D S SINGH Vs. STATE OF U P

JUDGEMENT

(1.) We have heard learned counsel for the parties and perused the pleadings of writ petition. It appears that the petitioners' college namely Kanhaiya Lal Post Graduate College, Mirzapur is affiliated with Mahatma Gandhi Kashi Vidyapeeth, Varanasi. The said college is governed by the provisions of U.P. State Universities Act, 1973 (hereinafter referred to as the Act of 1973) and the first statute of Mahatma Gandhi Kashi Vidyapeeth. The college is receiving grant-in-aid from the State government, and thus, it is governed by the provisions as contained in Chapter 11-A of the Act of 1973. Petitioner no. 1, who has also held the post of Regional Higher Education Officer Varanasi, is presently functioning as an Authorized Controller on super cession of Committee of Management. One Sri. Chandra Pati Rai was the permanent Lecturer in the department of Chemistry, in the college. He was appointed on 6.10.1971 and confirmed on 13.4.1973. He was paid salary from the government grant in aid regularly. He retired after attaining the age of superannuation on 30.6.2009. Thus, a substantive post of lecturer in the department of Chemistry became available. As no regular selection was conducted by the U.P. Higher Education Service Commission to fill in the post, therefore during the period, till regularly selected was made available, the Government Order dated 7.4.1998 (providing for a scheme of appointment of teachers on payment of fixed honoraria) was to govern the selection process, for such appointment. The Committee of Management, which was authorized to advertise the vacancy and carry out appointment held the selection and forwarded the name of candidate i.e. Dr. Savyasanchi Upadhyay. However, by way of communication dated 24.5.2011 issued by the Director of Education (Higher Education), papers were returned with objection that there was no sanction from the Regional Officer, Higher Education, Varanasi. As the result, despite a valid appointment, Dr. Uppadhaya could not become entitled to get payment under the provisions of Section 60(A) of the Act. Besides, it was also pointed out that there was no signature of authorized Controller/Principal. In the absence of signature, the Director of Education (Higher Education) disapproved the recommendation submitted by the Management. The petitioners also filed objection to the communication dated 24.5.2011 received from the Director of Education (Higher Education). After, order was not passed on the objection, petitioners' college approached this Court by filing a Writ Petition (No. 11190 of 2010) which was disposed of vide order dated 19.11.2010. The operative portion of the order is reproduced herein under:-

(2.) Thereafter, vide annexure 5, order was passed by the Director on 24.5.2011 wherein it is mentioned that the Regional Higher Education Officer, Varanasi, has not issued his approval which is required for passing order by the Director. It was also pointed out that the selection on the basis of payment of honorarium was beyond the scope of Sub-section 6(B) of Section 60(A) of the Act of 1973. It was also pointed out that the Authorized Controller/Principal had not signed the paper. Thus, the proposal for sanction was declined.

(3.) Sri. Ashok Khare, learned Senior Counsel, appearing for the petitioners, submitted that the order dated 7.4.1998 passed by the State government, prescribed the eligibility qualifications and thus the petitioners submitted the proposal for appointment of Lecturer in the Chemistry Department on payment of honorarium in terms of the order dated 7.4.1998 which was the only order governing the selection process on the date of selection, irrespective of one round of litigation, wherein in a writ petition, a Division Bench of this Court had quashed that order. However, in the S.L.P. before the Supreme Court, the High Court's order was set aside and the case was remanded for a fresh consideration. The State government revoked the order dated 7.4.1998 on 29.3.2011. Learned Senior Counsel further submitted that the grounds taken for declining the approval vide order dated 24.5.2011 impugned herein, are unsustainable for the reason that petitioner no. 1 is the Authorized Controller and petitioner no. 2 is the Principal. They have come before the Court in support of the selection and recommendation made for the appointment of Dr. Upadhayay.