MANSOOR ALI KHAN Vs. ALIGARH MUSLIM UNIVERSITY

JUDGEMENT

(1.) This Special Appeal has been filed against, the judgment and order dated July 14. 1995 by which the petition filed by the appellant came to be dismissed by the learned Single Judge. The relief claimed in the writ petition was that the orders contained in Annexures-4, 5 and 11 of the writ petition be quashed. Yet another relief was for a writ of mandamus commanding the respondent not to interfere with the right of the appellant to continue as teacher/Technical Asstt. in Geology section of the Z.H. Engineering College. Aligarh Muslim University, Aligarh and not to appoint any other person in his place.

(2.) Skipping unnecessary details, the facts are that the appellant-a permanent Senior Technical Assistant in the Applied Science Section of the Z. H. College of Engineering and Technology of Aligarh Muslim University, Aligarh applied for and was appointed as Demonstrator in Al Fateh University. Tripoli. Libya under a contract entered into by him with the said University and as a preparatory to joining his duties as Demonstrator in Al Fateh University. Tripoli, Libya, he applied for and was granted extraordinary leave of two years by the respondent University w.e.f. 18.4.1979. It further transpires from the record that the appellant applied for extension of the leave for three years more from 18.4.1981 to 17.4.1984 on 4.1.1982. The Vice Chancellor, however, agreed to grant an extension in the leave granted to the appellant for a period of one year, i.e., upto 17.4.1982. The appellant was informed accordingly vide letter dated September 12/23. 1981 which contained a word of caution that "no further extension in the period of your leave will be possible and you are advised to make preparations for resuming duly positively by 18.4.1982." The appellant had. in the mean-time, signed a fresh contract with the Al Fateh University. Tripoli, Libya for two years and, therefore, requested for further extension of leave period but the request was nodded in refusal vide Annexure-4 to the writ petition and the appellant was called upon to report back for duty by May 15. 1982 in these words "resume duty by May 15 failing which you will be deemed to have vacated your post and cease to be in University service." The joining time was, however, further extended upto 30th June 1982 vide Annexure-5 which echoed the reiteration "resume duty by 1st July falling which you will be deemed to have vacated the post and ceased to be in University service from 18.4.1982.' The appellant initially made certain representations/appeals and thereafter, took to filing a writ petition being Civil Misc. Writ Petition No. 11931 of 82 challenging the orders contained in Annexures-4 and 5 of the writ petition. The Court. however, declined to interfere and dismissed the writ petition on 14.10.1983 holding that the petitioner had an alternative remedy to fall back upon, of preferring an appeal against the impugned order of termination of service. After an interregnum of some time, he filed Civil Misc. Writ Petition No. 16122 of 83. The writ petition escalated into dismissal vide order dated 27.2.1984 passed by a Division Bench of this Court. The Division Bench opted for dismissal of the petition on the ground that the appellant had not filed any representation before the Visitor/President of India to avail of the alternative remedy as per the observations made by the Court in the earlier writ petition which was dismissed on 14.10.1983. The appellant thereafter filed an appeal before the Executive Council and a representation before the Visitor. The representation came to be rejected by the Visitor vide order dated 5th September 1985 (Annexure-11 to the petition) under Section 13.06 of the Aligarh Muslim University Act. In rejecting the representation, the Visitor held as under : "According to information furnished by the University, the Leave Regulations were amended by the Executive Council in April. 1981 and the regulations so amended are being strictly enforced. In the application of these regulations there has been no violation of any provisions of the Act. the statute and the rules of the University which warrants intervention of the Visitor." The appeal also met the fate of rejection vide resolution passed by the Executive Council in its meeting held on 18/19th June 1988 and the appellant was informed accordingly vide letter dated 21.7.1988 (Annexure-C. A. 8). The writ petition-giving rise to the Special Appeal was thereafter filed canvassing the correctness of the order passed by the Visitor besides the cable messages contained in Annexures-4 and 5. The learned single Judge dismissed the writ petition vide judgment under challenge herein.

(3.) We have heard Sri S. U. Khan, for the appellant and Sri B. D. Agarwal Senior Advocate assisted by Sri Dilip Gupta. appearing for the respondent University. The submissions made by the learned counsel appearing for the appellant are four-folds. Firstly, that the provisions regarding deemed vacation of post due to overstay of leave was ultra vires ; secondly, deemed vacation of post would not occur unless an opportunity is given to the person concerned for an explanation and his explanation, if any. is found unsatisfactory ; thirdly, cessation of service pursuant to Leave Rules in substance stands on the same footing as "removal" from service and, therefore, the appellant was entitled to an opportunity of showing cause : and lastly, the decision of the Court in Civil Misc. Writ Petition No. 6154 of 1092, Dr. S. K. Johri v. Aligarh Muslim University, Aligarh and another, decided vide judgment and order dated 17.2.1995 was fully applicable to the present case and the learned Single Judge erred in distinguishing the same. Shri B. D. Agarwal, learned Senior Advocate appearing for the respondents refuted the submissions made by the learned counsel for the appellant and submitted that according to relevant regulations, leave cannot be claimed as of right for where the exigencies of the University so demand, leave of description may be refused or revoked by the competent authority empowered to sanction leave ; on expiration--of the leave period the appellant was given joining time twice with a clear indication that in the event of the failure to join by the specified date he would be deemed to have vacated the post but the appellant failed to avail of the opportunity and in the circumstances further opportunity was not required to be given in the matter in view "of the specific service conditions in terms of which the appellant's services automatically came to an end. Shri B. D. Agarwal further submitted that cessation of employment due to overstay of leave in terms of the service conditions could not be termed as arbitrary nor could it amount to "removal" from service and unlike a case of "removal" by way of punishment, no opportunity was required to be given to the appellant who would be deemed to have vacated his post in accordance with the relevant service rules. It was also urged by Shri B. D. Agarwal that the learned single Judge has rightly held the decision in Johri's case inapplicable to the facts of the present case.