JUDGMENT Tarun Agarwala, J.
1. The petitioner was issued an appointment letter dated 10.9.1986 on the post of a Watchman on a temporary basis subject to the condition, that in the event Sri Shambhu Nath Misra joins, the petitioner's term would come to an end. It transpires that Shambhu Nath Misra returned and joined his services on 6.5.1988. Consequently, the appointment of the petitioner on the post of Watchman came to an end. It further transpires that the Management issued another appointment letter dated 8.7.1988 appointing the petitioner to lookafter the cycle stand. It is alleged that the petitioner is continuing on this post till date. The petitioner alleged that from 1988 till the year 2001, several Class-IV posts fell vacant in which. the petitioner could be adjusted but the Management, for reasons best known, did not adjust or regularise the services of the petitioner. The petitioner further alleged that even today, two Class-IV posts are still lying vacant in which the petitioner could be absorbed. The stand taken by the petitioner is, that he is a retrenched employee and is liable to be absorbed under Section 16-EE of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as 'the Act). Consequently, the petitioner has prayed that a writ of mandamus be issued to the Principal and the Management of the respondent Institution to forward his name for being appointment as a Class-IV employee against a vacant post.
2. On the other hand, the learned counsel for the respondent nos.3 and 4 submitted, that the petitioner was appointed on a temporary basis subject to certain conditions and was not holding a permanent post, therefore, the provisions of Section 16-EE of the Act are not applicable. Even otherwise, the petitioner did not make any application for absorption within the stipulated period under the said provisions and, therefore, was not entitled for any relief.
3. Heard Sri C.K.Parekh, the learned counsel for the petitioner, Smt. Sunita Agarwal, the learned counsel for respondent nos.3 and 4 and the learned Standing Counsel for respondent nos.l and 2.
4. The claim of the petitioner is, that he is a retrenched employee and that he can be absorbed in the Institution under Section 16-EE of the Act. For facility, Section 16-EE of the Act is quoted below:-
"16-EE. Absorption of retrenched employee. -(l) Where any employee of an institution has been retrenched on or after July 1, 1974 but before the commencement of the Intermediate Education (Amendment) Act, 1980, and such employee possesses minimum qualifications prescribed therefore on the date of initial appointment the Regional Deputy Director of Education shall, on the application made in this behalf, direct that subject to the provisions of this section, such employee be absorbed against any permanent vacancy occurring in the same or any other institution situate in any district within his jurisdiction.
Provided that in the case of an employee retrenched on or after the date of such commencement the Regional Deputy Director of Education may issue directions under this section without any application from the employee concerned.
(2) Every application referred to in Sub-section (1) shall be made within six months from the date of commencement of the Intermediate Education (Amendment)Act, 1980.
(3) Where any direction is issued by the Regional Deputy Director of Education under Sub-section (1) the following consequences shall ensue, namely:
(i) The Committee of Management of the institution concerned shall be bound to comply with every such directions, and the employee in whose favour such direction is issued shall be deemed to be an employee of such institution from the date of the order of appointment issued by the Committee to him or from the expiry of a period of two months from the date of service of the direction on the Committee of Management under sub-section( 1), whichever is earlier.
(ii)The period of substantive service rendered by such employees in any institution before the date of his retrenchment shall be counted for the purposes of his seniority and pension.
(iii)Where the employee concerned fails to join the post within the time allowed thereafter, the benefits of this section shall not be available to him.
(4) Any person aggrieved by the direction issued under sub-section(l) may make a representation to the Director within one month from the date of service on him of such direction, and the order of the Director thereon shall be final.
(5) The provisions of this section shall have effect notwithstanding anything contained in any other provisions of this Act or any other law for the time being in force.
(6) Nothing in this section shall apply to an institution established and administered by a minority referred to in clause(l) of Article 30 of the Constitution of India.
Explanation - For the purposes of this section-
(a) 'employee' in relation to an institution means a teacher, head of institution or other employee thereof holding a permanent post on the date immediately preceding the date of retrenchment;
(b) 'institution' includes a training institution recognised by the State Government or the Director.
(c) 'retrenchment' in relation to an employee of an institution means the termination of his services for any reasons other than resignation, retirement or removal by way of punishment inflicted in disciplinary proceedings."
5. From the aforesaid the word 'retrenchment' has been defined under the explanation which states, that in relation to an employee of an institution, retrenchment means the termination of his services for any reason other than the resignation, retirement or removal by way of punishment inflicted in a disciplinary proceeding. In the present case, the petitioner was appointed on 10.9.1986 and continued to work till 6.5.1988 when his services came to an end upon the joining of Shambhu Nath Misra. Since, the petitioner does not come under the exception clause, the petitioner became a retrenched employee.
6. Sub-clauses (1) and (2) of Section 16-EE of the Act stipulates that every application for absorption as a retrenched employee must be made within six months from the occurrence of a permanent vacancy.
7. The petitioner has alleged that he made applications on 3.8.1989, 4.9.1991, 7.9.1999 and 8.7.2002 for absorption as a retrenched employee. From a perusal of these applications which have been annexed as Annexures 10, 11, 12 and 13 to the writ petition, it is clear that these applications have not been made for the absorption of the petitioner as a retrenched employee under Section 16-EE of the Act. These applications only indicates that the petitioner made a request for being granted wages as payable to a Government servant. In my view, these applications, cannot be treated as an application made under Section 16-EE of the Act. Consequently, the petitioner is not entitled for any relief.
8. Assuming that these applications could be treated as applications under Section 16-EE of the Act, the petitioner will still not be entitled for any relief. Explanation (a) of Section 16-EE stipulates that the employee of an institution who had worked earlier and was retrenched must be holding a permanent post immediately proceeding the date of retrenchment in order to avail the benefit of these provisions. From a perusal of the appointment letter, it is clear, that the petitioner was appointed on a temporary basis subject to certain conditions. In my opinion, the petitioner was only a temporary employee and had not become a permanent employee nor was he holding a permanent post. Consequently, the petitioner was not entitled to be absorbed as a retrenched employee on a vacant post under Section 16-EE of the Act.
9. In Triveni Shanker Saxena v. State of U.P. and Ors., 1992 Supp.(l)SCC 524, the Supreme Court held-
"...His appointment order unambiguously shows that it was only a temporary basis. The appellant has not shown that he had been confirmed in a permanent post and that he was holding that appointment substantively either immediately or on the termination of a period so as to make a claim of lien to the post of Lekhpal by availing the benefit of Rules 14-A and 14-B of the U.P. Fundamental Rules. Therefore, as rightly pointed out by Mr.Yogeshwar Prasad, it cannot be said that the appellant held the post in a substantive capacity on permanent basis on the date when he was appointed as a Consolidator. In the absence of any such proof on the side of the appellant, we are constrained to hold that he was employed as Lekhpal on a temporary basis and thereafter appeared before the Selection Board and was selected de novo as a Consolidator in the Consolidation Department."
12. In view of the aforesaid, the petitioner being appointed on a temporary post had no right to claim an appointment as a retrenched employee under Section 16-EE of the Act. Consequently, I do not find any force in the writ petition and is dismissed accordingly. However, in the circumstances of the case, there shall be no order as to cost.