- (1.) BY the Court-On 10th September, 1987 the Executive Council of the Rohilkhand University (hereinafter referred to as 'the University') had unanimously resolved to revert the petitioner from the post of an Assistant Registrar to that of an Office Superintendent. This decision was communicated by the Registrar of the University to the petitioner by a letter dated 19th September, 1987. The said decision and the said communication are being impugned in the present petition.
(2.) A counter affidavit has been filed on behalf of the University. A rejoinder affidavit too has been filed by the petitioner. The petition is thus ripe for hearing. However, the same has not been formally admitted. With the consent of the learned counsel for the parties we are proceeding to dispose Of this petition finally. The material facts, which have emerged from the affidavits, are these. The petitioner was appointed as an Office Superintendent, a non-centralised service, with effect from 12th February 1977. One Sri P. N. Saxena, an Assistant Registrar, retired from service. By a communication dated 2nd July, 1981 the Registrar of the University informed the petitioner that as the University had not been provided by the State Government with an Assistant Registrar in place of Sri Saxena, who had retired, the Vice-Chancellor had appointed the petitioner as an Assistant Registrar on a purely temporary basis with effect from 1st July 1981. The Registrar made it clear that the appointment was to ensure till a successor of Sri Saxena did not take over in accordance with the orders of the State Government. The Registrar also informed the petitioner that he (petitioner) was to look after the confidential section. On 22nd October, 1978 the State Government appointed one Sri L. M. Mathur as an Assistant Registrar of the University. On 2nd January, 1984 the State Government passed an order transferring Sri Mathur to the Garhwal University. In the same order the State Government directed that the petitioner was to continue as an officiating Assistant Registrar of the University in local arrangement. On 8th April, 1987 the petitioner was suspended from service. On 11th May, 1987 he was given a charge- sheet. On 22nd May, 1987 he gave a reply to the charge-sheet. On 10th September, 1987 the enquiry officer submitted an interim report to the Executive Council in which he had pointed out that there were serious charges against the petitioner and the matter required further investigation. On the same day the Executive Council of the University unanimously resolved to rescind the order of suspension and revert the petitioner to the post of the Office Superintendent. The Registrar by a communication dated 19th September, 1987 informed the petitioner of the decision of the Executive Council. The Registrar also informed the petitioner that the Executive Council had resolved that for a period of six months the work and conduct of the petitioner should be watched carefully and if during that period his work and conduct were found satisfactory, then the Vice-Chancellor, if so satisfied will place the case of the petitioner before the Executive Council for being promoted as an Assistant Registrar. It is common case of the parties that the post of an Assistant Registrar is an administrative post. Assistant Registrars are members of the Centralised service and their recruitment etc. are governed by the Uttar Pradesh State Universities (Centralised) Service Rules, 1975 (hereinafter referred to as the Rules), which have been framed under section 17 of the Uttar Pradesh State Universities Act. In Rule 2 (d) 'Commission' is defined to mean the Uttar Pradesh Public Service Commission. Rule 3 provides that there shall be a Centralised Service common to all the Universities, which shall consist of the administrative post of (1) Registrars (2) Deputy Registrars and (3) Assistant Registrars. Rule 6 provides that subject to the provisions of Rule 7 the posts of Registrars and Assistant Registrars, mentioned in Rule 3, shall be filled by direct recruitment in the manner laid down in part V and those of Deputy Registrars will be filled by promotion in the manner laid down in Rule 20. Rule 7 has no relevance as it deals with the absorption or termination of services of the persons serving on any post mentioned in Rule 3 immediately before the "commencement of the Rules. Part V deals with the procedure for direct recruitment and the Uttar Pradesh Public Service Commission has been assigned the role of conducting the examination and interview etc. Rule 19 talks of a list prepared by the Commission under Rule 17, which deals with the recruitment of the Assistant Registrars on the basis of competetive examination. Rule 20 provides for the filling of vacancies by promotion to the post of Deputy Registrar. Part VII is concerned with the appointment, probation and confirmation. In it falls Rule 21, which has relevance to the present controversy. Sub-rule (1) of Rule 21 says that on the occurrence of substantive vacancy the Government shall make appointments to the various posts in the Centralised service from the list prepared under Rule 19 or Rule 20, as the case may be. Sub-rule (2) provides that the Government may also make appointment in temporary vacancy for a period exceeding six weeks from amongst the persons from the list prepared under Rule 19 or Rule 20. Sub-rule (3) provides that if no approved candidate is available for appointment, the Government may either make a temporary appointment by deputation of an officer serving under the State Government or may appoint a candidate, who is eligible under the Rules for permanent recruitment to the Centralised service. However, there is a rider, which says :- "No such appointment shall extend beyond the period of one year without consultation with the Commission", (underlying by us) Sub-rule (4) provides that if a vacancy arises in any post for a period not exceeding six weeks temporary arrangement may be made by the Vice-Chancellor concerned by appointment of a person eligible under the rules (under-lined by us). (Not under-lined in the certified copy supplied by High Court-Editor)
(3.) ON the strength of the order dated 2nd January, 1984 passed by the State Government Sri Murlidhar, the learned counsel for the petitioner has contended that the petitioner had been appointed by the State Government in the purported exercise of powers under sub-rule (3) of Rule 21 and the petitioner had not been merely asked to look after the office of an Assistant Registrar by way of temporary or local arrangement. For adjudicating upon this contention the crucial words in the order of 2nd January, 1984 have to be focussed on. They are : "Sri S. C. Saxena will continue as Officiating Assistant Registrar in Rohilkhand University in Local Arrangement". We have already indicated that the Vice-Chancellor had appointed the petitioner with effect from 1st July, 1981 and the Registrar had by his communication dated 2nd July, 1981 apprised the petitioner of the decision of the Vice- Chancellor. We have also referred to the contents of the communication of the Registrar dt. 2nd July, 1981. If the contents of the communication of the Registrar of 2nd July, 1981 are read in conjunction with the words under-lined by us in the order of 2nd January, 1984 passed by the State Government, it will become abundantly clear that the State Government did not intend to exercise its powers under sub-rule (3) of rule 21. Again under sub-rule (3) the State Government is empowered to make a temporary arrangement. Further-more in the later part of sub-rule (3) where a temporary appointment has to be made, not by placing on deputation an officer serving under the State Government only such a candidate can be appointed who is eligible under the rules for permanent appointment to the Centralised Service. The determination of the eligibility of a candidate to be appointed temporarily requires application of mind. It is nobody's case that the matter of the petitioner for appointment under sub-rule (3) was before the State Government. We have, therefore, no hesitation in coming to the conclusion that the petitioner was not appointed by the State Government under sub-rule (3) Assuming the petitioner was appointed by the State Government under sub-rule (3), the appointment could not last beyond the period of one year without consultation with the Commission. In the words underlined by us the auxiliary verb 'shall' used in sub-rule (3) is mandatory. They restrict the tenure of the appointment without any scope of any relaxation. The rule making authority has taken care to fix the outer limit. The result is that the appointment, if made, comes to an automatic end on the expiry of the period of one year, if in the meantime no consultation with the Commission has taken place. It is nobody's case that any consultation with the Commission had taken place. The net result is that the appointment of the petitioner by the State Government, even if made became non-existent on the expiry of a period of one year from 2nd January 1984. The appointment lost its legal existence after the said period and met a natural death. In the eye of law, the petitioner ceased to be an Assistant Registrar of the University.;