Dr. Mohd. Athar (In Writ-A No. ... vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 404 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 2
 
Case :- SPECIAL APPEAL No. - 129 of 2022
 

 
Appellant :- Dr. Mohd. Athar (In Writ-A No. 20190 Of 2021)
 
Respondent :- State Of U.P. Thru. Prin. Secy. Medical Edu. Anubhag-1 And 3 Others
 
Counsel for Appellant :- Dinesh Kumar Tripathi,Abhishek Dwivedi
 
Counsel for Respondent :- C.S.C.,Anupras Singh
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Subhash Vidyarthi,J.

1. Heard Sri Abhishek Dwivedi, Advocate, learned counsel for the appellant and Sri Anupras Singh, Advocate, learned counsel for the respondents.

2. By means of the instant intra court appeal filed under Chapter-VIII, Rule-5 of the Allahabad High Court Rules, the appellant / petitioner has challenged the judgment and order dated 13.09.2021 passed by an Hon'ble Single Judge dismissing Writ Petition No. 20190 (S/S) of 2021 filed by him challenging the validity of the order dated 24.07.2021 passed by the Director, Dr. Ram Manohar Lohiya Institute of Medical College (hereinafter referred to as the 'Institute') cancelling the order dated 07.06.2018 appointing the petitioner on the post of Associate Professor (General Surgery), on the ground that in spite of being granted repeated opportunities, he did not join his duties on the aforesaid post.

3. The facts of the case, briefly stated, are that the petitioner is working as an Associate Professor (General Surgery) in G.S.V. M. Government Medical College, Kanpur. While working on the aforesaid post, he had applied for being appointed on the post of Associate Professor (General Surgery) in the Institute in furtherance of an advertisement dated 18.10.2017. The petitioner was selected and on 07.06.2018 he was issued an appointment letter. It was specifically mentioned in the appointment order dated 07.06.2018 that the order will be effective from the date of issuance till 22.06.2018, during which period the petitioner should complete all requisite formalities and submit joining report, failing which the appointment order shall be deemed to have been cancelled automatically.

4. On 20.06.2018, the petitioner gave an application to the Director of the Institute stating that he was working as an Associate Professor in G.S.V.M. Medical College, Kanpur and he has to give one month's notice to the college and has to obtain a relieving certificate from the government. He had already made a request for issuing a relieving certificate as soon as possible and probably it will take one to one and half months' time. The petitioner requested that keeping in view the aforesaid facts, he be granted one to one and half months' additional time for joining his duties on the post in question.

5. By means of an Office Memorandum dated 14.01.2019, the government issued sanction for relieving the petitioner from the post of Associate Professor (General Surgery) in G.S.V.M. Medical College, Kanpur to enable him to join on the post of Associate Professor (General Surgery) in the Institute. On 14.08.2019, the Director of the Institute wrote a letter to the petitioner stating that although, he had been relieved on 14.01.2019 from the post of Associate Professor in G.S.V.M. Medical College, Kanpur to enable him to join on the post of Associate Professor (General Surgery) in the Institute, the petitioner did not join his duties in the Institute. The letter directed the petitioner to join his duties within a period of 15 days from the date of its receipt, failing which it will be presumed that he is not willing to join his duties and, accordingly, his appointment will be cancelled.

6. In response to the aforesaid letter, the petitioner sent a reply dated 31.08.2019 stating that he received the letter dated 14.08.2019, on 20.08.2019, after which he had submitted an application for being relieved from G.S.V.M. Medical College and as he had been selected by the Commission, he was required to give none month's notice. The petitioner requested for being granted one month's further time and stated that he will be able to join the duties after 20.09.2019.

7. However, the petitioner did not joint the duties even after 20.09.2019. On 28.09.2019, he sent a letter to the Director of the Institute stating that he had obtained permission from the government for being relieved from Kanpur Medical College while maintaining his lien on the post but the government's letter relieving him does not mention anything about the lien. He has made a request to the government to clarify the position regarding lien. He requested the Director of the Institute to grant him permission for joining till the situation was clarified.

8. On 03.01.2020, the Director of Institute wrote a letter to the petitioner stating that period of more than one year six months had lapsed since his appointment and it would not be in public interest to grant him indefinite time for joining and the petitioner was asked to give an explanation within a period of one week as to why his appointment should not be cancelled.

9. Ultimately on 17.07.2021, the petitioner was relieved from the post of Associate Professor (General Surgery), G.M.V. S. Medical College, Kanpur.

10. On 13.01.2020, the petitioner submitted his reply stating that the matter of maintenance of lien is pending at the government level and as soon as he would receive the reply regarding the same, he will join.

11. On 24.07.2021, the Director of the Institute passed an order mentioning the aforesaid facts and stating that from the aforesaid circumstances, it appears that the petitioner has been granted more than sufficient time for joining but he did not join his duties. Accordingly, the appointment granted to him by means of the order dated 07.06.2018 was cancelled in public interest.

12. The petitioner assailed the aforesaid order dated 24.07.2021 by filing Writ Petition No. 20190 (S/S) of 2021. The Hon'ble Single Judge has dismissed the aforesaid writ petition by means of the judgment dated 13.09.2021.

13. Keeping in view the fact that the petitioner did not join the Institute in spite of being provided with repeated extensions and opportunities and the fact that he had been relieved from the Government Medical College, Kanpur way back, the Hon'ble Single Judge held that the right to join the Institute could be exercised within a reasonable period of time and the same cannot be held to be available to the petitioner indefinitely.

14. We have carefully gone through the entire material on record and considered the submissions made on behalf of the parties.

15. The learned counsel for the appellant has submitted that before passing the order cancelling the petitioner's appointment, no prior intimation or information has been given to the petitioner. It is further submitted that the order dated 24.07.2021 was communicated to the petitioner on 28.07.2021 and prior to it, on 26.07.2021, he had submitted his application for joining on the post in question.

16. Regarding the first ground of challenge taken by the appellant that no prior intimation or information was given to him before passing the order cancelling his appointment, we may observe that the petitioner has himself annexed the letter dated 14.08.2019 issued by the Director of the Institute, asking him to join within a period of 15 days from the date of receipt of the letter failing which it will be presumed that he is not willing to join the duties and his appointment will be cancelled.

17. Again on 03.01.2020, the Director of the Institute had sent a notice to the petitioner asking him to give his explanation within one week as to why his appointment be not cancelled and in case the petitioner does not give a reply within the stipulated period, it shall be taken that the petitioner does not have to offer any explanation and a decision will be taken accordingly. Therefore, the aforsaid ground of challenge made on behalf of the appellant is not supported by the aforesaid material placed on record by the appellant himself and the same is liable to be rejected.

18. Regarding the second ground of challenge made by the appellant that he had submitted a representation for joining on the post on 26.07.2021, suffice it to say that the appointment of the petitioner had been cancelled by means of the order dated 24.07.2021 after the petitioner failed to join his duties even after three years and one month in spite of repeated opportunities having been granted and in these circumstances, the representation for joining on the post of Associate Professor (General Surgery) after cancellation of appointment order would not confer any right of the petitioner to seek grant of any further opportunity of joining on the post after his appointment had already been cancelled.

19. The Hon'ble Single Judge has referred to a decision of the Hon'ble Supreme Court in the case of Union of India vs. Rati Pal Saroj, (1998) 2 SCC 574, wherein the Hon'ble Supreme Court has held that "if the employee has a right to be appointed by virtue of of his acceptance of the offer of appointment, that right has to be exercised within a reasonable time. It is not a right which which remains for an indefinite period of time."

20. As in the present case, the petitioner was appointed on the post of Associate Professor (General Surgery) in the Institute on 07.06.2018 and he failed to join his duties in spite of repeated opportunities, till issuance of the order dated 24.07.2021 cancelling his appointment, we are of the considered opinion that the judgment and order dated 13.09.2021 passed by the Hon'ble Single Judge dismissing the appellant's writ petition challenging the cancellation of his appointment, does not suffer from any illegality so as to warrant interference in this intra court appeal.

21. The appeal lacks merits and is, accordingly, dismissed.

22. There will be no order as to costs.

Order Date :- 4.4.2022

Ashish pd.