Dr. Snehlata Pandey vs State of U.P. and Others

Pradeep Kant and S.N. Shukla, JJ.—Heard the learned Counsel for the petitioner Sri Upendra Misra and Sri Rakesh Bajpai, learned State counsel.

The short question which has brought this controversy to this Court under Article 226 of the Constitution is whether the petitioner who was appointed as ad hoc lecturer in the Department of Sanskrit in M.D.P.G. College, Pratapgarh was entitled for getting her services regularized under the provisions of Section 31C of the U. P. Higher Education Service Commission Act, 1980 in view of the fact that though her selection was duly approved by the Committee of Management prior to the cut off date but the actual appointment order was issued after the said date which was delayed as approval of the Vice Chancellor could not be obtained within the stipulated time.

It is not in dispute that the vacancies were notified by the Institution to the Higher Education Service Commission (hereinafter referred to as the Commission) on 8.1.1991. The advertisement was published on 12.3.1991 inviting applications from the eligible and willing candidates for the post in question. The interview was held by the Selection Committee on 6.10.1991 and the recommendation of the Selection Committee was duly accepted and approved by the Committee of Management on 14.10.1991. The approved recommendations were forwarded to the Vice Chancellor, Avadh University, Faizabad on 21.10.1991 and a formal appointment order was thus, issued on 2.12.1991.

It is also the case of the petitioner that the Committee of Management on approval of the recommendation of the Selection Committee, allowed the petitioner to Join the services and she started working with effect from 14.10.1991 Itself, may be in anticipation of approval being granted by the Vice Chancellor to her appointment.

Section 16 of the U. P. Higher Education, (Service Commission) Act as it then existed gave power to the Committee of Management to make ad hoc appointment under the given circumstances namely; where the Management has notified the vacancies to the Commission in accordance with Sub-section (2) of Section 12 of the Service Commission Act, and the Commission has failed to forward the recommended names of the selected candidates within a period of three months, the Management may appoint teachers on purely ad-hoc basis having qualification as prescribed therefor. By virtue of the amendment in U. P. Higher Education Service Commission (Amendment) Ordinance, 1991, which later on stood converted into Act No. 2 of 1991, the provision of Section 16 namely; regarding the appointment of ad hoc teachers was deleted and a new Section 31C was inserted.

Section 31C provided for regulari/ation of ad-hoc teachers laying down the necessary criteria of eligibility for consideration for regularizatlon of a teacher in the service, working on ad hoc basis. The aforesaid provision provided certain conditions including the period during which an ad hoc teacher would have been appointed to bring him within the field of eligibility for consideration of regularization, namely; a teacher who have been appointed on ad hoc basis after 3.1.1984 and not later than 30.6.1991. This cut off date was subsequently extended from time to time and lastly by means of U. P. Act No. 10 of 1997, it was extended upto 22.11.1991. This means that any teacher who was appointed on ad hoc basis between 3.1.1984 and 22.11.1991, falls within the field of eligibility for being considered for regularizatlon subject to other conditions as prescribed then. Since the petitioner''s appointment order was issued on 2.12.1991 it appears that the Committee of Management terminated the services of the petitioner by means of order dated 15.1.1992, saying that her services were not required, which order became the subject-matter of challenge in a writ petition of the year 1990-91 in which an interim order of stay was passed in favour of the petitioner allowing her to continue in service and the respondents were directed to consider her for regularizatlon. It appears that the petitioner''s case for regularization was considered in pursuance of the Interim order granted by this Court but she was refused regularization on the ground that her appointment was made after 30.6.1991, a cut off date which was prescribed in between the later date extended upto 22.11.1991.

The learned Counsel for the petitioner Sri Upendra Misra, assailing the aforesaid refusal of regularization of the services of the petitioner as lecturer submitted that in fact the petitioner''s appointment would be deemed to have been made on the date when the Committee of Management approved the Selection of the petitioner, i.e., on 14th October, 1991. Since, no approval was required from the Vice Chancellor for making the appointment, the exercise of approval of the recommendation made by the Committee of Management, would not divest the right of the petitioner for her regularization merely because the Committee of Management under some misconception or otherwise forwarded the appointment for being accorded approval by the Vice Chancellor though such an approval was not required in law. He also places reliance on the decision of Writ Petition No. 31371 of 1992 in re: Manoj Awasthi v. Committee of Management V.S.S.D. College, Kanpur, decided by a Division Bench of coordinate jurisdiction alongwith connected matters wherein the appointment of Sri Manoj Awasthi which was made on 3.12.1991, i.e., after the cut off date was duly accepted as valid appointment for the purposes of regularization wherein the Court issued a directive that he should be treated to have been duly regularized.

Section 16 of the Act which confers power upon the Committee of Management to make appointment under the given circumstances if the Commission fails to provide a selected candidate, does not provide, anywhere that the appointment so made has to be approved by the Vice Chancellor and that too prior to the issuance of the appointment order. The aforesaid provision only vests power on the Committee of Management to make the appointment.

The object and the purpose for inserting a provision for making ad hoc appointment in the Act was only to provide a teacher during the period which is consumed by the Commission or which might be consumed by the Commission in selecting candidate so that, the studies of the students are not adversely affected. This was the essence of such provision. Since on the enforcement of Higher Education Service Commission Act, the University or the Vice Chancellor did not have any power to make appointment on the post of Lecture in an affiliated degree college nor was having any role in the matter of selection, as the regular appointment was to be made only on the recommendation of the Commission which Committee of Management was duty bound to give effect to, as forwarded by the Director of Education to the college. The Vice Chancellor at no point of time was required either to give his consent or approval in the matter of appointment of a teacher under the Act. The regular appointment was thus within the domain of the Commission whereas ad hoc appointments were left in the domain of the Committee of Management. Unless the statute prescribed a particular action to be taken or to be done for giving effect to the appointment made by the Committee of Management of a teacher on ad hoc basis, no such action like taking of approval from the Vice Chancellor, can be read into the Statute.

It cannot be presumed that simply because the college is affiliated to the University, the appointment of a teacher cannot be made without prior approval of the Vice Chancellor. The learned State counsel has not been able to indicate any rule or law under which the approval of the Vice Chancellor was required for ad hoc appointment of a teacher in an affiliated college which appointment was to be made in accordance with Section 16 of the Act.

It is thus clear that reference to Vice Chancellor made on recommendations being accepted by the Committee of Management was a mistaken step taken by the Committee of Management which delayed the issuance of the formal appointment order to the petitioner. The petitioner in fact was entitled for an appointment order himself issued by the Committee of Management on 14.10.1991, when her selection was duly approved by the Committee of Management and in any case when she was allowed to resume the duty as a teacher. Mere issuance of a formal appointment order on 2.11.1991, would not be sufficient to deny the benefit of regularizatlon of service to the petitioner.

Our view is also fortified by a decision in the case of Kumart Madhu Chauhan v. District Inspector of Schools and Ors. and Managing Committee Shashi Bhushan Balifca Vidyalaya Degree College, Lucknow v. Vice Chancellor, Lucknow University, Lucknow and Ors. 1988 UPLBEC 397, wherein a Division Bench of this Court held that in view of provisions of Section 16 (1) the Vice Chancellor does not have any say in the matter of ad-hoc appointment. The petitioner was thus eligible for being regularized, she being possessed of requisite qualification and her appointment having been made in terms of Section 16(1) of the Act. Thus, the impugned order of refusal from regularizatlon in service dated 30.6.1991. contained in Annexure-8 to the writ petition, is therefore, liable to be quashed and is hereby quashed.

Learned Counsel for the State submitted that the matter may be sent back to the Regularization Committee for consideration of regularization of the petitioner but in view of the admitted facts, we do not find any reason to send the matter back to the Regularization Committee but direct that the petitioner shall be treated as duly regularized under the provisions of Section 31C of the Act and she shall be given all the consequential benefits of service. We have passed this order keeping in mind that the only ground for refusal to regularize is that she was appointed after 30.6.1991 (which date should have been 22.11.1991) whereas we have already found that her appointment would relate back to 14.10.1991 and therefore, she falls within the cut off date prescribed and is possessed of all other requisite qualifications.

The petition is allowed. No order as to costs.