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DR. SMT. ASHA MISHRA versus STATE OF U.P. THRU. SECY. HIGHER EDUCATION & OTHERS

High Court of Judicature at Allahabad

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Dr. Smt. Asha Mishra v. State Of U.P. Thru. Secy. Higher Education & Others - WRIT - A No. 42547 of 2004 [2004] RD-AH 1094 (8 October 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 42547 OF 2004

Dr. (Smt) Asha Mishra       -------------    Petitioner              

        Versus.

State of U.P. & Ors.        -------------  Respondents

_________

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Dilip Gupta, J.

This writ petition has been filed seeking direction to the respondents that the petitioner who had been appointed on ad hoc basis should be permitted to continue in service till the regular selected candidate is made available by the U.P. Higher Education, Commission, Allahabad (hereinafter called the Commission).

The facts and circumstances giving rise to this case are that a post of Hindi Lecturer was advertised in Shri Mahant Ramashraya Das P. G. College Bhurkura, Ghazipur and petitioner by appointment letter dated 23.11.2001 (Annex. 5) was appointed as Hindi Lecturer on a fixed honorarium of Rs.5000/- per month. Clause (7) of the appointment letter shows that her appointment was up to the end of the academic session 2001-2002 or the date of availability of a regular selected candidate by the Commission, whichever is earlier Petitioner accepted the said appointment, worked on it and it was evident from her appointment letter that it will come to an end automatically on 30th June, 2002 or if the regular selected candidate is made available by the Commission, whichever was earlier. Petitioner accepted the said appointment knowing the terms and conditions of her appointment. This petition has been filed for seeking the aforesaid direction.

Petitioner claims to have been working continuously, since then though no order on extension of her services has been produced before us.

It is settled legal proposition that a person, who has been appointed on ad hoc basis and whose services are not governed by any statutory provisions, is bound by the terms and conditions incorporated in his letter of appointment. In Surendra Singh Vs. State of Punjab, AIR 1992 SC 1593 while dealing with the similar situation, the Hon'ble Supreme Court has held that it is a matter of contract and the terms of contract have specifically been stipulated in the letter of appointment. The Court is not permitted to issue any direction in violation of the said terms and conditions, rather Court has to enforce the same.

A person holding the tenure post is not to be removed nor his services are required to be terminated for the simple reason that his services stand terminated automatically by efflux of time and a person so appointed on a tenure post cannot claim to have a right to hold the post after expiry of the tenure. (Vide Director, Institute of Management, U.P. Vs. Pushpa Srivastava, (1992) 4 SCC 33; and State of U.P. Vs. Dr. S.K. Sinha, 1995 (Supp) 4 SCC 456).

While dealing with the similar situation, a Division Bench of this Court in Alok Kumar Singh & ors. Vs. State of U.P. & ors., (2002) 4 UPLBEC 1373 has categorically held that this Court does not have a power to extend the period of contract beyond the terms and conditions incorporated in the contract and a person so appointed cannot ask the Court that he may be permitted to hold the post beyond the tenure fixed in his appointment letter.

Thus in view of the above, petitioner cannot be permitted to hold the post beyond the tenure fixed by her appointment letter.

Learned counsel for the petitioner has submitted that the condition in the letter of appointment of the petitioner dated 23.11.2001 that her appointment was only till the end of academic session was illegal and liable to be quashed being arbitrary.

The question does arise as to whether petitioner can be permitted to challenge the said condition after expiry of the tenure of her appointment.

A  Constitution  Bench  of  the   Hon'ble Supreme Court,  in M/s.  Pannalal Binjraj &  Ors. Vs.  Union  of India & Ors., AIR 1957 SC 397, had explained  the  scope of estoppel observing  that once an order  is  passed  against a  person  and without raising  any objection he/she submits to  the jurisdiction  or  complies  with such  order,  she cannot be permitted to challenge the said  order merely because  she  could not succeed there,  for the reason that such conduct of that person would disentitle  him/her for any relief before the Court.

Similar view has been reiterated by the Hon'ble Supreme Court  in Manaklal Vs. Dr. Prem Chand Singhvi, AIR 1957 SC 425; Maharashtra State Road Transport Corporation Vs.  Balwant Regular Motor Service, Amaravati  & Ors., AIR 1969 SC 329; Dr. G. Sarena Vs. University of Lucknow, AIR 1976 SC 2428; Maj.  Chandrabhan  Singh  Vs. Latafat Ullah Khan & Ors., AIR 1978 SC 1814; Om Prakash Shukla Vs.  Akhilesh Kumar Shukla, AIR  1986  SC 1043; and Madan Lal  &  Ors.  Vs. State of J & K, & Ors., AIR 1995 SC 1088.        

In State of Punjab Vs.  Krishan  Niwas, AIR 1997 SC 2349, the Hon'ble Apex Court examined a case where the services of the employee  were terminated  in  exercise  of the powers  under Article 311  (2)  (b) of the Constitution. The Appellate Court reduced the punishment imposed by the trial court. In the Departmental   Appeal, the    order   of dismissal was also converted into that of a lesser punishment.  The employee had acted upon it and joined the post. He was held not entitled to challenge the  reduced  punishment   as  he  was stopped by his conduct.

In Union of India &  Anr. Vs. N. Chandrasekharan, AIR 1998 SC 795 the Hon'ble Apex  Court observed as under:-  

"It is not in dispute that all the candidates were made   aware of the procedure  for  promotion  before  they  sat for the  written  test  and  before  they  appeared before the Departmental Promotion Committee. Therefore, they cannot turn around and contend later when they found that they were not selected, by challenging that procedure....."    

In M/S Power Control Appliances & ors. Vs. Sumeet Medicines Pvt. Ltd., (1994) 2SCC 488 the Apex Court held as under:-

"Acquiescence is sitting by, when another is invading the rights.... It is a course of conduct inconsistent with the claim... It implies positive acts; not merely silence or inaction such as involved in laches. In Harcourt Vs.  White, 54 ER 382, Sir John Romilly said: ''It is important to distinguish mere negligence and acquiescence.' Therefore, acquiescence is one facet of delay.... If the acquiescence in infringement amounts to consent, it will be a complete defence as was laid down in Mouson (J.G.) & Co. Vs. Boehm. (1884) 26 Ch.D. 406. The acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the defendant as was laid down in Rodgers Vs. Nowill. (1847) 2 DeGM & G 614."  

Similar view has been reiterated in Sumeet Machines Vs. State of Haryana  & Ors., (2000) 2 SCC 615.

Similar principle had been made applicable even in contractual matters. (Vide State of  Orissa Vs. Narain Prasad, (1996) 5 SCC 740;  and  State of Rajasthan & Ors.  Vs.   Anil Kumar Sunil  Kumar & Party & Anr., JT 2000 (4) SC 186).                                            

Undoubtedly, inaction in every case does not lead to an inference of implied consent or acquiescence as has been held by the Hon'ble Apex Court in P. John Chandy & Co. (P) Ltd. Vs. John P. Thomas, (2002) 5 SCC 90.  But the Court has to examine the facts and circumstances in an individual case.  

In the instant case, as the petitioner has joined the service without any protest, after taking the benefit of the said order dated 23.11.2001, she cannot be permitted to challenge any of the conditions incorporated therein.

Thus the petition is devoid of merit and accordingly dismissed.

8.10.2004

AKSI


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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