Supreme Court of India
STATE OF U.P. AND ANR.versusDR. S.K. SINHA AND ORS.
- Citation
- 1994 INSC 575
- Decided
- 2 December 1994
- Disposal
- Appeal(s) allowed
Holding
The temporary appointment made against a leave vacancy is not validated by either the Validation Act or section 31(3)(b) of the U.P. State Universities Act, and the respondent is not entitled to continuance of service or arrears of salary.
Summary
Dr. L.B. Sinha, a regular lecturer, went on study leave and Dr. S.K. Sinha was appointed as a temporary lecturer against the leave vacancy. The appointment letter expressly stated that the post was temporary, terminable on 24‑hour notice and salary contingent on UGC funds. When Dr. L.B. Sinha returned, the college cancelled the temporary appointment; the respondent challenged the cancellation and the Allahabad High Court allowed his claim. The State appealed, contending that the appointment was not covered by the U.P. State University (Validation of Appointments) Act, 1984 nor by section 31(3)(b) of the U.P. State Universities Act, 1973. The Supreme Court held that neither statute applied to the facts, the temporary appointment could not be validated, and the respondent was not entitled to continuance of service, only to salary up to the date of cancellation. Accordingly, the appeal was allowed and the respondent’s claim for arrears was denied.
Issues considered
- Whether section 2 of the U.P. State University (Validation of Appointments) Act, 1984 applies to a temporary appointment made against a leave vacancy.
- Whether section 31(3)(b) of the U.P. State Universities Act, 1973 validates the continuance of a temporary lecturer after the regular incumbent returns.
- Whether the respondent is entitled to continuance in service and payment of arrears of salary.
Legislation cited
Subjects
temporary appointmentvalidation of appointmentsleave vacancycontinuance of serviceU.P. State Universities Actsection 31(3)(b)Validation Act 1984salary arrearsSupreme Court
Judgment
STATE OF U. P. AND ANR. A
v.
DR. S. K. SINHA AND ORS.
DECEMBER2, 1994
[K. RAMASWAMY ANON. VENKATACHALA, JJ.] B
U. P. State Universities Act, 1973:
Section 31 (3) (b) Purpose and Applicability of U. P. State University
(Validation ofAppointments) Act, 1984:
c
Section 2. Applicability of
Lecturer-Temporary appointment against leave vacancy-
Continuance for a long time-Resumption of duty by regular incumbent-
Termination of temporary appointment held valid-Held temporary
appointment shall not be deemed to be valid D
The first respondent was appointed as Lecturer in Economics in
Chaudhary Mahadeo Prasad Degree College against a leave vacancy as
the regular incumbent proceeded on study leave. The appointment
letter dated 23-11-1982 clearly stated that the appointment was purely
temporary terminable within 24 hours notice and that the respondent E
would be entitled to payment of salary only on receipt of amount from
the University Grants Commission. On resumption of duty by the
regular incumbent a notice was issued to Respondent-I for cancelling
his appointment. The first respondent successfully challenged the notice
before the Allahabad High Court.
F
In appeal to this Court it was contended on behalf of the appellant-
State that since the first respondent was appointed on the leave vacancy
and the regular incumbent has reported for duty, the appointment
cannot be said to be valid under Section 2 of the U. P. State University
(Validation of Appointments) Act, 1984 and Section 31 (3) (b) of the U.
P. State Universities Act, 1973 and section 2 of the Validation Act had G
no application.
Allowing the appeal, this Court
HELD: 1.The claim of the first respondent for continuance in
service is negatived. [289 DJ H
283
284 SUPREME COURT REPORTS (1994] SUPP. 6 S.C.R
A 2. The intendment of the U. P. State University (Validation of
Appointments) Act, 1984 appears to be that when appointment was
made in excess of the number of pos~ advertised and a candidate was
duly selected and he was continuing in the post either for want of
vacancy or there was proper advertisement made or the prescribed
procedure was not followed then the incumbent who is continuing
B between the aforestated dates namely July 1, 1978 and October 1, 1984
the date on which the Ordinance has come into force, their
appointments stood Validated and declared to be valid. It is not the
case that any such appointments has been made in respect of the first
respondent. [287 B, C]
C 3. The purpose of section 31(3) (b) of the U. P. State Universities
Act, 1973 appears to be that after the commencement of the Act, any
teacher is appointed to a temporary post likely to last for more than six
months and such post is subsequently converted into a permanent post -.
or to a permanent post in a vacancy caused by the grant of leave to an
incumbent for a period exceeding 10 months and such post
D subsequently becomes permanently vacant or any post of same cadre
and grade is newly created or falls vacant in the same department, then
unless the Executive Council or the Management, as the case may be,
decides to terminate his services after giving. an opportunity to show
cause, it may appoint such teacher in a substantive capacity to that post
without reference to n Selection Committee. Such is not the case here.
E ~~D~~~
Uttam Kumar v. U. P. Higher Education Service Commission,
Allahabad CA No. 4895 of 1989 decided by Supreme Court on 4.8.93
held inapplicable.
F CIVIL APPELLATE JURISDICTION Civil Appeal No 9644 of
1994.
From the Judgment and order dated 28.1.93 of the Allahabad High
Court in C. Misc. W.P. No. 451of1984.
Dr. B. S. Chauhan, and R. B. Misra for the Appellants
G
Yogeshwar Prasad, R. P. Singh, Prashant Kumar, Gulati and Satish Vig
for the Respondent No.6
A. K. Srivastava for Respondent in No.1
H ' P. K. Jain and M. C. Diwedi for the Respondent in No. 7
STATE OF U. P. v. Dr. S. K. SINHA 285
P. K. Jain forthe Respondent in No. 8 A
The following Order of the Court was delivered :
Leave Granted.
Heard learned counsel for the parties. This appeal by special leave B
arises from the judgement and order of the Division Bench of the Allahabad
High Court dated January 28, 1993, in CMWP No. 451/84. One Dr. L. B.
Sinha while he was working as a Lecturer in Economics in Chowdhary
Mahadeo Prasad Degree College, Allahabad proceeded at the instance of
the University Grants Commission to prosecute his further studies for
improvement of his prospects. Ill that leave vacancy, Dr. Sunil Kumar C
Sinha, respondent No. I in this appeal, was appointed. His appointment
letter dated 23 .11.82. reads thus :
"I am glad to inform you that the Management has been
pleased to select and appoint you as temporary Lecturer in
Economics in our College against the leave vacancy of Shri D
L.B. Sinha in-the grade of Rs. 700-1400 on an starting salary
of Rs. 700/ per months.
Please note that the post is purely temporary, terminable
within 24 hours notice and payment of your salary will be
made on receipt of the amount from UGC. E
The respondent No. I joined the post. When on completion of the
studies, Dr. L. B. Sinha reported to the duty, the Management gave notice
to the f"rrst respondent on January 5, 1984 communicating that Dr. L. B.
Sinha is joining the duty on January 10, 1984 and that, therefore, his
appointment would stand cancelled. Impugning this communication, the 1st F
respondent filed the writ petition on January 9, 1984. Therefore, the U. P.
Sate University (Validation of Appointments) Act, 1984 which replaced the
Ordinance, by s. 2. validated certain appointments made in excess of the
number of posts advertised, and they were deemed to have been always
valid and legal. But keeping in view all the circumstances of the case, we
directed that the appellant shall be entitled to his full salary and other G
emoluments admissible to him in case he was not getting the same from
1.4.1993. But whatever pay and emoluments he was getting prior to that
would be deemed to be sufficient to meet the ends of justice and he would
not be entitled to claim any arrears of salary or any other emoluments.
Accordingly, the writ was issued. It is contended for the State that since the
1st respondent. was appointed on the leave vacancy and the regular H
286 SUPREME COURT REPORTS [1994) SUPP. 6 S.C.R
A incumbent Dr. L.B. Sinha has reported to the duty on January 10, 1984, the
appointment cannot be said to be valid and s. 2 of the Validation Act. had
no application. It is also contended that in the vacancy of Dr. L.B. Sinha
who is a permanent, had a lien on the post and had proceeded on leave to
prosecute his further studies. The 1st respondent was appointed in place of
Dr. L. B. Sinha. Although he returned to service, the High Court had not
B com:idered this aspect of the matter. Mr. A. K. Srivastava, learned counsel
for the 1st respondent contended that initial appointment in 1980 on the
temporary vacancy and thereafter on a regular selection though he was
continuing right from November 3, 1982 and at such a distance of time, he
cannot be displaced. He sought to place reliance not only on s. 2. of the
Validation Act but also on sec. 31 (3) (b) of the U. P. State Universities Act
c 1973. The question, therefore, is whether s. 31 (3) (b) of U. P. State
Universities Act, 1973 ors. 2 of the Validation Act have any application to
the facts of this case. The 1st respondent appointed in leave vacancy, due to
Dr. L.B. Sinha proceeding on leave to improve his career prospects by his
studies as a Doctor in Economics. The appointment order clearly mentioned
the same. The 1st respondent also is entitled for payment of salary only on
D receipt of the amount from University Grant Commission. In other words,
the appointment and payment of the salary are only consequent to Dr. L.B.
Sinha proceeded on leave for further studies. Since Dr. L. B. Sinha on his
returning from leave, he is entitled to occupy the post and the respondent
shall have given place to Dr. L. B. Sinha. Section 2 of the validation Act
reads thus:
E
"Notwithstanding any judgement, decree or order of any
Court or order of any officer or authority or anything
contained in the Uttar Pradesh State Universities Act, 1973 or
..
Statutes framed thereunder, the appointment of every teacher
made in any University governed by the said Act or any
F
affiliated or associated college hereof during the period July
1, 1978 and the date of commencement of this Act, in excess
of the number of posts advertised, shall be and be deemed
always to have been valid and validity such appointment
shall not be called in question before any court, tribunal,
G officer or authority merely on the ground that the post was
not separately advertised or that the prescribed procedure was
not followed."
A reading thereof would clearly indicate that the appointment of every
teacher made in any University is governed by the U. P. State University
H Act, 1973 or any affiliated or associated college thereof during the period
STATE OF U. P. v. Dr. S. K. SINHA 287
of July 1, 1978 and the date of commencement of this Act, in excess of the A
number of posts advertised, shall be and be deemed always to have been
valid and validly made and such appointment shall not be called in question
before any Court, Tribunal, Officer or Authority merely on the ground that
the post was not separately advertised or that the prescribed procedure was
not followed. In other words, the intendment of the Validation Act appears
to be that when appointment was made in excess of the number of posts B
advertised and was duly selected and he was continuing in the post either
for want of vacancy or there was proper advertisement made or the
prescribed procedure was not followed then the incumbent who is
continuing between the aforestated dated namely, July 1, 1978 and October
1, 1984 the date on which the Ordinance has come into force, their
appointments stood validated and declared to be valid. It is not the case that C
any such appointments has been made to the first respondent. The order of
the appointment clearly indicates that the appointment was made on a leave
vacancy due to Dr. L.B. Sinha proceeded on leave for his further prospects
in his career.
The next question is whether s. 31(3)(b) also gets attracted to the facts D
of this case. Section 31 reads thus :
"Appointment of Teachers (1) Subject to the provisions of
the Act, the teachers of the University and the teachers of an
affiliated or associated college (other than a college
maintained exclusively by the State Government) shall be E
appointed by the Executive Council or the Management of
the affiliated or associated college, as the case may be, on the
recommendation of a Selection Committee in the manner
hereinafter provided . The Selection Committee shall meet as
often as necessary."
F
Section 31 (3)(b) of the Act reads thus:
"Where before or after the commencement of this Act, any
teacher is appointed (after reference to a Selection
Committee) to a temporary post likely to last for more than G
six months, and such post is subsequently converted into a
permanent post or to a permanent post in a vacancy caused
by the grant of leave to an incumbent for a period exceeding
ten months and such post subsequently becomes permanently
vacant or any post of the same cadre and grade is newly
created or falls vacant in the same department, then unless H
288 SUPREME COURT REPORTS [1994] SUPP. 6 S.C.R
A the Executive Council or the Management, as the case may ·
be, decides to terminate his services after giving an
opportunity to show cause, it may appoint such teacher in a
substantive capacity to that post without reference to a
Selection Committee :
B Provided that this clause shall not apply unless the teacher
concerned holds the prescribed qualifications for the post of
the time of such substantive appointment, and he has served
continuously, "for a period of not less than one year after his
appointment made after reference to a Selection Committee;
c Provided further that appointment in a substantive capacity
under this clause of a teacher who had served, before such
appointment continuously for a period of less than two years,
shall be on probation for one year which may be extended for
a period not exceeding one year, and the provisions of sub-
section (2) shall apply accordingly."
D
The purpose ofs. 31 (3) (b) appears to be that after the commencement
of the .Act, any teacher is appointed to a temporary post likely to last for
more than six months, and such p6st is subsequently converted into a
permanent post or to a permanent post in a vacancy caused by the grant of
leave to an incumbent for a period exceeding l 0 months and such post
E subsequently becomes permanently vacant or any post of same cadre and
grade is newly created or falls vacant in the same department, then unless
the Executive Council or the Management, as the case may be, decides to
terminate his services after giving an opportunity to show cause, it may
appoint such teacher in a substantive capacity to that post without reference
to a Selection Committee. In other words, it would be seen that an
F
incumbent was regularly selected but was continuing in a temporary post
which was subsequently made permanent or a post which became vacant
for a period exceeding l 0 months and later the post becomes permanent and
·temporary incumbent is continuing only on the same post or a newly
created post or a post carrying the same grade or falls vacant in the same
G department, the Management without reference to the Selection Committee,
· fresh seleetion has been made. Such is not the case here. As stated earlier,
Dr. L. B. Sinha has proceeded on leave ~d returned to the post, the
question of vacancy does not arise. The contention that a post has become
vacant and instead of filling up that post, somebody seems to have been
appointed which is respondent No.7 the appointment was not challenged in
H the High Court. We cannot go into that question.
STATE OF U. P. v. Dr. S. K. SINHA 289
Mr. A. K. Srivastava, learned counsel for the 1st respondent has placed A
reliance on the order made by this Court in C.A. 4895189 dated 4.8.93
Uttam Kumar v. U.P. Higher Education Service Commission, Allahabad. In
that case, the regular incumbent was. continuing on temporary post and the
approval was not given by the State Government. On those facts, this Court
has directed that since the incumbent has served for about 15 years, the
termination of his service at such distance of time is not just. Those facts B
have no application to this case.
In future, if there is any vacancy in the department, the case of the 1st
respondent may be considered according to rules. If there is any age bar,
the authority would relax the age qualification at the time of selection.
c
The appeal is allowed. No costs.· In the interim order passed by this
court on May 13, 1994, the Management was directed that the payment of
salary to the first respondent will be subject to the adjustments to be made
at the time of the final order. Though we are negativating the claim of the
1st respondent for his continuance since he is already in appointment, the
State is directed to reimburse the payment made by the Management D
respondent No. 5. If there is any arrears of salary due and payable to
respondent No.1 the same may be paid within three months from the date of
the receipt of this order.
T.N.A Appeal allowed
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