RAJESH LAL SRIVASTAVA Vs. BANARAS HINDU UNIVERSITY VARANASI

JUDGEMENT

(1.) V. K. Shukla, J. On 11-4-1988 applications were invited for various posts under the Bio-Electronics Programme of School of Bio-Medical Engineering Institute of Technology, Banaras Hindu University, Varanasi. Out of various posts which have been advertised post of Office Assistant was also there with the qualification prescribed as Graduate Degree or equivalent with at least three years working experience as typist-cum- clerk in one or more major research Projects, preferably at I. T. B. H. U. Said post had been advertised under Plan Scheme (7th Plan) of the Department of Education, Ministry of Human Resource Development, New Delhi ). Petitioner, as per said advertisement, as he fulfilled requisite minimum qualifications and had been working as office Assistant since 23-2-1985 applied, for consideration of his candidature. Said advertisement contained note that appointment will be made initially for a period of three years on purely temporary basis which may be extended further on satisfactory performance and subject to availability of vacancy and temporary service were liable to be terminated at any time without assigning any reason. It was further mentioned therein that candidate will be treated as an employee of the Bio-Electronics Programme and will have not have any claim for absorption in the University service. Appointment was to be based on written test in the relevant area followed by interview as for similar post in the interview. After petitioner had moved application for consideration of his candidature Selection Committee constituted for making selection and appointment for the post of Office Assistant, interviewed the petitioner. The Members of the Selection Committee were as follows: 1 Director, I. T. Chairman Prof. S. L. Malhotra 2 Dean, Faculty of Engg. and Technology Member Prof. V. S. Subbarao 3 Co-ordinator, Bio-Electronics Programme and Co-ordinator, Biomedical Engineering Member Prof. Ravi Prakash 4 Prof. R. A. Singh Faculty of Commerce, BHU Member Prof. R. A. Singh 5 Sri G. C. Srivastava, Finance Officer Member Sri G. C. Srivastava

(2.) SELECTION Committee mentioned above selected the petitioner for the post of Office Assistant on the fixed salary of Rs. 750/- per month and it was mentioned therein that appointment was for a period of six months with effect from 1-7-1988, at the first instance. Thereafter time and again said appointment has been extended without any break and petitioner has been permitted to function as Office Assistant without any break. M. D. R. D Project Scheme No. 472 Bio-Electronic Programme Bio-Medical Engineering Institute of Technology, Banaras Hindu University, Varanasi had been merged under 'r' Account Maintenance Grant of University vide F. C. R. No. 4 dated 26-10-1994 and this was duly ratified by the Executive Council of the University by means of ECR No. 148 dated 29/30 March 1996. Petitioner, after appointment, had been performing and discharging duties as Office Assistant and at no point any complaint whatsoever has been found qua his functioning. Petitioner has contended that after said merger has been effected upon the project become integral part of the University and since 3rd June, 1997, salary of the petitioner is being disbursed by the Revenue Department of Banaras Hindu University, Varanasi. It has been stated by the petitioner that on 22-10-1997 the Deputy Registrar (DEV) of Banaras Hindu University, Varanasi sent a letter to Deputy Registrar (Accounts-I) Banaras Hindu University, Varanasi for payment of salary to the staff whose merger was under consideration for releasing of the salary from 'r' Account (Revenue Account) of Banaras Hindu University, Varanasi. On 8- 1-1998 Co-ordinator of said Scheme also wrote a letter addressed to the University for ensuring payment of salary to the petitioner on regular basis. On the said letter being written, letter was written by Secretary of the University Grant Commission informing and intimating that said Scheme has already been merged with the University and the University has to meet out the expenditure of the salary of the employees of the University out of maintenance grant paid to the University and University Grant Commission is giving maintenance grant on incremental basis. Co-ordinator of the said Scheme had requested the University for regularization of petitioner as staff of MHRD Scheme on 6/8-5-2002. In the said letter which has been sent by the Co-ordinator categorical mention has been made that whenever any scheme was merged then employee working in the scheme had been merged after screening by the Screening Committee chaired by the Director/dean of the concerned Institute/faculty. Petitioner has contended that at no point of time any steps whatsoever has been undertaken for regularization of the service of the petitioner and quite illegally advertisement in question has been advertised on 27-6-2003. At this juncture present writ petition has been filed with following relief which has been quoted below: " (a) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 11-3- 2005 passed by the respondent concerned (Assistant Registrar) (Development) B. H. U Varanasi (Annexure-14 to the writ petition ). (b) issue a writ, order or direction in the nature of certiorari quashing the impugned advertisement dated 27-6-2003 (Annexure-13 to the writ petition ). (c) issue a writ, order or direction in the nature of mandamus restraining the respondents not to make fresh selection in pursuance to the advertisement dated 27-6-2003 in the interest of justice. (d) issue a writ, order or direction in the nature of mandamus to the respondents to confirm/regularise the services of the petitioner since the date of merger of the said Scheme into B. H. U. Varanasi. (e) issue a writ, order or direction in the nature of mandamus directing the respondents to pay the salary to the petitioner for equal pay for equal work. (f) issue a writ, order or direction in the nature of which this Hon'ble Court may deem fit and proper in the circumstances of the case. (g) award the cost of the petition to the petitioner. "

(3.) IT has been asserted that accordingly posts in question was advertised on 12-8-2003 thereafter written test has been held on 19-6-2005 and the Computer Typing Test on 5-8-2005 and interview on 6- 8-2005 and as far as petitioner is concerned his claim has been rejected as he has been over age. IT has been asserted that earlier selection of petitioner has not been made by duly constituted Selection Committee as per Recruitment Rules (Ordinance-1) applicable for recruitment for Class III and IV posts. In this background it has been contended that no relief can be extended to the petitioner and writ petition is liable to be dismissed.