KANAN DAS GUPTA Vs. VICE CONCELLOR ALLAHABAD

JUDGEMENT

(1.) THIS special appeal has been filed against the judgment and order dated 2nd December, 2004 of the learned Single Judge by which the writ petition filed by the appellant was dismissed. Brief facts of the case as emerge from pleadings of the parties are; the appellant was appointed as Photo Artist in the Department of Geology, University of Allahabad by order dated 16th June, 1992. The Executive Council of the University of Allahabad vide its resolution dated 8th December, 1991 had resolved that appointment in higher technical posts shall be made by promotion from amongst the working technical staffs on the basis of seniority -A post of Technical Assistant was laying vacant in the Geology Department. The appellant's case is that his application for promotion on the post of Technical Assistant was forwarded by the Geology Department in the year 1997 which was under consideration and was principally approved by the Vice -Chancellor and the matter was sent to the Registrar for issuing appropriate promotion order but the promotion order could not be issued. Subsequently by resolution dated 10th July, 1999 of the Executive Council the earlier rules/procedure for filling up the technical posts was changed and it was provided that technical posts be filled up after following the regular process by the selection committee. An order dated 3rd/5th August, 1999 was issued by the Registrar to the above effect. The order of promotion of the appellant was never issued, hence the appellant filed a writ petition being Writ Petition No. 35829 of 1999 on 20th August, 1999 praying for a writ of mandamus directing the respondents to release the promotion order of the appellant for the post of Technical Assistant in view of the resolution dated 8th December, 1991 and treat the appellant's promotion with effect from 21st May, 1997 and further a mandamus was sought restraining the respondents from proceeding with the process of appointment to the post of Technical Assistant in the Department of Geology as per provision laid down subsequently vide notification/resolution dated 3rd/5th August, 1999. A counter -affidavit was filed by the University in the writ petition. In the counter -affidavit it has been pleaded that Vice -Chancellor never agreed for appointment of the appellant on the post of Technical Assistant and the University having decided to fill up the technical posts by the selection committee, the University is going to advertise the post. The writ petition was heard and by judgment and order dated 2nd December, 2004, the learned Single Judge dismissed the writ 'petition. The learned Single Judge took the view that the appellant did not get any vested right on the basis of previous recommendation as before the recommendation could he implemented the policy has been changed after which promotion can be made by the selection committee. The learned Single Judge did not accept the contention of the appellant that Vice -Chancellor has accorded approval to the promotion of the appellant.

(2.) SRI Awadhesh Pratap Singh, learned counsel for the appellant, challenging the judgment of learned Single Judge, has contended that appellant was eligible for promotion and his case having been recommended for promotion on the post of Technical Assistant, the promotion ought to have been accorded as per the earlier resolution dated 8th December, 1991 of the Executive Council by which the technical posts were required to be filled up by working technical staffs on the basis of seniority. It is submitted that change of procedure/rule for appointment on the post of Technical Assistant by resolution dated 10th July, 1999 was not attracted in the present case since the vacancy had occurred earlier to the change of rule and the same was required to be filled up as per earlier resolution. It has been submitted that appellant fulfilled the qualification for appointment on technical post and the vacancy which had arisen prior to change of rule could only be filled up by virtue of earlier resolution. Learned counsel for the appellant has placed reliance on judgments of the Apex Court in the case of Y.V. Rangaiah and others v. J. Sreenivasa Rao and others, : 1983 SCC (L & S) 382, P. Murugesan and others v. State of Tamil Nadu and others, : (1993) 2 SCC 340, Union of India and others v. Tushar Ranjan Mohanty and others, : (1994) 5 SCC 450 and B.L. Gupta v. Municipal Corporation of Delhi, : 1998 (9) SCC 223.

(3.) WE have considered the submissions of learned counsel for the parties and perused the record.