Santosh Kumar Singh v. State of U. P. — 1993 DIGILAW 296 (ALL)

JUDGMENT : R.A. SHARMA, J. 1. In pursuance of its advertisement dated 15.12.1983 management of Shri Durga Ji Post Graduate College, Chand Sar, Azamgarh (hereinafter referred to as the college), which is affiliated to Purvanchal University Jaunpur, appointed Sri Santosh Kumar Singh on 1.1.1984 as a lecturer in Agricultural Agronomy in the college, although he was not eligible, as he was not having the degree of M. Sc. (Ag.). After Sri Santosh Kumar Singh passed the M. Sc. (Ag.) in 1985, the management of the college again advertised the same post on 12.8.1985 and in pursuance thereof again selected and appointed him as a lecturer in the college on 1.10.1985. Although he was appointed by the management twice to the post of lecturer but till the date of the appointments that was not sanctioned by the State Government. The Government sanctioned the post only on 1.2.1986 and from that date started paying him the salary. On 19.1.1987 the Director of Education passed the order regularising his service. However, the Director by his subsequent order dated 4.5.1987 stopped the payment of his salary. He has accordingly filed writ petition No. 2137 of 1988 before this Court for -appropriate direction for payment of his salary. 2. On 25.2.1988 the Director of Education cancelled his earlier order dated 19.1.1987, whereby service of Sri Santosh Kumar Singh was regularised. The management of the college thereafter vide order dated 29.2.1988 terminated his service. These orders of the Director of Education and the management are sought to be challenged by Sri Santosh Kumar Singh by means of an amendment application. 3. After the service of Sri Santosh Kumar Singh was terminated, the management appointed Sri Phool Chandra Singh in his place as lecturer. Phool Chandra Singh joined the post on 25.10.1988 but no salary was paid to him. He has accordingly filed Writ Petition No. 3650 of 1989 for appropriate direction for payment of his salary. 4. During the pendency of above writ petitions, the Government of Uttar Pradesh issued an order dated 14.9.1989, directing payment of salary to Sri Santosh Kumar Singh, against which the Committee of Management of the college filed Writ Petition No. 18602 of 1989. This Court by interim order stayed the operation of the order of the Government. 5. Thereafter the Vice Chancellor passed order dated 20.7.1990 directing the management of the college to take work from Sri Santosh Kumar Singh. This Court by interim order stayed the operation of the order of the Government. 5. Thereafter the Vice Chancellor passed order dated 20.7.1990 directing the management of the college to take work from Sri Santosh Kumar Singh. No action having been taken in pursuance thereof, Sri Santosh Kumar Singh filed Writ Petition No. 2070 of 1991 for appropriate direction for complying with the above order. The Vice Chancellor again passed an order dated 16/18.4.1992 to the effect that the order of termination of service of Sri Santosh Kumar Singh cannot be approved. Against this order management of the college has filed Writ Petition No. 16576 of 1992. In the mean time the Act was amended by Ordinance No. 43 of 1991, which was replaced by Uttar Pradesh Act No. 2 of 1992, whereby provision has been made for regularisation of service of those ad hoc teachers, who were appointed on or before 30.6.1991. Sri Fhooi Chandra Singh made application for regularisation of his service in pursuance of the aforesaid Act before the Director of Education, which has been rejected by him vide order dated 23.6.1992. Against this order, Sri Phool Chandra Singh filed Writ Petition No. 33498 of 1992. 6. Parties have exchanged the affidavits and we have heard learned Counsel for the parties in the writ petitions. As the fate of these petitions depend on the question as to who between the two, namely, Sri Santosh Kumar Singh and Sri Phool Chandra Singh, was validly appointed, we have heard these writ petitions together and they are being disposed of by a common judgment with the consent of the learned Counsel for the parties. 7. State of Uttar Pradesh has enacted an Act known as Uttar Pradesh Higher Education Services Commission Act, 1980, Section 12 of which prohibits appointment of a teacher in any Degree College except on the recommendation of Higher Education Services Commission (hereinafter referred to as the Commission) notwithstanding anything to the contrary contained in the Uttar Pradesh State Universities Act or statutes made thereunder. However, by Section 16 of the Act, which is reproduced herein-below, provision for ad hoc appointment of a teacher without any recommendation of the Commission has been made in those cases where the vacancy has been notified by the management of the college and the Commission has failed to recommend the name of a suitable candidate within three months from the date of such notification. 16. Appointment of Ad hoc Teachers - (1) where the management has notified a vacancy to the Commission in accordance with Sub-section (2) of Section 12 and the commission fails to recommend the names of suitable candidates in accordance with Sub-section (1) of that section within three months from the date of such notification, the management may appoint a teacher on purely ad hoc basis from amongst the persons holding qualification prescribed therefore. (2) Every appointment of ad hoc teacher under Sub-section (1) shall cease with effect from the earliest of the following dates, namely: (a) when the candidate recommended by the Commission joins the post. (b) where the period of two months from the date of receipt of the recommendation of the Commission under Sub-section (1) of Section 12 expires: (c) thirtieth day of June following the date of such ad hoc appointment. Although Sri Santosh Kumar Singh was appointed twice by the management, first on 1.1.1984 and thereafter on 30.9.1985 on ad hoc basis but till then neither any vacancy was notified by the management to the Commission nor was there any such vacancy available for appointment. As mentioned hereinbefore the vacancy was sanctioned by the Government much after the appointment on 1.2.1986. The appointment of Sri Santosh Kumar Singh was, as such, illegal and without jurisdiction for three reasons, namely (i) condition precedent for making ad hoc appointment u/s 16 of the Act did not exist inasmuch as the vacancy was never notified by the management to the Commission before appointing him as ad hoc lecturer in the college, (ii) there was no vacancy available for his appointment and the vacancy came into existence only after the Government has sanctioned the post on 1.2.1986 and (iii) he was not having even minimum eligibility qualification of M. Sc. (Ag.) as he was appointed on 1.1.1984 but he passed the M. Sc. (Ag.) in 1985. His second appointment made on 30.9.1985 was nothing but a continuation of the first appointment. (Ag.) as he was appointed on 1.1.1984 but he passed the M. Sc. (Ag.) in 1985. His second appointment made on 30.9.1985 was nothing but a continuation of the first appointment. As the appointment of Sri Santosh Kumar Singh was made illegally, contrary to the mandatory provisions of the Act, it was not liable to be regularised and the Director of Education was, as such, fully justified to pass an order dated 25.2.1988, cancelling his earlier order dated 19.1.1987, whereby his services were regularised. The order of regularisation dated 19.1.1987 was obviously passed under a mistake and on account of concealment of relevant facts. No exception can be taken to the order dated 25.2.1988. In view of the above position, no writ or direction for payment of salary to Sri Santosh Kumar Singh can be issued by this Court under Article 226 of the Constitution of India, in as much as this Court cannot direct for compliance of illegal orders. Writ Petition No. 2137 of 1988, Santosh Kumar Singh vs. State of Uttar Pradesh and Others, is, as such, liable to be dismissed. 8. Sri Phool Chandra Singh was appointed by the management of the college after the post was sanctioned by the Government and after it was notified to the Commission and the Commission has failed to recommend the name of a suitable candidate within three months from the date of notification. Conditions precedent laid down by Section 16 of the Act were fully satisfied and no exception can be taken to such an appointment. Sri Phool Chandra Singh was, as such, entitled for payment of salary. His Writ Petition No. 3650 of 1989, Phool Chandra Singh vs. Director, Higher Education, Uttar Pradesh Allahabad and Others, has got to be allowed. 9. As the appointment of Sri Santosh Kumar Singh was absolutely illegal and without jurisdiction and same having been cancelled by appropriate authority, it was not open to the State Government to issue direction dated 14.9.1989 for payment of his salary. In fact the Government issued the above order on the basis of an interim order passed in writ petition No. 2137 of 1988, whereby interim mandamus was issued for payment of salary to Sri Santosh Kumar Singh or to show cause. The cause having been shown by filing counter affidavit, direction for payment of salary ceased to be effective. In fact the Government issued the above order on the basis of an interim order passed in writ petition No. 2137 of 1988, whereby interim mandamus was issued for payment of salary to Sri Santosh Kumar Singh or to show cause. The cause having been shown by filing counter affidavit, direction for payment of salary ceased to be effective. But this act does not appear to have been brought to the notice of the Government. That apart, as mentioned above, the appointment of Sri Santosh Kumar Singh being absolutely illegal, salary cannot be paid to him and no direction in that connection can be issued by the Government. Writ Petition No. 18602 of 1989, Committee of Management vs. State of Uttar Pradesh and Others, is entitled to be allowed. 10. For reasons mentioned above the orders dated 20.7.1990 and 16/18.4.1992, passed by the Vice-Chancellor in favour of Sri Santosh Kumar Singh cannot be sustained. Accordingly Writ Petition No. 2070 of 1991, Santosh Kumar Singh vs. Purvanchal University Jaunpur and Others has to be dismissed and Writ Petition No. 16576 of 1992 Committee of Management vs. Purvanchal University, Jaunpur and Others, has got to be allowed. 11. The last Writ Petition No. 33498 of 1992, Phool Chandra Singh vs. Director of Higher, Education, Uttar Pradesh Allahabad and Others, has been filed against the order dated 23.6.1992, rejecting the application for regularisation of Sri Phool Chandra Singh under Uttar Pradesh Act 1 of 1992. According to the above order his claim was rejected on the ground that on 22.11.1991 a substantive post and the vacancy was not available. In this connection, it may be mentioned that the post was created by the Government on 1.2.1986 against which initially Sri Santosh Kumar Singh was paid salary for some time and after termination of his service same was notified to the Commission on 31.5.1988 through the Director of Education. If the post did not exist, question of notifying it to the Commission did not arise. The prayer for regularisation of Sri Phool Chandra Singh has been rejected without taking into consideration the relevant facts and material on record. The above order as such, cannot be sustained. 12. If the post did not exist, question of notifying it to the Commission did not arise. The prayer for regularisation of Sri Phool Chandra Singh has been rejected without taking into consideration the relevant facts and material on record. The above order as such, cannot be sustained. 12. Writ Petition No. 2137 of 1988, Santosh Kumar Singh vs. State of Uttar Pradesh and Others, is dismissed with costs Writ Petition No. 3650 of 1989, Phool Chandra Singh vs. Director, Higher Education, Uttar Pradesh Allahabad and Others is allowed with costs. Respondents therein are directed to make payment of salary to Sri Phool Chandra Singh regularly as and when it falls due till he continues in service. The arrears shall be paid to him within three months from the date of presentation of certified copy of this order before the Respondents. Writ Petition No. 18602 of 1989, Committee of Management vs. State of Uttar Pradesh and Others, is allowed with costs. The order of the Government dated 14.9.1989 is quashed. Writ Petition No. 2070 of 1991 Santosh Kumar Singh vs. Purvanchal University, Jaunpur and Others, is dismissed with costs. Writ Petition No. 16576 of 1992, Committee of Management vs. Purvanchal University, Jaunpur and Others, is allowed with costs and the order of the Vice-Chancellor dated 16/18.4.1992 is quashed. Writ Petition No. 33498 of 1992, Phool Chandra Singh vs. Director of Higher Education, Uttar Pradesh Allahabad and Others, is allowed with costs and the order dated 23.6.1992 is quashed. Respondents therein are directed to consider the case of Sri Phool Chandra Singh afresh for regularisation of his service under Uttar Pradesh Act No. 2 of 1992 in accordance with law after giving a reasonable opportunity of being heard to him and after taking into consideration the relevant facts, material and circumstances of the case. This decision shall be given by the Respondents within three months from the date of presentation of certified copy of this order.