Dr. Deep Narain Tripathi vs Director of Education, (Higher Education) and Others

G.S.N. Tripathi, J.—In this petition the Petitioner made the following prayers:

A. A writ order or direction including a writ in the nature of certiorari quashing the Impugned order dated 26-6-1992 passed by the Respondent No. 1(Annexure 14 to the writ petition):

B. A writ, order or direction including a writ in the nature of mandamus commanding the regularisation committee to reconsider the question of regularisation of the services of the Petitioner in accordance with law as declared by this Hon''ble Court;

C. A writ, order or direction including a writ in the nature of mandamus commanding the Respondents not to interfere in the working of the Petitioner as Lecturer in Sanskrit in the institution in question:

D. A writ, order or direction Including a writ in the nature of mandamus commanding the Respondents to pay the salary to the Petitioner month by month as and when it falls due:

E. A writ, order or direction including a writ in the nature of mandamus declaring the provisions of Section 31-C(4) of U.P. Ordinance No. 43 of 1991 (as amended from time to time as null void and unconstitutional to the extent it provides for automatic determination of the services of adhoc lecturers:

F. Issue any other writ, order or direction which this Hon''ble court, may deem fit and proper in the circumstances of the case.

The institution in question, namely, Sri Bajrang Maha Vidhyalaya Dadar Ashram, Sikandarpur district Ballia is a duly recognised Degree College and is affiliated to Piranha University, Jaunpur, earlier it was affiliated to Gorakhpur University, Gorakhpur. The institution in question is on the maintenance-grant in aid list of the State Government. All its teachers and employees are being paid their salaries through the State Funds. There is as approved scheme of Administration in the institution in question for managing the affairs of the institution. The Petitioner passed his Intermediate examination in the year 1971 obtaining 40.6% marks. Subsequently, the Petitioner passed his B.A. Examination from Gorakhpur University in the year 1973 obtaining 48 4% marks. The Petitioner also passed his M.A. Examination in Sanskrit in the year 197$ obtaining 59.3% marks. He was also awarded Ph.D. in the year 1981 by the Gorakhpur University.

A permanent vacancy arose in the institution aforesaid on the retirement of Dr. Sudarshan Tripathi and in order to fill the said vacancy an Adhiyachan/requisition was made to the Commission and since no recommendation was made by the Commission for filling up the post, therefore, an advertisement was issued by the management of the institution on 6 8-1985 in the local newspaper. For the post of lecturer in Sanskrit (Annexure 5 to the petition), On the basis of the said advertisement several persons including the Petitioner applied and appeared before the Selection Committee. After scrutiny of the candidature of the Petitioner, the Selection Committee found the Petitioner most suitable person and recommended his came to the Managing Committee. The recommendation of the Selection Committee was duly accepted by the Managing Committee of the institution and an appointment letter was issued to the Petitioner on 10-4-1986 by the Respondent No. 6 (Annexure 6 to the petition). Pursuant to the said appointment letter the Petitioner joined the institution on 10-4-1986 (Annexure 7 to the petition). The appointment of the Petitioner was approved by the Vice Chancellor of University on 10-4-1986 (Annexure 8 to the petition). Ever since the date of initial appointment the Petitioner has been regularly working in the said institution as a lecturer in Sanskrit and has been paid his salary upto June 1992 without any complain against him regarding his work and conduct.

The State Government issued an Ordinance, being Ordinance No. 43 of 1991 on 22-11-1991 for regularising the services of the adhoc teachers working In the Degree College of the State of Uttar Pradesh. The said Ordinance was amended by subsequent Ordinance No. 48 of 1991 dated 31st December, 1991 and also by Ordinance No. 11 of 1992 dated 31st March 1992. (Annexures 10 to 12 of the petition).

In pursuance of the aforesaid Ordinance, the name of the Petitioner was forwarded by the Institution in prescribed preformed before the Regularisation Committee but the Respondent No. 1 by his order dated 26-6-1992 (Annexure 14 to the petition;, has illegally rejected the candidature of the Petitioner in pursuance of the said order of the Respondent No. 1, (the services of the Petitioner would be deemed to have been terminated in 30th June, 92. The grounds taken in the said order are false, incorrect and perverse. Moreover no notice or opportunity whatsoever has been given to the Petitioner before the impugned order dated 26-6-92 has been passed against the Petitioner. The order is non speaking one and no reasons have been assigned for not accepting the candidature of the Petitioner. The Petitioner is entitled to relaxation in his qualification due to P.Hd. Degree and the said relaxation has been rightly given to him by the said Selection Committee and the Respondent Nos. 1 and 2, had no occasion to interfere with the relaxation of the qualifications of the Petitioner. The object of the Ordinance was to regularise the services of the teachers like the Petitioner, who had been appointed on ad hoc basis. By (he impugned order the said object has been defeated. In these circumstances the petition was filed for the reliefs aforesaid.

In the counter affidavit filed on behalf of the Respondents by Dr. Ram Vijai Singh, posted as Assistant Deputy Director (Higher Education) in the Directorate of Higher Education, U.P. Allahabad, it has been alleged that before filing the present writ petition the Petitioner has filed another writ petition No. 18940 of 1990 in this Court. The prayer was that both the writ petition should be heard together. With the enforcement of U.P. Higher Education Services Commission Act, 1980 w.e.f. 21-8-1981 the appointment of teachers in non-Government aided colleges of the State were required to be made under the provisions of the Commission Act, 1980 only. Section 16 of the Commission Act 1980 empowered the management to appoint a teacher on purely adhoc basis subject to the provisions of the Section 16 of the said Act. While making any appointment u/s 16 of the Commission Act, 1980, there was BO statutory requirement of any Selection Committee to be constituted for the selection of a teacher on adhoc basis nor any ''Selection Committee constituted beyond its statutory requirement, was empowered to grant any relaxation in the minimum required qualification for the post. The Selection Committee constituted u/s 31.4(d) of the U.P. State Universities Act, 1973 and consisting of two experts, alone was empowered to grant such relaxation. However constitution of the committee u/s 31.4(8) was discontinued after the enforcement of Commission Act 1980. The management u/s 16 was required to ''appoint a teacher on purely adhoc basis from amongst the persons holding qualifications prescribed therefore.'' The qualifications for appointment of the teachers in affiliated college, as prescribed under Statutes 11.13 of the Gorakhpur University are being reproduced below:

11.13(1) In the case of any college affiliated with the University, the following shall be minimum qualifications for the post of lecturer in the Faculty of Articles (except the Department of fine Articles and Music) and the Faculties of Commerce and Science: namely.

(a) An M. Phil degree or a recognised degree beyond Masters level of Published work Indicating the capacity of a candidate for independent research work: and

(b) Consistently good academic record atleast first or high second class Master''s degree or an equivalent degree of a foreign university in a relevant subject:

The expression ''consistently good academic record has been defined in the Statutes 11.07 (d) of the University.

11.07(d)--For the purpose of this statutes a candidate (other than a candidate for lectureship in the Faculties of Education and law) having obtained cither an average of 55 percent marks in the two examinations prior to Master''s degree, that is to say Intermediate and Bachelor''s degree Examination (irrespective of marks obtained in any of the two examinations) or SO percent marks in each of the two examinations separately is said to have consistently good academic record.

The Petitioner lacked minimum qualifications as per aforesaid standard prescribed and thus his appointment by the Managing Committee was void. The Petitioner acquired the degree of ''Shastri'' equivalent to B A. after the date of his appointment, which is not recognised as equivalent to B.A under the rules of Purvanchal University, Jaunpur. The candidate has not passed Shastri Examination with General English and one other subject as specified in the rules. The Petitioner passed the Shastri Examination without General English and one more optional subject as required under rules as such the Degree of Shastri which the Petitioner acquired in the year 1985 cannot be traded equivalent to the B.A. Examination of the recognised University. Hence he cannot be treated to be duly eligible for appointment. In the alternative it has been alleged that even if the Shastri Degree is treated to be equivalent to B.A. Degree, even then the Petitioner cannot be said to have possessed consistently good academic record for the reason that neither the average of percentage of marks obtained in Intermediate and Shastri Examination reach upto 55% marks nor the Petitioner has obtained 50% marks in Intel and Shastri Examination separately Thus it cannot be said that ''he Petitioner was not having a ''consistently good academic record'' at the time of his alleged appointment on 10-4-86. The relaxation in favour of the Petitioner ii unauthorised and accordingly illegal and ab initio null and void.

Apart from it, the appointment of the Petitioner was made in contravention to the provisions of Section 16 of the Commission Act. The said appointment was made much before the notification of the existing vacancy was sent to the commission and be was appointed more than two years before the existing vacancy was sent and thus provision of Section 16 of the Commission Act which are mandatory in nature, have been violated. Under the newly inserted Section 31C in the Commission Act, 1980, the teachers appointed after January 3, 1984 but not later than June 30, 1991 were considered for regularisation subject to the conditions as provided in Section 31-C of the aforesaid Ordinance. However, Sub-section (4) of Section 31-C provided as under:

31-C(4) A teacher appointed on adhoc basis referred to in Sub-section (1) who does not get a substantive appointment under that sub section and a teacher appointed on adhoc basis who is not eligible to get substantive appointment under Sub-section (1) shall cease to hold adhoc appointment after June 30, 1992.

As such the Petitioner was not entitled to continue in service after June 30, 1992. The Petitioner was thus not entitled to get salary after 30-6-92 u/s 31-C of the Act.

The approval of the selection of the Petitioner by the Vice Chancellor was wholly uncalled for and a futile exercise since no such selection or subsequent approval of the Vice Chancellor could either delete the minimum required qualification for the post nor could validate Petitioner�s alleged appointment, as no management is above law. The object of the Ordinance has never been to regularise the services of ineligible and unqualified adhoc teachers.

We have heard the learned Counsel for the parties at considerable length and gone through the record. We find much force in this petition and it deserves to be allowed.

The main relief sought in this petition is the quashing of order dated 26-6-91 passed by Respondent No. 1 (Annexure 14 to the writ petition). So we have to confine ourselves to the contents of this order only and other pleas raised in the counter affidavit do not call for any comment, as they are virtually irrelevant and unnecessary. The Regularisation Commitiee rejected the case of the Petitioner for regularisation on the ground alone.

1- Niyukti ke dinank ko purvanchal vishwavidyalaya pratham pariniyamavali me nihit nyunatam shakshik ahartaon me shodh ke adhar par avichhinna uttam shaikshik abhilekhon me pradhan ki gai chhut manya nahin hai.

This is the only objection raised by the regularisation committee for not finding hin eligible for regularisation. The committee was under the impression that there was no provision in the statute of purvanchal university for granting relaxation but this is not a correct reading of the requisite provision . Section 50 (1-B) of the state university Act, 1973 runs as follows:-

(1-B) Until the First statutes of the Purvanchal University are made under this section, the statutes of the University of Gorakhpur, as in force immediately before the establishment and modifications as the state Government may by notification provide.

Admittedly the First Statute of the Purvanchal University has not been published so far, therefore, the statute of the Gorakhpur University shall apply to the present case. Therefore under the specific provision referred to above the statutes of Gorakhpur University, Gorakhpur are applicable to the present case.

Section 11, 13 (1) (2) of Gorakhpur University Gorakhpur runs as Under :

11.13 (1) in the case of any college affiliated with the University, the following shall be the minimum qualifications for the post of a Lecturer in the faculty of Arts (Except the department of fine Arts and Music) and the faculties of Commerce and Science : Namely (a) An M. Phil, degree or a recognised degree beyond the Master''s level or published work indicating the capacity of the candidate for independent research work: and

(b) a consistently good academic record with atleast first or high second class Master''s degree in Education and also Master''s degree or an equivalent degree of a foreign University, in a relevant subject.

(2) In the case of any college affiliated with the University, the following shall be the minimum qualifications for the post of a Lecturer in the Faculty of Education:

(a) An M. Phil, degree or a recognised degree beyond the Master''s level or published work indicating the capacity of the candidate for independent research work: and

(b) a consistently good academic record with atleast first or high second class Master''s degree in Education and also Master''s degree or an equivalent degree of a foreign University, in a relevant subject.

Again para 5 of the said Statute runt as follows:

(5) If the Selection Committee is of the view that the research work of a candidate, as evident either from his thesis or from his published work is of a very high standard, it may relax any of the qualifications prescribed in Sub-clause (b) of Clause (1) or Sub-clause (b) of Clause (2) as the case may be.

This way, it is clear that there is a provision for relaxation of any of the qualification prescribed in sub Clause (b) of Clause 2 us noted above The result is that there was and still their is a provision for relaxation. The Regularisation Committee thus acted under a mis-apprehension of the fact that there was no such provision for relaxation of requisite minimum qualification, hence it acted wrongly and the interpretation given by it has accordingly become illegal.

This Court is not required to go into the question as to whether the relaxation could be given by the Selection Committee or not, once it is found that there was a provision for granting relaxation which the Regularisation committee wrongly thought that there was no such provision.

Now coming to the merits of the case, we find that the discretion baa been left to the Selection Committee to grant relaxation, if it was of the view that the research work of a candidate as evident either from his thesis or from his published work is of a very high standard.

The academic qualifications of the Petitioner right from Inter-mediate upto Ph.D. as given in the petition are not disputed. He has not concealed the marks which he had earned during his academic career, it also shows that there was a gradual improvement in his academic performance. Taking all these factors into consideration, the Committee of Management granted relaxation permissible to him under the law as noted above. The document relating to the grant of relaxation alongwith the recommendations of the Committee were sent to the Vice Chancellor. After its acceptance by the Managing Committee his appointment letter dated 10-4-86 was approved by the Vice Chancellor on the same day vide annexure 8 to the petition, without any objection. It has been specifically mentioned that taking into consideration the teaching work and the need for regularisation of the educational calendar the Vice Chancellor was granting approval to the adhoc appointment of the Petitioner as Lecturer in Sanskrit till 30-6-86 or till a candidate regularly selected by the Commission was available. This was the aim with which the University Act was amended from time to time by several Ordinances referred to above, so that the teaching work could not suffer. With this aim in view the power to appoint adhoc teachers for a limited period was given to the Managing Committee subject to the approval by the Vice Chancellor. Earlier at the level of the Vice Chancellor no objection was filed regarding the validity of the appointment of the Petitioner, it was only at the stage of regularisation of his appointment under the provisions of the amended Act that this objection was taken and that too under a totally misdirected interpretation of law. The Committee was of the view that there was no such provision under which the Managing Committee could grant concession or relaxation but we have found that there was a provision for such relaxation available under the Gorakbpur Universities Act and Statutes which applied to the institutions now covered by the Poorvanchal University, Jaunnur which was formerly affiliated to the Gorakbpur University, Gorakhpur. Thus relaxation given to the Petitioner by Selection Committee was perfectly valid in law This way, other points raised in the counter affidavit are totally irrelevant and redundant so far as the merits of the writ petition are concerned It cannot be urged now that there was no legally constituted Selection Committee and therefore its recommendation cannot be accepted by the Managing Committee or by the Vice Chancellor.

The threadbare analysis of the provisions as made by us, leads us to the conclusion that this writ petition deserves to be allowed.

Since the matter is very old and the Petitioner has put in several years of service in this college, which is satisfactory, and must have become ineligible for appointment elsewhere due to age-bar, we do not deem it proper to send the matter back to the Respondent for reconsideration and are directly passing order as noted below.

The petition is allowed. The order dated 26-6-92 (Annexure 14 to the writ petition) is quashed and it is held that the Petitioner�s appointment was validly made and he continues to work as a regularised lecturer in Sanskrit in Sri Bairang Maha Vidayalya, Dadar Ashram, Sikandarpur, district Ballia continuously from the date of his appointment by the Managing Committee is w.e.f. 10-4-86 and he is entitled to all benefits of salary etc. permissible to him for the aforesaid post from the date of his appointment i.e. dated 10-4-86. The Respondents are commanded not to interfere with the working of the Petitioner as a Lecturer in Sanskrit in the said institution.

In the circumstances of the case, there is no need to grant reliefs B and E aforesaid as they are not warranted. The parties are directed to bear their own costs.