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AJAY KUMAR KULSHRESHTHA & OTHERS versus DIRECTOR (HIGHER EDUCATION) U.P. ALLAHABAD & OTHERS

High Court of Judicature at Allahabad

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Ajay Kumar Kulshreshtha & Others v. Director (Higher Education) U.P. Allahabad & Others - WRIT - A No. 2766 of 2002 [2006] RD-AH 761 (12 January 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                                    RESERVED

CIVIL MISC. WRIT PETITION NO. 2766 OF 2002

Ajay Kumar Kulshreshtha and others

Vs.

Director, Higher Education, U.P. and others.

Hon'ble D.P. Singh, J.

Heard counsel for the parties.

Shri Chitragupta Post Graduate College, Mainpuri was granted temporary recognition by the Chancellor, Bhim Rao Ambedkar University, Agra vide his order dated 10.8.1990 with effect from 1.7.1990 for a period of one year in the subjects of Mathematics, Physics, Chemistry, Zoology and Botany. Thus, the institution was permitted to start classes in the aforesaid subjects for preparing the students to take examination in the subjects of Physics, Chemistry, Zoology and Botany. As the students had to be prepared both for theoretical and practical papers, temporary teachers, Lab Assistants and Lab Peons were appointed by the institution. The petitioner nos. 1, 2,3 and 4 were granted appointment as Lab Assistants in the four subjects and the petitioner nos. 5 to 8 were appointed as Lab Peons in those subjects to prepare the students for practical examination and were being paid their salary by the Management from its own account. Subsequently, the University granted permanent recognition with effect from 1.7.1995, but when the Management sought to terminate their services in November, 1994, they obtained interim orders. Similarly, teachers namely Manoj Kumar Kudaisiya, Dr. Shalni Pandey and Sudhakar Dutt Dwivedi were also appointed on temporary basis by the Management. The Director of Higher Education created four posts of Lab Assistants and four posts of Lab Peons in the institution vide order dated 30.3.1999. the petitioners claimed absorption/regularization on those posts. Even the Management of the institution through its letter dated 1.2.2000 requested the respondent no. 1 to absorb the petitioner in the said posts as they had been working since 1991 or later and the Management did not wish to make any other appointment on those posts. This was followed by subsequent letters also. The petitioners, having failed to receive any reply, preferred writ petition no. 24614 of 2000 claiming regularization/absorption. This writ petition was finally disposed off vide judgment and order dated15.5.2001 requesting the Director of Higher Education to consider the claim of the petitioners and pass a reasoned order. By the impugned order dated 5.11.2001, the claims of the petitioners have been rejected on the ground that their appointment was dehors the rules and without prior approval of the Director.

It is apparent that all the petitioners were appointed immediately after the grant of temporary recognition and each has a much higher qualification than what is provided under the First Statutes of the University. The following chart would give the minimum qualification, actual qualification possessed, the date of appointment and the length of service etc.

PetitionerNo. Post QualificationRequired Under Statute 20.06 QualificationPossessed byPetitioners Date of appointment Depart-Ment AppointingAuthority Length of service

1 Lab Assistant Intermediate B.Sc.(1988)Phy. Chem.Maths. 23.8.1991 Physics Committee Of Management 14 years

2 LabAssistant Intermediate B.Sc.(1988)Chemistry Zoology, Botany 23.8.1991 Zoology -do- 14 years

3 Lab Assistant Intermediate B.Sc.(1989)Chemistry,Zoology,Botany 23.8.1991 Botany -do- 14 years

4 LabAssistant Intermediate Intermediate 23.8.1991 Chemistry -do- 14 years

5 Lab peon/boy Class V Class VIII 23.8.1991 Physics Principal 14 years

6 Lab peon/boy Class V Class VIII 23.8.1991 Zoology -do- 14 years

7. LabPeon/boy Class V Class VIII 22.10.94 Botany -do- 11 years

8 LabPeon/boy Class V Class VIII 23.8.1991 Chemistry -do- 14 years

A perusal of the chart shows that all the petitioners were duly qualified and have been working for the last 11 to 14 years. As mentioned above, Sri Manoj Kumar Kudaisiya was also appointed as temporary Lecturer in Mathematics alongwith other teachers in different subjects. In accordance with the requirement of law, statement of the staff is sent by the institution to the University wherein names of both, teachers and the petitioners are duly mentioned. A copy of one such chart for the session 1995-96 is also enclosed as Annexure-11 to the petition. There is no denial or even suggestion on behalf of the respondents that all the petitioners and similarly situated teachers were working in the institution since their appointment and nobody had been appointed on the post created/sanctioned by the order dated 30.3.1999.

From a perusal of Annexures-1, 2, 5 and 6 it is apparent that even before creation of the posts, the Management and the Principal had sent letters to the District Inspector of Schools, District Employment Officer and the Regional Deputy director of Higher Education asking them to take part in the selection of Lab Assistants and Peons. These allegations have not been denied. It is also apparent that a Selection Committee was constituted as contemplated in clause (6) of Article 20.03 of the First Statutes of the University. However, none of the three officials took part in the selection. No doubt the aforesaid officials were a necessary part of the Selection Committee as contemplated by the aforesaid provision, neither the institution nor the petitioners could have forced them to take part in the proceedings. The contention of the learned Standing Counsel that there was no question of their taking part as no post had, in fact, been created till then, is off the mark. Once the temporary recognition was granted, the provisions of the State University Act, 1973 and the Statutes became applicable to the institution and therefore it was incumbent upon the authorities to have taken part in the selection proceedings. After the creation of the posts, as is evident, the Management through its letter dated 1.2.2000 had sought the approval of the Director and thus had complied with the requirement of clause (4) of Statute 20.03. Thus, it cannot be said that the appointment of the petitioners was absolutely dehors the rules.

Assuming that the appointment of the petitioners was irregular, but it is not denied that they have been working satisfactorily for the last about 14 years. Let us examining the trend of the courts in such circumstances.

The Apex Court in the case of N.S.K. Nayar Vs. Union of India (AIR 1992 SC 157) was considering the case of an incumbent who had been working for 10 to 15 years without being given the grade of the post. It held that since the incumbent was working for such a long period and otherwise was fully qualified, their non-absorption would be arbitrary.

In Arun Kumar Raut Vs. State of Bihar [1997 (7) SCALE 277] the Supreme Court was considering the claim of an incumbent who had been appointed without following the due procedure, though it sounded a note of caution that such incumbent cannot be regularized as a matter of course, but considering the fact that they had been working for a very long period and otherwise were qualified and their service was satisfactory, it held that they may be entitled for appointment against the sanctioned post on human consideration.

Some appointments were made by the Chief Justice of the Kernataka High Court without the mandatory consultation with the Public Service Commission and when they were sought to be dismissed, they approached the High Court which rejected their claim but the Apex Court in H.C. Putta Swami and others Vs. Hon'ble Chief Justice of Kernataka High Court (AIR 1991 SC 295), though held that the appointments were dehors the rules but it directed the appointees to be treated as regularly appointed on humanitarian ground.

A Division Bench of our Court in the case of Dr. Sangeeta Srivastava Vs. University of Allahabad [2002 (3) A.W.C. 2088] extended the benefit of regularization to a Guest Lecturer who had been appointed dehors the rules as she was working for about 12 years. The Apex Court affirmed the judgment in Special Leave to Appeal.

It is not denied that teachers who had been appointed along or after the petitioners but before the posts were created have been granted regularization on those posts but the case of the petitioners is sought to be distinguished on the basis of the Government Order by which the services of the teachers were regularized. These low paid employees hardly have the political or executive muscle to approach the Government for its order. Both the sets of employees were similarly placed and therefore the petitioners ought to have been treated  similarly.

Applying the principles as propounded in the decisions noted above to the facts of the present case, there is no escape from the conclusion that the petitioners are entitled to be absorbed in the respective posts.

For the reasons given above, this petition succeeds and is allowed and the impugned order dated 5.11.2001 is hereby quashed. The respondents are directed to forthwith absorb/regularize the services of the petitioners against sanctioned post and release their salary from the salary account. However, no orders as to costs.

Dt: January  12th, 2006.

AU


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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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