- (1.) V. K. Shukla, J. On 11-4-1988 applications were invited for various posts under the Bio-Electronics Programme of School of Bio-Medical Engineering Institute of Technology, Banaras Hindu University, Varanasi. Out of various posts which have been advertised post of Office Assistant was also there with the qualification prescribed as Graduate Degree or equivalent with at least three years working experience as typist-cum- clerk in one or more major research Projects, preferably at I. T. B. H. U. Said post had been advertised under Plan Scheme (7th Plan) of the Department of Education, Ministry of Human Resource Development, New Delhi ). Petitioner, as per said advertisement, as he fulfilled requisite minimum qualifications and had been working as office Assistant since 23-2-1985 applied, for consideration of his candidature. Said advertisement contained note that appointment will be made initially for a period of three years on purely temporary basis which may be extended further on satisfactory performance and subject to availability of vacancy and temporary service were liable to be terminated at any time without assigning any reason. It was further mentioned therein that candidate will be treated as an employee of the Bio-Electronics Programme and will have not have any claim for absorption in the University service. Appointment was to be based on written test in the relevant area followed by interview as for similar post in the interview. After petitioner had moved application for consideration of his candidature Selection Committee constituted for making selection and appointment for the post of Office Assistant, interviewed the petitioner. The Members of the Selection Committee were as follows: 1 Director, I. T. Chairman Prof. S. L. Malhotra 2 Dean, Faculty of Engg. and Technology Member Prof. V. S. Subbarao 3 Co-ordinator, Bio-Electronics Programme and Co-ordinator, Biomedical Engineering Member Prof. Ravi Prakash 4 Prof. R. A. Singh Faculty of Commerce, BHU Member Prof. R. A. Singh 5 Sri G. C. Srivastava, Finance Officer Member Sri G. C. Srivastava
(2.) SELECTION Committee mentioned above selected the petitioner for the post of Office Assistant on the fixed salary of Rs. 750/- per month and it was mentioned therein that appointment was for a period of six months with effect from 1-7-1988, at the first instance. Thereafter time and again said appointment has been extended without any break and petitioner has been permitted to function as Office Assistant without any break. M. D. R. D Project Scheme No. 472 Bio-Electronic Programme Bio-Medical Engineering Institute of Technology, Banaras Hindu University, Varanasi had been merged under 'r' Account Maintenance Grant of University vide F. C. R. No. 4 dated 26-10-1994 and this was duly ratified by the Executive Council of the University by means of ECR No. 148 dated 29/30 March 1996. Petitioner, after appointment, had been performing and discharging duties as Office Assistant and at no point any complaint whatsoever has been found qua his functioning. Petitioner has contended that after said merger has been effected upon the project become integral part of the University and since 3rd June, 1997, salary of the petitioner is being disbursed by the Revenue Department of Banaras Hindu University, Varanasi. It has been stated by the petitioner that on 22-10-1997 the Deputy Registrar (DEV) of Banaras Hindu University, Varanasi sent a letter to Deputy Registrar (Accounts-I) Banaras Hindu University, Varanasi for payment of salary to the staff whose merger was under consideration for releasing of the salary from 'r' Account (Revenue Account) of Banaras Hindu University, Varanasi. On 8- 1-1998 Co-ordinator of said Scheme also wrote a letter addressed to the University for ensuring payment of salary to the petitioner on regular basis. On the said letter being written, letter was written by Secretary of the University Grant Commission informing and intimating that said Scheme has already been merged with the University and the University has to meet out the expenditure of the salary of the employees of the University out of maintenance grant paid to the University and University Grant Commission is giving maintenance grant on incremental basis. Co-ordinator of the said Scheme had requested the University for regularization of petitioner as staff of MHRD Scheme on 6/8-5-2002. In the said letter which has been sent by the Co-ordinator categorical mention has been made that whenever any scheme was merged then employee working in the scheme had been merged after screening by the Screening Committee chaired by the Director/dean of the concerned Institute/faculty. Petitioner has contended that at no point of time any steps whatsoever has been undertaken for regularization of the service of the petitioner and quite illegally advertisement in question has been advertised on 27-6-2003. At this juncture present writ petition has been filed with following relief which has been quoted below: " (a) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 11-3- 2005 passed by the respondent concerned (Assistant Registrar) (Development) B. H. U Varanasi (Annexure-14 to the writ petition ). (b) issue a writ, order or direction in the nature of certiorari quashing the impugned advertisement dated 27-6-2003 (Annexure-13 to the writ petition ). (c) issue a writ, order or direction in the nature of mandamus restraining the respondents not to make fresh selection in pursuance to the advertisement dated 27-6-2003 in the interest of justice. (d) issue a writ, order or direction in the nature of mandamus to the respondents to confirm/regularise the services of the petitioner since the date of merger of the said Scheme into B. H. U. Varanasi. (e) issue a writ, order or direction in the nature of mandamus directing the respondents to pay the salary to the petitioner for equal pay for equal work. (f) issue a writ, order or direction in the nature of which this Hon'ble Court may deem fit and proper in the circumstances of the case. (g) award the cost of the petition to the petitioner. " Supplementary affidavit has also been filed mentioning therein that petitioner fulfills each and every pre-requisite term and conditions for absorption as envisaged under the Resolution dated 1/3rd-6-1991. Counter-affidavit has been filed and therein it has been sought to be contended that after Scheme in question have been merged under 'r' Account of Maintenance Grant of the University, matter was placed before the Executive Council to consider the mode of recruitment, induction, constitution of Selection Committee, date of merger, qualifications, age, etc. for filing the merged posts in the maintenance grant sanctioned under the schemes and the Executive Council on the recommendations of the Committee under the Chairmanship of Director, Institute of Technology, resolved as follows by accepting recommendation dated 28-11-2002: " (i) The rostering of the posts be done as per Government of India rules. However, if the posts of Lab Attendant are filling in the reserved category, the reservation be carried forward and adjusted with the further vacancies. (ii) The relaxation in age be provided as per University rules and regulations. Age of existing incumbent be reckoned as on the date of merger. (iii) The name of the posts, pay scales and the qualification for the posts to be advertised be as hereunder: Sl. No. Name of the Scheme Name of the posts to be advertised Grade Qualification 1. CET Scheme No. 905 Production Assistant 4500-125-7000 Essential B. Sc. With Diploma/certificate in videograph Desirable Experience of handling modern camera. Video programme production Floor Assistant 2650-65 3300-70-4000 Essential : High School with Science Desirable Experience of Lighting & Stage preparation 3. Camera-man 2650-65 3300-70-4000 Essential: High School with Science Desirable Experience of handing modern camera 2. CRME Scheme No. 875 Jr. Scientific Officer (Photovoltaic) 6500-200-10500 Essential: A Bachelors degree in Electronics/electrical/computer Engg. Or Master Degree in Physics (Electronic) with atleast two years of research experience in the area of Photovoltaic Array Design in each case. Desirable Doctorate degree in the area of Photovoltaic Semi Professional Asst. 4500-125-7000 Essential: Graduate with B. Lib. Sc. Degree. Desirable : (i) knowledge of word processing (ii) Knowledge of Indian Regional languages Lab. attendant 2650-65 3300-70-4000 Essential: High School with Science Desirable Experience of testing of photovoltaic Arrays. Project Asst. 050-75 3950-80-4590 Essential: Graduate degree from a recognized university Desirable : Knowledge of store keeping purchase procedure for maintenance of modern electronic Laboratory 3. CRMA Scheme No. 875-A Lab. Assistant 2650-65 3300-70-4000 Essential: High School with Science Desirable Experience 4. Biomedical Engg. 472 Jr. Clerk3050-75 3950-80-4590 Essential: Intermediate second class/graduate English typing 30 wpm I Hindi typing 25 wpm Desirable Experience of using Computer for office work Lab. Attendant 2650-65 3300-70-4000 Essential: High School with Science Desirable Experience of working in Biomedical laboratory RESOLVED FURTHER THAT the above approval is specific to these projects only and shall not from precedence for future. "
(3.) IT has been asserted that accordingly posts in question was advertised on 12-8-2003 thereafter written test has been held on 19-6-2005 and the Computer Typing Test on 5-8-2005 and interview on 6- 8-2005 and as far as petitioner is concerned his claim has been rejected as he has been over age. IT has been asserted that earlier selection of petitioner has not been made by duly constituted Selection Committee as per Recruitment Rules (Ordinance-1) applicable for recruitment for Class III and IV posts. In this background it has been contended that no relief can be extended to the petitioner and writ petition is liable to be dismissed. Rejoinder affidavit has been filed and therein much stress has been laid on the fact that since implementation of Scheme, petitioner had been duly performing and discharging duties as Office Assistant without there being any complaint and best period of his life has been spent in serving the University and now in this mid stream of his life petitioner candidature cannot be done away with on the ground that petitioner had become over age. It has been asserted that Scheme in question has been merged with the University and thus, by no stretch of imagination petitioner's candidature could have been ignored and said vacancy cannot be filled up by way of direct recruitment as has been sought to be done in the present case, without adverting to the claim of regularization. Policy decision taken by the University in this respect has been dubbed to be arbitrary and it has been submitted that petitioner has been metted with arbitrary treatment and his livelihood has been sought to be taken away in the garb of selection proceedings.;