ARUN KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) TARUN Agarwala, J. The services of a class IV employee in a State Medical College is governed by the "medical Education Subordinate Office Group 'd' (Technical Service) Regulation, 1991 framed under the proviso to Article 309 of the Constitution of India. The petitioners alleged that several vacancies existed in Moti Lal Nehru Medical College, Allahabad. The Secretary, Medical Education vide letter dated 20-11-2002 directed all the Principals of the State Medical College to fill up the backlog vacancies with regard to Schedule Caste, Schedule Tribe and other backward classes. It is alleged that based on the aforesaid directions, the Principal published an advertisement dated 20-11-2002 in two newspapers inviting applications from the candidates belonging to the Schedule Caste and Schedule Tribes and other backward classes for filling up 21 Class IV posts in Moti Lal Nehru Medical College, Allahabad. The petitioners applied and appeared before the Selection Committee and, on the basis of the select list, the petitioners were issued appointment letters on 10-2-2003. The petitioners allege that based on the appointment letters, they joined and worked till 28-2-2004 and, thereafter, the petitioners were not allowed to work nor were permitted to sign the attendance register. According to the petitioners, the Principal issued a letter dated 21-2-2004 to all the heads of the department directing them not to take work from the petitioners as, on the basis of the appointment letters, their services had come to an end on 17-2-2004 and that the validity of their appointments was also under consideration before the High Court and that further directions would be issued on the basis of the orders passed by the High Court. The petitioners, therefore, filed the present writ petition praying for the quashing of the order dated 27-2-2004 and further praying that they may be permitted to continue in the service.

(2.) DURING the pendency of the writ petition, the petitioners filed an amendment application stating therein that the respondents issued an advertisement on 13-1-2005 advertising the same vacancies in which the petitioners were working. The petitioners contended that since there was a requirement of work, the petitioners should be allowed to continue instead of making fresh appointments. The petitioners, therefore, prayed that the advertisement dated 15-1-2005 issued by the Chief Medical Superintendent, Swarup Rani Medical Hospital Allahabad be quashed and a mandamus be issued directing the respondents not to appoint any person against the post held by the petitioners. The aforesaid amendment was allowed and the necessary amendments were incorporated in the writ petition. Since no counter-affidavit was filed by the respondents, this Court issued an interim order dated 27-1-2005 restraining respondent No. 3 from making any appointments on the Class IV posts pursuant to the advertisement dated 12-1-2005.

(3.) TAKING up the first submission raised by the learned Counsel for the petitioners, there is nothing to indicate that the vacancies were substantive in nature. The advertisement dated 20-11-2002 does not indicate that the posts which were to be filled up was substantive in nature. Therefore, I am of the view that the vacancies were not substantive in nature. Consequently, the second submission of the learned Counsel for the petitioner that temporary appointments could not be made on substantive posts is without any merit. Even otherwise, there is no embargo that a substantive appointment has to be made on a substantive vacancy. In a given circumstance, ad hoc appointments can be made on substantive vacancies and such appointments cannot be said to be against public policy.