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Judgment
R.A. Sharma and S.R. Alam, JJ.—Petitioner, who was working as Lecturer of Political Science in the Government Degree College, Khair, district Aligarh, was appointed as Principal of Amar Singh College, Lakhaoti, district Bulandshahr, (hereinafter referred to as the College), on deputation by the Governor of Uttar Pradesh vide order dated 14th July, 1993 for a period of two years. By order dated 25.5.1995, the period of deputation of the Petitioner was extended for a period of three years. However, Registrar at the instance of the Vice-Chancellor of the Ch. Charan Singh University, Meerut, (hereinafter referred to as the University), to which the College is affiliated, by order dated 20.3.1996 directed recall of the Petitioner from deputation. By the same order, the Petitioner was directed to be relieved from the College within 15 days. Being aggrieved by this order, the Petitioner has filed this writ petition.
Section 31 of the U.P. State Universities Act, 1973 (hereinafter referred to as the Universities Act), gives power to the Management of the associated/affiliated Colleges to appoint both permanent and temporary teachers on the recommendation of the Selection Committee. Sub-section (12) of Section 31 gives power to the management of the College to appoint teacher on deputation with prior approval of the Vice-Chancellor. In 1980, U.P. Higher Education Service Commission Act, 1980, (hereinafter referred to as the Service Commission Act), was enacted, Section 32 of which prohibits the appointment of teachers of a Degree College by the Management except on the recommendation of the Higher Education Service Commission (hereinafter referred to as the Commission). Sub-sections (1) and (5) of Section 12 being relevant, are reproduced below:
Management to make appointments, etc. only on the recommendations of the Commission.--(1) Notwithstanding anything to the contrary contained in the Uttar Pradesh State Universities Act, 1973 or in the Statutes made thereunder, but subject to the provisions of Sections 16, 31A and 31B), every appointment as a teacher of any college shall after the date notified under Sub-section (1) of Section 3, be made by the management only on the recommendation of the Commission.
(5) Every appointment made in contravention of the provisions of this section shall be void.
The only exceptions provided by the above provision are the appointments made under Sections 16, 31A and 31B of the Service Commission Act. Section 16 provides for ad hoc appointment of teachers by the Managing Committee if the Service Commission fails to recommend the names of suitable candidates within certain time specified therein. Section 31A gives power to the Government to issue removal of Difficulties Order. The Government in exercise of that power has made two Removal of Difficulties Order, one in 1982 and the other in 1983, life of each being one year only. These orders have lapsed in January, 1983 and 1984 respectively. Section 31B provides for regularisation of certain ad hoc appointments.
Section 12 of the Service Commission Act has beta amended in 1992. Sub-section (1) of the amended Section 12 being relevant, is also reproduced below:
Procedure for appointment of teachers.--(1) Every appointment as a teacher of any college shall be made by the Management in accordance with the provisions of this Act and every appointment made in contravention thereof shall be void.
Even after the amendment of Section 12 of the Service Commission Act, the position remains the same, namely, every appointment of teacher of a college has to be made by the management in accordance with the provisions of the Service Commission Act and any appointment made in contravention thereof cannot be sustained, being void.
Section 30 of the Service Commission Act, which gives to this Act an overriding effect, is as under:
Act to have overriding effect--The provisions of this Act, shall have effect notwithstanding to the contrary contained in the Uttar Pradesh State Universities Act, 1973 or the Statutes or Ordinances made thereunder.
Thus it is apparent that after the enforcement of the Service Commission Act, no appointment of a teacher of a college can be made by the management except on the recommendation of the Service Commission. The power of management of the colleges to make appointment of teachers under the Universities Act has been overriden by the provisions of the Service Commission Act and it is no more open to it to make an appointment under the Universities Act. Therefore, neither the management of the College nor the Vice-Chancellor and not even the State Government and the Chancellor can make appointment of a teacher including the Principal on deputation under Sub-section (12) of Section 31.
In this connection, reference may be made to the U.P. Secondary Education Service Commission and Selection Boards Act, 1982, wherein provisions similar to those contained in the Service Commission Act have been enacted providing for appointment of teachers in Secondary Educational Institutions on the recommendation of the Secondary Education Service Commission. This Act also contains the provisions in Section 16 prohibiting appointment of teachers in such institutions except on the recommendation of the Commission. In Om Prakash Rana Vs. Swarup Singh Tomar and Others, , the Supreme Court, while dealing with the question relating to the appointment of a teacher in Secondary Educational Institutions, has held that after enforcement of the U.P. Secondary Education Service Commission and the Selection Boards Act, no teacher can be appointed in such Institutions except on the recommendation of the U.P. Secondary Education Service Commission Act. Hon''ble Supreme Court, accordingly, struck down the appointment of the teacher by way of transfer in such an institution. The relevant extract from the said judgment of the Supreme Court is reproduced below:
The control over all appointments is exercised by a single source of power, namely the Commission under the Service Commission Act. It is no longer possible to invoke Section 16G(2)(c) of the Education Act and its Regulations and transfer of Principal from one institution to another. The context in which those provisions operate, the authority conferred for that purpose and the conditions subject to which it can be exercised stand completely superseded by the corresponding provisions of the Services Commission Act, its Rules and Regulations. That is amply demonstrated by the declaration in Section 16 of the Services Commission Act which mandates that the appointment of a Principal shall be made only on the recommendation of the Commission "notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the Regulations made thereunder." The scheme set forth in the Services Commission Act enacts a complete Code in the matter of selection of teachers, and report is no longer permissible to the provisions of the Education Act and its Regulations for that purpose.
The provisions of the Services Commission Act are in pari materia with the provisions of the Secondary Education Service Commission Act, and therefore, the law laid down by the Supreme Court in the case of Om Prakash v. Swaroop Singh Tomar and Ors. (supra), is fully applicable to the instant case also. This Court has also laid down that after the enforcement of the Service Commission Act, a teacher of a degree college has to be appointed in accordance with the Service Commission Act and not under the Universities Act. It is sufficient to refer two cases in this connection, viz., (1) Dr. Krishna Sinha v. U.P. Higher Education Service Commission 1989 AWC 754 and [2] Dr. Man Singh v. Committee of Management (1993) 3 UPLBEC 2018.
The learned Counsel for the Petitioner in this connection has, however, contended that in view of the definition of expression "appointment" contained in Section 2 (a) of the Service Commission Act, which is reproduced below, it is open to the management of the College to make appointment u/s 31:
(a) "Appointment" in relation to a teacher does not include an appointment under Sub-section (3) of Section 31 of the Uttar Pradesh State Universities Act, 1973.
This submission is also devoid of merit. The definition given above does not include any appointment under Sub-section (3) of Section 31 of the Universities Act. Under Sub-section (3)(a) of Section 31, the Management of the College can make officiating appointment in a leave vacancy for a period not exceeding 10 months without reference to the Selection Committee. Clause (b) of Sub-section (3) of Section 31 gives power to the Management of the College to appoint temporary teachers in a substantive capacity in certain circumstances. But the said definition does not exclude an appointment on deputation under Sub-section (12) of Section 31. Therefore, presuming that Ore appointment under Sub-section (3) of Section 31 can be made inspite of the Service Commission Act, no appointment of a teacher including the Principal, can be made on deputation u/s 31 (12) of the Universities Act by the management or any other authority after the enforcement of the Service Commission Act.
As the Petitioner is not liable to be appointed as Principal on deputation in view of the prohibition contained in the Service Commission Act, this Court in exercise of its discretion under Article 226 of the Constitution, cannot interfere with the impugned order passed by the Registrar at the instances of the Vice-Chancellor. The reason is that if the Vice-Chancellor''s order is set aside, the illegal order of appointment of Petitioner on deputation will be restored. It is well-settled that a writ cannot be issued to enforce an illegal order. Similarly, this Court cannot issue any order or direction or writ to perpetuate illegality. In this connection reference may be made to Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, , wherein it was laid down as under:
In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963. If the High Court had quashed the said order, it would have restored an illegal order it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samiti. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case.
For the reasons given above, this petition is dismissed.