B.L.Yadav, J. - (1.) Whether the appointment of petitioner as professor (Acharya) in the subject of Organon of Medicine and Homoeopathic Philosophy under the Provision of U.P. Homoeopathic Medical Colleges (Taking over of Management) Act 1979, (U.P. Act No. 20 of 1979, for short the Act), even after taking over charge, could be kept in abeyance, and later on services terminated, without following the procedure prescribed, is the short question for determination in the present petition under Article 226 of the Constitution of India filed by the petitioner seeking a relief for a writ of Mandamus commanding the State Government, respondent No. 1, to rescind or cancel its order communicated to the petitioner by the Principal, State Ghazipur Homoeopathic Medical College & Hospital, G hazipur, respondent No. 4 by communication dated 6-5-1986, which was received by the petitioner on 7-5-1986, and to issue a writ of Mandamus commanding the respondents to treat the petitioner as a lawful holder of the post of Professor in the Homoeopathic Medical College.
(2.) The factual matrix of the case is that on 7-9-1970 the petitioner joined the post of Lecturer in the Ghazipur Homoeopathic Medical College and Hospital, Ghazipur, which was at a serial No. 9 of the Scheduled colleges. The list of such scheduled colleges has been given at the close of the Act. But the management of the said college was taken over by the State Government on the enforcement of U.P. Homoeopathic Medical Colleges (taking over of Management) Ordinance, 1979, on 4-5-1979, (for short the Ordinance), which was replaced by U.P. Act No. 20 of 1979 After taking over the District Magistrate was appointed as Administrator of the College. Under the Ordinance, the District Magistrate as Administrator, has all the powers of erstwhile management of the college. In view of the provisions of Section 3 of the Ordinance, from the appointed date the management of the scheduled colleges shall vest in the State Government for a period of one year from such date, which date was later on extended. Later on, U.P. Homoeopathic Medical Colleges (Acquisition and Miscellaneous provisions) Act, 1981, (for short Act of 1981), was enacted and by virtue of Section 17 of the Act U.P. Homoeopathic Medical Colleges (Taking over of Management) Act, No. 20 of 1971 was repealed. The District Magistrate, as Administrator appointed under Section 4 of the Act, has all the powers of management of the erstwhile Homoeopathic Medical College, Ghazipur which was one of the scheduled colleges appended under S. 4 of the Act, and created the post of Professor (Acharya) in the subject of Organon of Medicine and Homoeopathic Philosophy on 10-6-1980, which was a promotion post. The petitioner being one of the applicants, was promoted after following the procedure prescribed on the basis of the certificate and recommendation of the Principal dated 26-3-1980. The petitioner was ultimately appointed on the post of Acharya in the pay scale of Rs. 500-1000 by order 10-6-1980. A true copy of the appointment letter has been filed as Annexure-3 to the writ petition. True copy of the recommendation in favour of the petitioner by the Principal of the College dated 26-3-1980 is Annexure 2 to the petition. The petitioner joined the post on 11-6-1980 and submitted the joining report on the same date (vide Annexure 4 to the petition). But later on for the reasons best known to the Administrator (District Magistrate), respondent No. 3, even after the petitioner had joined, the said appointment was kept in abeyance. The petitioner made representation that he was appointed against a clear vacancy of Professor by the Administrator in pursuance of his powers under Section 4 of the Act, immediately before the appointed date. Once the petitioner had joined the post of Professor it became fait accompli and it could not have been kept in abeyance later on (i.e. on 27-6-1980). Certainly in accordance with the procedure prescribed, once a Professor has been appointed against a clear vacancy, disciplinary action could have been taken against him, but the appointment letter itself cannot be kept in abeyance. No illegality or irregularity was committed by the petitioner in getting the appointment letter, nor any concealment of fact was made nor there was' lack of any genuineness in the appointment of petitioner as is clear from Annexure 3 to the petition. There were documents indicating that against clear vacancy of Professor the petitioner was appointed. But the respondents committed error apparent on the face of record in rejecting the representation of the petitioner. Against that the petitioner made an application on 27-3-1981 to the Administrator of the College to set aside or recall the order dated 27-6-1980 (Annexure 10). Representation was made by the petitioner to the Joint Secretary; Government of U.P. Medical Section 9, Lucknow (Annexure 11) on 16-9-1982 giving details of the fact. Another representation was made on 2-4-1983 to, the Deputy Secretary, U.P., Medical Section 9 (Annexure 12). The petitioner thereafter filed a writ petition in this Court for-the purposes of getting his representation decided and a Division Bench of this Court by order dated 23-9-1985 directed the respondents to dispose of the petitioner's representation. Ultimately by a non-speaking order dated 6-5-1986 the petitioner's representations dated 27-3-1981 and 2-4-1983 were rejected.
(3.) On behalf of the respondents a counter affidavit was filed accepting the creation of post vide para 5 of the counter affidavit filed by Sri A.N. Mishra, Principal Ghazipur Homoeopathic Medical College and Hospital, Ghazipur, and stating that the procedure was to be followed while appointing persons to the post of Professor of the Homoeopathic Medical College. Even though he admitted that he has forwarded the application of the petitioner with his own comments and recommendation. It was further alleged in para 6 of the counter affidavit it is wrong to say that. the deponent (principal) gave any wrong impression pertaining to the joining of petitioner on the post of Professor. As the petitioner had not tendered his resignation from the post of Lecturer, he could not be permitted to hold another post simultaneously. It was the case of respondents that the writ petition has no substance. The learned counsel for the parties suggested that petition may be decided on merits.;