SATISH K.AGNIHOTRI,J. - (1.)BY this petition filed under Article 226/227 of the Constitution of India, the Petitioner seeks a writ in the nature of certiorari, quashing the order dated 08.09.2001 (Annexure P/9) whereby, the promotion of the Petitioner vide order dated 22.11.1999 for a period of one year came to an end the Petitioner was directed to return back the amount what he has been paid after 22.11.2000. The facts, as stated by the Petitioner are that the Petitioner was appointed as sub Engineer with the Respondent university on 12.10.91. Thereafter, he was confirmed w.e.f. 12.10.93. On 02.04.97 (Annexure P/2), the Petitioner was promoted on ad hoc basis to the post of Assistant Engineer for a period of one year or until regular appointment of the Assistant Engineer. On 04.09.97 (Annexure P/3), the Registrar passed an order that the promotion of the Petitioner on ad hoc basis to the post of Assistant Engineer for a period of one year or until regular appointment, is amended to the effect that the appointment of one year or till regular appointment would be replaced by until appointment by the Departmental Promotion Committee (for short 'DPC') and the Petitioner was paid accordingly regular pay scale vide order dated 19.02.99 (Annexure P/4). On 22.11.99, the Petitioner was again appointed on the promoted post of Assistant Engineer on ad hoc basis for a period of one year. As such revision of pay and increment of the post of Assistant Engineer was also granted to him. BY the impugned order dated 08.09.01 (Annexure P/9), the Registrar, on the basis of order issued by Executive Council, directed that the appointment of the Petitioner on the post of Assistant Engineer for a period of one year on ad hoc basis came to an end on 21.11.2000. It was further directed that any payment of salary paid after 22.11.2000 was recoverable from the Petitioner under the provisions of Fundamental Rules. Thus, the Petitioner has filed this petition impugning the order dated 8.9.2001.
(2.)SHRI H.C. Shukla, with R.K. Kesarwani, learned Counsel appearing for the Petitioner would submit that the Petitioner was promoted on the post of Assistant Engineer as per recommendations of Departmental Promotion Committee (DPC) vide order dated 22.11.99 (Annexure P/5). The University sent a communication to the State Government on 14.07.95 (Annexure R 1/1) that one post of Sub Engineer/Draughtsman be upgraded to the rank of Assistant Engineer. The Government, on 19.09.96 (Annexure R 1/2) sought more information with regard to setup and sanctioned post of Draughtsman, Sub Engineer and Assistant Engineers. Vide communication dated 29.10.96 (Annexure R 1/3), the Registrar of the Respondent university was informed by the government that if a Sub Engineer having qualification of Assistant Engineer is available, he may be upgraded to the post of Assistant Engineer. Accordingly, on 22.1.97 (Annexure R 1/4) the Petitioner was promoted on ad hoc basis to the post of Assistant Engineer for a period of one year or till regular appointment of the Assistant Engineer. A Screening Committee was constituted on 16.06.99 (Annexure P/14) comprising of Professor and Head of the Department (Commerce), as Chairman, Professor and Head of the Faculty (Arts), Member and Director, Mahavidyalaya Parishad as Coordinator. Thus, the appointment of the Petitioner was made on the basis of recommendation of the Screening Committee. The Petitioner did posses qualification of Assistant Engineer i.e. B.E. (Civil Engineering).
Shri Shukla, would further submit that the impugned order is arbitrary, punitive and visits with civil consequences. The said order is in violation of Article 14,16 and 21 of the Constitution of India. Learned Counsel relies on decision of the Supreme Court, in the matter of E.P. Royappa v. State of Tamil Nadu and Anr., : AIR 1974 SC 555 in support of his contention that even if the appointment of the Petitioner was on ad hoc or officiating capacity, the Petitioner cannot be removed from the service and the Petitioner is entitled to the protection of Article 14 and 16 of the Constitution of India, Secondly, though the word ad hoc was used but the appointment of the Petitioner was on the basis of recommendation of DPC, thus, the same cannot be held as dehors the rules. Shri Shukla further relies on a decision of the Supreme Court in the matter of Secretary, State of Karnataka and Ors. v. Uma Devi and Ors., : AIR 2006 SC 1806. Thirdly, the appointment of the Petitioner was against the sanctioned post, thus the promotion of the Petitioner on the post of Assistant Engineer was on regular basis, in accordance with the procedure prescribed for promotion of an employee.

(3.)IN regard to payment of arrears, learned Counsel relies on decision of the Supreme Court in the matter of Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma and Ors., : (1998) 5 SCC 87. The impugned order is contrary to public policy. The principle of audi alteram partem would be applicable in the present case as the Petitioner has been condemned without affording an opportunity of hearing. Per contra, Shri Manindra Shrivastava, Senior Advocate with Shri Devendra Patel, appearing for the Respondent No. 1/university would contend that the promotion of the Petitioner vide order dated 22.11.99 was clear to the extent that the promotion of the Petitioner was on ad hoc basis for a period of one year which came to an end on 21.11.2000 whatever payment was received after 21.11.2000, the same liable to be recovered from the Petitioner since the promotion of the Petitioner was for limited period for one year. The same was never extended beyond the period of one year, the Petitioner illegally continued thereafter. Thus, the Petitioner is not entitled to any benefit including salary of the post beyond the period of one year. He would further contend that the Executive Council of the University in its meeting dated 11.09.1994, resolved to upgrade one post of Draughtsman as the post of Assistant Engineer and the proposal was sent for approval to the State Government vide letter dated 14.07.1995 (Annexure R 1/1). The State Government vide its letter dated 19.09.1996 (Annexure R 1/2) raised certain queries to which answering Respondent vide its letter dated 28.09.1996 clarified the factual position that there is no post of Assistant Engineer. The State Government vide its letter dated 29.10.96 granted approval to upgrade one post of draughtsman as Assistant Engineer with stipulated that if the existing Sub Engineer possesses necessary qualification then the said post of Assistant Engineer may be filled up (Annexure R 1/3). However, Government did not grant any financial aid to the post, therefore, the Executive Council in its meeting dated 05.02.97 upgraded one post of Draughtsman as Assistant Engineer and the Petitioner was given purely ad hoc order of appointment vide order dated 02.04.97 (Annexure R 1/4). This order was only for a period of one year or till regular appointment of Assistant Engineer. Thereafter as per resolution of the Executive Council dated 31.05.97 (Annexure R 1/5) Petitioner's ad hoc promotion was continued until Departmental promotion.
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