Smt. Snehlata Sinha Vs. the Ranchi University and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. orders.j. mukhopadhaya, j.1. heard the parties.2. in the present case, the petitioner has challenged, the date of confirmation of respondent no. 5 as lecturer as notified vide notification no. b/5620-25/96 dated 13.1.1996.3. the only issue raised by the petitioner is that a person cannot be confirmed made permanent from a date prior to his/her regular appointment.4. it is not in dispute that the petitioner, smt. snehlata sinha was appointed as lecturer of psychology, in jamshedpur women's college, jamshedpur after following the procedure including recommendation of university service commission vide college letter dated 27.9.1972 with the following terms and conditions :'(1) your appointment is on the basis of the recommendation of university service commission vide letter no. 62/c/usc, dated 14.2.1970, from the ' secretary usc patna. you will be on probation for one year effective from the date of joining.(2) your pay will be as follows :--rs. 400-basic.25% the basic salary as allowance.(3) you will take the classes regularly as allotted to you by the college authorities.(4) you will work in harmony and co-operation with other members of the staff.(5) one months' notice or in lieu surrender or payment of one month's pay will be necessary for resignation or terminating your service.(6) you will report to duty on and from november 12th, 1972 at 10 a.m.'5. similarly, respondent no. 5, shahin osman was appointed as lecturer of economics after following the procedure of regular appointment including the recommendation of the university service commission vide college letter dated 20.9.1973 with the following terms and conditions :--'(i) you will be on probation for one year, effective from the date of joining;(ii) your pay will be as follows :--basic ... ... .... ... rs. 400/-allowance ... ... ...25% of the basic pay.(iii) you will take the classes regularly as allotted to you by the college authorities;(iv) you will work in harmony and co-operation with the other members of the staff;(v) one moth's notice from either side will be necessary for resignation from or termination of your service. in case you leave or resign, without the notice, you will surrender one months' salary;(vi) you will make your own arrangement for accommodation;(vii) you will report to duty on and from the 5th of november, 1973 at 9.30 a.m.'thus, it will be evident that the petitioner was substantively appointed as lecturer on 27.9.1972 whereas the respondent no. 5 was substantively appointed on 20.9.1973. however, by the impugned order dated 13.1.1996, the ranchi university confirmed the respondent no. 5 w.e.f. 1.11.1971 and thereby made her permanent about two years prior to her regular appointment.6. counsel for the respondents took plea that the respondent no. 5 earlier worked in the college on temporary basis against sanctioned post. however, such submission cannot be accepted for the purpose of grant of permanency as no temporary appointment can be made except an ad-hoc arrangement for six months under the act. further even if it is accepted that the respondents was allowed to work by way of ad-hoc arrangement, her substantive appointment having made since 20.9.1973, she cannot be confirmed against the post prior to the said date.7. it may be mentioned that the counsel for the respondent no. 5 raised the question relating to legality and propriety of appointment of petitioner made by order dated 27.9.1972 but that issue cannot be raised by the respondents in the present case that too after 30 years.8. in the circumstances, the confirmation of respondent no. 5 made w.e.f. 1.11.1971 vide notification dated 18.1.1996 being illegal, is set aside. the case is remitted to the respondents university to determine the date from which the respondent no. 5 to be confirmed. if in any other case similar illegality has been committed by the respondents, the petitioner or the respondent no. 5 may bring the same to the notice of the university for looking into the matter and do the needful.9. it may be mentioned that the court has not determined the issue relating to seniority vis-a-vis petitioner and respondent no. 5 in the present case.10. the writ petition stands disposed of, with the aforesaid observations.

Judgment:
ORDER

S.J. Mukhopadhaya, J.

1. Heard the parties.

2. In the present case, the petitioner has challenged, the date of confirmation of respondent No. 5 as lecturer as notified vide Notification No. B/5620-25/96 dated 13.1.1996.

3. The only issue raised by the petitioner is that a person cannot be confirmed made permanent from a date prior to his/her regular appointment.

4. It is not in dispute that the petitioner, Smt. Snehlata Sinha was appointed as lecturer of psychology, in Jamshedpur Women's College, Jamshedpur after following the procedure including recommendation of University Service Commission vide College letter dated 27.9.1972 with the following terms and conditions :

'(1) Your appointment is on the basis of the recommendation of University Service Commission vide letter No. 62/c/USC, dated 14.2.1970, from the ' Secretary USC Patna. You will be on probation for one year effective from the date of joining.

(2) Your pay will be as follows :--

Rs. 400-Basic.

25% the basic salary as allowance.

(3) You will take the classes regularly as allotted to you by the college authorities.

(4) You will work in harmony and co-operation with other members of the staff.

(5) One months' notice or in lieu surrender or payment of one month's pay will be necessary for resignation or terminating your service.

(6) You will report to duty on and from November 12th, 1972 at 10 a.m.'

5. Similarly, respondent No. 5, Shahin Osman was appointed as lecturer of Economics after following the procedure of regular appointment including the recommendation of the University Service Commission vide College Letter dated 20.9.1973 with the following terms and conditions :--

'(i) You will be on probation for one year, effective from the date of joining;

(ii) Your pay will be as follows :--

Basic ... ... .... ... Rs. 400/-

Allowance ... ... ...25% of the basic pay.

(iii) You will take the classes regularly as allotted to you by the College Authorities;

(iv) You will work in harmony and co-operation with the other members of the staff;

(v) One moth's notice from either side will be necessary for resignation from or termination of your service. In case you leave or resign, without the notice, you will surrender one months' salary;

(vi) You will make your own arrangement for accommodation;

(vii) You will report to duty on and from the 5th of November, 1973 at 9.30 a.m.'

Thus, it will be evident that the petitioner was substantively appointed as lecturer on 27.9.1972 whereas the respondent No. 5 was substantively appointed on 20.9.1973. However, by the impugned order dated 13.1.1996, the Ranchi University confirmed the respondent No. 5 w.e.f. 1.11.1971 and thereby made her permanent about two years prior to her regular appointment.

6. Counsel for the respondents took plea that the respondent No. 5 earlier worked in the college on temporary basis against sanctioned post. However, such submission cannot be accepted for the purpose of grant of permanency as no temporary appointment can be made except an ad-hoc arrangement for six months under the Act. Further even if it is accepted that the respondents was allowed to work by way of ad-hoc arrangement, her substantive appointment having made since 20.9.1973, she cannot be confirmed against the post prior to the said date.

7. It may be mentioned that the counsel for the respondent No. 5 raised the question relating to legality and propriety of appointment of petitioner made by order dated 27.9.1972 but that issue cannot be raised by the respondents in the present case that too after 30 years.

8. In the circumstances, the confirmation of respondent No. 5 made w.e.f. 1.11.1971 vide notification dated 18.1.1996 being illegal, is set aside. The case is remitted to the respondents University to determine the date from which the respondent No. 5 to be confirmed. If in any other case similar illegality has been committed by the respondents, the petitioner or the respondent No. 5 may bring the same to the notice of the University for looking into the matter and do the needful.

9. It may be mentioned that the Court has not determined the issue relating to seniority vis-a-vis petitioner and respondent No. 5 in the present case.

10. The writ petition stands disposed of, with the aforesaid observations.