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DR. BRIJESH KUMAR SINHA versus VEER BAHADUR SINGH PURVANCHAL UNIV. THRU REGISTRAR & ORS.

High Court of Judicature at Allahabad

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Dr. Brijesh Kumar Sinha v. Veer Bahadur Singh Purvanchal Univ. Thru Registrar & Ors. - WRIT - A No. 66652 of 2005 [2005] RD-AH 4674 (24 October 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.34

Civil Misc. Writ Petition No.66652 of 2005

Dr. Brijesh Kumar Sinha

Versus

Veer Bahadur Singh, Purvanchal University, Jaunpur & Ors.

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

Hon'ble Bharati Sapru, J.

This writ petition has been filed for a direction to the respondents to permit the petitioner to perform his duty as a Lecturer Mathematics/Computer Science in the Institute of Pharmacy, V.B.S. Purvanchal University, Jaunpur for the academic session 2005-2005 till regular selection is made with a further prayer to pay the consolidated salary of the petitioner for the academic leave of 60 days from 16th May to 14th July, 2005.

Learned counsel for the petitioner has submitted that in the month of July, 2004, an advertisement was published in Times of India for the appointment of Lecturer (Mathematics) and other subjects on contract basis. Petitioner applied for the said post and after being selected, an appointment letter dated 14.08.2005 was issued to him on a consolidated pay of Rs. 8000/- per month on contract basis. The petitioner, in pursuance of the appointment letter dated 14.08.2004, joined the said post on 17.08.2005. It has been submitted by the learned counsel for the petitioner that the under the provisions of Universities Act, 1973, employees working on contract basis are being given facility of academic leave. After availing the academic leave, when the petitioner returned to the University to join the post, the Director of the Institute orally informed the petitioner that as per the order of Vice Chancellor, he cannot be permitted to join. Accordingly, the petitioner handed over the charge to the University on 20.07.2005. The main grievance of the petitioner is that the services of teaching and non-teaching staff working on contract basis have been extended for the subsequent session 2005-2006 but the petitioner has been denied the same treatment. The petitioner has filed applications for extension of his services for the session 2005-2006, but no action has yet been taken on the said applications.

Shri Anil Tewari, learned counsel appearing for the respondents has submitted that the petitioner was appointed on contract basis. His appointment was only for the academic session 2004-2005. He accepted the offer of appointment without protest. The academic session is over. Therefore, if his service had not been extended for academic session 2005-2006, no fault can be found with the action of the respondents. Petition is liable to be dismissed.

We have considered the rival submissions made by learned counsel for the parties and perused the record.

Admittedly, the petitioner was appointed for the academic session 2004-2005 on contract basis on consolidated pay of Rs.8,000/-. The term of session is over. His appointed was totally on contract basis.

Petitioner's appointment was on contract basis. It is settled legal proposition that the services of a temporary employee are governed by the terms and conditions incorporated in the appointment letter and there can be no justification not to enforce the said conditions. (Vide State of Punjab & Ors. Vs. Surinder Kumar Singh & Ors., AIR 1992 SC 1593). Petitioner had been appointed for a fixed tenure, i.e., upto the end of academic session 2004-2005 i.e. upto 30-6-2005. 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 a right to continue to hold the post. (Vide Director, Institute of Management Development, U.P. Vs. Smt Pushpa Srivastava, (1992) 4 SCC 33; and State of U.P.  & Anr. Vs. Dr. S.K. Sinha & Ors., 1995 (Supp)1 SCC 456).

The petitioner accepted the appointment letter without protest, therefore, he cannot be permitted to raise grievance against non-extension of his services for the next session.

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 submits to  the jurisdiction  or  complies  with such  order,  he cannot be  permitted to challenge the said  order merely because  he  could not succeed there,  for the reason that such conduct of that person would disentitle  him for any relief before the  Court. A similar view  has been reiterated by the Hon'ble Supreme Court  in  Manak Lal Vs. Dr. Prem Chand Singhvi & Ors., AIR 1957 SC 425; Maharashtra State Road Transport Corporation Vs.  Balwant Regular Motor Service, Amravati  & 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 & Ors., AIR  1986  SC 1043; Madan Lal  &  Ors.   Vs. State of Jammu & Kashmir & Ors., AIR 1995 SC 1088; and Utkal University & Ors. Vs. Dr. Nrusingha Charan Sarangi & Ors., JT 1999 (1) SC 101.        

In view of the above, there is no force in the contention of the petitioner that extension should be granted for the next academic season. The petitioner has not filed the agreement executed by him with the respondents, rather filed the proforma thereof thus, we cannot determine what was the date of the agreement or as to whether any agreement had ever been executed.

In such a fact situation, case is to be decided on the basis of the terms of the appointment letter and no benefit can be taken from the so called agreement the  copy of which has not been filed.

The second contention of the learned counsel for the petitioner is that he has been discriminated as the period of contract of some other employees has been extended cannot also be accepted. The petitioner has to establish his own right and he cannot be permitted to take the benefit of extensions granted in other cases.

Article 14 is not meant to perpetuate an illegality. Therefore, we are not bound to direct any authority to repeat the wrong action done by it earlier. This view stands fortified by the judgments of the Hon'ble Apex Court eg., Sneh Prabha Vs. State of U.P.  & Ors., AIR  1996 SC 540; Secretary, Jaipur Development Authority, Jaipur Vs.  Daulat  Mal Jain & Ors., (1997) 1 SCC 35;  State of Haryana & Ors. Vs. Ram Kumar Mann, (1997) 3 SCC 321; and Faridabad CT Scan Centre Vs. D.G. Health Services & Ors., (1997) 7 SCC 752.

In Finance Commissioner (Revenue) Vs. Gulab Chandra & Anr., 2001 AIR SCW 4774, the Hon'ble Apex Court rejected the contention that as other similarly situated persons had been retained in service, the petitioner could not have been discharged during the period of probation observing that if no action has been taken in a similar situation against similarly situated persons, it did not confer any legal right upon the petitioner therein.

In Jalandhar Improvement Trust Vs. Sampuran Singh, AIR 2001 SC 1877 and Union of India & Ors. Vs. Rakesh Kumar, AIR 2001 SC 1877 the Hon'ble Supreme Court held that Courts cannot issue a direction that the same mistake be perpetuated on the ground of discrimination or hardship.

Any action/order contrary to law does not confer any right upon any person for similar treatment. (Vide State of Punjab & Ors. Vs. Dr. Rajeev Sarwal, (1999) 9 SCC 240; Yogesh Kumar & Ors Vs. Government of NCT Delhi & Ors., AIR 2003 SC 1241; and Union of India & Anr. Vs. International Trading Company & Anr., AIR 2003 SC 3983; M/s Anand Button Ltd. Vs. State of Haryana & Ors., 2005 AIR SCW 67).

Even otherwise, Article 14 provides only for positive equality and not  negative equality. Article 14 does not provide for passing wrong order, if it had been committed by an authority. No person can claim any right on the basis of division which is de hors the  statutory rules, nor there can be any estopple.

In view of the above, we do not find any force in the petition, writ petition is accordingly dismissed.  

24.10.2005/AHA


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