Sanjay Misra, J. - (1.) The petitioner was appointed as lecturer, Statistics in Aligarh Muslim University on 19.8.1959, he was promoted as Reader on 5.1.1967 and became a Professor of Statistics on 3.11.1977. The petitioner applied for extraordinary leave with effect from 9.9.1978 for a period of two years which was granted to him and he went and joined the post of Professor at Mosul University, Iraq. Subsequently, he joined the Jeddah University, Saudi Arabia as a Professor. The petitioner applied for extension of his leave for three more years which was refused by the respondent University. The petitioner then made an appeal to the Vice Chancellor, Aligarh Muslim University but the same was also refused and the petitioner was informed of the same by the letter dated 27/30.9.1980. The petitioner was, however, allowed to join his duties at the University by the end of July 1981 and it was provided that in case he fails to join his duties it shall be deemed that he has vacated his post and has ceased to be in service of the University with effect from 9.9.1980 without any further notice. When the petitioner did not join as directed the Vice Chancellor passed orders to the effect that the petitioner is deemed to have vacated his post with effect from 9.9.1980 and he was informed of the same by the letter dated 25/27.1.1982. On the aforesaid facts the petitioner has filed this writ petition claiming the following reliefs : (i) issue a writ, order or direction in the nature of mandamus commanding the respondents to treat the petitioner to be in continuing services as Professor and Head of Department of Statistics, Aligarh Muslim University Aligarh and is on extraordinary leave for three years with effect from 9.9.1980; (ii) to issue a writ, order or direction in the nature of mandamus commanding the respondents not to fill the post of Professor and Head of Department of Statistics, Aligarh Muslim University, Aligarh by direct recruitment; (iii) to issue a writ, order or direction in the nature of mandamus not to give effect to the impugned orders dated 17/19.6.1980, 30.3.1981 and 25/27.1.1982( filed as Annexures 2, 5 and 7 to the writ petition). (iv) issue any other writ, order or direction to which this Hon'ble Court may deem fit and proper in the circumstances of the case; (v) award cost of the writ petition to the petitioner.
(2.) During pendency of this writ petition the petitioner has died and has been substituted by his legal heirs and representative.
(3.) A counter affidavit has been filed on behalf of the University. It has been stated that the petitioner was not having any lien on the post of Professor since he was not confirmed on the same and had not completed his period of probation. One Dr. S.U. Khan was appointed as Reader in the vacancy caused due to absence of the petitioner and he could be confirmed only after the petitioner was confirmed on the post of Professor. It has been stated that the extension of leave was refused to the petitioner in the interest of University inasmuch as the staff position in the department was not satisfactory and if the leave of the petitioner was further extended for three years then the post of Reader would not become lien free and Dr. S.U. Knan would continue to remain a temporary Reader. It is stated that leave can not be claimed as of right and can be refused in exigencies of service. It is stated that although the extraordinary leave of the petitioner expired on 8.9.1980 the petitioner was granted one month's time to resume his duties. Thereafter the time for joining his duties was further extended by the Vice Chancellor and the petitioner was permitted to resume his duties by 31.7.1981. An objection has been taken by the respondent that the petitioner had alternative remedy under Section 13(6) of the Aligarh Muslim University to make a motion to the Visitor and since the petitioner has failed to avail the same this writ petition is not maintainable and is liable to be dismissed on the said ground. Regulation 5 (8) of the Leave Regulations applicable to the teaching non-teaching and subordinate staff of the University is quoted hereunder: "If an employee absents himself from duty without having previously obtained leave or fails to return to his duties on the expiry of leave without having previously obtained further leave, the Head of the Department/Office concerned in cases where is the appointing authority, after waiting for three days, shall communicate with the person concerned asking for an explanation and shall consider the same. In cases where the Head of the Department/Officer is not the Appointing Authority, he shall, after waiting for three days from the date of unauthorized absence without leave or extension of leave, inform the Registrar/Finance Officer, and the Registrar (Finance Officer in the case of staff born on the Accounts Cadre) shall communicate with the person concerned asking for an explanation which shall be submitted to the Vice Chancellor/Executive Council. Unless the Appointing Authority regards the explanation satisfactory, the employee concerned shall be deemed to have vacated his post, without notice, from the date of absence without leave.";