- (1.) The petitioner has sought a mandamus commanding the respondents to give suitable alternate appointment to the petitioner in the light of the judgment of this Court in Writ Petition No. 23718 of 1991 [Dr. Brinda Prasad Mishra v. Vice Chancellor, Banaras Hindu University and others) decided on 22.7.1999.
(2.) So far as aforesaid judgment is concerned, it is evident that it was confined to the petitioners before this Court in the aforesaid matter as is evident from the following: In the meantime, the Vice Chancellor of the Banaras Hindu University, who is an eminent educationist, will make an endeavour to see as to whether these men and women, who are before this Court, can be absorbed in any other project, such as Integrated Rural Development Programme of the University, conducted by the University.
(3.) The petitioner was not party to the judgment in the aforesaid writ petition therefore the aforesaid judgment as such is not applicable in the case of the petitioner. It is not the case of the petitioner that they were appointed on the post in question after following the procedure prescribed in the statute and it was consistent with Article 16 of the Constitution. In fact after the Constitution Bench judgment in Secretary, State of Karnataka v. Uma Devi,2006 2 ESC 192, the scenario has changed and now an incumbent cannot claim for regularization or absorption if he/she has been initially appointed in an illegal manner i.e. not in accordance with the procedure prescribed in the statute and consistent with Article 16 of the Constitution. A similar matter was considered by a Division Bench of this Court (in which I was also a member) in Writ petition No. 25138 of 1991 (Smt. Urmila Misra and another v. The Vice-Chancellor, Benaras Hindu University and another) decided on 17.4.2007 and having considered the aforesaid Division Bench judgment in Dr. Brinda Prasad Misra , this Court held as under: Admittedly the appointment of the petitioners in the case in hand was for a fixed tenure and in case the contention is accepted it would amount to giving appointment by this Court for the period subsequent to 31st March 1991. This is neither permissible in law nor can be done. We are fortified in taking this view by a Division Bench judgment in Writ Petition No. 28632 of 2006, Dr. Amar Nath Tiwari v. State of U.P. and others, decided on 23rd May, 2006. Coming to the judgment relied upon by learned counsel for the petitioners, i.e. Dr. Brinda Prasad Misra and others we summoned the record of that writ petition and noted that the vacancies of various posts in Grade A, B, C and D were advertised in newspaper, selection was held pursuant whereto the petitioners in that case were selected and appointed. The appointments were made in 1983 and they continued till 1991. Thereafter the appointments were not extended after 30th September 1991. The petitioners contended that they were selected after advertisement of vacancies and after undergoing regular procedure of selection therefore after rendering such a long service should not have been discontinued. However, this Court did not find any illegality in the aforesaid order of appointment/termination but left the matter to be considered by the University and Government of India for continuance of post. In the case in hand there is nothing on record to show that these petitioners were appointed after advertisement of vacancies and by following procedure consistent with Article 16 of the Constitution of India. In view of Constitution Bench judgment in Umadevi this Court cannot pass an order which may allow the petitioners to continue despite the fact that neither they were validly appointed nor they have any right in law to continue since the appointment was for a fixed tenure. In our view, therefore, the judgment in Dr. Bindra Prasad Misra , having not decided any issue, is not a binding precedent on the issues which are raised before us.;