(Oral)
1. Heard learned counsel for petitioner, Mr. Hemant Kumar and Mr. Neeraj Tripathi, Additional Advocate General assisted by Shri Shashank Shekhar Singh for Aligarh Muslim University, Aligarh.
2. In pursuance of the earlier order passed by this Court on 18.11.2018 the respondent No. 2 i.e. Registrar, Aligarh Muslim University, Aligarh and respondent No. 4 i.e. Principal of the Dental College, Aligarh Muslim University, Aligarh are both present in person.
3. On merits of the case, this Court has been apprised of the background of the order passed by this Court earlier dated 15.11.2018. It has been submitted that counsel for University at that time was suffering from dengue and therefore, was not in a position to argue the matter when the case was earlier taken up. A request has been made by learned Additional Advocate General for condoning the lapse, if any, on the part of the counsel to assist this Court and a request has been made that the order having been complied with in letter and spirit, this Court may exempt further appearance of the respondents No. 2 and 4 in person.
4. Since the matter is old and affidavits have been exchanged between parties, this Court feels it appropriate to decide the matter on merit.
5. The case set up by the petitioner in this writ petition is to the effect that petitioner is having a diploma in Mechanical Engineering with five years' experience. He therefore moved an application before the Registrar, Aligarh Muslim University, Aligarh for appointment as Technical Assistant in the Department of Physics on a vacant post.
6. In pursuance of the application of the petitioner the Registrar issued an appointment of order on 19.01.2002. However, when the petitioner submitted his joining in the Department of Physics on 19.01.2002, the Chairman, Department of Physics did not permit the petitioner to join. Consequently, the petitioner made a representation to the Vice-Chancellor, Aligarh Muslim University, Aligarh who transferred the petitioner along with the post from the Department of Physics to Dental Faculty i.e. Dental College of the University on 24th of April, 2002.
7. The petitioner submitted his joining to the respondent No. 4, the Principal of Dental College on 24.04.2002 and was allowed to work as Technical Assistant in Dental College. All of a sudden, the services of petitioner were terminated on 14th of May, 2003 by the Vice-Chancellor. This order was communicated to the petitioner by the Assistant Registrar (Admn.).
8. It has been submitted that the appointment of petitioner was terminated without any reason and the post was restored to the Department of Physics. The petitioner moved a representation against the order impugned to the Registrar on 20.06.2003 and also to the Vice-Chancellor on 11.07.2003. However, no heed was paid and therefore petitioner was forced to approach this Court in this writ petition. This Court while entertaining the writ petition on 27.08.2003 passed an interim order staying the operation of termination order dated 14th of May, 2003 till further orders.
9. It has been argued by learned counsel for petitioner that no reasons have been disclosed in the order impugned and it has been passed without affording any opportunity of hearing. Since the post on which petitioner was appointed was a vacant post in the Department of Physics, it could not be said that he was appointed without any post.
10. It has also been submitted that as per the language of the appointment order dated 19.01.2002, the appointment of petitioner on temporary basis was till General Selection Committee for the post is held or until further orders. No Selection Committee was held for the post of Technical Assistant. The post in question still remains in the Department and has not been abolished.It has also been submitted that petitioner has been subjected to discrimination as several persons who are similarly situated and were appointed on temporary basis were not terminated.
11. Learned counsel for the University has pointed out the contents of the counter affidavit filed along with the Stay Vacation Application on 27.09.2003. It is evident from a perusal of the counter affidavit that the post on which the petitioner was appointed was a Technical Class - III post and it has been averred that even for temporary appointment advertisement has to be issued. In the case of petitioner no advertisement was issued. The petitioner submitted an application to the Registrar of the University and the application was processed and appointment order was issued by the Registrar.
12. Such appointments on the post of Technical Assistant in Category - 3 are to be done by the Vice-Chancellor as per Regulations. It was also submitted that the Chairman of the Department of Physics was not even consulted prior to making of such temporary appointment.
13. In the counter affidavit it has been stated that in the department of Physics the post of Technical Assistant is a specialized post, so also the post of Technical Assistant in Dental College. The Vice-Chacellor approved the transfer of post from Department of Physics to the Dental College under the mistaken belief that he had approved the earlier order of temporary appointment of the petitioner. When the Chairman of the Department of Physics expressed desire to fill up the vacant post of Technical Assistant in his Department, it was felt necessary to restore the temporary post of Technical Assistant to its original Department of Physics. Hence, appropriate steps were taken and the Vice-Chancellor by the Office Memo dated 14th of May, 2003 restored the post of Technical Assistant to the Department of Physics and cancelled the temporary appointment of the petitioner on the said post.
14. It has been submitted that petitioner's appointment was a temporary appointment and in the appointment letter itself the language used therein clearly stated that it was being made till further orders or till the General Selection Committee is constituted whichever is earlier. In this case further orders were passed by the Vice-Chancellor who transferred the post of Technical Assistant to its original Department of Physics.
15. It has also been submitted that even for temporary appointment the procedure prescribed has to be followed and approval of the Vice-Chancellor taken and Selection Committee has to be constituted as prescribed under the Manual relating to the Selection Committees for non teaching posts.
16. It has been further submitted that the petitioner had a statutory remedy of filing appeal against the order impugned before the Executive Council of the University or even before the Visitor of the University under the Act, which was not availed of by the petitioner.
17. Learned counsel for the petitioner, on the other hand, has pointed out the averments made in the rejoinder affidavit wherein it has been stated that appeal was filed on 22.07.2003 but it was not being disposed off on merit and therefore, the petitioner was forced to approach this Court. It has been submitted in the rejoinder affidavit also that as per the Regulations governing the terms and conditions of service of non-teaching staff approved by the Executive Council on 08.04.1972 the power to make ad hoc appointment has been delegated by the Executive Council to the Vice-Chancellor who in turn delegated such powers on 11.09.2000 to the Registrar. Therefore, it cannot be said that the appointment was made by the Registrar without jurisdiction.
18. It has also been submitted that there are as many as nine persons who have been appointed in similar manner by the Registrar on ad hoc basis without any advertisement. It has also been submitted in the rejoinder affidavit that at least an opportunity of hearing was required to be given to the petitioner before passing the impugned order, which was not done.
19. The University has not filed any supplementary counter affidavit to the rejoinder affidavit filed by the petitioner rebutting the clear averments made therein that the Executive Council had delegated the power of making temporary appointment to the Vice-Chancellor who further delegated the power to the Registrar to make such appointments.
20. During the course of argument it has been fairly submitted by the learned counsel for the University that the power to make temporary appointment was with the Registrar of University. However, in the case of the petitioner it has been submitted that the appointment was made without following the procedure prescribed in so far as advertisement was to be made and applications invited from the open market of all eligible candidates even for temporary appointment on the post of Technical Assistant. The petitioner has not denied that he was appointed without such advertisement being issued and only on the basis of his application. It is the case of the petitioner, however, that several such appointments were made by the University without issuing advertisement and he is being discriminated.
21. Learned counsel for the respondents has pointed out that the plea of discrimination cannot be taken by the petitioner as even if an illegality has been committed by the respondents in the past, it would not entitle the petitioner to claim a parity of such illegality. It has also been submitted that on the basis of the judgments of the Hon'ble Supreme Court viz. State of Orissa and another Vs. Mamata Mohanty, (2011) 3 SCC 436, paragraphs - 36, 37 and 38 that even for temporary or ad hoc appointment, applications have to be invited from all eligible candidates. Even if an appointment is made only by inviting names from the employment exchange and not from all eligible candidates or putting note on notice board that would not mean fulfillment of requirement of Article 14 and 16 of the Constitution as it deprives all other eligible candidates from being considered.
22. Paragraphs - 36, 37 and 38 of the judgment in Mamta Mohanty (supra) are being quoted herein below:-
"36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.
ORDER BAD IN INCEPTION:
37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. (vide: Upen Chandra Gogoi v. State of Assam & Ors., AIR 1998 SC 1289; Mangal Prasad Tamoli (Dead) by L.Rs. v. Narvadeshwar Mishra (Dead) by L.Rs. & Ors. , AIR 2005 SC1964; and Ritesh Tiwari & Anr. v. State of U.P. & Ors., AIR 2010 SC 3823).
38. The concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence. Therefore, continuation of a person wrongly appointed on post does not create any right in his favour. (Vide Dr. M.s. Patil v. Gulbarga University & Ors., AIR 2010 SC 3783)."
23. Learned counsel for the respondents has further placed reliance upon the judgment rendered in State of Bihar and others Vs. Chandreshwar Pathak, (2014) 13 SCC 232 where the Supreme Court has reiterated the law as settled in Mamta Mohanty (supra) and other judgments of the Supreme Court to the effect that publishing of advertisement in the two newspapers with wide circulation is necessary to meet the requirements of Article 16 of the Constitution of India.
24. It has been further submitted that on the basis of the judgement rendered in Mamta Mohanty (supra) and in National Fertilizers Limited and others Vs. Somvir Singh, (2006) 5 SCC 593 that when an appointment is made without following the Rules, the same being a nullity, the question of confirmation of an employee upon expiry of the purported period of probation would not arise due to the lapse of time or subsequent action by any authority rectifying such appointment as it would be completely illegal and liable to be ignored. Therefore, even if the Vice - Chancellor later on transferred the post of Technical Assistant to the Dental College from the Department of Physics along with the petitioner, as his appointment was temporary, that would not ratify the appointment made by the Registrar without following the due procedure and would not create any right in favour of the petitioner.
25. In response to the argument raised by the learned counsel for petitioner that termination order entails civil consequences and therefore, an opportunity of hearing was required to be given, it has been argued on the basis of State of U.P. and another Vs. Kaushal Kishore Shukla, (1991) 1 UPLBEC 152 that since it was a temporary appointment and was terminated by an order of termination simplicitor, no reason was required to be given nor any opportunity of hearing could have been given or else it would have meant that the petitioner had a lien on the post which he certainly did not have.
26. Paragraph - 7 of the judgment rendered in State of U.P. Vs. Kaushal Kishore Shukla (supra) has been pointed out and is being quoted herein below:-
"A temporary Govt. Servant has no right to hold the post, his services are liable to be terminated by giving him one month's notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary Govt. servants. A temporary Govt. servant can, however, be dismissed from service by way of punishment. Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory of that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action against the temporary Government servant. if it decides to take punitive action may hold a formal inquiry by framing charges and giving opportunity to the Govt. servant in accordance with the provisions of Art. 311 of the Constitution. since, a temporary Govt. servant is also entitled to the protection of Article 311 (2) in the same manner as a permanent Govt. servant, very often, the question arises whether an order of termination is in accordance with the contract of service and relevant rules regulating the temporary employment or it is by way of punishment. It is now sell-settled that the form of the order is not conclusive and it is open to the Court to determine the true nature of the order. In Parshotam Lal Dhingra v. Union of India, [1958] SCR 828 a Constitution Bench of this Court held that the mere use of expressions like 'terminate' or 'discharge' is not conclusive and in spite of the use of such expressions, the Court may determine the true nature of the order to ascertain whether the action taken against the Govt. servant is punitive in nature. The Court further held that in determining the true nature of the order the Court should apply two tests namely: (1) whether the temporary Govt. servant had a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the order of termination of a temporary Govt. servant is by way of punishment. It must be borne in mind that a temporary Govt. servant has no right to hold the post and termination of such a Govt. servant does not visit him with any evil consequences. The evil consequences as held in Parshotam Lal Dhingra's case (supra) do not include the termination of services of a temporary Govt. servant in accordance with the terms and conditions of service. The view taken by the Constitution Bench in Dhingra's case has been reiterated and affirmed by the Constitution Bench decisions of this Court in the State of Orrisa and anr. v. Ram Narayan Das, [1961] 1 SCR 606; R.C. Lacy v. The State of Bihar & Ors., C.A. No. 590/62 decided on 23.10.1963; Champaklal Chimpaklal Chimanlal Shah v. The Union of India, [1964] 5 SCR 190; Jagdish Mitter v. The Union of India, [1964] AIR SC 449; A.G. Benjamin v. Union of india, C.A. No. 1341/66 decided on 13.12.1966 and Shamsher Singh & Anr. v. State of Punjab,[1975] 1 SCR 814, These decisions have been discussed and followed by a three Judge Bench in State of Punjab & Anr. v. Shri Sukh Raj Bahadur, [1968] 3 SCR 234: (1969) 1 SCJ 51."
27. Learned counsel for petitioner has submitted that the petitioner has been working on the post in question for the past 16 years on the basis of interim order granted by this Court and he cannot be left to fend for himself as no one can be prejudiced for an act of Court. This Court can only go by the settled position of law laid down by the Supreme Court has repeatedly observed that in the cases of termination, removal or dismissal, interim orders should not be granted on the first date of hearing unless the other side is given time to file an affidavit explaining the case.
28. Interim order was granted on 27.08.2003. Application for vacation of the interim order along with detailed counter affidavit was filed on 29.09.2003. It is unfortunate that due to huge pendency in the Court and paucity of time such Stay Vacation Application could not be taken up. The petitioner continued in service because of interim order.
29. The Hon'ble Supreme Court in the case of Secretary, State of Karnatka Vs. Uma Devi, (2006) 4 SSC 1 has observed that the persons who do not have any right otherwise to employment, approach the Court in writ jurisdiction and interim orders are granted, such action of litigious employment should be discarded as it amounts to individualization of judicial discretion on the basis of sympathy alone. The Hon'ble Supreme Court has permitted regularization of only all those employees in paragraph - 53 of the report who have been working continuously in the department concerned without any interim order in their favour.
30. In view of what has been said above, this Court finds no good ground to show interference in the order of termination simplicitor passed by the Vice Chancellor of the University.
31. The writ petition is dismissed.
32. No order as to costs.
Order Date :- 29.11.2018 LBY