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Dr. Shakir Khan v. Chancellor, Dr. B.R.Ambedkar University & Others - WRIT - A No. 4621 of 2001  RD-AH 4251 (17 October 2005)
COURT NO. 34
CIVIL MISC. WRIT PETITION NO. 4621 OF 2001
Dr. Shakir Khan ------------- Petitioner
Chancellor, Dr. Bheem Rao
Ambedkar University & Ors. ------------- Respondents
Hon'ble Dr. B.S. Chauhan, J.
Hon'ble Bharati Sapru, J.
This writ petition has been filed for quashing the order dated 27th January, 2001, passed by the Chancellor of the Dr. Bheem Rao Ambedkar University, Lucknow (hereinafter referred to as the University), under Section 68 of the U.P. State Universities Act, 1973 (hereinafter referred to as the Act).
In the representation before the Chancellor under Section 68 of the Act, one Dr. Dharmendra Kumar Singh has challenged the substantive appointment of the petitioner under the provisions of Section 31 (3) (c) of the Act, which for the sake of convenience is reproduced below.
"Any teacher of the University who was appointed lecturer on or before June 30, 1991 without reference to the Selection Committee by way of a short term arrangement in accordance with the provisions for the time being in force for such appointment, may be given substantive appointment by the Executive Council, if any substantive vacancy of the same cadre and grade in the same department is available on November 22, 1991 if such teacher-
(a)is serving as such on November 22, 1991 continuously since such initial appointment by way of short term arrangement;
(b)possessed on November 22, 1991 the qualifications required for regular appointment to the post under the provisions of the relevant Statute in force on the date of the initial appointment;
(c)has been found suitable for regular appointment by the Executive Council.
A teacher appointed by way of short term arrangement as aforesaid who does not get a substantive appointment under this clause shall cease to hold such post on such date as the Executive Council may specify."
The principal contention raised by Dr. Singh in his representation before the Chancellor was that the petitioner did not possess the requisite qualification for being considered for appointment as Lecturer in Forestry, Institute of Basic Science, Agra University.
By impugned order, the Chancellor has set aside the substantive appointment of the petitioner on the ground that he did not possess the requisite qualification and neither was there anything on the record to indicate that the substantive vacancy of the same cadre and grade was available for the same Department on 22nd November, 1991.
Shri Ashok Khare, Learned Senior Counsel for the petitioner has challenged the aforesaid finding recorded by the Chancellor by contending that the petitioner was eligible for being considered for the post of Lecturer in Forestry. The Department of Forestry came into existence subsequently. Earlier, it was a part of Zoology Department. More so, the representation filed by the petitioner was time barred and the respondent no.4 had no right or locus to maintain the said petition, therefore, it was liable to be dismissed without entering into merit. Learned Standing Counsel and Shri G.K. Singh, learned Counsel appearing for respondent no.4, however, have contended that there is no infirmity in the findings recorded by the learned Chancellor of the University. The post in the Department of Forestry itself came into existence in 1998 when it was advertised to be filled up by direct recruitment, therefore, the question of existence of the post on 22.11.1991 could not arise and, therefore, the petitioner could not claim the appointment by way of regularisation. The petition is liable to be dismissed.
We have carefully considered the submissions made by the learned counsel for the parties and have perused the materials available on the record.
In the fact situation of this case, as the Chancellor has decided the case on merit, we are not inclined to entertain the issue of locus of respondent no.4 or considering his suitability or eligibility for the post and that is not required to be considered for the reason that he had been applicant for the post which stood advertised in 1998 to be filled up direct recruitment. More so, the learned Chancellor has given indication that the petitioner had made representation before the Aligarh Muslim University for getting certain benefits and the fact as to whether he could get it or not, was totally irrelevant and petitioner was not entitled for regularisation. Shri Khare has not disputed that such a misrepresentation had been made. This itself disentitles the petitioner to seek any equitable relief before this Court.
A perusal of Section 31 (3) (c) of the Act clearly shows that a Teacher, who had been appointed as a Lecturer on or before 30th June, 1991, without reference to the Selection Committee by way of a short-term arrangement, should be given substantive appointment by the Executive Council, if any substantive vacancy of the same cadre and grade is available in the same Department on 22nd November, 1991, provided that Teacher was serving as such on 22nd November, 1991 continuously and possessed on 22nd November, 1991 the qualifications required for regular appointment.
In the present case, the learned Chancellor has recorded a categorical finding that the petitioner did not possess the Post Graduate Degree in Forestry. He was not qualified for being appointed, and therefore, there was no question of giving him the benefit under Section 31 (3) (c) of the Act. Learned counsel for the petitioner has not disputed that the petitioner did not possess the Post Graduate Degree in Forestry, but what he contends is that the petitioner possessed a Doctorate Degree in Zoology, and it must be taken that he was qualified. We are unable to appreciate this contention. Forestry and Zoology are two separate subjects. In such circumstances, the contention raised that the petitioner was eligible to be given appointment as Lecturer is without any force.
The learned counsel for the petitioner has also not been able to point out any infirmity in the finding recorded by the Chancellor that the substantive vacancy of the same cadre and when was available in the Department on 22nd November, 1991. In order to controvert this finding, it was imperative for the petitioner to have brought on the record the documents to point out that the vacancy was available on 22nd November, 1991. In the absence of any documents having been brought on record, we are unable to interfere with the said finding of the learned Chancellor.
Thus, the order of the Chancellor does not suffer from any infirmity. The writ petition is accordingly dismissed.
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