JUDGMENT V.K. Shukla, J.
1. On 11.04.1988 applications were invited for various posts under the Bio-Electronics Programme of School of Bio-Medical Engineering Institute of Technology, Banaras Hindu University, Varanasi. Out of various posts which have been advertised post of Office Assistant was also there with the qualification prescribed as Graduate Degree or equivalent with at least three years working experience as typist cum clerk in one or more major reserch Projects, preferably at I.T. B.H.U. Said post had been advertised under Plan Scheme (7thPlan) of the Department of Education, Ministry of Human Resource Development, New Delhi). Petitioner, as per said advertisement, as he fulfilled requisite minimum qualifications and had been working as office Assistant since 23.02.1985 applied for consideration of his candidature. Said advertisement contained note that appointment will be made initially for a period of three years on purely temporary basis which may be extended further on satisfactory performance and subject to availability of vacancy and temporary service were liable to be terminated at any time without assigning any reason. It was further mentioned therein that candidate will be treated as an employee of the Bio-Electronics Programme and will have not have any claim for absorption in the University service. Appointment was to be based on written test in the relevant area followed by interview as for similar post in the interview. After petitioner had moved application for consideration of his candidature Selection Committee constituted for making selection and appointment for the post of Office Assistant, interviewed the petitioner. The Members of the Selection Committee were as follows-
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c. issue a writ, order or direction in the nature of mandamus restraining the respondents not to make fresh selection in pursuance to the advertisement dated 27.06.2003 in the interest of justice.
d. issue a writ, order or direction in the nature of mandamus to the respondents to confirm/regularise the services of the petitioner since the date of merger of the said Scheme into B.H.U. Varanasi.
e. issue a writ, order or direction in the nature of mandamus directing the respondents to pay the salary to the petitioner for equal pay for equal work.
3. Supplementary affidavit has also been filed mentioning therein that petitioner fulfills each and every pre requisite term and conditions for absorption as envisaged under the Resolution dated l/3rd -6.1991.
4. Counter affidavit has been filed and therein it has been sought to be contended that after Scheme in question have been merged under 'R' Account of Maintenance Grant of the University, matter was placed before the Executive Council to consider the mode of recruitment, induction, constitution of Selection Committee, date of merger, qualifications, age, etc. for filing the merged posts in the maintenance grant sanctioned under the schemes and the Executive Council on the recommendations of the Committee under the Chairmanship of Director, Institute of Technology, resolved as follows by accepting recommendation dated 28.11.2002.
(i)The rostering of the posts be done as per Govt. of India rules. However, if the posts of Lab Attendant are filling in the reserved category, the reservation be carried forward and adjusted with the further vacancies.
(ii)The relaxation in age be provided as per University rules and regulations. Age of existing incumbent be reckoned as on the date of merger.
(iii)The name of the posts, pay scales and the qualification for the posts to be advertised be as hereunder:
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Sl.No. Name of the Name of the posts to Grade Qualification Scheme be advertised ----------------------------------------------------------------------------------------- 1 CET Scheme Production Assistant 4500-125-7000 Essential B.Sc. With No. 905 Diploma/Certificate in Videograph Desirable Experience of handling modern Camera. Video programme production ----------------------------------------------------------------------------------------- Floor Assistant 2650-65 3300- Essential: High Cameraman 70-4000 School with Science Desirable Experience of Lighting & Stage preparation. ----------------------------------------------------------------------------------------- Cameraman 2650-65 33000- Essential: High 70-4000 School with Science Desirable Experience of handing modern camera. ----------------------------------------------------------------------------------------- 2 CRME Jr. Scientific Officer 6500-2000- Essential: A Scheme No. (Photovoltaic) 10500 Bachelors degree in 875 Electronics/Electrical/ Computer Engg. Or Master Degree in Physics (Electronic) with altlest two years of research experience in the area of Photovotaic Array Design in each case. Desirable Doctorate degree in the area of Photovoltaic ----------------------------------------------------------------------------------------- Semi Professional 4500-125-7000 Essential: Gradute Asst. with B.Lib. Sc. Degree. Desirable : (i) knowledge of word processing (ii) Knowledge of Indian Regional languages. ----------------------------------------------------------------------------------------- Lab. attendant 2650-65 3300- Essential: High 70-4000 School with Experience Desirable Experience of testing of photovoltaic Arrays. ----------------------------------------------------------------------------------------- Project Asst. 3050-75 3950- Essential: Graduate 80-4590 degree from a recognized university Desirable: Knowledge of store keeping purchase drocedure for maintenance of morden electronic Laboratory ----------------------------------------------------------------------------------------- 3 CRMA Lab. Assistant 2650-65 3300- Essential: High Scheme No. 70-4000 School with Science 875 A Desirable Experience of testing of photovoltaic Arrays. ----------------------------------------------------------------------------------------- 4 Biomedical Jr. Clerk 305-75 3950- Essential: Engg. 472 80-4590 Intermediate second class/graduate English typing 30 wpm Hindi typing 25 wpm Desirable Experience of using Computer for office work. ----------------------------------------------------------------------------------------- Lab. Attendant 2650-65 3300- Essentuial: High School with Science Desirable Experience of working in Biomedical laboratory. ----------------------------------------------------------------------------------------- RESOLVED FURTHER THAT the above approval is specific to these projects only and shall not from precedence for future."
5. It has been asserted that accordingly posts in question was advertised on 12.08.2003 thereafter written test has been held on 19.06.2005 and the Computer Typing Test on 05.08.2005 and interview on 06.08.2005 and as far as petitioner is concerned his claim has been rejected as he has been over age. It has been asserted that earlier selection of petitioner has not been made by duly constituted Selection Committee as per Recruitment Rules (Ordinance-1) applicable for recruitment for Class III and IV posts. In this background it has been contended that no relief can be extended to the petitioner and writ petition is liable to be dismissed.
6. Rejoinder affidavit has been filed and therein much stress has been laid on the fact that since implementation of Scheme, petitioner had been duly performing and discharging duties as Office Assistant without there being any complaint and best period of his life has been spent in serving the University and now in this mid stream of his life petitioner candidature cannot be done away with on the ground that petitioner had become over age. It has been asserted that Scheme in question has been merged with the University and thus, by no stretch of imagination petitioner's candidature could have been ignored and said vacancy cannot be filled up by way of direct recruitment as has been sought to be done in the present case, without adverting to the claim of regularization. Policy decision taken by the University in this respect has been dubbed to be arbitrary and it has been submitted that petitioner has been metted with arbitrary treatment and his livelihood has been sought to be taken away in the garb of selection proceedings.
7. After pleadings mentioned above have been exchanged present writ petition has been taken up for final disposal with the consent of parties.
8. Sri Aseem Kumar Rai Advocate, contended with vehemence that his client has served on the post of Office Assistant for more than 16 years and at this stage of life non-consideration of candidature on the ground of overage and non consideration of claim of his client for regularization was totally arbitrary, illegal and violative of Article 14 and 21 of Constitution of India, as such entire selection proceeding undertaken for post of Office Assistant is liable to the struck down and petitioner claim is liable to be considered for reguiarization.
9. Sri V.K. Upadhya, Advcoate on the other hand contended that nature of the appointment of the petitioner was clear and categorical that petitioner has no right to claim any right qua the University and once Executive Council has taken decision to fill up the said post by way of direct recruitment and petitioner did not fulfill requisite eligibility criteria then there is no infirmity in the decision taken by the respondents and as such writ petition is liable to be dismissed.
10. After respective arguments have been advanced undisputed position which is emerging is to the effect that that one post of Office Assistant on the fixed salary of Rs. 750/- per month was sanctioned under the programme Scheme No. 472 during 7thPlan in Bio Electronics programme under Biomedical Engineering Institute of Banaras Hindu University. Said post was advertised on 11.04.1998 and Selection Committee which was constituted contained eminent persons of the University
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1 Director, I.T. Chairman Prof. S.L. Malhotra ---------------------------------------------------------------------------- 2 Dean, Faculty of Engg. and Member Prof. V.S. Subbarao Technology ---------------------------------------------------------------------------- 3 Co-ordinator, Bio-Electronics Member Prof. Ravi Prakash Programme and Co-ordinator, Biomedical Engineering ---------------------------------------------------------------------------- 4 Prof. R.A. Singh Faculty of Member Prof. R.A. Singh Commerce, BHU ---------------------------------------------------------------------------- 5. Sri G.C. Srivastava, Finance Member Prof. G.C. Srivastava Officer ---------------------------------------------------------------------------- 11. Aforesaid Selection Committee selected the petitioner on the basis of merit. It is true that in the advertisement which has been issued it was mentioned that appointment was to be made for the period of three years on purely temporary basis which may be extended further on satisfactory performance and subject for filling up the vacancy. There is no quarrel that work and conduct of the petitioner has been satisfactory and there has been no complaint whatsoever against the petitioner and at no point of time service of the petitioner had been disengaged and he had been permitted to continue to function and discharge his duties as Office Assistant without there being any interruptions and the authority at no point of took any decision to dispense with the service of the petitioner. Latter on said Scheme had been merged with the Banaras Hindu University on 02,05.1995 on the recommendation approved by Financial committee of the Banaras Hindu University. After said merger has taken place salary was being paid to the petitioner from Revenue Account of Banaras Hindu University with effect from June 1997. Various correspondence has been made for payment of salary to the petitioner on regular basis. Secretary University Grant Commission also on 11.012.1998 asked University Authorities to pay salary to the petitioner on regular basis qua the post petitioner has been working. Request was also made by the Coordinator for extending benefit of regularization after due merger has been affected upon in the year 1995. For ' period of 7 years nothing was done and thereafter on the recommendation dated 28.11.2002 of the Committee headed by Director Institute of Technology, Executive Council on 23rd /24thMarch 2003 accepted the recommendation dated 28.11.2002 and as far as post of Junior Clerk is concerned essential qualifications qua the same was prescribed and age was to be deal with as per University Rules. Thereafter advertisement dated 27.06.2003 was made and age prescribed therein was 18 to 30 for General Candidates; 18 to 35 to for SC/ST. Candidates and 18 to 33 for OBC category candidates. No age bar was provided for permanent employees of Banaras. Hindu University. Relaxation of upper age limit not exceeding five years for the period actually served against substantive, temporary, project posts etc. Banaras Hindu University was to considered as per rules and it was also provided that age to existing incumbent of scheme be reckoned as on the date of merger. Claim of the petitioner has been non-suited as he is over age.
12. Hon'ble Apex Court in the case of Dr. V.L. Chandra v. A.I.I.M. and Ors. reported in 1990 (1) UPLBEC 685 taking note of the fact that petitioners have acquired rich experience by working for more than 10-15 years, and faced with the ban of over age for any public employment, they have been deprived of source of substance and in this background though project had come to an end, directives were issued for providing alternative employment.
13. Hon'ble Apex Court in the case Bhagwati Prasad v. Delhi Municipal Corporation, , observed that once the appointment was made as daily wage worker and the petitioner had worked for considerable length of time, it would be hard and harsh to deny him confirmation on the ground that he lacks the prescribed educational qualification.
14. Hon'ble Apex Court in the case Karnataka State Pvt. College Stop Gap Lecturers Association v. State of Karnataka, took the view that temporary teachers who have worked for three years should be absorbed and should be paid salary equal to regular teachers.
15. Hon'ble Apex Court in the case P.C. Agarwal v. State of U.P. 1993 (2) AWC 787: 1993 (1) UPLBEC 718. took the view that regularization of service cannot be denied when the petitioners have rendered service on ad hoc basis against substantive vacancies for 10 to 18 years and this considerable period cannot be washed away. The same view has been reiterated in Jacob M. Puhuprambil v. Kerala Water Authority, "
16. Hon'ble Apex Court in the case of N.K.S Nayar and Ors. v. Union of India and Ors. reported in 1992 AIR SC 1575 while considering the matter of continuance of 'appointment for period run from 10 to 15 years held that when the appointment continued for 10 to 15 years said appointment such for a long period cannot be considered to be purely temporary or officiating to hold charge. Taking work from the petitioner in the said writ petition for long period of 10 to 15 years and then denying right of regularization and the consequent benefits in the said grade has been held to be arbitrary and violative of Article 16 of the constitution or India.
17. Hon'ble Apex Court in the case of Ram Kisan and Ors. v. Union of India 1992 Supp.(1) SCC 399, wherein Assistant Engineer and Junior Engineer were working in Ghziabad Development Authority on daily wages basis with meagre payment, for more than three to four years, Hon'ble Apex Court issued directives for taking steps for regularization and further at the time of regularization period spend on duty was to be adjusted against the age prescription, and the past service for extending wieghtage if any.
18. Hon'ble Apex Court in the case of Paschimbanga Prathmik Shikshak etc. v. W.B. Primary School Council qua the persons who had been pursuing the litigation for years held that they should not be debarred from being considered for appointment solely on the ground that they have crossed the age bar provided under the Rules, notifications or circulars.
19. Hon'ble Apex Court in the case of Arun Kumar Rout v. State of Bihar 1997 (7) Scale 277, wherein incumbents were not appointed by following due procedure, opined that benefit of regularization can not be extended as a matter of course, but considering the fact that incumbent had satisfactorily served the department even without getting salary for a long time and is not guilty of any fraud or sharp practice and does not lack requisite qualification and having being appointed against sanctioned post the incumbent deserves sympathetics consideration in getting appointment against such sanctioned post on humane consideration.
20. Division Bench of this Court in the case of Awadhesh Kumar Yadav v. D.F.O. reported in 2000 (1) UPLBEC 129, as petitioner had been working as daily wager for eighteen years directed his regularization. Again Division Bench of this Court in the case of Bimal Chandra Pandey v. Engineer in Chief reported in 2000 (1) UPLBEC 622 has taken the view that even temporary employee who has served for a long period cannot be suddenly asked to go for no rhyme or reason and pecially when he has worked for 10 to 20 years and has become overage, married and settled in life with reasonable expectation. Thereafter in the case of Dr. Sangeeta Srivastava v. University of Allahabad reported in 2002 (3) AWC 2088 where petitioner was working as guest Lecturer for more than twelve years and whose appointment was found de-hors Section 31(3)(C) was extended benefit of regularization. The said Division Bench judgment has been affirmed by Hon'ble Apex Court in Special Leave to Appeal No. 16580 of 2002 University of Allahabad v. Sangeeta Srivastava decided on 2.9.2002, principally on theground that Respondent in the said Appeal , had been in service for more than twelve years.
21. Catena of decisions noted above, clearly points out that where an incumbent has spent the best days of his life in service of the establishment, without any complaint to his employers, then it would be unreasonable and arbitrary to throw them out of employment, specially when they have become over age, and settled in life, and while taking steps for regularization period spend on duty was to be adjusted against age prescription. , Initially petitioner was appointed in the University on 23.2.1985, and on the strength of said experience of more that) three years, pursuant to Advertisement dated 11.9.1988, petitioner applied and was selected by Selection Committee which comprised of eminent personalities of the University. Categorical mention was made there in the Advertisement, that selection proceedings would be the same as is followed for similar post in the University. Thus this is undisputed position, that petitioner is not a back door entrant having procured employment on the basis of some sharp practice, and in this background when incumbent had put in more than fifteen years of service, then his claim ought not have been rejected on the ground of over age. Decision for merging the project had been taken way back on 26.10.1994 and during all these period, chain of correspondence was going on and ultimately on 23/24th March, 2003, resolution was passed by executive Council, fixing the criteria of selection, and it was mentioned that relaxation in age be provided as per University Rules and regulations and age of existing incumbent be reckoned as on date of merger. Advertisement shows that there is no age bar for employees of Banaras Hindu University and qua project employee five years maximum age relaxation has been provided for and age of existing incumbent of scheme has to be reckoned on date of merger. Here equal protection qua relaxation of age has not at all been accorded and in the facts of present case same has clearly resulted into inequality in as much as two set of persons one serving in the Banaras Hindu university and other serving in the project attached to Banaras Hindu university have been dealt with differently, whereas there is no just and reasonable relation to the object of classification.
22. Here in the present case, scheme in question has been flouted in the year 1988 and decision to merge the same with the University has been taken way back in the year 1994 and for all these years petitioner had been permitted to perform and discharge his duties without there being any interruptions and decision has been taken in the year 2003 for filling up vacancy by way of direct recruitment. All these fact and circumstances clearly establish that petitioner had been performing and discharging duties unlike substantively appointed employees of the University and thereafter when the petitioner had become over age as per Advertisement then his claim has been ignored leaving him in lurch. Said decision is a harsh decision, In the present case University authorities cannot be said to have acted fairly, inasmuch as, as far as employees of Banaras Hindu University, Varanasi are concerned no age limit has been provided for them and petitioner who has completed more than 15 years of service on the post of Office Assistant in project at Banaras Hindu University only five years age relaxation has been extended qua the same. The action of University is arbitrary, unreasonable and against the rule of fair play. After giving best of 15 years of his life in service to the University, without there being any complaint then at this juncture of life ignoring the claim of petitioner is totally unfair and same has the effect of taking away livelihood of the petitioner. In paragraph 16 of the writ petition categorical statement of fact has been mentioned as follows :
" That it is pertinent to mentioned here that the Coordinator of the said Schemes has also requested to the Vice Chancellor of the B.H.U. Vararansi for the regularization of the services of the staff of M.H.R.D Schemes on 06/08.05.2002. It is further pertinent to mentioned that the Coordinator have specifically stated in their letter that whenever any scheme was merged through F.C. & E.C. concerned employees were regularized from the date of merger (i.e. H.P.M.T.)/C.R.M.P. Electronic Engineering IT) after screening by screening Committee/chaired by Director/Deen of concerned Institute/Faculty). A copy of the letter dated 06/08/05.2002 sent by the Coordinator to the Vice chancellor of the B.H.U. Varanasi is being filed herewith and marked as Annexure No. 11 to this writ petition."
23. This statement of fact has not been disputed that in the past when ever scheme in question merged then the Screening Committee after screening candidate working in the scheme extended the benefits of regularization. Nothing has been brought on record as to why different stand altogether has been taken by the University in the present case.
24. In the facts and circumstances of the case selection proceeding on the post of Office Assistant without considering the matter of regularization is illegal unfair and uncalled for, as such selection proceedings in so far as it relates to Office Assistant, same is hereby quashed and set aside.
25. Subject to observations mentioned above, present writ petition is allowed.