SCC (Lrs) 269, wherein it has been held that the appellants shall be paid according to the minimum of the pay scale prescribed for the regularly appointed Lecturers, the duties of whom they are discharging during the period of their appointment as part-time Lecturer subsists.

It is submitted by the learned counsel for respondent No.3 that the petitioner was engaged on contract basis as part-time Lecturer during Sessions 1991-92 and 1992-93 and thereafter, during the Sessions 1999-2000 and 2000-2001 and the petitioner did not work thereafter during the years 1994 to 1998. It is stated by him that the petitioner, from time to time, applied for being engaged on part-time basis as Lecturer on contract basis in the Degree College. He was accordingly engaged at different points of time. The nature of engagement the petitioner was of an intermittent nature for fixed durations which automatically came to an end after the specified period of engagement was over. In this regard some applications have been filed by the respondent along with counter affidavit in support of his contention for being engaged as part-time Lecturer as well as the written undertaking furnished by the petitioner accepting all the terms and conditions of this engagement.

Learned counsel for respondent No.3 further argued that from perusal of Annexures CA- 1 and 2, it is evident that the petitioner had specifically accepted the conditions of his engagement for specified period or till the end of the Session and thereafter his engagement would automatically come to end and that this engagement would not vest him with any legal right for appointment on a substantive post. It is then urged that as the petitioner was never selected on any substantive post by a duly constituted Selection Committee under the Statute of Banaras Hindu University and the engagement in pursuance of Advertisement dated 18th August, 1991 was only as part-time Lecturer on contract basis. Therefore, the petitioner cannot claim parity with the regularly appointed Lecturer, particularly when the Degree College of respondent No.3 is run by a private Committee of Management and does not come with the meaning of State within the Article 12 of the Constitution of India.

Learned counsel for the respondent No.3 further submits that the cases cited by the petitioner are distinguishable on facts from the case cited by the petitioner, inasmuch as the nature of his engagement as Lecturer was purely part-time on contractual basis for fixed period and the petitioner never worked on the substantive post on regular or continuous basis. It is further argued that no termination order either oral or written has been issued against the petitioner.

From perusal of record it also transpires that a counter affidavit has been filed by Shri B.N.L. Srivastava, Senior Assistant Registrar Office, (Administration), Legal Cell, Banaras Hindu University, Varanasi on behalf of Banaras Hindu University, Varanasi through its Registrar who is said to have been arrayed as respondent No.4 in the present writ petition but from the perusal of the array of respondents mentioned in the writ petition it is evident that Banaras Hindu University has neither been arrayed as respondent No.4 in the said writ petition nor any Impleadment Application has been filed by the petitioner or by Banaras Hindu University for being impleaded as one of the respondents.

Moreover, from perusal of the counter affidavit filed on behalf of Banaras Hindu University, Varanasi (herein after referred to as "B.H.U.") it transpires that respondent No.3 - D.A.V. Degree College, Varanasi is a College affiliated to the Banaras Hindu University. It has been averred in paragraph 4 of the counter affidavit that B.H.U. has neither published any Advertisement pursuant to which the petitioner alleges to have been inducted in D.A.V. Degree College, Varanasi nor has any role to play in appointment or termination of Lecturer in the affiliated D.A.V. Degree College. Even salary of teachers of the D.A.V. Degree College is not paid by it. It is further submitted that appointment is made in the B.H.U. which is a Central University by a duly constituted Selection Committee as contemplated under Section 36 (2) of the Statute of the Banaras Hindu University. Moreover, the Statutes of State University are not applicable to D.A.V. Degree College, hence the petitioner could be regularised under provisions of State Universities Act as argued by counsel for the petitioner.

Our attention has been drawn by the counsel for the respondent No.3 that the present writ petition of the petitioner is not maintainable as the same is the second writ petition, as the petitioner has filed an earlier writ petition before this Court being Civil Misc. Writ Petition No. 16165 of 2002 and the prayer made in the present writ petition is almost the same relief which has been claimed by the petitioner in the earlier writ petition.

We have called for the record of the Civil Misc. Writ Petition No.16165 of 2002 and the said writ petition has been dismissed on 25-03-2011 and following order has been passed by this Court :-

" This application for restoration of the order dated 10.7.2009 is highly belated. It is delayed by ten months approximately. Matter relates to service of the petitioner which was already terminated. Other writ petitions regarding termination has been restored and pending in this High Court. Prayer herein is for regularisation of service. Unless the termination order is quashed the question of regularisation of service cannot arise.

In that way prayer for regularisation is consequential to such writ petition which is pending before this court and as a result of he is entitled to make a miscellaneous application in such writ petition.

		Under such circumstances this belated application for restoration cannot 	be allowed particularly when we find the remedy of the petitioner is available as 	discussed above. Therefore, the application for condonation of delay and 			restoration application is dismissed, however, without imposing any cost.
 
 
 
	However, passing of this order will no way effect the right of the petitioner to make any such miscellaneous application in the pending writ petition." 
 

 
	No other case law has been placed before the Court and the arguments of the counsel for the petitioner to these limited above.
 

 
	After arguments by the counsel for the parties were over, they prayed for a days' time to provide photocopies of the judgments on which they respectively want to rely upon. The Court vide order dated 05-12-2011 reserved the judgement allowing them to submit the case laws / Statutes as prayed by them. The order is as under :
 

 

"Heard learned counsel for the parties. Judgement is reserved. Learned counsel for the petitioner as well as learned counsel Sri M.M. Sahai and Standing counsel for the respondents prays for submitting the case laws and statutes etc. relied upon by them. They may file the same by Wednesday dated 7.12.2011. In case the written submissions are not received by the said date, the judgement will be delivered on Friday dated 9.12.2011.

List/put up on Friday dated 9.12.2011 for delivery of judgement in our Chambers at 1.30 P.M."

Though the respondent's counsel has submitted the case laws etc. but the petitioner's counsel has not submitted the same by 07-12-2011 as ordered by order dated 05-12-2011.

Having considered the submissions advanced by the learned counsel for the parties and perusal of records as well as case laws cited by the parties as noted above, we are of the opinion that as no appointment letter having been issued by respondent No.3 for appointing the petitioner on the post of Lecturer at any point of time is appended along with writ petition. The Certificates dated 27-03-1992 and 16-03-2001, which have been issued by the Principal of the Degree College having been brought on record, show that the petitioner was teaching in B. Com. Classes on period-wise contract basis @ Rs. 25/- per Lecture since December, 1991 and that Certificate dated 16-03-2001, which is alleged to have been issued by the said Degree College in which the petitioner is said to have been working for certain Sessions, it appears that it does not bear either the seal or the signature of the issuing authority. In our view, a Certificate showing period of contractual work, alleged to have been issued on behalf of the Degree College, cannot take place of appointment letter issued by the College appointing the petitioner as Lecturer neither on a substantive post nor vests him with any legal right for regularisation. The claim of the petitioner for regularising his services as Lecturer in the said Degree College is not maintainable as the petitioner's appointment was only as part-time Lecturer on contractual basis. His engagement was neither on any substantive post nor through any selection process under any Statutory Rules or Laws. The petitioner is also not working in the said Degree College after the year 2002 when he filed the present writ petition claiming his regularisation.

It is well settled law as has been laid down by the Supreme Court that regular Pay Scale connote appointment on a substantive post and is permanent in nature. It follows that the law has undergone a sea of change and ad-hoc or temporary or part-time employee cannot be directed to be place in the minimum of Pay Scale of regular employee. Therefore, the cases cited by the petitioner has been diluted by the Supreme Court and direction for placing the petitioner in the minimum of Pay Scale cannot be given as it has also not even pleaded by the petitioner. The petitioner has only prayed for regularisation in service which would mean that if he is appointed in accordance with law, he would be placed in the regular Pay Scale of the post. However, we find that the petitioner has claimed that his services have been orally terminated and as such, he cannot be regularised on service for this reason also. Even otherwise, the principle of law is settled by the Supreme Court that the High Court should not normally direct regularisation of a person in service as it has to be factually determined whether there are any post vacant and that person is qualified. Regard may also be had to the fact that recruitment has to be made in accordance with law or procedure prescribed. This is for the reason that if regularisation is directed by the High Court in the cases before the Court under Article 226 of the Constitution of India, it would amount to arbitrary exercise of power as recruitment or appointment to a post in any department does not fall within the ambit of High Court as an appointing authority.

It is only in this back drop in the case of Secretary, State of Karnataka & others Vs. Uma Devi & others, 2006 (2) 1880 U.P.L.B.E.C. Supreme Court laid down the law that power under Article 226 of the Constitution of India should be exercised with restraint and direction for regularisation should normally be not used by the High Court.

For all the reasons stated above, the writ petition fails and is accordingly dismissed. No order as to costs.

Dt. 09-12-2011

AK