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PETITIONER: STATE OF U.P. & ANR.

       Vs.

RESPONDENT: DR.  S.K. SINHA & ORS.

DATE OF JUDGMENT02/12/1994

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. VENKATACHALA N. (J)

CITATION:  1995 AIR  768            1995 SCC  Supl.  (1) 456  JT 1995 (1)   491        1995 SCALE  (1)36

ACT:

HEADNOTE:

JUDGMENT: ORDER 1.   Leave granted. 2.   Heard learned counsel for the parties.  This appeal  by special  leave  arises from the judgment and  order  of  the Division Bench of the Allahabad High Court dated January 28, 1993,  in  CMWP No.451/ 84. One Dr.L.B. Sinha while  he  was working  as  a Lecturer in Economics  in  Chowdhary  Mahadeo Prasad Degree College, Allahabad, proceeded at the  instance of the University Grants Commission to prosecute his further studies for improvement of his prospects.  In that leave va- cancy,  Dr.Sunil  Kumar  Sinha, respondent  No.  1  in  this appeal,   was  appointed.   Ms  appointment   letter   dated 23.11.82, reads thus:               "I  am glad to inform you that the  Management               ha  been pleased to select and appoint you  as               temporary Lecturer in Economics in our College               against  the leave vacancy of Shri L.B.  Sinha               in  the  grade of Rs.700-1400 on  an  starting               salary of Rs. 700/- per month.               Please note that the post is purely  temporary               terminable within 24 hours notice and  payment               of your salary will be made on receipt of  the               amount from UGC. 3.   The  respondent  No.  1  joined  the  post.   When   on completion  of  the studies, Dr.L.B. Sinha reported  to  the duty, the 493 Management gave notice to the first respondent on January 5, 1984 communicating that Dr.L.B. Sinha in joining the duty on January 10, 1984 and that, therefore, his appointment  would stand  cancelled.   Impugning this  communication,  the  1st respondent  filed  the  writ petition on  January  9,  1984. Therefore,   the  U.P.  State  University   (validation   of Appointments) Act, 1984 which replaced the Ordinance, by s.2 validated certain appointments made in excess of the  number

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of  posts  advertised,  and they were deemed  to  have  been always  valid  and  legal.   But keeping  in  view  all  the circumstances  of the case, we directed that  the  appellant shall  be entitled to his full salary and  other  emoluments admissible  to him in case he was not getting the same  from 1.4.1993.  But  whatever pay and emoluments he  was  getting prior  to that would be deemed to be sufficient to meet  the ends  of justice and he would not be entitled to  claim  any arrears of salary or any other emoluments.  Accordingly, the writ  was issued.  It is contended for the State that  since the  1st respondent was appointed on the leave  vacancy  and the regular incumbent Dr.L.B.Sinha has reported to the  duty on  January 10, 1984, the appointment cannot be said  to  be valid and s.2 of the Validation Act had no application.   It is also contended that in the vacancy of Dr.L.B.Sinha Who is a  permanent  had a lien on the post and  had  proceeded  on leave to prosecute his further studies.  The 1st  respondent was appointed in place of Dr.L.B.Sinha. Although he returned to service, the High Court had not considered this aspect of the matter.  Mr. A.K.Srivastava, learned counsel for the 1st respondent contended that initial appointment in 1980 on the temporary  vacancy  and thereafter on  a  regular  selection though he was continuing right from November 3, 1982 and  at such a distance of time, he cannot be displaced.  He  sought to place reliance not only on s.2 of the Validation Act  but also  on  sec.31(3)(b) of the  U.P.State  Universities  Act, 1973.   The  question, therefore, is whether  s.31)3)(b)  of U.P.  State Universities Act, 1973 or s.2 of the  Validation Act have any application to the facts of this case.  The 1st respondent  appointed in leave vacancy, due to  Dr.L.B.Sinha proceeding  on leave to improve his career prospects by  his studies  as  a Doctor in Economics.  The  appointment  order clearly  mentioned  the same.  The 1st  respondent  also  is entitled for payment of salary only on receipt of the amount from  University  Grant  Commission.  In  other  words,  the appointment and payment of the salary are only consequent to Dr.L.B. Sinha proceeded on leave for further studies.  Since Dr.L.B.Sinha on his returning from leave, he is entitled  to occupy the post and the respondent shall have given place to Dr.L.B.Sinha. Section 2 of the Validation Act reads thus:               "Notwithstanding any judgment. decree or order               of  any  Court  or order  of  any  officer  or               authority  or anything cantained in the  Uttar               Pradesh   State  Universities  Act,  1973   or               Statutes framed thereunder, the appointment of               every teacher made in any University  governed               by   the  said  Act  or  any   affiliated   or               associated  college here of during the  period               July  1, 1978 and the date of commencement  of               this  Act,  in exams of the  number  of  posts               advertised  shall be and be deemed  always  to               have been valid and validity such  appointment               shall  not  be called in question  before  any               court,  tribunal, officer or authority  merely               on the ground that the post was not separately               advertised  or that the  prescribed  procedure               was not followed." A reading thereof would clearly indicate 494 that the appointment of every teacher made in any University is governed by the U.P.State University Act, 1973 or any af- filiated or associated college thereof during the period  of July  1, 1978 and the date of commencement of this  Act,  in excess  of the number of posts advertised, shall be  and  be deemed  always to have been valid and validly made and  such

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appointment  shall  not  be called in  question  before  any Court,  Tribunal, Officer or Authority merely on the  ground that the post was not separately advertised or that the pre- scribed  procedure  was not followed.  In other  words,  the intendment  of  the Validation Act appears to be  that  when appointment  was  made  in excess of  the  number  of  posts advertised  and was duly selected and he was  continuing  in the  post  either for want of vacancy or  there  was  proper advertisement  made  or  the prescribed  procedure  was  not followed  then the incumbent who is continuing  between  the aforestated  dated namely, July 1, 1978 and October 1,  1984 the  date on which the Ordinance has come into force,  their appointments  stood validated and declared to be valid.   It is not the case that any such appointments has been made  to the first respondent.  The order of the appointment  clearly indicates  that the appointment was made on a leave  vacancy due  to  Dr. L.B.Sinha proceeded on leave  for  his  further prospects in his career. The next question is whether s.31(3)(b) also gets  attracted to the facts of this case.  Section 31 reads thus:               "Appointment  of Teachers  (1) Subject to  the               provisions  of  the Act, the teachers  of  the               University  and the teachers of an  affiliated               or  associated college (other  than a  college               maintained exclusively by the State Government               shall be appointed by the Executive Council or               the Management of the affiliated or associated               college,   as   the  case  may  be,   on   the               recommendation of a Selection Committee in the               manner  hereinafter provided.   The  Selection               Committee shall meet as often as necessary." 5.   Section 31(3)(b) of the Act reads thus:               "Where  before  or after the  commencement  of               this  Act,  any teacher  is  appointed  (after               reference  to  a  Selection  Committee)  to  a               temporary  post likely to last for  more  than               six  months,  and such  post  is  subsequently               convened  into  a  permanent  post  or  to   a               permanent  post  in a vacancy  caused  by  the               grant  of leave to an incumbent for  a  period               exceeding    ten   months   and   such    post               subsequently becomes permanently vacant or any               post  of  the same cadre and  grade  is  newly               created   or   falls  vacant   in   the   same               department, then unless the Executive  Council               or the Management, as the case may be, decides               to terminate his services after giving an  op-               portunity  to show cause, it may appoint  such               teacher in a substantive capacity to that post               without reference to a Selection Committee;               Provided  that  this clause  shall  not  apply               unless  the teacher concerned holds  the  pre-               scribed  qualifications  for the post  of  the               tune  of such substantive appointment, and  he               has  served continuously, for a period of  not               less than one year after his appointment  made               after reference to a Selection committee;               Provided  further that appointment in  a  sub-               stantive  capacity  under  this  clause  of  a               teacher  who  had  served,  before  such   ap-               pointment,  continuously for a period of  less               than two years, shall be on probation for  one               year  which may be extended for a  period  not               exceeding one year, and the provisions of sub-               section (2) shall apply accordirgly."

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495 6.   The purpose of s.31(3)(b) appears to be that after  the commencement  of  the  Act, any teacher is  appointed  to  a temporary post likely to last for more than six months,  and such post is subsequently converted into a permanent post or to  a  permanent post in a vacancy caused by  the  grant  of leave  to an incumbent for a period exceeding 10 months  and such  post  subsequently becomes permanently vacant  or  any post  of  same  cadre and grade is newly  created  or  falls vacant  in  the same department, then unless  the  Executive Council  or the Management, as the case may be,  decides  to terminate  his services after giving an opportunity to  show cause, it may appoint such teacher in a substantive capacity to that post without reference to a Selection Committee.  In other  words,  it  would  be  seen  that  an  incumbent  was regularly  selected but was continuing in a  temporary  post which was subsequently made permanent or a post which became vacant  for a period exceeding 10 months and later the  post becomes permanent and temporary incumbent is continuing only on the same post or a newly created post or a post  carrying the  same grade or falls vacant in the same department,  the Management  without  reference to the  Selection  Committee, fresh  selection has been made.  Such is not the case  here. As stated earlier, Dr.L.B. Sinha has proceeded on leave  and returned  to  the  post, the question of  vacancy  does  not arise.   The  contention that a post has become  vacant  and instead of filling up that post, somebody seems to have been appointed which is respondent No.7, the appointment was  not challenge  in  the  High  Court.  We  cannot  go  into  that question. 7.  Mr.  A.K.  Srivastava,  learned  counsel  for  the   1st respondent  has  placed reliance on the order made  by  this Court  in  C.A.4895/89  dated 4.8.93  Uttam  Kumar  v.  U.P. Higher  Education  Service Commission, Allahabad.   In  that case, the regular incumbent was continuing on temporary post and the approval was not given by the State Government.   On those  facts,  this Court has directed that  since  the  in- cumbent  has served for about 15 years, the  termination  of his  service  at such distance of time is not  just.   Those facts have no application to this case. 8.   In  future, if there is any vacancy in the  department, the  case of the 1st respondent may be considered  according to  rules.   If there is any age bar,  the  authority  would relax the age qualification at the time of selection. 9.   The appeal is allowed.  No costs.  In the interim order passed  by  this court on May 13, 1994, the  Management  was directed that the payment of salary to the first  respondent will be subject to the adjustments to be made at the time of the  final order.  Though we are negativating the  claim  of the  1st respondent for his continuance since he is  already in  appointment,  the  State is directed  to  reimburse  the payment made by the Management respondent No. 5. If there is any  arrears of salary due and payable to respondent No.  1, the  same may be paid within three months from the  date  of the receipt of this order. 500