JUDGMENT R. R. K. Trivedi and M. C. Jain, JJ.
1. Aggrieved by order dated 12.12.1991, Annexure-15 to the writ petition by which petitioner's services were terminated on one month's notice on the ground that his services were no more required by the University, petitioner filed Civil Misc. Writ Petition No. 1187 of 1992 in this Court. Learned single Judge dismissed writ petition by order dated 11.12.1997. Relevant paragraphs of the order dealing with the questions involved in the writ petition, are being reproduced below :
"Learned counsel for the petitioner has relied on the first paragraph of the above Regulation in support of his contention that the petitioner is automatically confirmed after two years of service. However, the second paragraph of the same Regulation states that the employee will remain in probation even after the stipulated period and will not be automatically confirmed. Thus, it cannot held that the petitioner became confirmed after two years of service. Moreover, there are serious allegations against the petitioner, in the counter-affidavit where it has been stated that the petitioner was not doing his work properly and in fact was colluding with some parties against the Interest of the University.
Thus, this is not a fit case for Interference under Article 226 of the Constitution. The writ petition is dismissed."
2. Against the order of the learned single Judge, petitioner filed 'Special Appeal No. 1053 of 1997, which was dismissed by order dated 18.12.1997. The Division Bench though dismissed the appeal and confirmed the findings of learned single Judge, but gave liberty to petitioner/appellant to file review application, if so advised. The relevant paragraphs of the Division Bench judgment are being extracted below :
"On perusal of the impugned judgment/order and on consideration of the submissions made by the learned counsel for the parties, we do not find any error or illegality in the interpretation of the I provisions of Regulation 11 by the learned single Judge.
Then Sri S. U. Khan raised the contention that the Regulations were not enforceable in law inasmuch as it has not been adopted as Statute by the competent authority of the University. This question has not been dealt with in the Impugned judgment/order. Our attention has also not been drawn to any material on records to show that the same was raised before the learned single Judge.
In the circumstances, we decline to consider the said contention raised by Sri Khan. However, the appellant may file an appropriate review petition for consideration of the matter before the learned single Judge if so advised and is permissible under law.
observations made by Division Bench, petitioner filed present application and prayed for review of order dated 11.12.1997. Learned single Judge, however, by order dated 5.8.98 directed the application to be placed before another Judge after obtaining nomination from Hon'ble the Chief Justice. Then by order of Hon'ble the Chief Justice, application was directed to be placed before another learned single Judge of the Court, who expressed difficulty in hearing the application for review of the order passed by another learned single Judge, who is a sitting Judge and still available. Learned single Judge was of the view that the application for review should normally be heard by the same learned Judge who passed the order and if. for some reason, he is not inclined to hear application, then Bench of two Hon'ble Judges may be nominated by Hon'ble the Chief Justice. With aforesaid observations, the record of the case was directed to be placed before Hon'ble the Chief Justice, who by order dated 30.4.99 nominated this Bench for hearing the application. Thus, the review application has come before us.
4. We have heard Sri S. U. Khan, learned counsel for petitioner/ applicant and Sri Dilip Gupta for the University.
5. Submission of the learned counsel for the applicant is that the Regulation 11 of the Regulations Governing the Terms and Conditions of Services of Non-teaching Employees of 1972 of Aligarh Muslim University (hereinafter referred to as 'Regulations of 1972'), quoted in the order of the learned single Judge had not come in force on the date impugned order was passed as it was not adopted by the University under Statutes/Ordinance of the University. Learned counsel has submitted that as Regulations of 1972 could not be applicable, old Regulations were operating in which the proviso added to the present Regulation 11 was not there and thus after two years service, petitioner ought to have been deemed confirmed in service. It is submitted that services of petitioner could not be terminated treating him on probation.
6. We have carefully considered the submissions of counsel for parties. The parties appear to be at variance about the factual aspect as to whether the Regulations of 1972 were applicable to the non-teaching employees of the University. The stand of the University is that the Regulations of 1972 were adopted on the date they were approved and have been in force right from 8th April, 1972. Though on the plain reading of Regulation No. 3 of Regulations of 1972, it appears that the formal adoption of the Regulation was necessary under the Statutes/ Ordinances framed by the University, however, learned counsel for the petitioner applicant could not place before us any provision contained in the Statutes/Ordinances applicable to University, in which any mode may have been prescribed for adopting such Regulations. In absence of any such provision, the Regulations of 1972 could very well be adopted by practice, which is indicative of the intention of its adoption. Specific and consistent stand taken by the University has been that the Regulations of 1972 were immediately taken in practice and they have been throughout in practice till the impugned order dated 12.12.1991 was passed against petitioner. The applicant has not been able to place before us any material on basis of which it could be inferred that Regulations of 1972 were not in force and old Regulations were still operating on the date impugned order was passed against him. Thus, in our opinion, though there is no formal adoption of Regulation, they stood adopted by long and, uninterrupted practice. For the reason mentioned above, we do not find any error apparent on the face of record calling for our interference.
7. There is yet another reason which Strongly goes against petitioner in getting any relief from this Court on this review application. From perusal of the judgment of the Division Bench. It is clear that the view taken by the learned single Judge that it is not a fit case for interference in view of the serious allegations against petitioner was neither challenged before nor otherwise dealt with by the Division Bench and it remained intact. After dismissal of the appeal, aforesaid part of the judgment became final. In these facts and circumstances, in our opinion, this review application is not legally maintainable and deserves outright rejection.
8. The review application has no merit and is, accordingly, rejected.