KAMLESH KUMAR SHARMA Vs. YOGESH KUMAR GUPTA

JUDGEMENT

(1.) The question raised in this appeal is the interpretation of Section 13(4) of the U. P. Higher Education Services Commission Act, 1980 (hereinafter referred to as 'the Act') as amended in 1992.

(2.) The appellant interprets that the vacancies to be filled in under this sub-section are not only those which occur on account of death or resignation but would include any other vacancy occurring till another list is sent by the Commission under Section 13(2) of the Act. In other words, it would also include vacancies not advertised but occurring even for the subsequent academic year. In order to appreciate the question raised, the background and the facts would be useful, which are stated:

(3.) Prior to the aforesaid Act, the appointment to the post of teachers in the Non-Governmental Colleges affiliated to the various Universities in the State of Uttar Pradesh was made by the Selection Committee of the Management of the concerned college. For various reasons, the said process was not found to be congenial and the aforesaid Act was enacted. Sections 12 to 14 of the Act contained procedure for appointment of teachers as well as Principals. Section 16 provided for the appointment of teachers on ad hoc basis. Since this provision was widely abused and mis-used, as large number of teachers were appointed on the basis of favouritism and not on merits, this was deleted in 1992, wherein both Sections 12 to 14 were substituted by the U. P. Act No. 2 of 1992. In fact by this, Sections 12 to 14 were drastically amended. Amended Section 12(1) provided, - every appointment of a teacher is to be made by the Management in accordance with the provisions of the Act and any appointment made in contravention thereof is void. Under sub-section (2), the Management has to intimate the existing vacancies and the vacancies, likely to be caused during the course of the academic year, to the Director at such time and in such manner as may be prescribed. Though prescribed under rules but not satisfactorily. The academic year is also defined through the Explanation of the same section to mean "period of 12 months commencing on July 1". Under sub-section (3), the Director notifies to the Commission subjectwise consolidated list of vacancies intimated to him from all colleges. Under proviso to sub-section (4), the Commission has to give wide publicity in the State to the vacancies notified to draw talented persons. Under Section 13, the Commission recommends the names of the candidates found most suitable in each subject and such names have to be arranged in the order of merit. The recommendation has to be 25% more than the number of vacancies in that subject. Sub-section (2) of Section 13 enables the validity of such a list till the receipt of the new list from the Commission. This is a departure from the old provision under which the period was only for one year. Sub-section (4) refers to the appointment to be made from the persons on the said list in case of vacancy occurring due to death, resignation or otherwise. For ready reference, Sections 12, 13 and 14 of the Act are reproduced below: