The Principal, University ... vs Vinod Kumar And Ors.
2006 Latest Caselaw 174 Del

JUDGMENT

Markandeya Katju, C.J.

1. This writ appeal has been filed against the impugned judgment of the learned Single Judgment dated 15.4.2004 by which he has allowed the writ petition.

2. Heard counsel for the parties and perused the record.

3. The facts in detail have been set out in the judgment of the learned Single Judge and hence we are not repeating the same except where necessary.

4. By means of the writ petition, the petitioners had prayed for a mandamus directing the respondents in the writ petition, the Delhi University and others, to regularise the services of the petitioners from the initial date of their appointment on the post of Lab Attendant i.e. January 1997 and give all the consequential benefits.

5. As stated in paragraph 5 of the writ petition, for filling up 7 regular sanctioned posts of Lab Attendants, which were lying vacant, the Delhi University issued an advertisement dated May, 1995 in the newspaper inviting applications for filling up the said posts. True copy of the advertisement is annexure P-3 to the writ petition.

6. In response to the said advertisement, the petitioners applied and after facing the selection process, the petitioners got selected as Lab Attendant. However, in the appointment order it was stated that they were being appointed on ad hoc basis. True copy of the appointment orders are annexure P-4 to the writ petition.

7. One of such appointment orders issued to Shri Vinod Kumar states as follows:-

UNIVERSITY COLLEGE OF MEDICAL SCIENCES & GURU TEG BAHADUR HOSPITAL DELHI-110095

No. MC/CCS/NA/PF/96/969

Dated 30.12.1996

MEMORANDUM

With reference to his application for the post of Lab. Attendant in the College and the subsequent interview, Sh.Vinod Kumar is hereby informed that he has been appointed to the post on ad-hoc basis for a period of six months in the first instance, on the starting salary of Rs. 950/- P.M. in the pay scale of Rs. 950-1400. The post also carries allowances Dearness, City Compensatory and House Rent etc., at the rates in force as per University Rules.

Other terms and conditions governing the said appointment are given below:-

1.The appointment is terminable on 24 hours notice from either side.

2.The appointment will further be subject to the verification of the educational qualifications and date of birth. He is required to produce original certificates for verification.

3. He can be posted for duty in any department including P.S.M. Department and may be in rural area, where Health Centres under the Department are situated. For certain departments where rotational duties are performed, he can be posted for night duties also.

In case the offer of appointment on the above terms and conditions is acceptable to him, he should report for duty immediately, but not later than 12.01.1997 at the Council & Coordination Section of the College, failing which the offer will be treated as withdrawn.

DEPUTY REGISTRAR

Sh. Vinod Kumar

172-D, Pocket-F,

GTB Enclave, MIG Flats,

DELHI- 110 093

8. A perusal of the said appointment order shows that it has been clearly stated therein that the petitioner is only being appointed on ad hoc basis for a period of six months in the first instance. It is also stated that the appointment is terminable on 24 hours notice from either side. Subsequently, the respondents appointed the petitioners on probation vide letter dated 30.3.2000. One of such letters (Annexure P5 to the writ petition) issued to Shri Vinod Kumar reads as follows:-

UNIVERSITY COLLEGE OF MEDICAL SCIENCES (UNIVESITY OF DELHI) & GURU TEG BAHADUR HOSPITAL

DELHI-110095

No. MC/CCS/NA/PF/2000/818-C

March 30, 2000

MEMORANDUM

With reference to his application for the post of Lab. Attendant and subsequent interview, Sh. Vinod Kumar has been appointed on substantive post as Lab. Attendant.

The terms and conditions governing the said appointment are given below:-

1.The appointment is on probation for a period of one year.

2. It is on the starting Salary of Rs. 2650/- in the pay scale of Rs. 2650-65-3300-70-4000 plus allowances as admissible according to the rules in force in the University from time to time.

3. He will be entitled to the retirement benefits under Appendix of Statute 28-A of the Statutes of the University.

4. In the matter relating to the leave and other service conditions, he will be governed by the rules laid down in this regard by the University.

5. The appointment will be further subject to his being found medically fit for which he is required to produce a Medical Fitness Certificate from any of the authorised Doctor of the UCMS & GTB Hospital, Delhi-110095, at the time of joining of duty.

6. The appointment will further be subject to the verification of the educational qualifications and date of birth. He is required to produce original Certificates for verification.

7. He should note that ad-hoc services if any put by him in the College will not be counted for any purpose such as increment or seniority.

8. He should note that for prosecuting any course of studies he will have to seek permission in order to ensure that it should not interfere in his duties.

9. He will be required to fill in a declaration form with regard to his 'Home Town' for the purpose of leave Travel Concession benefit within six months of the date of his joining duty.

10. He will not be allowed to apply for posts elsewhere during the first year of his service in the College.

11. He can be posted for duty in any departmental including Community Medicine Department, and may be in rural area, where Health Centres under the Department are situated. For certain Departments where rotational duties are performed, he can be posted for night duties also.

In case the offer of appointment on the above terms and conditions is acceptable to him, he should report for duty immediately, but not later than 10.04.2000 at the C.C.Section of the College, failing which the offer will be treated as withdrawn.

JOINT REGISTRAR

Sh.Vinod Kumar,

B-39, Gali No. 6, Janak Puri,

SAHIBABAD-(U.P)

9. Clause 7 of the aforesaid order dated 30.3.2000 states that the ad hoc services if any put by the petitioner will not be counted for any purpose such as increment or seniority. The petitioner was also asked whether this appointment was acceptable to him and he accepted it.

10. The petitioners thereafter made representations for regularization of their services from the initial date of appointment vide annexure P6, but to no avail and hence the writ petition.

11. A counter affidavit was filed by the respondent No. 3 in the writ petition, the principal of the college. Paragraph 1 of the same states that the petitioners are estopped for making any grievance about their appointments made in accordance with the contract entered into between the petitioners and the respondents. The petitioners accepted the offer given to them and hence they can make no grievance new. Hence the decision of the Supreme Court in Direct Recruit Class II Engineering Officers Association and Ors. v. State of Maharashtra and Ors. was not applicable in this case.

12. In paragraph 6 of the counter affidavit, it is stated that the selection committee recommended that the petitioners be offered appointments on ad hoc basis in the first instance. Accordingly, they were appointed on ad hoc basis for a period of six months and they accepted the appointment. From time to time they were given fresh offers of appointment as Lab Attendant on ad hoc basis for a period of six months. After screening the reports about the work the college conducted a selection process for regular appointment. On the basis of the recommendation of the fresh selection committee they were given appointment on regular basis but with the condition that their ad hoc service would not be counted. All the petitioners accepted this condition.

13. In our opinion, since the petitioners had accepted the appointment order dated 30.3.2000 which contained the specific provision that ad hoc service would not be counted for any purpose, and they accepted this appointment, they cannot thereafter claim that their ad hoc should be counted for the purpose of seniority etc. Hence, in our opinion, the decision of the Supreme Court, the Direct Recruit Class II Engineering Officers Association and Ors. v. State of Maharashtra and Ors. (supra) has no application in this case. In that decision there was no such clause in the appointment order that the ad hoc appointment will not be taken into consideration.

14. Apart from that, we agree with the learned Single Judge that the budgetary allocation would be disturbed if the relief prayed for by the writ petitioner is granted because the college gets an annual grant from the UGC and if the prayer of the writ petitioner is granted then extra financial burden will be placed on the college.

15. For the reasons given above, the appeal is allowed and the impugned judgment of the learned Single Judge is set aside and the writ petition is dismissed.