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PETITIONER: P. P. RASTOGI & ORS.

       Vs.

RESPONDENT: PRAVESH SOTI AND ORS.

DATE OF JUDGMENT:       18/08/1998

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI, J.      Leave granted.      These appeals by a Member of the Executive Committee of Management and two Department Heads of Ismail national Girls Post Graduate College, are directed against the judgment and order passed by the High Court of Judicature at Allahabad in Civil Misc.  Writ Petition  No. 5869 of 1985 and civil Misc. Review Application  NO. NIL  of 1996. The High Court allowed the writ  petition filed by Dr. Pravesh Soti, Respondent No. 1 herein,  and directed  the College  management and  Meerut University to  consider her  case for  regularization and to allow her  to resume duties after passing such an order. The High Court  further directed  them to  pay  her  arrears  of salary from  1.3.1985. Aggrieved by the said order passed by the High  Court the  present appellants  had filed  a review application before  the High  Court but  it was dismissed on the ground  that they did not have locus standi to file such an application.      The facts  leading to  this litigation  are as follows. Appellant No.  4 Smt.  Urmila Agrawal was working as a Hindi Lecturer in the said College in the year 1982. She proceeded on leave  for a  short  duration.  The  College  Management, therefore,  invited   applications  for   appointment  of  a Lecturer in  her leave  vacancy. Out  of  7  applicants  Dr. Parvesh Soti was selected by the Selection Committee and the College Management  by a resolution dated 4.10.1982 resolved to  appoint   her.  In   the  letter  of  appointment  dated 15.10.1982 it  was stated  that she  was appointed on ad hoc basis for  six months only and that the said appointment was purely temporary  and against  the  leave  vacancy  of  Smt. Agrawal. It  was also stated that the appointment was liable to be terminated before expiry of said duration in case Smt. Agrawal resumed her duty earlier. Pursuant to this letter of appointment  Respondent   No.  1   joined  the   College  on 2.11.1982. Mrs.  Agrawal was then awarded Teacher Fellowship by the  U.G.C. for a period of three years and, therefore on her request  she was  granted further  leave for a period of three years  from 2.5.1983. In view of this extension in the leave vacancy  appointment of  Respondent  No.  1  was  also

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extended upto  1.5.1986 on  the same  terms and  conditions. This extension  was approved  by the  Concerned authorities. Mrs. Agrawal  completed her  course earlier  and,  therefore wrote to  the College  Management that  she would resume her duties on  20.2.1985. On  receipt of this letter the College Management wrote  to Respondent  No. 1  that as Mrs. Agrawal was to  resume duty  on 20.2.1985 her appointment would come to an  end automatically  on that  day and, for that reason, her  services   would  stand  terminated  with  effect  from 20.2.1985. On  receiving this notice Respondent No. 1 made a representation to  the College Management to continue her in service so  as to  avoid any  break in service and to make a proposal to  the Vice-Chancellor for regularizing her ad hoc appointment, as  one lecturer  was required  to be appointed for the  newly sanctioned  M.A. Hindi  classes. The  College Management did  not accept  this  request  and  resolved  to postpone its  consideration.  Therefore,  Respondent  No.  1 again sent  a representation on 27.2.1985 to continue her in service and  appoint her  substantively by  resorting to the provision contained in Section 31(3)(b) of the Uttar Pradesh State Universities Act, 1973 (hereinafter referred to as the Act) with  effect from 1.7.1984 as she had already completed by then  two years  and four  months in service. The Collage Management forwarded it with its recommendation to the Vice- Chancellor for  his approval.  On 29.3.1985  the  University wrote to the College to sent a copy of the Resolution of the Management  appointing   her  as  a  lecturer.  As  no  such resolution was  passed the  College Management  did not take any action.  meanwhile on  28.2.1985 services  of Respondent No. 1  were discontinued  as Mrs.  Agrawal resumed  on  that date. Respondent No. 1, therefore, on 30.4.1985 filed a writ petition in  the High  Court  for  issuance  of  a  writ  of mandamus directing  the respondents  to  appoint  her  under Section 31(3)(b)  of the Act and also for quashing the order of termination of her service.      The High  Court held  that  as  Respondent  No.  1  was appointed against  the leave  vacancy after reference to the Selection Committee and as the newly created post had fallen vacant in  the same  Department she  became entitled  to  be considered  for  appointment  on  that  post  under  Section 31(3)(b) of the Act. Taking this view the High Court allowed in  writ  petition  and  gave  the  directions  referred  to earlier.      It  was  submitted  by  the  learned  counsel  for  the appellants that  the High  court did not correctly interpret Section 31(3)(b)  and also  failed to  appreciate  that  the appointment of  Respondent No.  1  was  only  in  the  leave vacancy of  Mrs. Agrawal and that no new post was created in the  Department   till  her   services  were  terminated  on 28.2.1985.  he   further  submitted  that  though  the  post graduate  Hindi   classes  were   started  some  time  after 20.9.1984 there was no necessity of creating a new post of a lecturer as  the existing  staff was quite sufficient as per the norms fixed by the government. Therefore, Respondent No. 1, according  to the learned counsel for the appellants, was not entitled  to be  appointed under Section 31(3)(b) of the Act and  the High  Court was  wrong in giving the directions which are  neither proper  nor legal.  The  learned  counsel appearing for  the College  management which  is  joined  as Respondent No.  2 in  these appeals,  has also supported the appellants on  the point  that no new post of a lecturer was created or had come in to existence till Respondent No., 1’s services were  terminated by the College Management. he also supported the  appellants on the point that Respondent No. 1 was not appointed at any time by the College Management as a

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lecturer on  any new or sanctioned post. The learned counsel for  the   Government  also  supported  the  appellants  and submitted that  as Respondent No. 1 was not appointed on the post  which   was  sanctioned  by  the  Director  of  Higher Education on  29.8.1986 the  Government  cannot  be  saddled with liability  to pay  her salary.  On the  other hand, the learned counsel  for Respondent No. 1 supported the judgment of the High Court on the ground that it was just and fair.      The undisputed  facts are  that Respondent  No.  1  was appointed in  the leave  vacancy of  Mrs.  Agrawal  and  her services were  terminated on  20.2.1985  when  Mrs.  Agrawal resumed duty.  Till October  1984 the  College was  offering graduate course  in Hindi.  Some time  before July  1983 the College decided  to offer post graduate course in Hindi and, therefore,  sought   affiliation  for  that  purpose.  Final affiliation was  granted on 19.9.1984. one of the conditions for affiliation  was that  the  College  shall  appoint  one lecturer in  the 1st  year and  one lecturer in the 2nd year for the  M.A. Hindi  classes. It is also not in dispute that Respondent No.  1 was,  along with  other lecturers,  taking M.A. classes  in Hindi. The College Management, however, had not appointed  any new lecturer as the requirement regarding number  of  lecturers  according  to  the  fixed  norms  was satisfied with  the  existing  staff.  No  one  out  of  the existing staff  was appointed by the College Management as a lecturer for taking post graduate 1st year classes in Hindi.      What  was   submitted  by   the  learned   counsel  for Respondent  No.   1  was  that  it  being  a  condition  for affiliation the college Management ought to have created one more post of a lecturer in October 1984, before starting the post graduate  Hindi classes  and, therefore, even though it did not  resolve to  create one  more post  the court should proceed on  the basis  that one  more post of a lecturer did come into  existence. He  further submitted  that in view of this new post having come into existence before her services were discontinued  and because  she was taking post graduate Hindi classes  she acquired  a right  to be  considered  for appointment on  that post  and  there  was  a  corresponding obligation on  the part  of the  College Management to do so under Section 31(3)(b). The learned counsel, however, fairly conceded that  if this Court comes to the conclusion that no new post  had come  into existence  before her  service were terminated on  20.2.1985 then she did not have a right under Section 31(3)(b) to get that post.      When the  University informed  the College  that one of the conditions  for affiliation was that there should be one lecturer in  the 1st  year, what  was indicated and insisted upon was that the college should have the required staff for starting post  graduate classes in Hindi. The said condition did not  mean that  the College  should  create  a  new  and separate post.  No statutory  provision or  any order having force of  law or  of binding  nature was  pointed out  which required creation  of a new and a separate post for the post graduate classes.  As the  existing staff of the College was sufficient for  the purpose  of taking  graduate classes and also post  graduate classes  in Hindi  in 1984-85 it was not necessary for the College Management to create a new post of a lecturer.  Neither the  University nor  the Government had taken any  objection to the College conducting post graduate classes in that manner. Thus no new post having been created by the  College Management  or having  come  into  existence before services  of Respondent  No.1 had  come  to  an  end, Section 31(3)(b)  was not  attracted in  this case. The High Court has  completely overlooked this aspect and, therefore, fell into an error of allowing the writ petition of

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Respondent No. 1 and giving directions which have given rise to these appeals.      It is,  however, a fact that even though Respondent No. 1 was  appointed in  the leave vacancy she continued to work in the  College for  a period  of about 2 years and 4 months with approval  of all the authorities concerned. Even though she was  appointed in  a leave  vacancy her  appointment was made on  the  basis  of  selection  made  by  the  Selection Committee, that  is, in  the same  manner in  which  regular appointment is  made. She  possessed Ph.  D. degree  and was qualified for  a regular  appointment. It  also appears that the Management  was willing  to continue  her as the College was granted  permission to  start post  graduate classes  in Hindi. It  was  only  because  of  some  difference  amongst members of  the Executive  Committee that  no  proposal  for regularizing  her  appointment  could  be  made  before  her services were  terminated. Later, the College Management has made a  strong recommendation  to the  University to appoint her as  a Lecturer in their college. In 1983 the Director of Education also  granted sanction  to the  creation of  a new post but  because of  this litigation the College management did not  appoint any one of the post. In compliance with the order passed  by the  High Court  the College  of Management appointed Respondent No. 1 as a Lecturer. The University and the Government  had also  directed the College Management to Comply with  the  order  of  the  High  Court.  Neither  the Government nor the University nor the College Management has though it  fit to  challenge the  order passed  by the  High Court. That  would indicate  that they  are willing to treat her appointment  as regular  from  1.10.96.  Though  we  are inclined to take the view that the judgment and order passed by the  High Court  deserves to be set aside, in view of the facts and  circumstances of  the case,  we do  not think  it necessary and  proper to  disturb her  appointment  made  on 1.10.96. We  only modify  the order passed by the High Court and hold  that she would become entitled to salary only from the day she has started or starts discharging her duties. In case of  any dispute on this point, decision of the Director of Education  shall be  treated as final by all the parties. With these  modifications and  direction these  appeals  are disposed of No order as to costs.