JUDGMENT Amitava Lala, J.
1. The petitioner was initially appointed as lecturer in sociology in the university under the order of the Vice Chancellor dated 11th March,1980 on a consolidated pay of Rs. 500/- per month for a period of three months. Although the appointment was made for a period of three months but the same was continued till 31st July, 1983. In the session 1979-80 the university made an advertisement for the selection of lecturer in sociology. The petitioner applied in pursuance to the advertisement and appeared before the selection committee on 13th April, 1981. Selection committee selected three other persons on 26th September, 1982. The name of the petitioner was placed under serial No. 4 with the recommendation that in any case vacancy found, the petitioner may be given appointment. However, no such situation arose. Again on 26th September, 1982 another advertisement was made to fill up the post of temporary lecturer in Economics, Sociology, English, Hindi, Philosophy and History. Again selection was made on 31st July, 1983 and the petitioner was placed under serial No. 2. One Dr. Girja Prasad Dubey, who was the second empanelled candidate in the earlier selection now become first and appointment was given accordingly. The petitioner was given appointment in the post of temporary lecturer in the evening classes of the Institution. The appointment letter was given on 31st July, 1983. However, on 30th June, 1987 the university decided not to continue the evening classes and accordingly a decision was taken. However, the petitioner was retained to continue till 30th June, 1988. The service of the rest of the teachers were terminated.
2. The petitioner was again appointed on 6th August, 1988 to continue upto 31st August, 1988. In further he was appointed on 9th August, 1988 and was asked to continue. The petitioner continued till March, 1989. On 5th February, 1990, the petitioner was given an adjustment against the leave vacancy caused due to the long leave of Dr. N.S. Deshpandey. On 21st March, 1991 the petitioner was again appointed which was continued till 31st March, 1991. On 30th May, 1991 in a writ petition filed by the petitioner, a direction was given by the Court upon the authorities in case further appointment for the post in question is to be made, the petitioner's case also be considered by the appropriate respondents giving preference to his seniority and suitability. Petitioner contended that one Dr. R.P. Singh was similarly placed who, filed a writ petition and obtained an order under which the Executive Council of the University was directed to consider the case having requisite qualifications. According to the petitioner, on 18th January, 1990 the petitioner was appointed with regular pay scale against the leave vacancy caused due to long leave of Sri Sohan Ram Yadav which was extended and on 20th April, 1993, the petitioner was finally absorbed as a lecturer against the vacancy occurred due to promotion of one Dr. Shyamdhar Singh. It was further contended that pursuant to the judgment of Supreme Court in connection with regularization of service of the teachers appointed for the evening classes, a committee was constituted under the Chairmanship of Justice A.N. Verma and decided to regularize the services of the teachers in various departments working in the temporary capacity for the evening classes.
3. The petitioner's grievance is that he is similarly placed with Dr. R.P. Singh who had been given benefit of length of service rendered in the evening classes but the case of petitioner was ignored by the University in spite of the repeated demands. Ultimately the matter was forwarded to the University in respect of the petitioner and others. The detail report was filed, ultimately the University decided the matter on 12th May, 2004 after about nine years. It was held that the teachers will only be entitled for pensionary benefits and they will not be entitled for their seniority. The Executive Council again said on 8th July, 2004 and granted benefit of seniority to Dr. R.P. Singh. For the rest of the teachers, it was decided that if one wants to take similar advantage then he has to obtain an order from the High Court. The order dated 8th July, 2004 was passed to all the teachers and the petitioner filed an appeal before the Chancellor under Section 68 of the State Universities Act, 1973 on 30th April, 2005. The appeal of the petitioner was rejected by the office of the Chancellor on 17th June, 2005 on the ground that the same has been filed after three months from the date of the order of the Executive Council. The petitioner had no knowledge of the order dated 8th July, 2004 to file an appeal in time. He came to know about the order in the month of April 2005. According to the petitioner the University has adopted a policy of pick and choose which is violative of Article 14 and 16 of the Constitution of India. He is entitled to similar benefit.
4. The contesting respondent contended that there were four breaks in the service of the petitioner till 31st July, 1983 for several days. The University on its own started the evening classes for the session 1979-80 on the basis of 'no profit no loss'. No post was sanctioned by the State Government for teaching in the evening classes. The petitioner was teaching in the evening classes. The appointment of the petitioner in 1981 was made neither against any sanctioned post nor approved nor any financial sanction was given by the State Government. The petitioner worked continuously in the University. In fact vide advertisement No. 2/1983 one sanctioned post arose in the sociology department and against the same Dr. Girja Prasad Dubey was given appointment after approval of the Executive Council. His appointment was made against the sanctioned vacant post in the evening classes. The petitioner was given appointment on a fixed honorarium of Rs. 1000/- vide order dated 31st July, 1983. Since no sanctioned post was there, the University decided to discontinue the evening classes. One month's notice was given to the teachers, lecturers and their services were abolished w.e.f. 31st July, 1987. It appears that teachers were, in fact, appointed on consolidated honorarium. Petitioner's service was terminated on 15th November, 1988. He was engaged to complete the course of final year students in the evening classes at the rate of Rs. 20/- per lecture. His appointment was not continued till March, 1989. The order dated 5th February, 1990 was cancelled by the order dated 7th February, 1990. The appointment of the petitioner dated 21st March, 1991 continued till 31st May, 1991. Again after a gap of more than one month, the petitioner was appointed till the end of the examination and his appointment was cancelled on 15th November, 1991 w.e.f. 31st October, 1991. The petitioner was ultimately absorbed as lecturer in sociology department against a clear vacant post in absence of any other candidate. He was granted senior scale and in the career advancement scheme the petitioner was granted the scale of Reader. It is stated that the date of absorption of the petitioner is 18th January, 1992. The petitioner was given approval for the final absorption as per Clause 15.05 of the Statute of the University. Petitioner never challenged the list published on 14th May, 2002 nor he challenged the date of his absorption. Petitioner is not entitled to continue and length of service as has been given to Dr. R.P. Singh. In view of the order of the Supreme Court and the report submitted by Hon'ble Justice A.N. Verma, the service of the Dr. R.P. Singh for absorption was denied. Thus Dr. R.P. Singh has filed a writ petition in which the Hon'ble Court was pleased to pass an order dated 2nd February 1994 directing the University to absorb Dr. R.P. Singh from the date when he was terminated. Such order was passed following the order dated 6th October 1999 passed in Civil Misc. Writ Petition No. 35520 of 1996 Dr. Satya Narain Singh v. Mahatma Gandhi Kashi Vidya Peeth, Varanasi and Ors. However, this Hon'ble court was pleased to say that Dr. R.P. Singh would not be entitled for the salary of the period except for the last three months period and the period between 1987 to November 1993 shall be treated as leave without pay. Petitioner did not challenge the order passed in appeal before the Chancellor therefore he cannot get relief in connection thereto.
5. In reply, the learned Counsel appearing for the petitioner contended that petitioner was appointed on 11th March, 1988 under Section 13(6)(8) of the Uttar Pradesh State Universities Act 1973 and continued with artificial breaks till 31st July 1993. The question of sanctioned vacancy is not relevant for the controversy involved in the present writ petition. He further stated that in the evening classes the petitioner was duly appointed and was approved by the selection committee and the Executive Council both. It is true to say that petitioner was appointed on consolidated pay of Rs. 1000/- vide order dated 31st July, 1983. Only two artificial breaks are there. Firstly 1st January, 1991 to 25th January, 1991 about 24 days and again from 1st December, 1991 to 15th December 1991 for 14 days. The cause of the petitioner stands on better footing than Dr. Rajendra Prasad Singh alias Dr. R.P. Singh. Petitioner's service was continued with the due sanction of the respondent. He is well qualified. The petitioner's only claim is that like Dr. R.P. Singh he may also be allowed to get benefit for the period in which he had rendered service in evening classes. To substantiate the cause that the petitioner is on the better footing, he contended that till 30th June, 1987 when the evening classes were abolished, the petitioner was temporarily appointed by the Executive Council with artificial breaks. Dr. R.P. Singh was never in the employment after the closure of the evening classes. Since the petitioner filed a representation as against the decision of the University dated 12th May, 2004 it can not be said that petitioner never raised any objection. Moreover the appeal of the petitioner was not rejected on merit.
6. The main relief claimed in the present writ petition is for issue of a writ, order or direction in the nature of Mandamus commanding the respondents (there are four respondents, but it has not been specified to whom such direction be issued) to give benefit of length of services to the petitioner from the date of his initial appointment and also for all the consequential benefits. The facts as disclosed above do show that the petitioner was appointed as a part time teacher on temporary basis for a fixed period of three months from the date of joining by the letter dated 11th March, 1980 (annexure-1 to the writ petition). This being purely a contractual appointment for a fixed term without following any selection process as prescribed under the relevant statutes, the petitioner cannot claim any other right other than what follows from the aforesaid appointment letter. Therefore, we are of the opinion that the relief claimed in the writ petition cannot be granted at least from 1st March, 1980.
7. Now a question arises as to what was the controversy involved in the writ petition of Dr. R.P. Singh and whether the petitioner can claim any right or benefit on the basis of parity with Dr. R.P. Singh.
8. The fact situation in the case of Dr. R.P. Singh was that Dr. R.P. Singh claimed that he was also entitled for absorption as he had worked till 31st of July, 1987 and other persons similarly situated were absorbed. The grievance of Dr. R.P. Singh was that two other persons who were similarly situated as of him, their services were ordered to be regularized, but he was provided with a different treatment. In the light of the aforesaid controversy involved therein, this court in the judgment dated 2nd September, 1984 passed in the writ petition No. 33467 of 1982 filed by Dr. R.P. Singh, has observed as follows:
In our opinion, the petitioner was entitled to be absorbed as lecturer in service, deserves to be taken in service since the date he was terminated. We, however, make it clear that he would be entitled to the salary of past three months. Remaining period be treated as leave without pay.
9. It is axiomatic that only the question of absorption of Dr. R.P. Singh in the service and validity of the consequential termination order was involved in the aforesaid writ petition. This court was not called upon, as prayed for in the writ petition in hand, to give the benefit of length of service. The contention of the petitioner that the controversy involved is squarely covered by the decision given by this Court in the case of Dr. R.P. Singh, is merit less as the facts as well as the claim made therein are not parallel.
10. Indisputably, a vacancy on account of promotion of Dr. Sohan Ram Yadav, occurred and the petitioner was finally absorbed as lecturer on April 20,1993 and he has been given regular pay scale as admissible under the provisions of U.P. State Universities Act, 1973. The petitioner has been deemed to be absorbed w.e.f. 18th January, 1992, vide Annexure-C.A.III to the counter affidavit.
11. It was also contended by the learned Counsel for the petitioner that this Court while passing the order in the writ petition of Dr. R.P. Singh, had taken into account the order of the Apex Court passed in civil appeal No. 4522 of 1990 which arose out of S.L.P. No. 3130 of 1990 in the case of Dr. Satya Narain v. Chancellor, Kashi Vidyapith. The order of the Apex Court is reproduced below:
Leave granted.
After hearing learned Counsel for the parties and having regard to the facts and circumstances of the case, we are of the opinion that since there is one vacancy for the post of Lecturer in Hindi, we direct the respondent-University to consider the appellant's case for regularization under Section 31(3)(b) of the State Universities Act along with any other persons similarly situated, if available.
12. It is axiomatic that in that case also the only relief granted by the Apex Court was to consider the case of Dr. Satya Narain Singh for regularization under Section 31(3)(b) of the State Universities Act along with any other person similarly situated, if available. The above order of the Apex Court is not an authority for the proposition as relied by the petitioner in the present writ petition.
13. It would not be out of place to notice recent trend of law. Constitutional Bench of the Supreme Court after overruling its earlier contrary decisions, finally authoritatively laid down in the case of Secretary, State of Karnatka and Ors. v. Uma Devi three Ors. that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules.
14. Hearing of the writ petition was concluded on 11th of November, 2005 and while preparing the judgment certain clarifications were necessary therefore the case was got listed for further hearing and was heard on 10th of July, 2006. The learned Counsel for the petitioner was asked to place the relevant provision in support of his contention. He placed reliance upon the Statute 15.05 (f) of First Statute of the Kashi Vidyapith (Varanasi) which reads as follows:
15.05. The following rules shall be followed in determining the seniority of teachers of the University:
(a)...
(b)...
(c)...
(d)...
(e)...
(f) Continuous service in a temporary post to which a teacher is appointed and after reference to a Selection Committee, if followed by his appointment in a substantive capacity to that post under Section 31(3)(b) shall count towards seniority.
15. The petitioner can get a benefit of the above provision only if he can show that his appointment was made after reference to a Selection Committee. In the entire writ petition the necessary pleadings to attract the applicability of the aforesaid provision is conspicuously absent. The learned Counsel for the petitioner could not show that the petitioner was appointed as a teacher on a temporary post and was in continuous service after reference to a Selection Committee. The constitution of Selection Committee for the appointment of a teacher in University is provided under Section 31(4) of the "State Universities Act. It shall consists of Vice Chancellor who shall be the Chairman thereof, the Head of Department concerned and experts to be nominated by Vice Chancellor. The learned Counsel for the petitioner could not show with reference to the contents of paragraph of writ petition that any such Selection Committee for his appointment on a temporary post was constituted. In view of the lack of pleadings, the petitioner cannot take advantage of the aforesaid provision.
16. Before saying omega to the matter it may be noted here that if the relief prayed for by the petitioner is granted it would cause additional financial burden on the University. Besides it, it would amount windfall/unjust enrichment to the petitioner who had worked for part time and not worked like other regularly selected full time lecturers. On the principle of equity as enshrined under Article 14 of the Constitution of India the petitioner cannot be placed at par with the duly selected full time lecturers. Part time temporary lecturer appointed on contractual basis forms a separate category/class. If two different classes or categories are treated at par, it would amount discrimination being violative of Article 14 of the Constitution of India. Article 14 also desist us to take a view different from one which we are proposing to take in the case in hand.
17. In view of the above discussion, we do not find any merit in the writ petition. The writ petition is dismissed. However, no order is passed as to costs.
Prakash Krishna, J.
18. I agree.