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PETITIONER: B.D. JADHAVAR

       Vs.

RESPONDENT: K.D. BHAGWAN AND OTHERS

DATE OF JUDGMENT01/09/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  JT 1995 (9)   610        1995 SCALE  (5)494

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have  heard the  learned counsel  for  the  parties. Though the  appellant was  initially appointed  as an ad hoc lecturer in  the first  respondent-College which had not had the requisite students to allow the appellant to continue on that post,  they had  written  to  the  Director  of  Higher Education to  have him  transferred to  any  other  college. Consequently, the  Director of  Higher Education had written to the Principal of the first respondent-College to have him relieved so  that he  should be  posted and  instructed  the third respondent-College  where there was a vacancy, to have him joined  therein. Accordingly,  on  July  14,  1985,  the Principal of  third respondent-College had agreed to and the appellant was directed to report for duty immediately in the third   respondent-College.    Unfortunately,   instead   of reporting himself  for duty  he went  to the  College, asked them to  give him  the letter  of appointment  as  permanent teacher. Since  they did  not give letter of appointment, he went to  the Tribunal  and obtained  an order  to  have  him posted as regular lecturer. By that time six months time had lapsed.  Then   he  wrote  a  letter  on  January  28,  1985 requesting the  third respondent to take him back on duty; a telegram was  sent by  the third  respondent  informing  the appellant that  he need  not come for joining the duty. Then he filed the writ petition in the High Court. The High Court by its  order dated August 30, 1993 in C.W.P. No.426 of 1985 dismissed the  writ petition.  Thus this  appeal by  special leave.      Shri  V.M.   Tarkunde,  the   learned  senior   counsel appearing for  the appellant, contended that since by virtue of the  policy of  the Government,  the appellant had put in more than  two years’ service as temporary reserve lecturer, he must  be deemed  to be  a regular  Lecturer and he having been appointed  as  a  lecturer  in  the  first  respondent- College, must  be deemed  to be  a regular  lecturer in that

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college. He cannot be transferred elsewhere, but having been posted and  gone to  report to  the third-respondent, he was not taken  on duty.  He cannot  be kept in vacuum and he has lawful right  to continue as a lecturer in first respondent- College. The  omission  to  take  him  on  duty  amounts  to arbitrary deprivation  of his  right to  post to which he is entitled and thus amounts to dismissal without enquiry.      Shri S.V.  Deshpande, learned counsel appearing for the first  and   second  respondents,   contended  that   though initially the  appellant was appointed as temporary lecturer in the  first respondent-College,  since the College did not have the  requisite students  to be taught English, they had written to the Director, Higher Education to accommodate the appellant in  an appropriate  college. Accordingly,  he  was relieved from  the first  respondent-College. Thereafter, it bears no  obligation to take the appellant to a non-existent post.      It would  appear that  the appellant was kept in List I of the  ad hoc  teachers awaiting  regular appointment after confirmation. Though  he was  appointed initially  on ad hoc basis, there  is no  order of  appointment confirming him on any post.  When he  was transferred  and posted to the third respondent-College where  he  was  directed  to  join  duty, unfortunately,  instead   of  reporting  for  the  duty,  he insisted for  his appointment  letter  as  regular  lecturer which was  rightly declined. Consequently, he approached the Tribunal and came back with order in his hands to report for duty, by  which time  they already  had a  lecturer in  that college. Under  these circumstances,  the third  respondent- College was not in a position to take him on duty.      Accordingly, the  appellant himself  is responsible  to lose his  right  to  the  post  of  lecturer.  Until  he  is confirmed to  any post  according to  rules, he cannot claim the status  as a  regularly appointed lecturer. The question of holding  enquiry does  not arise nor the refusal to allow joining amounts to dismissal. It will be difficult, in these circumstances,  to   give  direction  to  consider  him  for appointment.      The appeal is accordingly dismissed. No costs.