- (1.) COUNTER and rejoinder affidavits are exchanged and there fore, as requested and agreed by learned Counsel for the parties this writ petition has been heard and is being decided finally at the admission stage under the Rules of the Court.
(2.) AGGRIEVED by the order dated 1. 3. 2007 whereby the Registrar, Jagadguru Rambhadracharya Viklang Viswavidyalaya, Chitrakoot (hereinafter referred to as the "university") has informed the petitioner that his services would come to an end on 31. 3. 2007, the petitioner Dr. Harikant Mishra has approached this Court in the present writ petition filed under Article 226 of the Constitution of India seek ing a writ of certiorari for quashing the said order. He has also sought a writ of mandamus commanding the respondents to pay him regular salary and not to interfere in his peaceful functioning as Lecturer/assistant Professor in the Univer sity. By means of amendment the petitioner has further challenged the order dated 31. 3. 2007, whereby the University has communicated its decision to the petitioner of abolition of post held by him. Brief facts giving rise to the present writ petition, as stated in the writ petition, are that the University has been established under U. P. Act No. 32 of 2001 (hereinafter referred to as the "act") in private sector for providing education to handicapped persons. It imparts higher education namely B. A. and M. A. courses in various subjects like, Philosophy, Hindi, Sanskrit, English, History Culture and Archaeology, Sociology Drawing and Painting, Music and Political Science. It is a residential University and regular classes are conducted in all the said sub jects. The petitioner was issued letter of appointment on 30. 8. 2001 for imparting education in the Department of Philosophy on fixed salary of Rs. 3,000/- per month for the session ending on 30. 4. 2002. The letter of appointment (Annexure-2 to the writ petition) contains conditions of appointment stating that the appoint ment would commence on 1. 9. 2001, provided, he join on the same day, and, he shall not be entitled for any other emolument except the fixed salary of Rs. 3,000/ - per month. The appointment would come to an end automatically on expiry of the period for which it has been made and the petitioner shall not be treated to be an employee of the University for claiming benefits available to the employees of the University. The petitioner accepted the aforesaid appointment and joined as directed by letter of appointment dated 30. 8. 2001. After expiry of the aforesaid period, in continuation to the appointment letter dated 30. 8. 2001, the petitioner's appointment on the post of Lecturer/assistant Professor in the Department of Philosophy was made for the period of 1. 5. 2002 to 30. 6. 2004 vide appointment letter dated 25. 7. 2002 (Annexure-3 to the writ petition) on fixed emolument of Rs. 3. 500/-termed as honorarium. In order to fill up the post of Lecturers in the university which included post of Lecturer in the Department of Philosophy, an advertisement was published in the "employment News" dated 30. 11. 2002, 1. 12. 2002 pursuant whereto the peti tioner also applied but the recruitment did not proceed further and no selection was made by the University. Thereafter again another advertisement was pub lished on 3. 7. 2004 in daily newspaper 'dainik Jagran' advertising one post of Lecturer in Philosophy pursuant whereto the petitioner also appeared and he was selected by the selection committee constituted by the University. The letter of appointment was issued to the petitioner on 25. 10. 2004 (Annexure-7 to the writ petition ). The petitioner pursuant to the appointment letter dated 25. 10. 2004 joined his services and since then he is continuously working as Lecturer in the Univer sity. All of a sudden by means of the impugned order dated 1. 3. 2007 he has been informed that the project under which his appointment was made i. e. "xth five year plan" is going to expire on 31. 3. 2007 and, therefore, the petitioner's services would stand terminated on 31. 3. 2007. It is said by the petitioner that in the adver tisement there was no such fact mentioned that the post for which the advertise ment was made is a post under a five year plan and therefore, terminating the services treating the said post under said plan is wholly arbitrary, it is further averred that after expiry of Xth five year plan, as provided under Section 5 (2) of the Act, the Approved Teaching staff liability was to be taken over by the State Gov ernment or the Executive Council of the University. Therefore, it could not have been assumed that the post would lapse on expiry of Xth five year plan resulting in termination of the petitioner. It is also said that though the University is unaided but it receive financial assistance from University Grant Commission (hereinafter referred to as the "ugc") and other authorities and bodies like State Government private bodies etc. The Department of Philosophy is still continuing to work and hence it is inconceivable that only the post which is being occupied by the peti tioner has been abolished justifying his termination and, therefore, it is evident that termination of the petitioner is wholly arbitrary. Challenging the order dated 31. 3. 2007 it is said that the same is a manufactured document having been prepared subsequently after filing of the writ petition and, therefore, it is liable to be set aside. It is also said that the students in the Department of Philosophy are being admitted in the University for B. A. I, II and III year and M. A. I and II year courses and in the absence of any teacher of Philosophy it is inconceivable as to how these students would be imparted education by the University.
(3.) THE respondents No. 3, 4 and 5 have filed counter-affidavit and supplemen tary counter-affidavit. A separate counter-affidavit has been filed replying the amended paragraphs of writ petition which have been incorporated subsequently. THE case of respondents No. 3, 4 and 5 is that the University is a private body, therefore, writ petition under Article 12 of the Constitution is not maintainable. On merits, it is said that the University had taken a decision to abolish the post of Lecturers in the Department of Philosophy and Political Science and for the said purpose, letter dated 28. 3. 2007 has been issued by the Vice Chancellor commu nicating decision of Board of Governors to Registrar, Jagadguru Rambhadracharya Sansthan (hereinafter referred to as the "society") which is a Society registered under Societies Registration Act and is established the said University. THE afore said decision of the Board of Governors of University has been approved by the Society, as is evident from its letter dated 28. 3. 2007 (Annexure-CA-2 to the counter-affidavit ). THE petitioner was appointed under the Scheme of UGC sanctioned under Xth five year plan and the said appointment was to continue till the life of the said plan i. e. 31. 3. 2007. THE aforesaid fact was clearly mentioned in the appoint ment letter of the petitioner. It was also mentioned therein that the post may likely to continue depending upon the availability of the post and performance of the candidate. It is said that the appointment of the petitioner was more in the nature of contract depending upon certain terms and conditions specifically mentioned in the letter of appointment. He was never appointed on a permanent post nor he has a right to continue on the post of Lecturer when the post itself stood abol ished after 31. 3. 2007. THE notice dated 1. 3. 2007 was served upon the petitioner in the similar manner as it was served upon other Lecturers appointed under the posts created under Xth five year plan and the petitioner has not been singled out for the said purpose. Once the termination of the services of the petitioner is in accordance with the terms and conditions of his appointment, he cannot raise any objection there against and the writ petition challenging the order of termina tion, therefore is clearly misconceived. It is said that the University is neither a Central University nor Deemed University nor a State University but is a private University though is established under the Act. It is said that with reference to para 5 (iii) of the guidelines framed by the UGC for providing financial assistance to various Universities the matter was considered by the UGC itself in view of the fact that various Universities were facing difficulty in obtaining assistance from the respective State Governments regarding taking over liability of the posts after the plan is over and vide letter dated 29. 3. 2004 (Annexure-CA-3), UGC gave three options to such Universities for filling up the post, approved during Xth five year plan to safeguard the interest of the institution which are as under: "1. Assurance may be obtained from the State Government for taking over the liability of these posts after tenth plan period. Or 2. Assurance may be given by the University through a resolution of the Executive Council to bear the burden of these posts after tenth plan. Or 3. Appointment shall be made on contractual basis. " It also provides that the University may opt for any of the above three options for filling up the post. In case of contractual appointments also UGC provided that the University shall follow the requisite qualifications etc. of the posts as provided under UGC regulations. It is said that vide letter dated 31. 3. 2007, the University has informed UGC also about abolition of post held by the petitioner. The petitioner in his rejoinder affidavit has said that on the one hand the University has said that Xth five year plan is over but on the other hand it has applied for financial assistance from UGC in Xlth five year plan also. It is also said that the University is taking shifting stand and sometimes it says that the Depart ment of Philosophy has been abolished and sometimes it says that only post of Lecturer in Department of Philosophy has been abolished showing that they them selves are not clear regarding the fact as to whether the department is continuing or the post of Lecturer is continuing and therefore, no reliance has been placed on such defence. Since there was no mention in the advertisement pursuant whereto the petitioner was selected and appointed to the post of Lecturer that it is a post sanctioned in Xth five year plan therefore, the petitioner cannot be treated to be appointed for limited period and cannot be terminated in the manner the impugned order has been passed. The appointment of the petitioner was on pro bation showing that it was substantive appointment and therefore, he cannot be terminated. The letters filed by the respondents alongwith the counter-affidavit with respect to abolition of post are manufactured documents and cannot be relied upon.;