- (1.) Leave granted.
(2.) Heard learned counsel for the parties. This appeal by special leave arises from the judgment and order of the Division Bench of the Allahabad High Court dated January 28,1993, in CMWP No. 451 of 1984. 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. In that leave vacancy, Dr. Sunil Kumar Sinha, respondent No. 1 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 L.B. Sinha in the grade of Rs. 700-1400 on an starting salary of Rs. 700/- per month. 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.
(3.) The respondent No. 1 joined the post. When on completion of the studies, Dr, L.B. Sinha reported to the duty, the Management gave notice to the first 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 respondent filed the writ petition on January 9, 1984. Therefore, the U. P. State 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 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 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 considered this aspect of the matter. 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, 1973. The question, therefore, is whether S.31 (3)(b) of U. P. State Universities Act, 1973 or S. 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 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: "Notwithstanding any judgment 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 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 of 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." A reading thereof would clearly indicate that the appointment of every teacher made in any University is governed by the U.P. State University Act, 1973 or any affiliated or associated college thereof during the period of 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 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 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 aforesaid 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 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.;