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PETITIONER: SANTOSH KUMAR SINGH

       Vs.

RESPONDENT: THE STATE OF U.P. & ORS. ETC.

DATE OF JUDGMENT12/12/1995

BENCH: G.B. PATTANAIK (J) BENCH: G.B. PATTANAIK (J) AGRAWAL, S.C. (J)

CITATION:  1996 SCC  (2)  45        JT 1995 (9)   530  1995 SCALE  (7)281

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PATTANAIK, J.      The appellant in these three appeals had been appointed as a  lecturer in  the subject  of  Agronomy  while  he  was continuing as a final year student in M.Sc. (Agriculture) by the Management  of Shri  Durgaji Post Gost Graduate College, Chandeshwar, which was an un-aided institute at the relevant point of  time. His  case in brief is that on July 31, 1982, the  Deputy   Secretary  to   Government  of  Uttar  Pradesh intimated the  Registrar, University  of Gorakhpur that Shri Durgaji  Post   Graduate  College,   Chandeshwar,   Azamgarh (hereinafter referred  to as ‘the College’) has been granted sanction for  M.Sc. (Agronomy)  in Faculty  of Science  with certain conditions  mentioned therein.  A copy  of the  said letter was  also forwarded  to the  Manager of  the  College intimating that  it may  be kept in view that in the absence of financial  resources, operation of necessary post for the purpose of  payment of  salary by  the Director of Education (HE) would  not be feasible upto one year after start of the subject and therefore, payment of the salary will have to be approved for that time by the Management itself. On preceipt of the  aforesaid sanction  order from the State Government, the College issued an advertisement for the post of lecturer in  Agronomy,  on  15.12.1983.  It  was  stipulated  in  the advertisement that the Management has the power to grant any relaxation in the educational qualification. Pursuant to the aforesaid   advertisement   the   appellant   submitted   an application on  20th December,  1983. In  the application in question, the  appellant had  intimated that  he has  been a Gold  Medalist   from  the  Gorakhpur  University  in  B.Sc. (Agriculture) and  he had  secured 76.6%  marks in the first year  M.Sc.   (Agriculture)  from   the  Kanpur  Agriculture University  and   was  continuing   his  second  year  M.Sc. (Agriculture). It  was also  stated that if he is appointed, he  will   complete  his   remaining  part   of  final  year

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examination. The  Management of  the  College  informed  the appellant  by   letter  dated  1.1.1984  that  he  has  been appointed as  a  lecturer  in  the  Post  Graduate  Agronomy Department and he should join the College. On receipt of the said letter the appellant joined the institution immediately and continued  as a  lecturer. While so continuing he passed the final  year M.Sc.  examination on  18.1.1985. It  is the further case  of the  appellant  that  the  Manager  of  the College requested  the Secretary  Higher Education  Services Commission that  a person  may be  selected for  the post of lecturer, Agronomy by letter dated 21.5.1985.       As  the Service  Commission did  not  send  any  name, notwithstanding the Management’s letter dated 21.5.1985, the College  issued  a  fresh  advertisement  on  12.8.1985  for filling up the post of lecturer in Agronomy on ad hoc basis. On 17.8.1985  the Manager of the College requested the Vice- Chancellor for appointment of a subject expert in respect of the post  of ad  hoc lecturer in Agronomy. The appellant was also a candidate in pursuance of the said advertisement. The Registrar of  Gorakhpur University  informed the  Manager of the College  by  letter  dated  19.9.1985,  that  the  Vice- Chancellor has  nominated Professor N.M. Mishra as an expert for making  selection to  the post  of lecturer in Agronomy. The Selection  Committee unanimously  selected the appellant for the  post of  lecturer and  the Manager  of the  College write to the Registrar of the University by his letter dated 23.9.1985 informing  that the appellant has been unanimously selected and  the appointment may be approved. The Registrar of the  University intimated the approval of the appointment of the  appellant as  an ad  hoc teacher  in Agronomy  for a period of  six months  from the  date the appellant has been holding the  post after his selection. The aforesaid fact of approval of  the appellant’s appointment on ad hoc basis was intimated to  the appellant by the Manager of the College by letter dated  1.10.1985. The  appellant’s case,  however, is that he has been continuing as a lecturer since his original appointment on  1.1.1984. The  Director of Education (Higher Education) communicated  the approval  of the Government for creation of  a post  of lecturer  in the College in Agronomy under Section  60(A) and  (B) of  the  Uttar  Pradesh  State Universities Act,  1973  (hereinafter  referred  to  as  the ‘University Act’).  It was also indicated in the said letter that the  post in  question should  be sent  to  the  Higher Education   Services    Commission   U.P.    for   selection immediately. It  was also  indicated that  the  sanction  is being accorded  till June  1986, and  for continuation after June 30, 1986 the college should send details mentioning the actual strength  of the  students by  March  31,  1986.  The college was  also intimated under the said letter that until and unless  the post  is made  permanent by the Directorate, the holder  of the  post would  not  be  confirmed  end  the appointment to  the post  could be made only after obtaining the approval  of the vice-Chancellor under the provisions of the Universities Act. The Manager of the College immediately wrote a  letter on 25.2.1986 to the Secretary of the Service Commission requesting  him that  the post  may be advertised and the appointment may be made under the Service Commission Act and to avoid any dislocation in the teaching the Manager also asked  the appellant  requesting him  to continue  as a lecturer in  the College.  The Registrar  of  the  Gorakhpur University by his letter dated 8th April, 1986 intimated the Manager of the College that the Vice-Chancellor has approved the ad  hoc appointment  of the  appellant to  the  post  of lecturer in  Agronomy till  30.6.1986 or  till the  selected candidate takes  over the  charge, whichever is earlier. The

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Manager of the College on receipt of the aforesaid letter of the Registrar  wrote  back  to  the  Registrar  on  6.5.1986 intimating that there is no justification for making a fresh advertisement  for  the  post  of  lecturer  and  since  the appellant is  a brilliant  student and has been continuously working since January 1,1984, and the results have been 100% he may  be permitted  to continue  permanently. The  Manager then wrote  to the  appellant that  he should  continue with effect from  1.7.1986 as a lecturer. The Manager again wrote another letter to the Vice Chancellor for continuance of the appellant by letter dated 26th June, 1986, and the Registrar by his  letter dated  4th July, 1986 informed the Manager of the College that the Vice Chancellor has approved the ad hoc appointment of  the appellant  for a  further period  of six months with  a  break  of  one  day  or  till  the  selected candidate take  over the  charge whichever  is  earlier.  On 7.1.1987, the  Manager of  the College  wrote  to  the  Vice Chancellor  of   the  University  requesting  him  that  the appellant’s service  be extended  so that  there would be no break in the studies during mid session since no appointment has been  made by  the Service  Commission nor any candidate has come  to join  on being  selected. In  the  meantime  an Ordinance  was   promulgated   on   22nd   June   1985   for regularization of  the ad  hoc teachers  of  the  affiliated collages being Ordinance no. 14 of 1985 which has later been made an  Act and Section 31B has been added. The Director of Higher Education, Uttar Pradesh intimated the Manager of the College that  the  appellant  having  been  appointed  after affiliation of  the subject of Agronomy at the Post-graduate level, his  services  are  regularized  under  Ordinance  in question.  The   District  Inspector  of  Schools  was  also intimated  to   pay  the   salary  of   the  appellant  like regularized lecturer  under the  Rule. The  Principal of the College also  passed order that the appellant should be paid salary from  the date of the creation of post i.e. 1.2.1986. The appellant  was also  intimated by  the  Manager  of  the College that  his appointment has been made permanent and he will  be   paid  the   salary,  D.A.   and  the  permissible perquisites of the State Government as per U.P. Universities Act. The  Director of  Higher Education  U.P. then  issued a letter dated  4th May,  1987 to the Principal of the College calling upon  the Principal  to come to the Directorate with the copies  of the  certificates and  the mark sheets of the appellant and it was also stated in the said letter that the salary of  the appellant  should be  stopped  at  once.  The appellant filed  a Writ Petition in the Allahabad High Court which was  registered as  Writ Petition  No.  2137  of  1988 against the  order of  the Director  stopping the payment of salary and  the appellant  prayed that  he may  be paid  his salary.  On   February  25,  1988  the  Director  of  Higher Education informed  the Manager of the College that order of regularization of  the appellant’s  services as  lecturer in Agronomy stands  cancelled  since  the  appointment  of  the appellant was  invalid and the approval had been obtained on a wrong premise. On receipt of the aforesaid letter from the Director  the   Manager  of   the  College   terminated  the appellant’s  services   by  letter   dated  29.2.1988.   The appellant, therefore,  amended the Writ Petition No. 2137 of 1988 and  made additional  prayer challenging  the order  of termination  as   well  as  the  order  of  cancellation  of regularization of  his services by Director. In the meantime the Deputy  Registrar of  the University  wrote a  letter on 22.4.1989 to  the Manager of the College calling upon him to explain as  to why  the services  of the  appellant has been terminated without prior approval of the Vice-Chancellor. On

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July 3,  1989, the  Deputy Registrar informed the Manager of the College  that  the  Vice-Chancellor  has  directed  that appellant’s salary  should be  paid. In  the  Writ  Petition filed by  the appellant  the  High  Court  had  also  issued interim mandamus directing the authorities to pay the salary of the  appellant and  in pursuance of the said direction of the  University   the  Director   of  Higher  Education  was intimated by  the Joint Secretary to the Government of Uttar Pradesh that  the salary  of the appellant should be paid as lecturer with  effect from  12.2.1988 and the arrears should be  paid  within  six  weeks.  The  Vice-Chancellor  of  the University by his letter dated July 20, 1990 called upon the Manager of the College that appellant should be permitted to work, as the Vice Chancellor did not approve the termination of the  services of  the appellant. The Vice Chancellor then heard the appellant as well as the Management of the College and by  reasoned order  dated 18th April, 1992 set aside the order of  termination of the appellant for non-compliance of Section 35(2)  of the  State Universities Act inasmuch as no prior approval  of the  Cice Chancellor  had been taken. The Committee of  Management of  the College  being aggrieved by the said  order filed  a Writ Petition in the Allahabad High Court which  was registered  as Writ  Petition No.  16576 of 1992.  The   appellant  himself   also  had   filed  another application in the High Court for implementation of the Vice Chancellor’s order  dated 18.4.1992  which was registered as Writ Petition  No. 2070  of 1992. These three Writ Petitions were disposed  of by the High Court by the impugned judgment dated 30.4.1993.  The Writ  Petitions filed by the appellant were  dismissed   on  the   ground  that   the   appellant’s appointment itself was illegal and was no appointment in the eye of law and the Writ Petition filed by the Management was allowed on the finding that the Cice Chancellor was in error in  issuing   the  direction  in  question.  The  appellant, therefore, has  approached this  Court against the aforesaid judgment of the Allahabad High Court.       Be  it be  noted that Uttar Pradesh Legislature passed an Act,  called U.P.  Higher Education  Services  Commission Act, 1980  (U.P. Act  No. 16 of 1980), (hereinafter referred to as  ‘the Services  Commission Act’)  for establishing the Service  Commission   for  the  selection  of  teachers  for appointment to  colleges affiliated  to or  recognized by  a University. By  virtue of  Section 30  of the  said Act, the provisions of  the Act  has  the  overriding  effect.  Under Section  12(1)   of  the   Service  Commission   Act,  every appointment as  a teacher  of any  college has to be made by the Management only on the recommendation of the Commission. Sub-Section (5)  of Section 12 of the said Act provides that every appointment made in contravention of the provisions of the Section  shall be  void. Section  16 of  the  said  Act, however, authorizes  the Management  to appoint a teacher on purely  ad  hoc  basis  from  amongst  the  persons  holding qualifications prescribed  for the post where the Management has notified  the vacancy  to the  Commission in  accordance with Sub-Section  (2) of Section 12 but the Commission fails to recommend  the names  of suitable candidates within three months from the said date, such ad hoc appointment, however, will cease  with effect  from the  date mentioned in Clauses (a), (b) and (c) of sub-section (2) of Section 16.       Aftar  the termination of the service of the appellant one  Phool   Chand,  respondent  No.6  in  this  appeal  was appointed as  lecturer in  Agronomy by the Management of the College. This  appointment was  also on  ad hoc  basis.  The Governor  of   U.P.  promulgated   another   Ordinance   for regularizing the  services of the ad hoc teachers, Ordinance

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43 of 1991, and it was later on replaced by an Act, U.P. Act 2 of  1992. Section  31C was added to the Service Commission Act and  ad hoc  appointments after  3rd January,  1984  but before 30th  June, 1991 were sought to be regularized. Phool Chand prayed  for regularization  of his  service under  the aforesaid  provisions   of  the  Act  but  the  Director  of Education rejected his prayer by order dated 23rd June, 1992 against which  order Phool  Chand also  approached the  High Court by filing a Writ Petition No. 33498 of 1982.       The stand of the Management in the High Court was that the appellant  has never  been appointed regularly under the Service Commission  Act and  even on  1.1.1984 the  date  on which he  was first  appointed on  ad hoc  basis he  did not possess the  requisite  qualification.  Accordingly  it  was contended that  he was not entitled to be regularized either under Section  31B of  the Service  Commission Act  or under Section 31C thereof. The High Court by the impugned judgment came to the conclusion that the appointment of the appellant Santosh Singh  had been  made on  1.1.1984  as  well  as  on 30.8.1985 on ad hoc basis without the vacancy being notified by the  Management to  the Commission.  It also  came to the conclusion that  the vacancy  occurred only aftersanction of the post  by the  Government on 1.2.1986 and, therefore, the so called  ad hoc appointment of the appellant Santosh Singh was illegal  and without jurisdiction. According to the High Court the  condition precedent for making ad hoc appointment under Section 16 of the Service Commission Act before making an ad  hoc appointment to the post of lecturer did not exist and  there  was  no  vacancy  available  against  which  the appointment could  have been  made, the  said vacancy having come into  existence only  after 1.2.1986 and respondent not having even  minimum qualification  M.Sc. (Ag)  when he  was appointed on  1.1.1984,  the  appointment  was  illegal  and contrary to  the mandatory provisions of the Act and as such it was  not liable  to be  regularized and  Directorate  was fully  justified   in  cancelling   the  earlier   order  of regularization dated  19.1.1987  by  the  Directorate  order dated 25.2.1988.  The High  Court further  held that earlier order had  been passed  under a  mistake and  on account  of concealment of  relevant facts.  With these conclusions, the Writ Petitions  filed by the appellant having been dismissed and Writ  Petition  filed  by  the  Management  having  been allowed, the present appeals have been preferred.       Mr.  G.L. Sanghi, learned senior counsel appearing for the appellant  raises the following contentions in assailing the order of the High Court :-      (a)   The  conclusions of the High Court      and  reasons   advanced  for   the  said      conclusion were  based on obvious errors      of record  and, therefore  the  ultimate      conclusion is unsustainable in law;      (b)   The  ed  hoc  appointment  of  the      appellant on  1.1.1984 had  been made by      the Manager of the College on relaxation      of the  educational qualification  which      was permissible  under the advertisement      itself and  such ad  hoc appointment had      been approved  by the Vice Chancellor of      the University  from time to time and in      fact ultimately  the  service  had  been      regularized by the Director on 19.1.1987      under the  provisions of  Section 31B of      the  Service  Commission  Act.  It  was,      therefore, not  permissible for the said      Director to cancel the regularization of

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    the appellant  who had  the right  to be      regularized  under   the  provisions  of      Section 31B  of the  Service  Commission      Act.      (c)    Alternatively  the  appellant  is      entitled to be regularized under Section      31C of the Service Commission Act;      (d)   In  any view  of  the  matter  the      order  of   termination  passed  by  the      Manager of  the  College  on  29.2.1988,      having been  passed without  approval of      the Vice  Chancellor as  required  under      Section 35(2)  of the  said Universities      Act, the  same  is  null  and  void  and      therefore,  the   Vice  Chancellor   had      rightly cancelled  the  same.  The  High      Court  committed   gross  error  in  not      examining the effect of Section 35(2) of      the Universities  Act and in interfering      with the order of the Vice Chancellor.      (e)   Lastly  Mr. Senghi, learned senior      counsel urged  that the appellant having      served the  institution at  a time  when      there was  no  available  hand  and  the      institution having  taken the benefit of      his service  and  in  the  meantime  the      appellant having  acquired the Doctorate      degree, it  would be  wholly inequitable      to  take   away  the   service  of   the      appellant particularly  when he has been      over-aged for joining any service. The learned  counsel appearing  for the  Management  on  the other hand,  contended that  the basic  appointment  of  the appellant on  1.1.1984 even  though on  ad hoc basis was not permissible he  did not  have the  minimum qualification  of M.Sc. and,  therefore, the  said ed  hoc appointment  by  no stretch of  imagination  could  have  been  regularized.  He further contended  that with  effect from the enforcement of U.P. Higher  Education  Service  Commission  Act  1980,  the provisions of  the said  Act  have  over-riding,  effect  as contained in  Section 30  thereof and  no appointment to the post of  a teacher  could have  been kade  by the Management without  recommendation  of  the  Higher  Education  Service Commission. The  learned counsel  urged that even though the appointment of  ad hoc teacher is contemplated under Section 16 of  the said  Act but  the condition precedent for making such  appointment   being  not   satisfied  so  far  as  the appointment of  the appellant is concerned, the same must be held to  be invalid  and rightly  the High Court came to the conclusion that the appointment of the appellant was invalid and  inoperative.   He  further   urged  that  the  Director erroneously passed  an order of regularization under Section 31B of  the Act  and therefore had the power to withdraw the same and cancel the same when it came to his notice that the service of  the appellant  could not  have been  regularized under Section  31B of  the Act.  So far  as the order of the Vice Chancellor  in not  approving of the termination of the service of  the appellant  is concerned, the learned counsel urged that  the Vice  Chancellor had no jurisdiction in view of the provisions of the Service Commission Act and the High Court has  rightly set aside the same. The counsel appearing for the  State of  UP reiterated  the  stand  taken  by  the learned senior advocate appearing for the Management.       We  would now  examine the  correctness of  the  rival stand of  the parties  and in  that connection would examine

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the contentions of Mr. Sanghi, the learned senior counsel in seriatim.       So  far as the first submission of the learned counsel Mr. Senghi  is concerned,  we  undoubtedly  find  sufficient force in  the same  inasmuch as  the High  Court  based  its conclusion on  obvious errors  of  record  to  be  mentioned hereinafter:      (1) The  High Court  is of  the  opinion      that  the   vacancy  for   the  post  of      lecturer  occurred   only  when  it  was      sanctioned by  the State  Government  on      1.2.1986. This is not factually correct.      As has  been stated earlier on 31.7.1982      the Deputy  Secretary to  the Government      of U.P.  had conveyed  the  Government’s      sanction for  M.Sc.(Ag.) in  Faculty  of      Science in  Shri Durgaji  Post  Graduate      College, Chandeshwer,  Azamgarh  and  it      had been  specifically mentioned therein      that on  account of financial stringency      creation  of  necessary  posts  for  the      purpose of  payment  of  salary  by  the      Director  of   Education  would  not  be      feasible upto  one year  after start  of      the subject  and therefore,  payment  of      the salary  will have to be provided for      that time  by the  Management itself. It      is on  1.2.1986 by sanctioning the post,      the  Director   took  the  liability  of      payment  of   salary  from   the   State      Exchequer.  Creation   of  a   post  end      payment of  salary of  the incumbent  of      the post  are tow distinct concept. Even      if the  State does  not pay  for certain      post but  it has  the right  to sanction      creation of  post end  Management  takes      upon the  burden of  making the payment.      In this  view of  the  matter  the  High      Court was  totally in error to hold that      the post  in question  was created  only      one 1.2.1986.      (ii)  The  High Court also committed the      error that  before  making  the  ad  hoc      appointment it  was not  notified by the      Management to  the  Service  Commission.      This may  be  true  in  respect  of  the      appointment made  on 1.1.1984 but cannot      be true  in respect  of the  appointment      made  on   1.10.1985  inasmuch   as   on      21.5.1985 the Manager of the College had      written   to    the   Secretary   Higher      Education Service  Commission requesting      the Commission that a person be selected      for the  purpose of  lecturer (Agronomy)      but even  till the  appointment made  on      1.10.1985 the Service Commission had not      selected any person nor sent any name.      (iii)      The  High Court  also did not      consider the  relevant documents when it      came  to   the   conclusion   that   the      regularization was  made on  account  of      concealment of relevant facts. It may be      noted that  the appellant  even  in  his      application had  indicated that  he  had      not passed  the M.Sc.  and is continuing

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    the second year M.Sc. course and yet the      Managing Committee  appointed him  on ad      hoc basis on 1.1.1984 and thus it is not      correct  that   there   has   been   any      concealment of relevant facts. Even though  we agree  with the  submissions of  Mr. Sanghi, learned senior counsel that the reasonings of the High Court in dismissing  the appellant’s  Writ Petitions were based on errors of  record but  we are  unable to  interfere with the ultimate conclusion  of the  High Court as that would depend upon appellant’s  establishing his  right to continue in his service either  by virtue  of the  regularization provisions contained in Section 31B or 31C of the Act or he establishes the fact  that his  service  had  been  regularized  by  the Service Commission  Act. It  is in  this  context  we  would examine the  correctness of  the other  submissions  of  Mr. Sanghi  the   learned  senior   counsel  appearing  for  the appellant.       It  may be noticed at this stage that with effect from the enforcement  of teacher  of  any  college  which  is  an affiliated or  associated college to which the privileges of affiliation or  recognition has been granted by a University has to  be made  in accordance with the provisions contained in the  Service Commission  Act. Prior  to the aforesaid Act came  into   force  every  college  had  its  own  Selection Committee with  certain  nominees  of  the  Vice  Chancellor therein in  accordance with  the Sate Universities Act 1973. Lot  of   complaints  of  favoritism  in  the  selection  of candidates were  made from  time to  time. To  overcome  the aforesaid short-comings  the legislature  passed the Service Commission Act and Section 30 thereof has overriding effect. Under Section  12 of  the Act every appointment as a teacher of any  college has to be made by the Management only on the recommendation of  the Commission.  Section  16  in  certain contingencies authorizes  the Management  to make  an ad hoc appointment  for   a  specified   period.   Though   Service Commission Act provides the procedure for making appointment to the  post of  teacher of  a  college  affiliated  to  the University but it does not make any provision with regard to the qualification  of use   together.  But the qualification has ben  prescribed in  the statute of the University. Under Statute 11.13,  in case  of any  college affiliated with the University minimum qualification for the post of lecturer in the Faculty  of Arts (Except the department of Fine Arts and Music) and the Faculties of Commerce and Science are :      (a)   An  M.Phil degree  or a recognised      degree beyond Masters level or published      work  indicating   the  capacity   of  a      candidate for  independent research work      and      (b)   Consistently  good academic record      with atleast  first or high second class      Master’s degree  or an equivalent degree      of a  foreign University,  in a relevant      subject. Clause  5  of  said  statute  11.13  confers  the  power  of relaxation on  the Selection  Committee which  is  extracted hereinbelow in extension:-      (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 their  qualifications  prescribed  in      sub-clause (b)  of clause  (1), or  sub-

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    clause (b)  of clause  (2), as  the case      may be". The aforesaid  provision makes  it clear that the relaxation is possible  in respect  of the  qualification prescribed in sub-clause (b) and there cannot be any relaxation in respect of  the   qualification  prescribed   in   sub-clause   (a). Consequently a  person is  ineligible to  be appointed  as a lecturer unless  he possesses  the minimum  qualification of M.Phil degree or a recognised degree beyond Masters level or published work  indicating the capacity of the candidate for independent research  work. Admittedly the appellant had not held even  a Master’s degree on the date he was appointed as a teacher  on 1.1.1984,  what to  speak of  a degree  beyond Master’s level.  It is no doubt true that in his application he had  clearly indicated  that he was pursuing his Master’s degree course  and was  in second year M.Sc. and, therefore, there was  no  concealment  of  on  his  part  and  yet  the Management of the College appointed him on ad hoc basis. But when the  appellant  did  not  have  the  minimum  requisite qualification, as  discussed earlier, in accordance with the University Statute the Committee of the Management could not have relaxed  the same  and appointed  him even  on  ad  hoc basis. We  also find  it difficult  to conceive that for the post of a lecturer to teach in Post-Graduate class a student who is  in second  year  M.Sc.  *  class  could  at  all  be appointed. Mr.  Sanghi,  learned  senior  counsel,  however, placed strong  reliance on the decision of this Court in Ram Sarup Vs.  State of  Haryana and  others, 1979(1)  SCC  168, where an  appointment had  been made  to the post of Labour- cum-Conciliation officer  in breach  of Rule 4 Clause (1) of the Rules  and this  Court had observed that such breach did not have the effect of rendering the appointment void but it merely made the appointment irregular and when the appointee acquired the necessary qualification, the appointment become regular from  that date. In our considered opinion the ratio of  the  aforesaid  case  does  not  in  any  way  help  the appellant. In  that case,  Clause (1)  of Rule  4 which  was under consideration  before the  Court,  provided  that  the person  concerned   must  have   5  years   experience.  The appointment had  been made even though the appointee did not have the  minimum experience  of 5  years but undoubtedly he had the  minimum educational qualification for the post and, therefore, this  Court had  observed  that  the  appointment would be valid from the date when the appointee acquires the minimum period  of experience.  But in  the case in hand the University Statute  prescribes the minimum qualification for appointment to the post of a teacher as a M.Phil degree or a recognised degree  beyond Masters  level, in  clause (a)  of Statute 11.13  and  further  provides  that  the  candidates should have  consistently good academic record with at least first or  high second  class Masters degree or an equivalent degree of  a foreign  University, in  a relevant subject and Clause 5  of Statute  11.13 empowers  relaxation only of the conditions mentioned  in clause  (b). It is difficult for us to hold  by applying the ratio of Ram Sarup (Supra) on which Mr. Sanghi  relies that  even the basic qualification can be relaxed. In our considered opinion the aforesaid decision of this Court  is of  no assistance  to the  appellant  in  the matter of  relaxation of  his qualification for appointment. In this  view of  the matter  we unhesitatingly  come to the conclusion that  the  initial  ad  hoc  appointment  of  the appellant as  a lecturer  on  1.1.1984  was  wholly  without jurisdiction and  such appointment  could not have conferred the right  of regularization  on the  appellant by virtue of the Regularization  Ordinance which was later on replaced by

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an Act  and  Section  31B  was  inserted  into  the  Service Commission Act.  Then again  under Section 16 of the Service Commission Act  an ad  hoc appointment  an be made only when the Management  notifies a  vacancy to  the  Commission  and Commission  fails  to  recommend  the  name  of  a  suitable candidate  within   3  months   from  the   date   of   such notification. It  is not  the case  of the  appellant nor is there any  material on  record to  establish that  prior  to 1.1.1984 the  Management had  at all notified the vacancy to the Commission in accordance with sub-section (2) of Section 12 of  the Service  Commission Act and the Commission failed to recommend  the name  within 3  months.  Consequently  the condition precedent  for making  ad hoc appointment in terms of Section  16 of  the Service  Commission Act  had not been satisfied before  making the ad hoc appointment of appellant on 1.1.1984  and on  this score also the appointment must be held to be invalid and inoperative.        Let  us  now  examine  the  validity  of  the  second appointment that  was made  on 1.10.1985.  By this  date the appellant, no  doubt, had  passed his  M.Sc.(Ag) examination and the  Management of  the college had requested the Higher Education Service Commission on 21.5.1985 to select a person for the  post of lecturer of Agronomy in the College and the Commission did not send any name for more than three months. Therefore, the  Management could  be competent to make an ad hoc appointment  under Section  16 of the Service Commission Act. But then an appellant had neither a M.Phil degree nor a recognised degree  beyond Master’s  level nor  there is  any material to  indicate that  he had published work indicating his capacity  for independent  research work.  Besides an ad hoc appointment  kade under sub-section (1) of Section 16 of the Service  Commission Act  lapses  under  sub-section  (2) thereof after expiry of the period stipulated in the Clauses (a) or  (b) or  (c) of  Section 16. Since the Commission has not recommended  any name Clauses (a) and (b) of sub-section (2) of  Section 16  will have no application and, therefore, under Clause  (c0 by operation of law the ad hoc appointment of the  appellant ceased  with effect  from 30th June, 1986, the so  called  ad  hoc  appointment  having  been  made  on 1.10.1985. Can  such an  appointment  be  regularized  under Section 31B  of the  Service Commission  Act as contended by Mr. Sanghi  is the  point in  issue. Section  31B is  quoted hereinbelow in extension:-      "31-B. Regularization  of certain ad hoc      appointments -  (1) Every teacher, other      than a  Principal, directly appointed on      or before  January 3,  1984  on  ad  hoc      basis against  a substantive  vacancy in      accordance with  the provisions  of  the      Uttar Pradesh  Higher Education Services      Commission  (Removal   of  Difficulties)      Order, 1982  or the Uttar Pradesh Higher      Education Services  Commission  (Removal      of  Difficulties)   Order,   1983,   who      possesses the  qualification  prescribed      under,  or   is   exempted   from   such      qualifications in  accordance with,  the      provisions of  the  concerned  Statutes,      shall  with  effect  from  the  date  of      commencement of the Uttar Pradesh Higher      Education      Services       Commission      (Amendment) Act, 1985, be deemed to have      been appointed in a substantive capacity      provided  that  such  teacher  has  been      continuously serving  the  College  from

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    the date  of such  ad hoc appointment up      to the date of such commencement.      (2)   Every  teacher deemed to have been      appointed in  substantive capacity under      sub-section (1) shall be deemed to be no      probation  from   the   date   of   such      commencement.      (2-A)       A   teacher  other   than  a      Principal  directly   appointed  on   or      before January  3, 1984  on ad hoc basis      in a  vacancy referred to in clause (iv)      or  clause   (v)of   sub-pare   (1)   of      paragraph 2  of the Uttar Pradesh Higher      Education Services  Commission  (Removal      of  Difficulties)   Order,  1982  or  in      Clause (iv)  * or clause (v) of sub-pare      (1) of  paragraph 2 of the Uttar Pradesh      Higher  Education   Services  Commission      (Removal of  Difficulties) Order,  1983,      in accordance  with  the  provisions  of      such Orders and continuously serving the      college from  the date  of such  ad  hoc      appointment till  September 2, 1989, who      possesses the  qualifications prescribed      under,  or   is   exempted   from   such      qualifications in a accordance with, the      provisions of the concerned Statute, may      be given  substantive appointment by the      Management of the College, if :-      (a)   any  substantive  vacancy  of  the      same  cadre   and  grade   in  the  same      department is  available on September 2,      1989; and      (b)    the   work  and  conduct  of  the      teacher is found satisfactory.      (3)   Nothing  in this  section shall be      construed  to  entitle  any  teacher  to      substantive appointment if -      (a)   on  the date of such commencement,      such post  had already  been filled,  or      selection for such post had already been      made, in  accordance with the provisions      of this Act, or      (b)   such  teacher was  related to  any      member *  of the  Management, or  the  X      Principal, of the College concerned.       Explanation  - For  the purpose of this      sub-section a  person shall be deemed to      be  related   to  another  if  they  are      related in  the manner  mentioned in the      Explanation to  Section 20  of the Uttar      Pradesh State Universities Act, 1973." A plain  reading of  the aforesaid  provision would indicate that ad  hoc appointment made on or before 3rd January, 1984 against  substantive   vacancy  in   accordance   with   the provisions  of  U.P.  Higher  Education  Service  Commission (Removal  of   Difficulties)  order   1982  or  U.P.  Higher Education Service Commission (Removal of Difficulties) Order 1983 could  be regularized  under the provision. The initial appointment of  the appellant  having been  held by us to be wholly without jurisdiction, the subsequent appointment made on 1.10.1985  cannot be  regularized under  Section 31B, the same not  having been  made on  or before 3rd January, 1984. The contention of Mr. Sanghi on this score, therefore, fails and is accordingly rejected.

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    Coming to  the third  submission of Mr. Sanghi, Section 31C was  brought into  the Statute  book in 1991. It will be appropriate for  us to  extract said  provision in extension for better appreciation of the point in issue.      "31-C. Regularization  of other  ad  hoc      appointments -      (1)    Any   teacher,   other   than   a      principal who -      (a)   was  appointed  on  ad  hoc  basis      after January 3, 1994 but not later than      June 30, 1991 on a post -      (i)   Which  after its  due creation was      never filled earlier, or      (ii)  which  after its  due creation was      filled earlier  and  after  its  falling      vacant,  permission   to  fill   it  was      obtained from the Director; or      (iii) which came into being in pursuance      of  the  terms  of  new  affiliation  or      recognition granted  to the  College and      has  been   continuously   serving   the      college from  the date  of such  ad  hoc      appointment   up    to   the   date   of      commencement of the Uttar Pradesh Higher      Education      Services       Commission      (Amendment) Act, 1992;      (b)    was   so  appointed  after  three      months  of   the  notification   to  the      Commission  under   sub-section  (1)  of      Section  16   as  it  stood  before  its      omission  by  the  Act  referred  to  in      clause (a),  or if appointed within such      period, no  recommendation was  made  by      the Commission within such period;      (c)   possessed  on  the  date  of  such      commencement,     the     qualifications      required for  regular appointment to the      gost  under   the  provisions   of   the      relevant statutes  in force  on the date      of such ad hoc appointment;      (d)   is  not related  to any  member of      the management  or the principal, of the      college   concerned    in   the   manner      mentioned in  the explanation to Section      20   of    the   Uttar   Pradesh   State      Universities Act, 1973;      (e)    has   been  found   suitable  for      regular  appointment   by  a   Selection      Committee constituted  under sub-section      (2);      may be  given substantive appointment by      the management  of the  college, if  any      substantive vacancy  of the  same  cadre      and grade  in  the  same  department  is      available on the date of commencement of      the Act referred to in clause (a).      (2)      The     Selection     Committee      consisting, the following members namely      -      (i)    a   member  of   the   Commission      nominated by the Government who shall be      the Chairmen;      (ii)  an  officer not  below the rank of      Special Secretary to be nominated by the      Secretary to  the  Government  of  Utter

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    Pradesh   in    the   Higher    Eduction      Department;      (iii)      the Director;      shall consider  the cases  of every such      ad hoc  teacher and  on being  satisfied      about his  eligibility in  view  of  the      provisions of  sub-section (1),  and his      work and  conduct on  the basis  of  his      record,  recommend   his  name   to  the      management   of    the    college    for      appointment under sub-section (1).      (3)   Where  a person recommended by the      Commission under  Section 13  before the      commencement of  the Act  referred to in      sub-section  (1)   does   not   get   an      appointment because  of the  appointment      of another  person under sub-section (1)      in the  vacancy  for  which  he  was  so      recommended, the  State Government shall      make suitable  order for his appointment      in a suitable vacancy in any college and      the provisions  of sub-section  (5)  and      (6) of  Section 13  and  of  Section  14      shall mutatis mutandis apply.      (4)   A  teacher  appointed  on  ad  hoc      basis referred to in sub-section (1) who      does not  get a  substantive appointment      under that  sub-section  and  a  teacher      appointed on  ad hoc  basis who  is  not      eligible   to    get    a    substantive      appointment under  sub-section (1) shall      cease to  hold the  ad  hoc  appointment      after "June 30,1992." In order to get the benefit of the aforesaid provision it is necessary that  a teacher must have been appointed on ad hoc basis after 3rd January, 1984, but not later than 30th June, 1991 on a post as envisaged in clauses (i) or (ii) or (iii). Further the  other conditions contained in Clauses (b), (c), (d) and (e) of Section 31C are also required to be fulfilled and then on the date the Regularization provision of Section 31C came into force, a substantive vacancy bust be available for the services being regularized. Admittedly the appellant was not  in service  on the date Section 31C came into force and even  no substantive  vacancy was  available as the same had been  filled up  by Phool  Chand. Further  Clause (e) of Section 31C  (1) also  cannot be said to have been satisfied inasmuch as  no Selection  Committee  appointed  under  sub- section (2) of Section 31C has found the appellant suitable. Admittedly the appellant was not in service when Section 31C came into  force and, therefore, the question of considering his case for Regularization under Section 31C does not arise at all.  In fact  the so  called Regularization  made by the Director was  under Section  31B which  we have already held that it  could not  have been so regularized. Therefore, the contention of  Mr. Sanghi that the appellant was entitled to be regularized under Section 31C cannot be sustained.      So far  as the  effect of  non-approval of the order of termination is  concerned it  is no  doubt true  that  under Section 35(2)  of the  Universities Act  a decision  of  the Management to  dismiss or  remove a teacher or to reduce him in rank  or to  punish him in any other manner does not take effect unless  it has  been approved by the Vice-Chancellor. Under  sub-section   (3)  of  Section  35  any  decision  to terminate the  services of  a teacher,  whether  by  way  of punishment or  otherwise,  sub-section  (2)  of  Section  35

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applies propriovigere and thus such decision does not become effective unless  approved by  the Vice-Chancellor. But Sub- Section (3)  itself carves  out an exception to a case where the termination order was passed on the expiry of period for which  a   teacher  was  appointed.  The  so-called  ad  hoc appointment of  the appellant on 1.10.1985 in the eye of law came to  an end  on 30th  June, 1986 under Section 16 of the Service Commission  Act.  Even  though  Vice-Chancellor  had approved the  appointment for  a period  of six months which was communicated  by the  Registrar by letter dated 4.7.1986 with effect  from 30th  June, 1986, that also came to an end on 31st December, 1986. There was no further approval to the appointment though  Management of  the College permitted the appellant to  continue in  service. In such a case, when the Director had  passed an  order of  regularization  which  he could  not   have  passed   and  cancelled   the  same,  the consequential order  of termination does not become null and void by  application of  Section 35(2)  and (3) of the State Universities Act. The Vice Chancellor appears to have passed the order  setting aside  the order of termination not being fully aware  of the  facts and  circumstances and  the  said order of  the Vice-Chancellor,  therefore, has  rightly been set aside  by the  High Court. The contention of Mr. Sanghi, the learned  senior counsel on this score accordingly cannot be sustained.      So  far  as  the  last  submission  of  Mr.  Sanghi  is concerned,  the  same  is  based  more  on  an  humanitarian consideration  than   on  establishing   the  right  of  the appellant. It is true that by now the appellant has become * over-age and  it is  true  that  the  appellant  served  the institution from  1984 till  1988 and  during his tenure the institution had  cent percent  results. But  in view  of our conclusion that  the appellant’s  initial ad hoc appointment was not  in accordance  with the  provisions of  the Service Commission Act  and as  such it  did not confer any right of regularization under  the Regularization  Ordinance of  1985 and even  the subsequent  ad hoc appointment of 1985 did not confer a  right of  regularization under  the provisions  of Section 31C  of the  Service Commission  Act,  as  discussed earlier, it  would not  be possible  for  us  to  issue  any direction  in   favour  of  the  appellant.  But  since  the appellant has  got the  Ph.D. degree  now as  stated by  Mr. Sanghi,  appearing   for  the  appellant  and  is  otherwise eligible for  being considered  for the  post of lecturer in Agronomy but for his over age, we would observe that in case he makes an application to the Director for being considered for a  fresh appointment and there exists any vacancy in the post of  lecturer of  Agronomy  either  in  the  College  in question  or  anywhere  in  the  State,  then  Director  may sympathetically consider  the  case  of  the  appellant  and Service  Commission  also  may  consider  the  case  of  the appellant in  relaxation of  the age  limit and  after  such consideration, if  he is  found  suitable  then  he  may  be appointed as a lecturer in Agronomy.      Subject to  the aforesaid  observation the appeals fail and are  dismissed. There  will be,  however, no order as to costs.