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Dr. Vijay Kumar Singh And Others v. State Of U.P. And Others - WRIT - A No. 20871 of 2006 [2006] RD-AH 8293 (25 April 2006)


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Court No.32

Civil Misc. Writ Petition No.20871 of 2006

Dr. Vijay Kumar Singh & others vs. State of U.P. & others

Hon'ble S. Rafat Alam, J.

Hon'ble Sudhir Agarwal, J.

In the instant petition the short grievance of the petitioner is that since no regular selected candidate from the commission has been sent for appointment, they may be allowed to continue till such selection or regular appointment is made.

We have heard learned counsel for the petitioner.

It appears that there were substantive vacancies for the post of lecturers in Post Graduate College, Ghazipur affialated to B.B.S. Poovanchal University, Jaunpur, which were to be filled in by the candidates selected by the U.P. Higher Education Service Commission in accordance with the provisions of U.P. Higher Education Service Commission Act, 1982.  However, in the absence   of regularly selected candidates through Commission the institution decided to fill in the vacancies by appointing teachers on contract basis and advertised the said vacancies on 29.5.2005 in the daily newspaper ''Amar Ujala' and invited applications for appointment on fixed honorarium basis in various subjects.  Pursuant to the said advertisement, the petitioners applied for appointment as lecturers in Economic, Zoology and Maths respectively.  They were issued appointment letters by the Manager on 5.12.2005 wherein it was clearly stipulated that the petitioners' engagement shall continue till 30.6.2006 or till the regularly selected candidate is appointed, whichever is earlier.  It is further provided that the appointment of the petitioners is on fixed honorarium basis and they will not claim regular appointment pursuant to the aforesaid appointment.

Learned counsel for the petitioner submits that since regular selection has not been made by the commission till date and the vacancies are still available, therefore, the petitioners are entitled to continue irrespective of the term and appointment provided in the appointment letters till the regularly selected candidates are available.  He also placed reliance on certain interim orders passed by this Court, copies of which are filed as Annexures 7 & 8 to the writ petition.

This controversy, however, is no more res integra having been concluded by a Division Bench judgment of this Court in the case of Alok Kumar Singh (Dr.) & 15 others vs. State of U.P. & others, (2002) 2 UPLBEC 1373 wherein it has been held that the petitioners cannot claim any right to continue in service beyond the period of appointment provided in the letter of appointment.  Since the matter is already concluded by a Division Bench judgment of this Court, various interim orders sought to be relied by the petitioners are of no help, as this Court is bound by the law laid down in the final judgment of this Court since interim orders do not lay down any binding precedent.  

Besides, the appointment of the petitioner is for a fixed term i.e. till 30.6.2006 or till the regularly selected candidates join, whichever is earlier.  In case no candidate selected by the commission is available before 30.6.2006, the appointment of the petitioner shall come to an end by 30.6.2006 automatically by efflux of time.  The appointment, being a fixed term appointment, in case the contention of the petitioner is accepted, it would amount to re-writing the appointment letter allowing the petitioner to continue without there being any letter of appointment issued by the competent authority for a period subsequent to 30.6.2006.  In the case of Director, Institute of Management Development, U.P. vs. Pushpa Srivastava (Smt.), 1992 (4) SCC 33 the Hon'ble Apex Court held that the appointment, which is made for fixed tenure comes to an end on the expiry of the period of appointment provided in the letter of appointment and the incumbent need not be terminated as the termination of employment comes automatically by efflux of time.  In this case also, admittedly, the appointment of the petitioner is for fixed tenure and in case the contention of the petitioner is accepted it will amount to giving an appointment by this Court for the period subsequent to 30.6.2006 substituting itself to the position of appointing authority.  This is neither permissible in law nor should be done.  When a procedure is prescribed to do a thing in a particular manner, it should not be done otherwise.

In the circumstances, we do not find any merit in the writ petition.  It is accordingly dismissed.  However, there shall be no order as to costs.




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