SANTOSH KUMAR SINGH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The appellant in these three appeals had been appointed as a lecturer in the subject of Agronomy while he was continuing as a final year student in M. Sc. (Agriculture) by the Management of Shrii Durgaji Postgraduate College, Chandeshwar, which was an unaided institute at the relevant point of time. His case in brief is that on 31/7/1982, the Deputy secretary to government of Uttar Pradesh intimated the Registrar, University of Gorakhpur that Shri Durgaji Postgraduate College, Chandeshwar, Azamgarh (hereinafter referred to as 'the College') has been granted sanction for M. Sc. (Agronomy) in Faculty of Science with certain conditions mentioned therein. Acopy of the said letter was also forwarded to the Manager of the College intimating that it may be kept in view that in the absence of financial resources, creation of necessary post for the purpose of payment of salary by the Director of Education (HE) would not be feasible up to one year after start of the subject and therefore, payment of the salary will have to be approved (sic provided) for that time by the Management itself. On receipt of the aforesaid sanction order from the State government, the College issued an advertisement for the post of lecturer in Agronomy on 15/12/1983. It was stipulated in the advertisement that the management has the power to grant any relaxation in the educational qualifications. Pursuant to the aforesaid advertisement the appellant submitted an application on 20/12/1983. In the application in question, the appellant had intimated that he has been a gold medallist from the Gorakhpur University in B. Sc. (Agriculture) and he had secured 76.6% marks in the first year M. Sc. (Agriculture) from the Kanpur Agriculture University and was continuing his second year M. Sc. (Agriculture). It was also stated that if he is appointed, he will complete his remaining part of Final year examination. The Management of the College informed the appellant by letter dated 1/1/1984 that he has been appointed as a lecturer in the Postgraduate Agronomy Department and he should join the College. On receipt of the said letter the appellant joined the institution immediately and continued as a lecturer. While so continuing he passed the final year M. Sc. examination on 18/1/1985. It is the further case of the appellant that the Manager of the College requested the secretary, Higher Education Services Commission that a person may be selected for the post of lecturer, Agronomy by letter dated 21/5/1985. As the Service Commission did not send any name, notwithstanding the Management's letter dated 21/5/1985, the College issued a fresh advertisement on 12/8/1985 for filling up the post of lecturer in Agronomy on ad hoc basis. On 17/8/1985 the Manager of the College requested the Vice-Chancellor for appointment of a subject expert in respectof the post of ad hoc lecturer in Agronomy. The appellant was also a candidate in pursuance of the said advertisement. The Registrar of Gorakhpur University informed the Manager of the College by letter dated 19-9-1985, that the Vice-Chancellor has nominated Professor N. M. Mishra as an expert for making selection to the post of lecturer in Agronomy. The Selection Committee unanimously selected the appellant for the post of lecturer and the Manager of the College wrote to the Registrar of the University by his letter dated 23/9/1985 informing that the appellant has been unanimously selected and the appointment may be approved. The Registrar of the University intimated the approval of the appointment of the appellant as an ad hoc teacher in Agronomy for a period of six months from the date the appellant has been holding the post after his selection. The aforesaid fact of approval of the appellant's appointment on ad hoc basis was intimated to the appellant by the Manager of the College by letter dated 1/10/1985. The appellant's case, however, is that he has been continuing as a lecturer since his original appointment on 1/1/1984. The Director of Education (Higher Education) communicated the approval of the government for creation of a post of lecturer in the College in Agronomy under S. 60-A and 60-B of the Uttar Pradesh State Universities Act, 1973 (hereinafter referred to as the 'universities Act'). It was also indicated in the said letter that the post in question should be sent to the Higher Education Service Commission, U. P. for selection immediately. It was also indicated that the sanction is being accorded till June 1986, and for continuation after 30/6/1986 the College should send details mentioning the actual strength of the students by 31/3/1986. The College was also intimated under the said letter that until and unless the post is made permanent by the Directorate, the holder of the post would not be confirmed and the appointment to the post could be made only after obtaining the approval of the Vice-Chancellor under the provisions of the Universities Act. The Manager of the College immediately wrote a letter on 25/2/1986 to the secretary of the Service Commission requesting him that the post may be advertised and the appointment may be made under the Service Commission Act and to avoid any dislocation in the teaching, the Manager also asked the appellant requesting him to continue as a lecturer in the College. The Registrar of the Gorakhpur University by his letter dated 8/4/1986 intimated the Manager of the College that the Vice-Chancellor has approved the ad hoc appointment of the appellant to the post of lecturer in Agronomy till 30/6/19866 or till the selected candidate takes over the charge, whichever is earlier. The Manager of the College on receipt of the aforesaid letter of the Registrar wrote back to the Registrar on 6/5/1986 intimating that there is no justification for making a fresh advertisement for the post of lecturer and since the appellant is a brilliant student and has been continuously working since 1/1/1984, and the results have been 100% he may be permitted to continue permanently. The Manager then wrote to the appellant that he should continue with effect from 1/7/1986 as a lecturer. The Manager again wrote another letter to the Vice-Chancellor for continuance of the appellantby letter dated 26/6/1986 and the Registrar by his letter dated 4/7/1986 informed the Manager of the College that the Vice-Chancellor has approved the ad hoc appointment of the appellant for a further period of six months with a break of one day or till the selected candidate takes over the charge whichever is earlier. On 7/1/1987, the Manager of the College wrote to the Vice-Chancellor of the University requesting him that the appellant's service be extended so that there would be no break in the studies during mid- session since no appointment has been made by the Service Commission nor any candidate has come to join on being selected. In the meantime an Ordinance was promulgated on 22/6/1985 for regularisation of the ad hoc teachers of the affiliated colleges being Ordinance No. 14 of 1985 which has later been made an Act and Section 31-B has been added. The Director of Higher Education, Uttar Pradesh intimated the Manager of the College that the appellant having been appointed after affiliation of the subject of Agronomy at the postgraduate level, his services are regularised under the Ordinance l. i question. The District Inspector of Schools was also intimated to pay the salary of the appellant like regularised lecturer under the rule. The principal of the College also passed order that the appellant should be paid salary from the date of the creation of post i. e. 1/2/1986. The appellant was also intimated by the Manager of the College that his appointment has been made permanent and he will be paid the salary, DA and the permissible perquisites of the State government as per U. P. Universities Act. The Director of Higher Education, U. P. then issued a letter dated 4/5/1987 to the Principal of the College calling upon the Principal to come to the Directorate with the copies of the certificates and the mark sheets of the appellant and it was also stated in the said letter that the salary of the appellant should be stopped at once. The appellant filed a writ petition in the Allahabad High court which was registered as Writ Petition No. 2137 of 1988 against the order of the Director stopping the payment of salary and the appellant prayed that he may be paid his salary. On 25/2/1988 the Director of Higher Education informed the Manager of the College that order of regularisation of the appellant's services as lecturer in Agronomy stands cancelled since the appointment of the appellant was invalid and the approval had been obtained on a wrong premise. On receipt of the aforesaid letter from the Director, the Manager of the College terminated the appellant's services by letter dated 29/2/1988. The appellant, therefore, amended the Writ Petition No. 2137 of 1988 and made additional prayer challenging the order of termination as well as the order of cancellation of regularisation of his services by the Director. In the meantime the Deputy Registrar of the university wrote a letter on 22/4/1989 to the Manger of the College calling upon him to explain as to why the services of the appellant has been terminated without prior approval of the Vice-Chancellor. On 3/7/1989, the Deputy Registrar informed the Manager of the College that the Vice- chancellor has directed that appellant's salary should be paid. In the writ petition filed by the appellant the High court had also issued interim mandamus directing the authorities to pay the salary of the appellant and inpursuance of the said direction of the University the Director of Higher Education was intimated by the Joint secretary to the government of Uttar Pradesh that the salary of the appellant should be paid as lecturer with effect from 12/2/1988 and the arrears should be paid within six weeks. The Vice- Chancellor of the University by his letter dated 20/7/1990 called upon the Manager of the College that appellant should be permitted to work, as the Vice-Chancellor did not approve the termination of the services of the appellant. The Vice-Chancellor then heard the appellant as well as the Management of the College and by reasoned order dated 18/4/1992 set aside the order of termination of the appellant for non-compliance of Section 35 (2 of the State Universities Act inasmuch as no prior approval of the Vice-Chancellor had been taken. The Committee of Managemert of the College being aggrieved by the said order filed a writ petition in the Allahabad High court which was registered as Writ Petition No. 16576 of 1992. The appellant himself also had filed another application in the High court for implementation of the Vice-Chancellor's order dated 18/4/1992 which was registered as Writ Petition No. 2070 of 1992. These three writ petitions were disposed of by the High court by the impugned judgment dated 30/4/1993. The writ petition filed by the appellant were dismissed on the ground that the appellant's appointment itself was illegal and was no Appointment in the eye of law and the writ petition filed by the Management was allowed on the finding that the Vice-Chancellor was in error in issuing the direction in question. The appellant, therefore, has approached this court against the aforesaid judgment of the Allahabad High court.

(2.) Be it noted that Uttar Pradesh Legislature passed an Act called U. P. Higher Education Services Commission Act, 1980 (U. P. Act No. 16 of 1980, (hereinafter referred to as 'the Services Commission Act') for establishing the Service Commission for the selection of teachers for appointment to colleges affiliated to or recognised by a university. By virtue of Section 30 of the said Act, the provisions of the Act has the overriding effect. Under Section 12 (1 of the Service Commission Act, every appointment as a teacher of any college has to be made by the Management only on the recommendation of the Commission. Ss. (5 of Section 12 of the said Act provides that every appointment made in contravention of the provisions of the section shall be void. Section 16 of the said Act, however, authorises the Management to appoint a teacher on purely ad hoc basis from amongst the persons holding qualifications prescribed for the post where the Management has notified the vacancy to the Commission in 9 accordance with Ss. (2 of Section 12 but the Commission fails to recommend the names of suitable candidates within three months from the said date. Such ad hoc appointment, however, will cease with effect from the date mentioned in clauses (a) , (b) and (c) of Ss. (2 of Section 16.

(3.) After the termination of the service of the appellant one Phool Chand, Respondent 6 in this appeal was appointed as lecturer in Agronomy by the Management of the College. This appointment was also on ad hoc basis. The governor of U. P. promulgated another Ordinance for regularising theservices of the ad hoc teachers, Ordinance 43 of 1991, and it was later on replaced by an Act, U. P. Act 2 of 1992. Section 31-C was added to the Service Commission Act and ad hoc appointments after 3/1/1984 but before a 30/6/1991 were sought to be regularised. Phool Chand prayed for regularisation of his service under the aforesaid provisions of the Act but the Director of Education rejected his prayer by order dated 23/6/1992 against which order Phool Chand also approached the High court by filing a Writ Petition No. 33498 of 1982.