JUDGMENT
1. Heard learned Counsel for the petitioner.
2. In the instant petition the petitioner has come up for issuance of a writ of mandamus commanding the respondents not to interfere in his functioning as lecturer of Economic in Janta Mahavidyalaya Rampur, Mau till regular selection is made on the recommendation of the UP. Higher Education Service Commission against the post held by him.
3. It appears that the petitioner was appointed as lecturer us Economics on ad hoc basis in the aforesaid College vide letter of appointment dated 2.1.2006 on honourarium basis with clear stipulation that he shall be allowed to continue till 30.6.2006 or till regularly selected teacher is available, whichever is earlier. The tem of appointment mentioned in the letter dated 2.1.2006 is extracted hereinafter-
jktkKk la[;k % 4671 @ 1 lRrj 2&96&[email protected] 93 Vhlh fnukad 7 vizSy 1998 esa fufgr izkfo/kkuksa ds vUrxZr turk ihthdkyst jkuhiqj e egkfo|ky; ds vFkZ'kkL= foHkkx esa bl vk'k; dk 'kiFk i= miyC/k djkus ij fd vki ekuns; ds vk/kkj ij v/;kiu [kpZ djus dh ,ot esa fu;fer fu;qfDr iznku djus dh ekax ugha djsaxs] fuf'pr ekuns; ds vk/kkj ij v/;kiu [kpZ djus dh ,ot esa fu;fer fu;qfDr iznku djus dh ekax ugha djsaxsa] fuf'pr ekuns; ds vk/kkj ij fnukad 30 twu 2006 vFkok fu;fer f'k{kd miyC/k gksus dh n'kk esa] tks Hkh igys gks] f'k{kk funs'kd mPp f'k{kk dh vuqefr ls v/;kiu dk;Z gsrq vuqefr iznku dh tkrh gSA fnukad 2-1-6 g viBuh;
izcU/kd @ lfpo ds gLrk{kj
4. Learned Counsel for the petitioner submits that the College is contemplating to make fresh appointment for the post held by the petitioner by ad hoc appointment as per Government Order dated 7.4.98 contained in Annexure-1 to the writ petition. It is submitted that Clause (2) of the aforesaid G.O. is arbitrary and cannot sustain as an ad hoc appointee cannot be replaced by another ad hoc appointee. It is further submitted that in a similar circumstance another Bench in the case of Pankaj Singh v. State of U.P. and Ors. Writ Petition No. 23381 of 2002, vide order dated 5.6.2002 issued notice and by interim order restrained fresh appointment on ad hoc basis.
5. We have considered the submissions made by the learned Counsel for the petitioner and perused the material on record.
6. The appointment of the petitioner being for a fixed tenure. He has no right to continue beyond the period indicated in the letter of appointment. From a perusal thereof it is evident that the appointment was made time bound upto 30.6.2006 or till regularly selected teacher is available whichever is earlier. Extension of the appointment by judicial order, therefore, is not permissible. Similar controversy came up for consideration before a Division Bench of this Court in the case of Alok Kumar Singh (Dr.) and 15 Ors. v. state of U.P. and Ors. (2002) 2 UPLBEC 1373 wherein it has been held that the petitioners cannot claim any right to continue in service beyond the period of appointment provided in the letter of appointment. Since the matter is already concluded by a Division Bench judgment of this Court, interim order sought to be relied by the petitioners is of no help, as this Court is bound by the law laid down in the final judgment of this Court since interim order do not lay down any binding precedent.
7. Besides, the appointment of the petitioner is for a fixed term i.e. till 30.6.2006 or till the regularly selected candidates join, whichever is earlier. In case no candidate selected by the commission is available before 30.6.2006, the appointment of the petitioner shall come to an end by 30.6.2006 automatically by efflux of time. The appointment, being a fixed term appointment, in case the contention of the petitioner is accepted, it would amount to re-writing the appointment letter allowing the petitioner to continue without there being any letter of appointment issued by the competent authority for a period subsequent to 30.6.2006. In the case of Director, Institute of Management Development, U.P. v. Pushpa Srivastava (Smt.) the Hon'ble Apex Court held that the appointment, which is made for fixed tenure comes to an end on the expiry of the period of appointment provided in the letter of appointment and the incumbent need not be terminated as the termination of employment comes automatically by efflux of time. In this case also, admittedly, the appointment of the petitioner is for fixed tenure and in case the contention of the petitioner is accepted it will amount to giving an appointment by this Court for the period subsequent to 30.6.2006 substituting itself to the position of appointing authority. This is neither permissible in law nor should be done. When a procedure is prescribed to do a thing in a particular manner, it should not be done otherwise.
8. Similar view has been taken by this Court also in Writ Petition No 20871 of 2006 Dr. Vijay Kumar Singh and Ors. v. State of U.P. and Ors. , decided on 25.4.2006.
9. Further a Constitution Bench of the Apex Court in Secretary, State of Karnataka and Ors. v. Umadevi and Ors. JT 2006 (4) SC 420, in para 34 of the judgment has observed as under-
If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued.
10. Learned Counsel for the petitioner further submits that on account of unemployment and lack of bargaining position, the petitioner cannot negotiate with the respondents on equal terms and therefore, the condition of engagement on contractual and honorarium basis for one session is exploitative and is arbitrary. We are afraid that even this submission cannot be accepted. Rejecting similar argument in Umadevi (Supra), the Apex Court in para 36 of the judgment has observed as under-
It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain-not at arms length- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee, A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not he getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment (f one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term.
11. Learned Counsel for the petitioner attempted to argue that Clauses 2 and 3 of the Government Order dated 7.4.98 are arbitrary and discriminatory. However, in the absence of such relief or prayer made in the writ petition, the aforesaid argument of the learned Counsel for the petitioner cannot be accepted. Even otherwise, it is not disputed that the appointment of the petitioner is in pursuance of the Government order dated 7.4.98 and having availed the benefit of the said Government order it is not open to the petitioner to advance submission against a part of the Government order which does not suit to him now. Either he can take advantage of the Government order as it is or the entire order could have been challenged but it is not permissible to the petitioner to avail the benefit under the Government order and also challenge some of the condition of the said Government order. It is not disputed that as per the conditions of the said Government order as a whole, the appointment of the petitioner on honorarium basis was made and in the said G.O. the condition was that the petitioner's appointment will be for one session only whereafter a fresh selection has to be made for the next session. Therefore, the petitioner has no legal right to continue after 30.6.2006 since the appointment letter is time bound. The relief sought by the petitioner, thus, cannot be granted.
12. In the result this writ petition is dismissed.