ANANT LAL UPADHYAYA Vs. STATE OF U P

JUDGEMENT

(1.) D. K. Seth, J. The petitioner was ap pointed on 29-12-1978 in the post of Cataloguer in the Sampurna Nand Sanskrit Vishwavidyalaya, Varanasi. By a letter dated 23-12-1979 the petitioner ser vice was terminated with immediate effect. Thereafter, the petitioner was posted on 24-12-1990 on the Press Department of the University and after few months no work was allotted to him and the payment of salary was stopped. The petitioner made a representation on 22-8-1984 to the Vice Chancellor alleging that he had made a representation to the Vice-Chancellor on 20-7-1981. In the said representation he had pointed out that he worked in the Press Department till 25-12-1981. There after, by order dated 30-7- 1987 the State Government requested the Vice-Chancel lor to consider the petitioner's application for reappointment in accordance with law. By a letter dated 20-10-1987 the University intimated the Government that no application for appointment ap pears to have been made by the petitioner to the University, there a copy may be sent to the University. Through a letter dated 29-10-1987 the University informed the petitioner with reference to his applica tion that he may apply for recruitment pursuant to the attached advertisement. The petitioner appears to have made few more representations on 25-3-1993, 5-4-1995 and 10-5-1995. The petitioner had also applied before the Chancellor on 5-4-1995 under Section 68 of the State Universities Act. By an order dated 31-5-1995 the representation of the petitioner dated 5-4- 1995 was rejected on the ground that the case of the petitioner does not come within Section 68 of the said Act. By a letter dated 5-6-1995 the Chancellor re quested the Vice Chancellor while for warding a copy of the letter dated 5-4-1995 of the petitioner with the advice to take appropriate legal action. On the basis of the above facts, this writ petition has been filed claiming the relief to the extent that the orders dated 23-12-1979, 31-5-1995 and 5-6-1995 contained in Annexures 3,15 & 16 respectively be quashed and the petitioner be reinstated in the post of Cataloguer and be confirmed and regularised in his service with consequen tial benefit and to decide the repre sentation contained in Annexures 9,11, 12 and 13 respectively in the light of the order dated 31-5-1995 and 5-6-1995 passed by the Chancellor contained in Annexures 15 and 16 respectively.

(2.) MR. B. B. Paul, learned counsel for the petitioner contends that the order dated 23-12\1979 has been passed without giving any opportunity of hearing to the petitioner in violation of Article 311 of the Constitution of India which is applicable even in respect of ad hoc employees. He further contends that the petitioner having been appointed in the post of cataloguer he cannot be reverted to the post in the Press Department. Neither he can be engaged in the examination depart ment of daily wage basis seasonally. He further contends that the petitioner had been pursuing his remedy consistently through representations as pointed out therein, therefore, this court should inter vene and make justice available to the petitioner which has since been denied by the respondents. He next contends that the rejection of his representation dated 5-4-1995 on the ground it does not fall within the scope of Section 68 of the Act cannot be sustained. He further contends that by reason of the order dated 5-6-1995 it was incumbent upon the Vice-Chancel lor to give appointment to the petitioner. He further contends that in view of Sec tion 35 (2) of the State Universities Act the petitioner's appointment could not have been terminated without the ap proval of the Vice-Chancellor. Therefore, the petitioner should be deemed to be in employment continuously since the order of termination is invalid and void ab initio. He further contends that the right to con tinue in service is a right which flows from Article 21 of the Constitution and as such the same cannot be taken away in the man ner it has been so done and the petitioner cannot be deprived of his employment during this long period of time. Therefore, the writ petition should be allowed.

(3.) SO far as application of Article 311 of the Constitution of India as contended by Mr. Paul is concerned, it appears that it is not a case where Article 311 could at all be brought into effect. In order to attract application of Article 311 it is necessary that the person must hold a civil post. A 'post' in this context denotes an 'office'. A post under the State is an office or a posi tion to which duties in connection with the affairs of the State are attached, an office or a position to which a person is ap pointed and which may exist apart from and independently of the holder of the post. A post is an employment, but every employment is not a post. Expression used in Article 310 (2) permitting abolition or requiring vacation of post, other than those mentioned therein emphasises the idea of existence of the post independent of the person. A causal labour is not a holder of a post. A person can be said to have right to a post only when he is sub-stantively appointed to it. The State may create or abolish a post. The power to abolish a post is inherent in the right to create it. Whether or not a post should be retained or abolished is essentially a mat ter of policy decision. But such decision is required to be taken in good faith ar,i shall not be a pretence taken to get rid of an inconvenient incumbent. Article 311 (2) deals with cases of dismissal or removal as a measure of penalty.