VINAY KUMAR Vs. DIRECTOR OF EDUCATION HIGHER ALLAHABAD

JUDGEMENT

(1.) This is a reference made by a Division Bench in Civil Misc. Writ Petition No. 3538 of 2004 (Dr. Vinay Kumar Vs. the Director of Education (Higher), Allahabad and others). The three questions referred by the Hon'ble Division Bench will be found at the end of the judgement at internal Page 16.

(2.) The said three questions are set out below:-

(3.) finding itself unable to agree with the law laid down in the above mentioned judgement of Allka Rani Gutpa (Km.) Versus Director of Education (Higher) & another (supra) referred the above noted three questions for consideration by this Bench. Sri P. S. Baghel learned counsel appearing for the petitioner submitted that the law laid down by the Division Bench of this Court in Allka Rani Gutpa (Km.) Versus Director of Education (Higher) & another (supra) correctly interprets the provisions of Sections 12 and 13 of the Act as amended by U.P. Act No. 2 of 1992. He further submits that the view taken in Allka Rani Gutpa (Km.) Versus Director of Education (Higher) & another ((supra)) find support from an earlier Division Bench judgement of this Court, Dr. Prakash Chandra Srivastava Versus Director of Higher Education, Allahabad and another, 2003 (1) A.W.C. 142. The petitioner who has been appointed to teach Mathematics on honorarium basis with the approval of the Director of Education in accordance with the Government order dated 7.4.1998 is also entitled for the benefit of ratio laid down in Allka Rani Gutpa (Km.) Versus Director of Education (Higher) & another (supra) (Paragraph 10). Sri Baghel submits that the provisions of Sections 12 and 13 of the Act have been consciously amended in 1992 providing for giving of preference of the college by a candidate and further by Section 13 sub clause (3) it was mandated that due regard be given to the order of preference indicated by a candidate. Sri Baghel submits that Regulations framed under the Act, namely, the U.P. Higher Education Service Commission (Procedure for Selection of Teachers ) Regulations, 1983 having not been amended, the Regulations will give way to the provisions of Sections 12 and 13 as amended in 1992 and the preference given by a candidate cannot be ignored. He further contends that a teacher or Principal working in particular college on ad hoc basis/ honorarium basis has right to placement in the same College as per his preference where the committee of management agrees to such placement.