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Allahabad High Court · body

2006 DIGILAW 1356 (ALL)

SAIYED MUMTAZ ALI v. VICE CHANCELLOR

2006-05-12

R.K.AGRAWAL, SANJAY MISRA

body2006
JUDGMENT Hon’ble Sanjay Misra, J.—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. (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. 3. During pendency of this writ petition the petitioner has died and has been substituted by his legal heirs and representative. 4. 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. Khan 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. 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.” 5. It is seen from the aforesaid Regulation that an explanation is to be called for from the employee concerned and in the event the explanation is unsatisfactory the deeming clause as present in the said regulation would become applicable. As such an opportunity to the employee concerned is contemplated in the said regulation and in case it is found that the aforesaid provision has been disregarded or that the explanation of the employee has been rejected without any basis or on factual inaccuracy then it would be open for the Court to interfere in such an order. 6. From the facts of the present case it is clear that the petitioner applied for extraordinary leave for a period of two years which was to expire on 8.9.1980. The said leave was granted to the petitioner. He applied for extension for a further period of three years but the same was refused to him. 6. From the facts of the present case it is clear that the petitioner applied for extraordinary leave for a period of two years which was to expire on 8.9.1980. The said leave was granted to the petitioner. He applied for extension for a further period of three years but the same was refused to him. The petitioner did not come back to join his post although his leave had expired and he was permitted to join within the extended period upto 31.7.1981 as a special case. The petitioner did not resume his duties even within the extended period. The petitioner was duly informed vide letter dated 17/19.6.1980 that his leave cannot be extended. His second application dated 18.8.1980 was also refused by the Vice Chancellor vide letter dated 27/30.9.1980. A third application dated 5.11.1980 of the petitioner was replied by the communication dated 30.3.1981 wherein he was asked to join his duties upto end of July 1981 and if he fails to join by the end of July 1981 it shall be deemed that he has vacated his post and ceased to be in service of the University. The petitioner then made another application dated 29.8.1981. The Vice Chancellor finding that the petitioner has failed to resume his duties even in the extended period allowed to him proceeded to pass the order in exercise of the power under Regulation 5(8). 7. From the facts as aforementioned it is found that the petitioner had taken up an assignment in a foreign country and although he was not yet confirmed as Professor in University he continued to retain his lien on the post of Reader. The case of the respondent is that due to the said circumstances the department was in shortage of staff and it was not in the interest of University and the students to permit the situation to continue for any further period. The petitioner was informed that his leave cannot be extended and also that in case he fails to resume his duties he shall be deemed to have vacated his post. 8. The reason for not extending the leave as given by the respondent is a valid reason whereby the interest of the University and the students was kept in mind while refusing the extension of leave to the petitioner. Such reason cannot be said to be without any basis or incorrect on facts. 8. The reason for not extending the leave as given by the respondent is a valid reason whereby the interest of the University and the students was kept in mind while refusing the extension of leave to the petitioner. Such reason cannot be said to be without any basis or incorrect on facts. The petitioner was working in a foreign country and was inclined to continue there. The University was aware of its staff position in the Department and the Vice Chancellor after considering all the requests of the petitioner allowed further time for resuming his duties. The petitioner was duly informed the substance of Regulation 5(8) and its consequences, even then he chose not to join his duties at the University. As such the exercise of power under Regulation 5(8) cannot be faulted. The petitioner was given full opportunity and rejection of his explanation was on valid reasons. No error can be found in the reason which has been shown for refusal of granting extension of leave for a further period of three years. From the record it is clear that principles of natural justice have not been violated. 9. Therefore, the decision of the Vice Chancellor as communicated by letters dated 17/19.6.1980, 30.3.1981 and 25/27.1.1982 does not suffer from any illegality or error in jurisdiction. No grounds have been made out requiring interference by this Court under its writ jurisdiction. The writ petition is devoid of merits and is therefore, dismissed. No order is passed as to costs. Petition Dismissed. ———