Judgment:
Vineet Saran, J.
1. Pursuant to an advertisement dated 21.6.1988 issued by Chandauli Polytechnic, Varanasi inviting applications for appointment of two Assistant Lecturers (Civil) and one Assistant Lecturer (Vidyut), besides there other posts, the petitioner had applied for appointment as Assistant Lecturer (Vidyut). After undergoing the process of selection, the petitioner was declared selected by the Selection Committee for appointment on the post of Assistant Lecturer (Vidyut). Thereafter vide order dated 1.12.1988, the petitioner was appointed on such post but with a condition in the appointment letter that the same shall be only till May, 1989. After May, 1989, when work was not taken from the petitioner, he filed representations before the Commissioner, Varanasi Division, Varanasi, (who was Chairman of Chandauli Polytechnic), who had called for the comments from the officials. However, since no orders were passed, the petitioner filed this writ petition with a prayer that his representation may be decided and he may be treated to be in continuous service and also to declare the condition in the appointment letter of the petitioner limiting the same till May, 1989 as violative of Articles 14 and 16 of the Constitution of India.
2. By an interim order dated 14.2.1991 granted by this Court it was directed that 'if the petitioner was appointed in place of Sri T.B. Singh, as averred, then he shall continue to work until Sri T.B. Singh is reverted to his original post or till a regularly selected candidate joins the post'. After the passing of the interim order the petitioner was permitted to join on the post on 30.3.1991 and continued to work till 16.2.2004, when the respondents stopped taking work from the petitioner as this writ petition had been dismissed in default on 14.10.2003. However, thereafter the writ petition had been restored to its original number on 4.3.2004.
3. It is noteworthy that after the passing of the interim order on 14.2.1991, the respondents permitted the petitioner to work as Assistant Lecturer (Vidyut) and did not even file a counter affidavit for six years as it. was only in April, 1997 that the same was filed.
4. The main contention of Sri T.P. Singh, learned Senior Counsel appearing for the petitioner is that in the advertisement there was no such condition that the appointment on the post of Assistant Lecturer (Vidyut) was to be time bound. In the minutes of the selection committee recommending the selection of the petitioner it was clearly stated that the appointment of the petitioner was to be made on the vacancy created on account of temporary promotion granted to Sri T.B. Singh as Lecturer. It is the specific case of the petitioner that Sri T.B. Singh continued to work as Lecturer and he has also been confirmed on the said post on 7.7.2003. Thus the submission is that the post of Assistant Lecturer (Vidyut), which had fallen vacant oh account of temporary promotion of Sri T.B. Singh on the post of Lecturer, had, on confirmation of Sri T.B. Singh on the post of Lecturer, become permanently vacant. The other submission of the learned counsel for the petitioner is that on the other posts which had been advertised including that of Assistant Lecturers (Civil), regular appointments had been made without there being any stipulation of the same being time bound.
5. Learned counsel for the respondent, on the other hand, submitted that the appointment of the petitioner was a time bound appointment. The papers for approval of the appointments of all other persons made through the same advertisement had thus been forwarded to the Director, Technical Education, but the papers relating to the appointment of the petitioner had not been so forwarded. The other contention of the learned counsel for the respondents is that the post of Assistant Lecturer had been declared to be a dying cadre vide order of the State Government dated 27.6.1989 and, as such, the permanent appointment of the petitioner could not have been approved.
6. Be that as it may, it is not disputed that the appointment of the other two Assistant Lecturers in the same Polytechnic had been approved by the competence authority whereas the papers relating to the appointment of the petitioner had not even been forwarded. It being not denied that the promotion of said Sri T.B. Singh on the post of Lecturer has been approved, clearly shows that the post of Assistant Lecturer (Vidyut) had thus fallen vacant. The appointment of the petitioner had admittedly been made after following the selection process. By the same selection process the other two Assistant Lecturers as well as vacancies on three other posts had been filled up and also made permanent. Thus it cannot be said that the process of selection was in any way being disputed, or doubted by the authorities to be wrong or faulty. The petitioner thus having been appointed through a valid selection process and the post of Assistant Lecturer (Vidyut) having remained vacant because of the promotion of Sri T.B. Singh as Lecturer, in my view, the appointment given to the petitioner could not have been for a specific period because as per the own recommendations of the Selection Committee, the same was valid at least till Sri T.B. Singh was reverted back from his promotion. Even in the interim order dated 14.2.1991, it had been provided that only if the petitioner was appointed in place of Sri T.B. Singh, then he shall continue to work until Sri T.B. Singh was reverted to his original post or till a regularly selected candidate joins the post. It is not the case of the respondents that Sri T.B. Singh had been reverted back or any other regularly selected candidate had even been selected for such post. The petitioner being a regularly selected candidate by the Selection Committee appointed by the respondents would thus be entitled to continue on the post on which the selection had been made and appointment given by the respondent authorities.
7. In support of his contention that a fixed term appointment would lapse on the expiry of the period mentioned in the appointment letter, the learned counsel for the respondents has placed reliance on a decision of the Apex Court rendered in the case of Director, Institute of Management Development v. Smt. Pushpa Srivastava, AIR 1992 SC 2070. In the said case the appointment had been given purely on adhoc and contractual basis and it was held that the person holding such post can have no right to continue on the post. Following the said judgment, this Court has, in the case of Dinesh Prasad v. Inspector General Registration U.P. Allahabad, (2004) 1 UPLBEC 43, held that if a person Is appointed on a fixed term on contractual basis, his tenure comes to an end automatically by efflux of time and hence the question of regularisation of the employee would not arise.
8. In the case of Chandra Prakash Gupta v. Additional District Magistrate (Project), Hamirpur, (2001) 2 UPLBEC 1554, this Court had taken the view that when a person was initially appointed as a typist on daily wages in integrated rural development programme and had served for several years with short breaks on the strength of the interim order of this Court, he could not be said to be holder of appointment letter by virtue of interim order of the Court and the deployment of such daily wager could be terminated as his Initial deployment was made without following the procedure and was by way of backdoor entry.
9. In my view the ratio of the aforesaid judgments relied upon by the learned counsel for the respondents would not apply to the facts of present case. There cannot be a straight jacket formula for determining as to whether the appointment of the person has been made on fixed term merely because it is so mentioned in the appointment letter. Nowhere had it been indicated in the advertisement issued for making such appointment that the same was to be given for a fixed term. In the absence of such a condition having been there, the appointment, in the facts of the present case, made for a fixed term, would be unjustified. Such a condition would be necessary to be mentioned in the advertisement so as to enable the applicant to know the nature of the post on which he was applying, and the period for which his engagement would be made. Even otherwise all other appointments made in pursuance of the same advertisement through the same selection process had been made on regular basis, except that of the petitioner. As already indicated above, in the proceedings of the Selection, Committee also it was recorded that the appointment of the petitioner was to be made, though on ad hoc basis, but till the promotion of Sri T.B. Singh on the post of Lecturer continues. Sri T.B. Singh continued on the post of Lecturer and has also been confirmed on the said post. The non-continuance of the petitioner on the post on which he had been selected and appointed would thus, in the aforesaid circumstances, be unreasonable.
10. A Division Bench of this Court in the case of Kamla Kant Gautam v. District Registar, 1996 (2) LBESR 155, has held that where a person has worked for 11 years, even though under an interim order passed by this Court, and when there was nothing on record to show that the selection was irregular and the petitioner was not a part of any irregularity, if there be any, and the post was available, then such person should be regularised even if he was working on daily wages. It was further held that the non-regularisation of service in such circumstances would be unfair, depriving him his right to livelihood.
11. In the present case the respondents do not deny that the other two persons who had been appointed on the post of Assistant Lecturer (Civil) were regularised on such posts. Thus the contention of the learned counsel for the respondents that the post of Assistant Lecturer had been abolished or declared as a dying cadre would not have much force. The petitioner who had applied in pursuance of the same advertisement, and was also appointed by the same selection process, would thus be entitled to continue as long as the post which existed on the date of the advertisement, still continues to be there. Since admittedly the promotion of Sri T.B. Singh as Lecturer had been confirmed, the post of Assistant Lecturer had fallen vacant. The petitioner would thus be entitled to continue to work as Assistant Lecturer (Vidyut) on which post he had been selected in pursuance to the advertisement dated 21.6.1988 and shall be entitled to all consequential benefits.
In the result this writ petition succeeds and is allowed. No order as to cost.