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PETITIONER: STATE OF U.P. & ORS.

       Vs.

RESPONDENT: DR. DEEP NARAIN TRIPATHI & ORS.

DATE OF JUDGMENT:       08/04/1996

BENCH: SINGH N.P. (J) BENCH: SINGH N.P. (J) AHMADI A.M. (CJ) MANOHAR SUJATA V. (J)

CITATION:  JT 1996 (4)   320        1996 SCALE  (3)698

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T N.P. SINGH. J      Leave granted.      The State  of Uttar  Pradesh has  filed-this appeal for setting aside  the judgment  of the  High Court  holding the appointment of the writ petitioner - respondent (hereinafter referred to  as the respondent) as a Lecturer in Sanskrit in Sri Bajrang  Maha Vidalaya,  Dadar Ashram,  Sikandarpur,  as valid.      The institution  aforesaid is  a duly recognised Degree College and is affiliated to Purvanchal University, Jaunpur. Earlier it  was  affiliated  to  Gorakhpur  University.  Its teachers and  employees are  being paid salaries through the State fund.  A permanent  vacancy arose on the retirement of Dr. Sudarshan  Tripathi. It  is said  that a requisition was made  to   the  Uttar   Pradesh  Higher  Education  Services Commission (hereinafter referred to as Commission). Since no recommendation was made by the Commission for filling up the post, an  advertisement was  issued by the Management of the institution on  6.8.1985 for  the post  of the  Lecturer  in Sanskrit.  Pursuant   to  the  said  advertisement,  several persons including  the respondent  applied and they appeared before the  Selection  Committee.  The  Selection  Committee found  the  respondent  as  the  most  suitable  person  and recommended his name to the Managing Committee. The Managing Committee  accepted  the  recommendation  of  the  Selection Committee  and   issued  a  letter  of  appointment  to  the respondent. The  respondent joined the said institution. The appointment of  the respondent  was  approved  by  the  Vice Chancellor on  10.4.1986. There is no dispute that since the date of  appointment the  respondent had  been working  as a Lecturer in the said institution. In the year 1991 the Uttar Pradesh Higher  Education  Services  Commission  (Amendment) Ordinance,  1991   (U.P.  Ordinance   No.43  of   1991)  was promulgated which  was later replaced by U.P. Act 2 of 1991.

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Section 31-C which was introduced by the Ordinance aforesaid provided that  any teacher  other than  a Principal  who was appointed on  ad-hoc basis after 3.1.1984 but not later than 30.6.1991 on  a post  as specified in the said Section which includes a  post which has fallen vacant, then if the person who had  been appointed  on ad-hoc  basis between the period aforesaid and who on the date of such commencement possessed the qualification  required for  regular appointment  to the post under  the provisions of the relevant statutes in force on the  date  of  such  ad-hoc  appointment,  may  be  given substantive appointment by the management of the College. In the  said   Section  there   is  also   a  provision  for  a constitution of Selection Committee to consider the cases of such ad-hoc  teachers. In  view of  the provisions aforesaid the case  of the  respondent was placed before the Selection Committee, but  by an  order dated  26.6.1992 issued  by the Director of  Education  (Higher  Education)  respondent  was informed that  no substantive appointment was being given to him in  terms of  Section 31-C aforesaid and because of that it shall  be deemed  that the services of the respondent had been terminated  w.e.f. 30.6.1992.  This  communication  was challenged by the respondent before the High Court.       In the  counter affidavit  which was filed to the writ petition in  question, a  stand was  taken on  behalf of the respondents  of   that  writ   petition  that   the  initial appointment of  the respondent  as an ad-hoc Lecturer in the College  in   question  itself   was  illegal   because  the respondent did  not possess the requisite qualifications for being  appointed   as  the  Lecturer.  In  this  connection, reliance was  placed on  the provisions  of the  U.P. Higher Education Services  Commission Act 1980 which prescribed the conditions for the appointment of a Lecturer on ad-hoc basis on  recommendation   of  the   Selection  Committee  by  the management of the College.      The High  Court in  the impugned  order has pointed out that when  the respondent  had been  appointed on  an ad-hoc basis on  the recommendation  of the Selection Committee, by the management of the College which had been approved by the Vice Chancellor  on 10.4.1986, there was no occasion for the respondents to  the writ  petition, to  question the initial appointment of  the petitioner,  in the  year 1992. The High Court has  said that admittedly the case of respondent along with  others  was  placed  before  the  Selection  Committee constituted under  the provisions  of Section 31-C aforesaid treating the  respondent to  have been  appointed on  ad-hoc basis after  3.1.1984 and before 30.6.1991. According to the High Court,  the only  question which  had to be examined in the said  writ petition  was as  tb  whether  the  Selection Committee was  justified in  taking the  view  that  as  the respondent did  not  possess  the  requisite  qualifications required for  regular appointment  to the  post in  question under the  provisions of  the relevant  statutes in force on the date  of such ad-hoc appointment, he was not entitled to be given  substantive appointment  by the  management of the College. The  High Court  pointed  out  that  the  Selection Committee  constituted  under  Section  31-C  aforesaid  for regularization of  the Lecturers  who had  been appointed on ad-hoc basis  between the  period mentioned  aforesaid,  was under the  impression that  there was  no provision  in  the statute of the Purvanchal University for granting relaxation which  impression  according  to  the  High  Court  was  not correct. In that connection it was said:      ".....................the Committee      was under impression that there was      no  provision  in  the  Statute  of

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    Purvanchal University  for granting      relaxation  but   this  is   not  a      correct reading  of  the  requisite      provisions, Section  50 (1-  8)  of      the State  Universities  Act,  1973      runs as follows:           "(1-  8)   Until   the   First           Statutes of 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  of   the   said           University, shall apmply to it           subject to such adaptation and           modifications  as   the  State           Government may be notification           provides."      Admittedly, the  first  statute  of      the Purvanchal  University has  not      been published  so  far  therefore,      the statute of Gorakhpur University      shall apply  to the  present  case.      Therefore   under    the   specific      provisions referred  to  above  the      statutes of  Gorakhpur  University,      Gorakhpur  are  applicable  to  the      present case.’      Then reference  was  made  to  Statute  11.13(1)(2)  of Gorakhpur University and it was pointed out that there was a provision  for  relaxation  of  any  of  the  qualifications prescribed in  sub-clause (b)(c) of clause 2 of the relevant statute in question. As such it could not be said that there was no  provision for  relaxing the  qualifications. In this background,  according  to  the  High  Court  the  Selection Committee was  under  mis-apprehension  that  there  was  no provision for  relaxation of the minimum qualifications when the respondent  was initially  appointed  on  ad-hoc  basis. Thereafter the High Court observed:           "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  Regularization Committee      wrongly thought  that there  was no      such provisions.           Now coming  to the  merits  of      the  case,   we   find   that   the      discretion has  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."      In other,  words, the  High Court  was of the view that there being  a provision for relaxation of any qualification under the  statutes framed by the Gorakhpur University which were in  force on the relevant date, as no statutes had beer framed by  the Purvanchal University and power of relaxation having been  exercised which  had been  approved by the Vice Chancellor of  the University, there was no occasion for the

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Selection Committee constituted under Section 31-C aforesaid to say  that in  the absence  of a  provision of  relaxation under  the   statutes  of  the  Purvanchal  University,  the respondent did  not possess  the requisite qualifications on the date of his initial appointment on ad-hoc basis.      It was not stated on behalf of the appellant-State that on the  date of  the appointment  of the respondent on adhoc basis the  statutes framed  by the Gorakhpur University were not in  force. The  primary objection  which was  raised  on behalf of  the State  during the  hearing of  the appeal was that as  the U.P.  Higher Education  Services Commission Act 1980 had  come into  force no ad-hoc appointments could have been  made.  In  that  connection,  reference  was  made  to different provisions  of the  aforesaid Act. According to us this stand  cannot be taken on behalf of the appellant-State in the  facts and  the circumstances of the present case. It is an  admitted position  that the ad-hoc appointment of the respondent had been held to be valid till 1992 and only when the  Selection  Committee  constituted  under  Section  31-C aforesaid did  not recommend  for substantive appointment of the respondent,  the impugned order was issued on 26.6.1992. In this  background, it  is not  possible for  this Court to hold that  in the  eye of law, the ad-hoc appointment of the respondent did  not exist  since very  inception.  The  High Court has  rightly  pointed  out  that  not  only  the  said appointment was  approved by  the  Vice  Chancellor  of  the University in  exercise of  his statutory  power  under  the relevant provisions of the-Act in force, but the case of the respondent was  placed for  consideration as  to  whether  a substantive appointment be given to him under the provisions of Section  31-C. Once  the High  Court has found that under the relevant statutes of the Gorakhpur University which were applicable, there  was a  Provision for  relaxation  of  any qualification and  the power  under the  said provision  had been exercised,  which   was approved by the Vice Chancellor of the  University, it  has no  more open  to the  Selection Committee constituted  under Section  31-C to  say  that  as there was  no provision  for relaxation under the Purvanchal University,  respondent   did  not   possess  the  requisite qualifications for being appointed as a Lecturer on substantive basis.      The appeal  accordingly fails  and is dismissed. In the facts and  circumstances of  the case,  there, shall  be  no order as to costs.