SUNIL KUMAR SINHA Vs. STATE OF U.P.

JUDGEMENT

(1.) WHETHER the petitioner is entitled to the benefit of 'Section 2 of the U.P. State Universities (Validation of Appointments) Act 1984, (for short the Act of 1984), is the short question for determination in the present petition filed by the petitioner under Article 226 of the Constitution of India. Having heard learned counsel for the petitioner, the learned Standing Counsel and the learned counsel appearing for the College, the petition was allowed by. our order dated 28 -1 -93 and the reasons were to follow. These are the reasons.

(2.) THE petitioner is a lecturer in the Economics Deptt. of the Chowdhry Mahadeo Prasad Degree College, Allahabad, (for short the College), run by. the K.P. Trust. A vacancy arose in the Economics Department of the College on account of Dr. S.N. Lal, a permanent lecturer in the Economics Department being appointed in the Economics Department of the University of Allahabad and Sri S.K. Srivastava, Head of the Department of Economics, of the College having expired on 12 -5 -79. In this way, two posts of permanent lecturers having fallen vacant and an advertisement was made in the Northern. India Patrika dated 15 -7 -79. The petitioner being M.A. in Economics and Ph. D., having fulfilled the requisite qualification, applied for the post of lecturer in the Economics Department of the College. The third permanent lecturer, namely, Lallan Behari Sinha was granted leave by the Management of the College. Consequently another advertisement was made on 27 -1 -80 indicating one permanent vacancy and one temporary vacancy in the Economics Deptt. The petitioner received appointment letter dated 10 -4 -80 (Annexure -7 to the petition) indicating that he should join immediately. The petitioner joined in pursuance of the appointment letter issued to him. The selection was held through the Selection Committee constituted for the appointment of lecturer in the Department of Economics. The petitioner was again given appointment letter dated 10 -12 -81 (Annexure -13 to the petition), as temporary lecturer (from 28 -!0 -8i) on a fixed salary of Rs. 700/ -per month for the period 30th April, 1982, which period was subsequently extended and the petitioner is working satisfactorily on that post till today. In pursuance of the selection made against permanent vacancy Sri Rajendra Prasad Srivastava, respondent No. 9 and Smt. Poornima Srivastava, respondent No. 10 were appointed. Respondent Nos. 1 to 4 and 9 are represented by Sri M.C. Dwivedi, learned Standing Counsel, whereas respondent No. 10 is represented by Sri C.L. Pandey. Respondent Nos. 5 to 8 are represented by Sri G.N. Verma and Sri Daya Shanker. By the present petition the prayer is that a writ of Certiorari may be issued quashing the impugned notice dated 5 -1 -84 (annexure -29), by which the petitioner was informed that his services would come to an end on 10 -1 -84 as Sri Lallan Behari Sinha who had proceeded on leave, returns and joins the post. It was further prayed that a writ of Mandamus may be issued directing the respondents to treat the petitioner as having been confirmed as lecturer.

(3.) LEARNED counsel for the petitioner urged that the petitioner was entitled to the benefit of Section 31(3)(b) of the Act of 1973 and in any case the petitioner was entitled to the benefit of Section 2 of the Act of 1984. As the petitioner was appointed during the period July 1, 1978 and the date of commencement of this Act (Act of 1984), which came into force on 1 -10 -84 hence he would be deemed always to have been validly appointed and the validity of such appointment shall not be called into question in any court. Sri M.C. Dwivedi, Learned counsel for the respondents, however, on the other hand urged that the petitioner was not entitled to the benefit of Section 2 of the Act of 1984, as the petitioner was appointed in excess of the vacancy as permanent posts have already been filled by the appointment of respondent Nos. 9 to 10. Sri. G.N. Verma and Sri Daya Shanker urged that incase the petitioner is held under law to be entitled to the benefit of Section 2 of the Act of 1984, the College or the Trust shall have no objection, but the arrears of salary, if any, may not be directed to be paid by the College. Sri M.C. Dwivedi and Sri C.L. Pandey have urged that the petitioner was not entitled to the benefit of Section 2 of the Act of 1984 as the post against which the petitioner was appointed was not separately advertised and that the procedure prescribed was not followed, and that the expression 'or' in the last clause of Section 2, of Act of 1984, was conjunctive. Sri Rajendra Prasad Srivastava, however, appearing for the petitioner, refuted the submission of the learned counsel for the respondents.