@JUDGMENTTAG-ORDER
1. This writ petition is filed seeking issuance of writ of certiorari to quash the order of the first respondent-University in Proceedings No.727/A2/KU/ 94/263 dated 13-6-1994 whereunder the services of the petitioner were dispensed with, with effect from 1-4-1994 on the ground that the petitioner did not report to duty even after lapse of extension period of time to complete his post doctoral research work in Germany.
2. The facts are not in dispute. The petitioner was appointed as Lecturer in Pharmacy on 16-4-1991 after he underwent the process of selection. While he was on probation, he seemed to have applied for post doctoral research work (Deutsch Akademisches Austaush Dienst known as ''DAAD'') in Germany. As per the prospectus of the Regensburg University, to complete the post doctoral research work the minimum period is 16 months extendable by one more year. As per the guidelines of the University Grants Commission, a person selected to do this post doctoral research work will be paid full salary during the research work and if any substitute is posted by the concerned University, fifty per cent of the emoluments shall be met by the University Grants Commission. Pursuant to his application, the petitioner was selected by the University in Germany to do the project work i.e., "Synthesis of new Antlallerigcs/Anllasthmatics isosteric to Azelastine". The first respondent-university authorities rejected his request to do post doctoral research work on the ground that he was only a probationer, but, ultimately on the directions of the University Grants Commission, the first respondent sponsored the candidature of the petitioner for a period of one year by his proceedings dated 7-11-1992. While relieving the petitioner to go abroad, the first respondent-University got a bond executed from the petitioner and as per the conditions of the bond, an amount of Rs.10,000/- shall be forfeited - (1) if he fails to report after completion of the course; (ii) if he returns to India without completing the course; and (iii) if he fails to serve the first respondent-University for a period of three years.
3. Thereafter the petitioner left for Germany on 25-11-1993 and as the post doctoral research work has to be done in German language, he underwent foundation course in German language for over five months and thereafter taken up the post doctoral research work. It is also not in dispute that at the request of the petitioner, the permission was accorded by the first respondent-University extending his stay at Germany upto 1 -4-1994 under its letter dated 14-9-1993. Even before the expiry of the time limit prescribed for his return, he submitted an application on 25-2-1994 with the recommendation of his Guide to the effect that at least the research work will go upto 30-9-1994 and as such his stay at Germany may be extended upto 30-9-1994. It is useful to extract the letter of the Guide dated 20-1-1994, which reads as follows:
"Dear Sir,
I hereby certify that Dr. Achaiah Garlapti, lecturer of your University, has been working since April, 1993 under our guidance and supervision as a DAAD fellow for his post doctoral research work in the institute of Pharmacy (Laboratories of my colleague, Prof. Franz), Regensburg on a project suggested by me i.e., "Synthesis of new Antiallerigcs/ Antiasthmatics isosteric to Azelastine".
I am glad to state that his work is progressing well and he could establish the procedure for the synthesis of one of the proposed schemes. He is now attempting to prepare several such compounds for their onward screening for pharmacological and other properties and SAR studies.
In view of the recent progress in his work and for the completion of his studies on the above mentioned project, it is proposed to extend his stay for another six months, which enables him to complete the on going work satisfactorily. Hence, I recommended to DAAD for the extension of his fellowship for a period of 6 months i.e., from April, 1994 to September, 1994. Therefore, I strongly recommend for the extension of his leave from your University accordingly enabling to complete his studies under DAAD programme.
I am confident that his experience in Federal Republic of Germany would be definitely helpful to your University in general, to the college of Pharmacy in particular as it enables him to serve better with his enriched knowledge and skills".
But, without considering the request of the petitioner in the proper prospective, the first respondent-University gave a phonogram on 28-3-1994 directing him to report to duty by 1-4-1994 failing which his services will be terminated by the first respondent-University. Thereafter, the petitioner seemed to have made several efforts through his friends and relatives in India as well as vide his letter dated 17-5-1994 seeking extension of his stay at Germany at least upto 15-9-1994 for completion of the research work and also on the ground that the flight schedules are very tight even if he wants to come back to India. Without considering the request of the petitioner the first respondent-University terminated the services of the petitioner by the impugned order dated 13-6-1994 with retrospective effect i.e., from 1-4-1994. Questioning the said order, the present writ petition is filed.
4. To my mind, firstly this order suffers from non-application of mind for the reason that the petitioner was sponsored to do the post doctoral research work and as per the programme of the concerned University, the minimum period for doing the post doctoral research work is about 16 months and extendable by one more year i.e., in all 28 months. But it is highly unimaginable how the first respondent-University can give permission to the petitioner only for a period of one year to take doctoral degree. If an institute of higher learning acts in this manner, perhaps the future of the teaching staff will be in jeopardy. Be that as it may, when a request was made by the petitioner for extension of his stay at Germany with the recommendation letter of his Guide, any prudent man is expected to extend the time as required for completion of the Ph.D. work otherwise the very purpose of sponsoring him to undertake the post doctoral research work will be defeated and as per the terms of the Bond executed by the petitioner if he returns to India without completing the course, he has to forfeit a sum of Rs.10,000/-. Hence, I feel that the first respondent-University has acted harshly in terminating the services of the petitioner having sponsored his candidature for obtaining Ph.D. degree, which may be of immense use in teaching the student community.
5. The learned Standing Counsel for the first respondent-University strongly contended that the petitioner submitted Ins application without the knowledge of the University and the University refused permission to the petitioner to leave the University initially. But, at the same time, he admits that on the intervention of the University Grants Commission, the first respondent-University ultimately gave permission to the petitioner to take up the research work. When once the permission is granted, the question of raising a dispute that the petitioner has applied for the course without the knowledge of the University cannot hold water. Accordingly, the said contention of the learned Standing Counsel for the first respondent-University is rejected and I hold that the order of termination suffers from serious infirmities and the same has to be set aside.
6. The impugned order has also to be set aside on the ground that by the impugned order dated 13-6-1994 the services of the petitioner were sought to be terminated with retrospective effect i.e., from 1-4-1994 which was unheard of. Any termination of the service will have prospective effect but not retrospective effect. On this ground also, the impugned order has to be struck down.
7. The petitioner''s Counsel also brought to my notice that various instances where extension was given to the Teachers/ Lecturers who have taken up research work and who have not reported to duty when their request for extension was turned down by the University after they reported to duty after completion of research work. The respondents did not deny this fact in the counter affidavit filed by them.
8. Leave apart the legal technicalities, the purpose and intent of sending the petitioner to take up the research work being to obtain Ph.D. degree, it is not known how the first respondent-University can insist for the return of the petitioner before completion of the Ph.D. degree; more so when it gave permission to take up the research work which is likely to be extended for a total period of 28 months as per the prospectus of the University concerned and it is not the case of the first respondent-University that the petitioner over stayed the period of research work as contemplated by the prospectus of the University concerned. The very fact that giving piecemeal permission by the first respondent-University itself is vitiated and because of the process of non-application of mind by the authorities concerned, the petitioner has to lose his job and unfortunately this Court also did not come to his rescue at the earliest possible time, with the result four years of precious life of the petitioner became waste.
9. For all these reasons, I have no option except to quash the impugned order and accordingly the impugned order dated 13-6-1994 is quashed.
10. Lastly, the petitioner''s Counsel brought to my notice that though the University Grants Commission fixed the scheme by paying full emoluments to the petitioner during his research work, the first respondent-University did not pay salary due to him while he was away on research work in Germany inspite of the letter of the University Grants Commission Bearing No. F.1-22 of 1991 (IC-II), dated 8-4-1995 whereunder the University Grants Commission directed the University to treat the entire period of research work as on duly in the following words:
"University is requested to treat him on duty for the entire duration of fellowship".
Hence, the first respondent-University shall pay the entire amount due to the petitioner from 7-11-1992 to 3-9-1994 after deducting any amounts, if already paid during that period, within four weeks from the date of receipt of a copy of this order.
11. With regard to back wages, the petitioner''s Counsel fairly conceded that after losing his job, the petitioner was working in a private institution for meager wages. As he is some what gainfully employed, I am not inclined to grant back wages to the petitioner. But, however, it is made clear that the entire period for which he was out of service shall be treated as on duty without emoluments and the same shall be taken into consideration for the purpose of seniority, promotions, release of increments and with all other consequential benefits.
12. For all the foregoing reasons, the writ petition is allowed by issuance of a writ of certiorari quashing the Proceedings No.727/A2/KU/94/263, dated 13-6-1994 and a consequential direction to the respondent-University to reinstate the petitioner forthwith to duty.
