JUDGMENT
Dilip Gupta, J.
1. This writ petition has been filed for quashing the order dated 19.1.2005 of the Chancellor of the Dr. Bhim Rao Ambedkar University, Agra (hereinafter referred to as the ‘University’) by which the appointment of the petitioner in a substantive capacity made by the Executive Council of the University in the meeting held on 7.12.2003 under Section 31(3)(b) of the U.P. State Universities Act, 1973 (hereinafter referred to as the ‘Act’) has been cancelled.
2. The petitioner submitted an application dated 20.7.1998 for appointment as a Guest Lecturer in the Department of Sociology in the Institute of Social Sciences of the University (hereinafter referred to as the ‘Institute’) in the leave vacancy of Dr. K. Chaudhary. On the basis of the aforesaid application, a communication dated 1.9.1998 was sent to the petitioner intimating her to come to the Institute and take down from the time table the work assigned to Dr. K. Chaudhary. The appointment was, however, subject to the final approval of the Vice-Chancellor. The petitioner was paid an amount of Rs. 100/- per lecture. A communication dated 24.7.2001 was thereafter sent by the Registrar of the University to the petitioner intimating her that on the recommendation of the Screening Committee meeting held on 28.6.2001 the Vice-Chancellor had been pleased to appoint the petitioner on purely contractual basis to teach/assist in the Institute for a period of one year on a consolidated salary of Rs. 6,000/- per month w.e.f. 11.7.2001. It v/as clearly stipulated that the contract could be terminated on one month’s notice from either side or one month’s salary in lieu thereof and that the appointment was not against any substantive post and was purely temporary in the Self Financing Scheme. It was further stated that the services shall stand automatically terminated after the expiry of the time and no notice for termination was required. This order dated 24.7.2001 was partially modified by the order dated 4.9.2001 which provided that the said appointment would be effective from 1.7.2001 instead of 11.7.2001. The aforesaid temporary appointment was extended from 1.7.2002 up to 30.6.2003 by the communication dated 23.8.2002 on the same term and conditions as stipulated in the earlier communication dated 24.7.2001. Thereafter, another communication dated 13.8.2003 was sent by the Registrar of the University to the petitioner extending the aforesaid temporary appointment w.e.f. 7.7.2003 to 30.6.2004. The term and conditions remained the same as in the earlier communications.
3. The petitioner submitted an application for being substantive appointment under Section 31(3)(b) of the Act when Dr. K. Chaudhary submitted his resignation. The Executive Council of the University in its meeting held on 7.8.2003 resolved to appoint the petitioner in a substantive capacity under Section 31 (3)(b) of the Act after noticing that Dr. K. Chaudhary had submitted the resignation letter and that the case of the petitioner was similar to the case of Dr. B.D. Shukla, who had also been given the substantive appointment by the Executive Council in the same meeting. This substantive appointment of the petitioner was challenged by Rajan Mishra, respondent No. 6, by a reference to the Chancellor of the University under Section 68 of the Act. The Chancellor sent, a copy of the reference to the petitioner to submit her reply and comments were also sought from the University. Both the petitioner and the University submitted their comments. The reference was decided by the Chancellor by his order dated 19.1.2005 by setting aside the substantive appointment of the petitioner and it is this order dated 19.1.2005 which has been impugned in the present petition.
4. We have heard Sri Ashok Khare, learned senior Counsel for the petitioner assisted by Sri Aditya Kumar Singh, Sri Neeraj Tripathi, learned Counsel for the Chancellor of the University, learned Standing Counsel for the State of U.P., Sri Pankaj Mittal, learned Counsel for the University and Ms. Anuradha Sundaram, learned Counsel for the respondent No. 6 Sri ‘ Rajan Mishra and have also perused the materials available on record.
5. Sri Ashok Khare, learned senior Counsel for the petitioner submitted that the reference filed by the respondent No. 6 was not maintainable since respondent No. 6, Rajan Mishra was not a person aggrieved; that the case of the petitioner was identical to the case of Dr. B.D. Shukla and the Chancellor of the University erred in drawing a distinction between the case of the petitioner and that of Dr. B.D. Shukla and that the recital in the impugned order that the petitioner had not been recommended by a statutory Selection Committee is incorrect since the constitution of the Screening Committee was the same as that of the Selection Committee as envisaged under Section 31 (4) (a) of the Act.
6. On the other hand, Sri Neeraj Tripathi, learned Counsel appearing for the Chancellor and Ms. Anuradha Sundaram appearing for Rajan Mishra contended that, the order of the Chancellor was justified in the facts and circumstances of the case; that the conditions precedent for giving the substantive appointment under Section 31 (3) (b) of the Act were not satisfied at all as a result of which the Executive Council could not have given the substantive appointment to the petitioner; that the appointment of the petitioner had not been made in accordance with the provisions of Section 31 (1) of the Act; that it was not preceded by any advertisement in accordance with the provisions of Section 31 (10) of the Act; that the name of the petitioner had not been recommended by the Selection Committee as constituted under Section 31(4)(a) of the Act; that the petitioner could not derive any benefit from the appointment of Dr. B.D. Shukla because that itself was bad in law and that the reference filed by the petitioner under Section 68 of the Act was maintainable before the Chancellor of the University.
7. The first contention sought to be raised by Sri Ashok Khare, learned senior Counsel for the petitioner that the reference petition filed by Rajan Mishra under Section 68 of the Act was not maintainable since Rajan Mishra was not a person aggrieved does not impress us. It has come on record that against the advertised post of Lecturer in the Sociology department of the Institute, Rajan Mishra had also submitted an application for being considered for appointment. There is a dispute between the two as to whether the post against which the substantive appointment was given to the petitioner was the same as contained in the earlier advertisement dated 10.1.2002 which was again advertised on 1.2.2003 but without even going into this controversy it can safely assumed that Rajan Mishra was a person aggrieved by the appointment of the petitioner on substantive post under Section 31(3)(b) of the Act because if he was subsequently appointed, his seniority would be affected. Thus, in our opinion, the reference filed by Rajan Mishra before the Chancellor of the University for quashing the appointment of the petitioner was maintainable.
8. It has now to be examined whether the petitioner could be given the substantive appointment under Section 31(3)(b) of the Act. In order to appreciate the controversy, it would be useful to refer to the relevant provisions of Section 31 of the Act and the same are quoted below :
“31. Appointment of Teachers.–(1) Subject to the provisions of this Act, the teachers of the University and the teachers of an affiliated or associated college (other than a college maintained exclusively by the State Government) shall be appointed by the Executive Council or the Management of the affiliated or associated college, as the case may be, on the recommendation of a Selection Committee in the manner hereinafter provided.
…
31. (3) (b) Where before or after the commencement of this Act, any teacher is appointed (after reference to a Selection Committee) to a temporary post likely to last for more than six months, and such post is subsequently converted into a permanent post or to a permanent post in a vacancy caused by the grant of leave to an incumbent for a period exceeding ten months and such post subsequently becomes permanently vacant or any post of same cadre and grade is newly created or falls vacant in the same department, then unless the Executive Council or the Management, as the case may be, decides to terminate his services after giving an opportunity to show cause, it may appoint such teacher in a substantive capacity to that post without reference to a Selection Committee :
Provided that this clause shall not apply unless the teacher concerned holds the prescribed qualifications for the post at the time of such substantive appointment, and he has served continuously, for a period of not less than one year after his appointment made after reference to a Selection Committee :
Provided further that appointment in a substantive capacity under this clause of a teacher who had served, before such appointment, continuously for a period of less than two years, shall be on probation for one year which may be extended for a period not exceeding one year, and the provisions of Sub-section (2) shall apply accordingly.
31. (4) (a) The Selection Committee for the appointment of a teacher of the University (other than the Director of an Institute and the Principal of a constituent college), shall consist of–
(i) the Vice-Chancellor who shall be the Chairman thereof,
(ii) the Head of the Department concerned :
Provided…
Provided…
(iii) in the case of Professor or Reader, three experts, and in any other case, two experts be nominated by the Chancellor ;
(iv) …
(v) in the case of appointment of teachers of an Institute or constituent college, the Director of the Institute or the Principal of the constituent college,” as the case may be.
31. (10) No selection for any appointment under this section shall be made except after advertisement of the vacancy in at least three issues of two newspapers having adequate circulation in Uttar Pradesh.”
9. A perusal of the aforesaid provisions of the Act indicates that the teachers of the University shall be appointed by the Executive Council on the recommendation of a Selection Committee in the manner provided in the section. Under Section 31(4) the constitution of the Selection Committee has been provided while under Section 31(10) of the Act it has been provided that no selection for any appointment under this section shall be made except after advertisement of the vacancy in at least three issues of two newspapers having adequate circulation in Uttar Pradesh. Thus for any appointment made under Section 31 of the Act, it is necessary that the vacancy should be advertised in the manner indicated and the appointment should be made on the recommendation of a Selection Committee constituted under Section 31(4)(a) of the Act. Section 31(3)(b) of the Act stipulates that where any teacher is appointed to a temporary post likely to last for more than six months, and such post is subsequently converted into a permanent post or to a permanent post in a vacancy caused by grant of leave to an incumbent for a period exceeding ten months and such post subsequently becomes permanently vacant or any post of some cadre and grade is newly created or falls vacant for the same department, then unless the Executive Council decides to terminate his services after giving an opportunity to show cause, it may appoint such teacher in a substantive capacity to that post without reference to a Selection Committee.
10. We shall first examine whether there is a requirement of advertising the vacancy in the manner provided for in Section 31(10) of the Act in the case of the initial appointment contemplated under Section 31(3)(b) of the Act which is subsequently sought to be converted into a substantive appointment.
11. Sri Ashok Khare, learned senior Counsel for the petitioner submitted that there is no requirement at all of advertising the vacancy in the manner provided under Section 31(b) of the Act in the cases of the initial appointment contemplated under Section 31(3)(b) of the Act. During the course of the arguments, however, he placed before us a notice dated 1.7.1998 pasted on the notice board of the Institute of Social Sciences by which applications from experienced teachers were invited for taking Guest Lecturers in the Department of Sociology and placing reliance on the said notice, he submitted, in the alternative, that this was sufficient compliance.
12. Section 31(1) of the Act stipulates that the teachers of the University shall be appointed by the Executive Council on the recommendation of a Selection Committee in the manner provided for in the other sub-sections. Section 31 (10) of the Act clearly provides that no selection for any appointment under this section shall be made except after advertisement of the vacancy in at least three issues of two newspapers having adequate circulation in Uttar Pradesh. It is, therefore, clear that any appointment made under Section 31 of the Act can be made only after advertisement of the vacancy and, therefore, in order to get the benefit of Section 31(3)(b) of the Act the initial appointment should have been made after the vacancy had been advertised in the manner provided for in Section 31(10) of the Act. Apart from Section 31 of the Act there does not exist any other provision in the Act which provides for appointment of teachers in the University since even Section 13(6) of the Act has been amended so as to take away the power of the Vice-Chancellor of the University to make appointments for a limited period of six months in emergent situations. The learned senior Counsel for the petitioner has also not been able to point out any other provision.
13. A Division Bench of this Court in the case of Dr. Chandra Deo Pandey v. Chancellor, Allahabad University, Lucknow and Ors., (1989) 1 UPLBEC 727, while interpreting the provisions of Section 31(3)(b) of the Act held as follows :
“4. … To get benefit of this provision it is imperative that the teacher should have been appointed under Section 31 against a temporary post. In other words appointment should be preceded by reference to Selection Committee. The use of words ‘after’ and ‘a’ in the sub-section before the expression reference to Selection Committee and temporary post are significant and not without purpose. They leave no room for doubt that appointment and reference to Selection Committee must be part of same transaction. That is both reference to a Selection Committee and appointment are visualised against a particular post. The wide construction suggesting extending benefit of regularisation under sub-section against any temporary appointment of a teacher who had never faced Selection Committee cannot be accepted both because of being contrary to language and intention of legislature and risk of its abuse. Further no selection for appointment under Section 31 can be made except after advertisement as contemplated in Sub-section (10) of Section 31. An appointment made under Section 13(6) by the Vice-Chancellor if the matter is of urgent nature requiring immediate action is not made after advertisement and is in any case different from appointment under Section 31.”
14. Reference may also be made to a decision of this Court in the case of Yogendra Singh Rawat and Ors. v. Hemwati Nandan Bahuguna Garhwal University and Ors., (1993) 3 UPLBEC 1699, in which while interpreting the provisions of Section 31(3)(c) of the Act, which also provides for giving substantive appointment provided certain conditions are satisfied, the Court held as follows :
“42. Apart from this, the question for consideration is whether the petitioners who had been given short-term ad hoc appointment are entitled to get substantive appointment. The procedure for making appointment is that a vacancy has to be advertised in accordance with Sub-section (10) of Section 31 of the Act, which provision has been held to be mandatory by two Division Benches of our Court in Dr. R.C. Gupta v. Chancellor, 1983 UPLBEC 519 and Dr. Sudhir Chandra v. Chancellor, 1983 UPLBEC 110. In absence of advertisement there is violation of Article 16 of the Constitution and appointments so made are rendered illegal. The Executive Council can make appointment only on the basis of the recommendation made by the Selection Committee as required by Sub-section (1) of Section 31. All the ad hoc lecturers whose cases were considered by the Assessment Committee on March 7, 1992 and by the Executive Council on April 22, 1992 were given ad hoc appointments without following the rules namely without advertisement of vacancy and without having faced selection committee. They are claiming the benefit of U.P. Act No. 1 of 1992 in order to get a substantive appointment and as a corollary they must satisfy the requirement of the said Act and if the requirement of the Act is that they should possess prescribed qualification for regular appointment under the relevant Statutes, they must do so.”
15. The appeals filed against the said decisions in the Supreme Court were dismissed by a detailed judgment in the case of Yogendra Singh Rawat and Ors. v. Hemwati Nandan Bahuguna Garhwal University and Ors., (1998) 3 SCC 704, and the relevant portion of the judgment is quoted below :
“14. … Thereafter the High Court addressed itself to the question if the appellants who had been given short-term ad hoc appointments were entitled to substantive appointments. It noted that procedure for making appointments was that the vacancy had to be advertised in accordance with Sub-section (10) of Section 31 of the Act and in the absence of the advertisement there would be violation of Article 16 of the Constitution and any such appointments would be rendered illegal. The Executive Committee could make appointment only on the basis of the recommendations made by the Selection Committee.
22. We are, therefore, of the view that the High Court was right in coming to the conclusion that the appellants did not satisfy the requisite qualifications or the criteria as laid for their appointment as lecturers in the University.”
16. In fact, the Government had to intervene by promulgating to an Act to validate certain appointments made in the State Universities in the form of the Uttar Pradesh State Universities (Validation of Appointments) Act, 1984. The statement of objects and reasons mentions that according to the interpretation put on certain provisions of the Act, every vacancy of a teacher should be advertised and selection against a vacancy not advertised is illegal. It was, therefore, considered proper that the teachers appointed in excess of number of posts advertised between 1.7.1978 and 16.8.1984 be deemed to be validly appointed. Section 2 of the said Act is quoted below :
“2. Validation of appointments.–Notwithstanding any judgment, decree or order of any Court or order of any officer or authority or anything contained in the Uttar Pradesh State Universities Act, 1973 or Statutes framed thereunder, the appointment of every teacher made in any University governed by the said Act or in any affiliated or associated college thereof during the period July 1, 1978 and the date of commencement of this Act, in excess of the number of posts advertised, shall be and be deemed always to have been valid and validity of such appointments shall not be called in question before any Court, tribunal, officer or authority merely on the ground that the post was not separately advertised or that the prescribed procedure was not followed.”
17. We have referred to the aforesaid Validation Act only to emphasise that the advertisement of vacancy in the manner provided for in Section 31(10) of the Act is absolutely necessary. This aspect of the matter was also noticed by the Supreme Court in the case of State of U.P. and Anr. v. Dr. S.K. Sinha and Ors., JT 1995 (1) SC 491.
18. We, therefore, express our inability to accept the submissions of Sri Ashok Khare, learned senior Counsel for the petitioner that the advertisement of the vacancy was not necessary.
19. In the instant case admittedly when the petitioner was appointed either as a Guest Lecturer by means of the letter dated 1.9.1998 or on contract basis on a consolidated salary advertisement of the vacancy had not been made as contemplated under Section 31 (10) of the Act. Even the notice dated 1.7.1998 which has been placed before us, but has not been filed along with the writ petition and which is in relation to the appointment made as a Guest Lecturer does not satisfy the requirement of the provisions of Section 31(10) of the Act since the said notice was merely pasted on the notice board of the Institute and was never published in any newspaper much less in three issues of two newspapers having adequate circulation in Uttar Pradesh. Thus the petitioner was not entitled to be given a substantive appointment under Section 31(3)(b) of the Act and the resolution of the Executive Council giving such appointment to the petitioner was patently illegal and was, therefore, rightly set aside by the Chancellor of the University.
20. We are conscious of the fact that the Chancellor of the University had not examined the issue about publication of the vacancy in the newspapers and the only ground on which he had set aside the appointment of the petitioner, was that the initial appointment had been made without a recommendation of the Selection Committee. However, as the advertisement of the vacancy goes to the root of the matter and Sri Ashok Khare, learned senior Counsel for the petitioner and Sri Pankaj Mittal, learned Counsel for the University clearly admitted that the initial appointment of the petitioner had not been made on the basis of any advertisement issued in any newspaper as provided for under Section 31(10) of the Act, we have considered it appropriate to examine this issue.
21. The matter can be examined from another angle also i.e. whether it is permissible in law to regularise the ad hoc appointments which have been made without advertisement of the vacancy. This matter was examined at length by the Supreme Court in the case of A. Umarani v. Registrar, Co-operative Societies and Ors., 2004 AIR SCW 4462. A large number of employees of the Co-operative Societies in the State of Tamil Nadu had been appointed without notifying the vacancies through the Employment Exchanges and without following the other mandatory provisions of the Act and the Rules framed thereunder relating to the recruitment. With a view to condone the serious lapses on the part of the Co-operative Societies in making such appointments the State Government issued various orders from time to time for regularising such appointments. The Supreme Court held that such orders could not have been passed with retrospective effect condoning the actions on the part of the Co-operative Societies which were in flagrant violation of the provisions of the Act and the Rules. While holding that the provisions of the Act and the Rules reflect the Legislative Recruitment Policy and the provisions were mandatory in nature, the Supreme Court after referring to a number of earlier decisions held as follows :
“37 Regulation in our considered opinion is not and cannot be the mode of recruitment by any “State” within the meaning of Article 12 of the Constitution of India or any body or authority governed by a Statutory Act or the Rules framed thereunder. It is also now well settled that an appointment made in violation of the mandatory provisions of the Statute and in particular ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation. [See State of H.P. v. Suresh Kumar Verma and Anr., (1996) 7 SCC 562].”
22. The Supreme Court in R.N. Nanjundappa v. T. Thimmaiah and Anr., (1992) 2 SCR 799, held :
“If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regulation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules.”
23. In Jawaharlal Nehru Technological University v. T. Samalatha (Smt.) and Ors., (2003) 10 SCC 405, the Supreme Court rejected a similar contention stating :
“8. … The learned Counsel, therefore, contends that there is every justification for absorbing the respondents concerned on regular basis in recognition of their long satisfactory service. The learned Counsel further contends that the ad hoc arrangement to employ them on consolidated pay should not go on forever. The contention of the learned Counsel cannot be sustained for more than one reason and we find no valid grounds to grant the relief of regularisation. There is nothing on record to show that the employees concerned were appointed after following due procedure for selection. Apparently, they were picked and chosen by the University authorities to cater to the exigencies of work in the Nodal Centre.”
24. The aforesaid decision in the case of A. Umarani (supra), was approved by the Supreme Court in the case of Executive Engineer, Z.P. Engg. Divn. and Anr. v. Digambara Rao etc., 2004 AIR SCW 5546.
25. Now examining the nature of appointment of the petitioner, it will be seen that initially the petitioner was appointed as a Guest Lecturer on account of the fact that Dr. K. Chaudhary had proceeded on leave and he was paid an amount of Rs. 100/- per lecture. Subsequently, w.e.f. 1.7.2001 the petitioner was appointed on purely contract basis on a consolidated salary of Rs. 6,000/-. It was, however, clearly stated that the contract could be terminated on one month’s notice from either side or one month’s salary in lieu thereof and that the appointment was not against any substantive post ,and was purely temporary in nature in the Self Financing Scheme. It was further stipulated that the services could be terminated automatically after the expiry of the time and no notice for termination would be required. Admittedly this appointment was not preceded by any advertisement of the vacancy and further it was made by the Vice-Chancellor on the recommendation of the Screening Committee. A Division Bench of this Court in the case of Dr. (Smt.) Varsha Alok v. Dr. B.R. Ambedkar University, Agra and Anr., 2004 (3) ESC 1699, examined such appointments and held :
“3. Shri Pankaj Mittal, learned Counsel appearing for the respondents has opposed the contention raised in the petition on the ground that the provisions of part-time employee, Guest Lecturer or appointment on honorarium stood deleted long back from the provisions of Clause 10.01 of Chapter X of the Dr. Bhim Rao Ambedkar University, Agra Statute. Therefore, the question of considering the petitioner for regularisation does not arise. In support of his submission, reliance has been placed upon the Division Bench judgments of this Court in Dr. Alok Kumar Singh and Ors. v. State of U.P. and Ors., (2002) 2 ESC 427; and Malvika Shekhar v. Director, Higher Education, U.P. Allahabad and Ors., (2004) 1 ESC 482, wherein it has been held that the question of regularisation of a part time Lecturer or a person working on honorarium does not arise. As the case is squarely covered by the aforesaid judgments, we are not inclined to grant any relief in the matter.”
26. Thus, considering the manner in which the appointment of the petitioner had been made and looking to the nature of appointment and in view of the principles of law laid down by the Supreme Court in the aforesaid decisions we are of the opinion that the petitioner would not be entitled to claim regularisation or substantive appointment.
27. In view of the findings recorded by us that the petitioner could not be given a substantive appointment under Section 31(3)(b) of the Act since the vacancy had not been published in the manner provided for in Section 31(10) of the Act, it may not be necessary for us to deal with the other aspect of the matter i.e. whether the petitioner had been appointed after reference to a Selection Committee but since the Chancellor of the University had examined this matter at length and had cancelled the appointment of the petitioner on this ground, we consider it appropriate to deal with this aspect of the matter also.
28. It is admitted that the appointment of the petitioner had to be made on the basis of the recommendation of a Selection Committee. The constitution of the Selection Committee for the post of a Lecturer in an Institute of the University has been provided for in Section 31(4)(a) of the Act. It consists of the Vice-Chancellor who shall be the Chairman, the Head of the Department concerned, two experts to be nominated by the Chancellor and the Director of the Institute. A perusal of the order dated 24.7.2001 indicates that the Vice-Chancellor had made the appointment on the basis of the recommendation of the Screening Committee. The case of the petitioner before the Chancellor was that the nomenclature would not matter and that the constitution of the Screening Committee was the same as that of the Selection Committee for the post of a Lecturer of an Institute of the University. The Chancellor in the impugned order has, however, recorded a finding that no material had been placed before him to show that the Selection Committee as contemplated under Section 31(4) (a) of the Act had been constituted and that the petitioner had appeared before the said Selection Committee. Inspite of the aforesaid specific finding recorded by the Chancellor, the petitioner has not produced any material before us in this petition which may indicate that the constitution of the Screening Committee on the basis of which the petitioner had been appointed on a temporary basis by the Vice-Chancellor of the University was the same as the constitution of the Selection Committee contemplated under Section 31(4) (a) of the Act. It was for the petitioner to have placed such material before us and in the absence of such material, it is not possible for us to hold that the aforesaid finding recorded by the Chancellor is contrary to the records.
29. It is a settled proposition of law that a party has to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. In Bharat Singh and Ors. v. State of Haryana and Ors., AIR 1988 SC 2181, the Hon’ble Supreme Court has observed as under :
“In our opinion, when a point, which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must, appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or the counter-affidavit, as the case may be, the Court will not entertain the point. There is a distinction between a hearing under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, i.e. a plaint or written statement, the facts and not the evidence are required to be pleaded. In a writ petition or in the counter-affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.”
30. Similar view has been reiterated in Larsen and Toubro Ltd. and Ors. v. State of Gujarat and Ors., AIR 1998 SC 1608 ; National Building Construction Corporation v. S. Raghunathan and Ors., AIR 1998 SC 2779; Ram Narain Arora v. Asha Rani and Ors., (1999) 1 SCC 141; Smt. Chitra Kumari v. Union of India and Ors., AIR 2001 SC 1237; and State of U.P. v. Chandra Prakash Pandey, AIR 2001 SC 1298.
31. In Atul Castings Ltd. v. Bawa Guruachan Singh, AIR 2001 SC 1684, the Hon’ble apex Court observed as under :
“The findings in the absence of necessary pleadings and supporting evidence cannot be sustained in law.”
32. Similar view has been reiterated in Vithal N. Shetti and Anr. v. Prakash N. Rudrakar and Ors., (2003) 1 SCC 18.
33. This apart, a perusal of Section 31(3)(b) of the Act indicates that the teacher should have been appointed after the reference to a Selection Committee to a temporary post likely to last for more than six months or to a permanent post in a vacancy caused by the grant of leave to an incumbent for a period exceeding ten months. In the instant case, if we examine the appointment of the petitioner on contract basis then we find from the letter dated 24.7.2001 that the appointment had not been made against any substantive post. Thus for this reason also the petitioner was not entitled to the benefit of Section 31(3)(b) of the Act. Learned senior Counsel for the petitioner, however, submitted that the petitioner had been appointed against the leave vacancy of Dr. B.D. Shukla as has been mentioned in the initial letter dated 1.9.1998. No doubt the letter dated 1.9.1998 does make a reference to the leave vacancy of Dr. B.D. Shukla but the petitioner is not claiming appointment under Section 31(3)(b) of the Act on the basis of such appointment as a Guest Lecturer because admittedly the petitioner had not faced the Screening Committee/ Selection Committee. The petitioner is obviously placing reliance upon the letter dated 24.7.2001 when he was appointed on contractual basis on the recommendation of the Screening Committee but the said letter clearly indicates that the appointment was not against any substantive post.
34. In the end, Sri Ashok Khare, learned senior Counsel for the petitioner submitted that the case of the petitioner is similar to the case of Dr. B.D. Shukla and the Chancellor of the University erred in drawing an imaginary distinction between the two.
35. Learned Counsel for the respondents, however, submitted that even if it be assumed that the case of the petitioner was identical to the case of Dr. B.D. Shukla who had been granted the benefit of substantive appointment under Section 31(3)(b) of the Act, then too the petitioner cannot gain anything because the wrong action of the University in the case of Dr. B.D. Shukla will not confer any benefit upon him and it is for the petitioner to satisfy the Court that the conditions precedent for giving the benefit of substantive appointment under Section 31(3)(b) of the Act existed.
36. We find force in the submissions advanced by the learned Counsel for the respondents. It is for the petitioner to satisfy the Court that he was entitled to the benefit of Section 31(3)(b) of the Act. In the instant case we have recorded a categorical finding that the petitioner was not entitled to the benefit of Section 31(3)(b) of the Act. Therefore, reliance placed by the petitioner in the case of Dr. B.D. Shukla is misconceived. This matter was also examined by a Division Bench of this Court (consisting of one of us, namely, Hon’ble Dr. B.S. Chauhan, J.) in Dr. (Smt.) Varsha Alok v. Dr. B.R. Ambedkar University, Agra and Anr., 2004 (3) ESC 1699, wherein the petitioner claimed benefit under Section 31 (3) (b) of the Act by claiming parity with the same Dr. B.D. Shukla. The Court rejected this contention.
37. Article 14 is not meant to perpetuate an illegality. This view stands fortified by the judgments of the Hon’ble apex Court e.g. Snehprabha v. State of U.P. and Ors., AIR 1996 SC 540 ; Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and Ors., (1997) 1 SCC 35; State of Haryana and Ors. v. Ram Kumar Mann, (1997) 3 SCC 321 ; and Faridabad C.T. Scan Centre v. D.G. Health Services and Ors., (1997) 7 SCC 752.
38. In Finance Commissioner (Revenue) v. Gulab Chandra and Anr., 2001 AIR SCW 4774, the Hon’ble apex Court rejected the contention that as other similarly situated persons had been retained in service, the seniors of the petitioner could not have been discharged during the period of probation observing that if no action has been taken in a similar situation against similarly situated persons, it did not confer any legal right upon the petitioner therein.
39. In Jalandhar Improvement Trust v. Sampuran Singh, AIR 1999 SC 1347 and Union of India and Ors. v. Rakesh Kumar, 2001 AIR SCW 1458, the Hon’ble Supreme Court held that Courts cannot issue a direction that the same mistake be perpetuated on the ground of discrimination or hardship.
40. Any action/order contrary to law does not confer any right upon any person for similar treatment. [Vide State of Punjab and Ors. v. Dr. Rajeev Sarwal, (1999) 9 SCC 240; Yogesh Kumar and Ors. v. Government of NCT Delhi and Ors., (2003) 3 SCC 548; and Union of India and Anr. v. International Trading Company and Anr., (2003) 5 SCC 437].
41. Before parting with this case we also consider it appropriate to reproduce certain portion of paragraph 57 of a judgment in the case of Yogendra Singh Rawat (supra) where a Division Bench of this Court while considering the scope of the provisions of Section 31(3)(c) of the Act observed as follows :
“However at the same time we cannot lose sight of the fact that we are dealing with the field of education which is an act or process of providing with knowledge, skill and competence by a formal course of study and these ad hoc lecturers are claiming substantive appointment in an University. University is an institution of higher learning providing facilities for teaching and research and authorised to grant academic degrees. Sub-section (1) of Section 7 of the Act casts a duty on the University to make provision for research and for the advancement and dissemination of knowledge and Sub-section (4) casts a duty to hold examination for and to grant and confer degrees and other academic distinctions. The University’s basic traditional functions remain unchanged, enabling students to learn from their cultural heritage, helping them to realise their intellectual and creative abilities, and encouraging them to become humane and responsible people. The University expands knowledges across to entire spectrum of disciplines and it can add to the understanding and enjoyment of life. It continues to be needed for imaginative solutions to the problem of society (Encyclopaedia Britannica, Vol. 12, Page 186). Can these ad hoc lecturers honestly say that they are competent enough and capable of performing the duties and functions of a teacher of University and they will be able to guide the students to achieve their goal ? Except for one or two (whose cases we are considering separately) no one holds a doctorate degree or has done research work of any kind much less of a high standard. Showing sympathy to them means jeopardising the career of a large body of students who join the University in pursuit of knowledge and that too not for a year or two but over a long period.”
42. For the reasons stated above, we do not find any force in this petition. It is accordingly, dismissed.