Dr. Smt. Renu Pandey vs Baba Saheb Bhim Rao Ambedkar ...
2023 Latest Caselaw 21289 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


	Neutral Citation No. - 2023:AHC-LKO:53749
 
	Court No. - 7
 
Case :- WRIT - A No. - 12430 of 2016
 
Petitioner :- Dr. Smt. Renu Pandey
 
Respondent :- Baba Saheb Bhim Rao Ambedkar University Thru Registrar Andanr.
 
Counsel for Petitioner :- Shireesh Kumar
 
Counsel for Respondent :- Rajesh Tiwari
 

 
Hon'ble Abdul Moin,J.

1. Heard learned counsel for the petitioner and Sri Rajesh Tiwari, learned counsel appearing for all the respondents.

2. Instant writ petition has been filed praying for the following main relief:-

"(i) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to issue a formal order of confirmation in favour of the petitioner to the post of Assistant Professor in the department of History in the University according to Regulation 11.3 of the Services Regulations with effect from 13.03.2016 with all the consequential benefits in her favour."

3. The case set forth by the petitioner is that an advertisement dated 05.09.2014, a copy of which is annexure 1 to the writ petition had been issued by the respondent-University inviting applications for various posts including one post of Assistant Professor in the department of History. It was also indicated that the said post was an un-reserved post and the post was temporary but likely to be continued.

4. After a due selection process, the petitioner was appointed as an Assistant Professor vide order dated 12.03.2015, a copy of which is annexure 3 to the writ petition. The appointment order specifically provided that the petitioner was being appointed on the recommendation of the Selection Committee and approval of the Board of Management as Assistant Professor, Department of History (Leave Vacancy) in a pay band and the appointment would continue till permanent teacher joins back. One of the terms and conditions of the appointment was condition no. 7 which was "All other terms & Conditions of her Service will be governed as per the University Act, Statutes and Ordinance, as amended may from time to time".

5. The petitioner claims to have continued working thereafter. It has also been contended that although in the advertisement that had been issued by the respondent-University it was never indicated that the post was against the leave vacancy yet in the appointment order it was indicated that the petitioner is being appointed against a leave vacancy. It is contended that the vacancy had arisen on account of one Sri Shaik Mahaboob Basha, who was working as Assistant professor (History) in the respondent-University, having initially gone to the Maulana Azad National Urdu University (hereinafter referred to as "Urdu University") for a period of one year and thereafter having been confirmed in the said University vide order dated 07.09.2015, a copy of which is annexure 6 to the writ petition and thereafter having resigned from the services of the respondent- University. Thus, Shri Basha being on leave had resulted in the condition as contained in the appointment order of the petitioner dated 12.03.2015 which was subsequently rendered virtually redundant inasmuch as once the petitioner had been appointed against the leave vacancy, till such time the permanent teacher joined back and Sri Basha having been confirmed in the Urdu University there was no question of Sri Basha joining back inasmuch as with the resignation of Sri Basha, the lien of Sri Basha on the post of Assistant Professor (History) stood terminated.

6. The contention of learned counsel for the petitioner is that subsequent to Sri Basha having been confirmed in the Urdu University and he having resigned from the respondent-University and there being no other permanent teacher to join back, the petitioner in terms of condition no. 7 of her appointment order and considering the UGC Regulations of Minimum Qualifications For Appointment of Teachers and Other Academic Staff In Universities and Colleges and Measures For the Maintenance Standards In Higher Education, 2010 (hereinafter referred to as "Regulation, 2010") more particularly Clause 11 of the Regulations, 2010 which provides that the minimum period of probation shall be one year extendable by maximum period of one more year in the case of unsatisfactory performance and the confirmation at the end of one year being automatic, stood deemed confirmed.

7. The contention is that despite the Regulations, 2010 providing for a deemed confirmation, the respondent-University has still continued the petitioner as an Assistant Professor working on a leave vacancy without considering the case of the petitioner for confirmation in terms of Clause 11 of the Regulations, 2010.

8. In support of there being deemed confirmation in terms of Regulations, 2010, reliance has been placed on a judgment of the Apex Court in the case of High Court of Madhya Pradesh through Registrar and ors Vs. Satya Narayan Jhavar reported in (2001) 7 SCC 161.

9. On the other hand, Sri Rajesh Tiwari, learned counsel for the respondent-University, on the basis of averments contained in the counter affidavit, argues that the advertisement that had been issued by the respondent-University clearly indicated that the post of Assistant Professor in the Department of History was a temporary post but was likely to be continued. He contends that different advertisements are issued for a temporary post and a substantive post. He also contends that in case the respondent-University wanted applications against a substantive post, then an advertisement to the said effect would have been issued and various persons would have found themselves eligible to apply would have applied for the same but when the advertisement has been issued only for a temporary post, consequently, lesser persons applied. The appointment of the petitioner which has been made against a temporary post (Leave Vacancy) has to be treated only as such i.e temporary appointment.

10. He also contends that as the petitioner is a temporary employee consequently, she would not be entitled for the benefit of Clause 11 of the Regulations, 2010 more particularly when Clause 11.3 of the Regulations, 2010 makes it obligatory on the part of the University/concerned institution to issue an order of confirmation to the incumbents within forty five days of completion of probationary period. It is also contended that the appointment order of the petitioner did not contain a stipulation of she being on probation and consequently, the provisions of Clause 11 of the Regulations, 2010 would not be attracted. However, Sri Rajesh Tiwari, Advocate fairly admits that the same procedure is followed both while making temporary appointments and substantive appointments in pursuance to the respective advertisements. He also states that the leave vacancy of the petitioner arose on account of Sri Basha having gone to the Urdu University.

11. Heard the learned counsel appearing for the contesting parties and perused the records.

12. From the arguments raised by the learned counsel appearing for the contesting parties and perusal of records it emerges that an advertisement was issued on 05.09.2014 by the respondent-University. So far as the present controversy is concerned, the advertisement was for the post of Assistant Professor (History) against a post which was temporary but likely to be continued. The petitioner applied for the said post and she has been appointed vide order dated 15.03.2015. Incidentally, despite the advertisement indicating that the post was a temporary post yet the appointment order of the petitioner states that she is being appointed as an Assistant Professor against the leave vacancy and shall continue till the permanent teacher joins back. One of the terms and conditions of the appointment order of the petitioner was that the terms and conditions of her service would be governed by the University Act, Statues and Ordinance. Admittedly, the leave vacancy was on account of Sri Basha having initially gone to the Urdu University and thereafter having been confirmed in the Urdu University and thereafter, he had submitted his resignation. It is settled proposition of law that a government servant can only have a lien on one post. Thus, with the confirmation of Sri Basha in the Urdu University, as emerges from a perusal of the order dated 07.09.2015, it is apparent that Sri Basha, on account of his resignation, did not have any lien on the post of Assistant Professor, Department of History in the respondent-University.

13. As the petitioner has been continued right since her appointment i.e 12.03.2015 and the Regulations, 2010 categorically provided in Clause 11 for confirmation, she has staked her claim by means of the instant writ petition for issuance of formal order of confirmation in her favour.

14. For the sake of convenience, Clause 11 of Regulations, 2010 is reproduced below"-

"11.0 PERIOD OF PROBATION AND CONFIRMATION

11.1 The minimum period of probation shall be one year extendable by a maximum period of one more year in case of unsatisfactory performance.

11.2 The confirmation at the end of one year shall be automatic unless extended for another year by a specific order, before expiry of the first year.

11.3 Subject to this Clause 11, it is obligatory on the part of the university/the concerned institution to issue an order of confirmation to the incumbents within 45 days of completion of probationary period after due process of verification of satisfactory performance.

11.4 Probation and confirmation rules are applicable only at the initial stage of recruitment, issued from time to time, by Central Government.

11.5 All other Central Government rules on probation and confirmation shall be applicable mutatis mutandis."

15. From a perusal of Clause 11 of the Regulations, 2010, which deals with the period of probation and confirmation, it emerges that the minimum period of probation shall be one year extendable by maximum period of one more year. Further, the confirmation at the end of one year shall be automatic unless extended for another year by a specific order before expiry of the first year. However, subject to Clause 11 it is obligatory on the part of the University to issue an order of confirmation to the incumbent within forty five days of the completion of the probationary period.

16. The argument of learned counsel for the petitioner is that when condition no. 7 of appointment order dated 12.03.2015 categorically provided that the terms and conditions of her service would be governed by the University Act, Statutes and Ordinance and Clause 11 of Regulations, 2010 categorically provides for a probation period of one year to be extendable for a period of one year and the confirmation at the end of one year being automatic unless extended by a specific order consequently, the services of the petitioner stood confirmed at the end of the first year itself as at the end of first year, the period of probation of the petitioner was never extended for another year by the respondents.

17. When the argument of learned counsel for the petitioner is seen in the context of condition no. 7 of the appointment order dated 12.03.2015 along with Clause 1 of the Regulations, 2010 it clearly emerges that when the respondents themselves in their wisdom provided that the petitioner, even though was being appointed on a leave vacancy, yet her service conditions would be governed by the University Act, Statutes and Ordinance and the petitioner having continued since then on account of the permanent incumbent not having returned back on account of having submitted his resignation from the University as such, the petitioner having continued right since the year 2015 i.e as of date for a period of almost seven years stakes her claim for automatic confirmation at the end of first year more particularly when her probation was not extended by another year by a specific order. As such, the petitioner has clearly made out her case for consideration for confirmation in terms of Clause 11 of the Regulations, 2010.

18. So far as the argument of Sri Rajesh Tiwari, learned counsel appearing for the respondent-University that Clause 11.3 of the Regulations, 2010 provides that it is obligatory on the part of the University to issue an order of confirmation, obviously there is a difference between an 'obligation' on the part of the University and it having failed to discharge its obligation or duty to do so as no premium can be placed on the inaction on the party of the university in this regard. However, considering the provisions of Clause 11.3 of the Regulations, 2010, which casts an obligation on the part of the University to issue an order of confirmation meaning thereby that a positive act has to be done by the University, as such, while considering the case of the petitioner for confirmation in terms of Regulations, 2010, the University would also consider the effect of no order of confirmation having been issued in terms of Clause 11.3 of the Regulations, 2010.

19. In this regard, the judgment of the Apex Court in the case of Satya Narayan Jhavar (supra) over which reliance has been placed by learned counsel for the petitioner wherein the Apex Court after considering the judgment of Dayaram Dalal Vs. State of M.P. reported in (1997) 7 SCC 443 as well as the Constitution Bench judgment in the case of State of Punjab Vs. Dharam Singh reported in AIR 1968 SC 1210 has held that where maximum period of probation has been indicated yet the question of confirmation of such a probationer is dependent upon his fitness for such confirmation and his passing of the departmental examination, the same necessarily stipulates that the question of confirmation can be considered at the end of the period of probation and only if the probationer is found suitable by the appointing authority that the appointing authoirty may issue an order of confirmation. The Apex Court also held that an order of confirmation is a positive act on the part of the employer which the employer is required to pass in accordance with rule governing the question of confirmation.

20. For the sake of convenience the relevant observations in the case of Satya Narayan Jhavar (supra) are reproduced below:

"35. ........ A plain reading of different sub-rules of rule 24 would indicate that every candidate appointed to the cadre will go for initial training for six months whereafter he would be appointed on probation for a period of 2 years and the said period of probation would be extended for a further period not exceeding 2 years. Thus, under sub-rule (1) of rule 24 a maximum period of 4 years probation has been provided. The aforesaid sub-rule also stipulates that at the end of the probation period the appointee could be confirmed subject to his fitness for confirmation and to have passed the departmental examination, as may be prescribed. In the very sub-rule, therefore, while a maximum period of probation has been indicated, yet the question of confirmation of such a probationer is dependent upon his fitness for such confirmation and his passing of the departmental examination by the higher standard, as prescribed. It necessarily stipulates that question of confirmation can be considered at the end of the period of probation, and on such consideration if the probationer is found suitable by the Appointing Authority and he is found to have passed the prescribed departmental examination then the Appointing Authority may issue an order of confirmation. It is too well settled that an order of confirmation is a positive act on the part of the employer which the employer is required to pass in accordance with the Rules governing the question of confirmation subject to a finding that the probationer is in fact fit for confirmation. This being the position under sub-rule (1) of rule 24, it is difficult for us to accept the proposition, broadly laid down in the case of Dayaram Dayal (supra), and to hold that since a maximum period of probation has been provided thereunder, at the end of that period the probationer must be held to be deemed to be confirmed on the basis of the judgment of this Court in the case of Dharam Singh (supra)."

21. When the facts of the instant case are tested at the touchstone of the law laid down by the Apex Court in the case of Satya Narayan Jhavar (supra), it clearly emerges that Clause 11.3 of Regulations, 2010 makes it obligatory on the part of the University to issue an order of confirmation of the incumbents within forty five days of completion of probation period after due process of verification of satisfactory performance. Thus, the order of confirmation is to follow after the University has verified the satisfactory performance of a probationer and would not be automatic.

22. Keeping in view the aforesaid discussion, the writ petition is partly allowed. A writ of mandamus is issued to the respondent-University to consider the case of the petitioner for confirmation in terms of Clause 11 of the Regulations, 2010.

23. Let such consideration be done within a period of four weeks from the date of receipt of a certified copy of this order.

24. Consequences to follow.

Order Date :- 9.8.2023

Pachhere/-