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2008 DIGILAW 1122 (ALL)

VINAY MOHAN TRIPATHI v. STATE OF UTTAR PRADESH

2008-05-23

ARUN TANDON, ASHOK BHUSHAN

body2008
JUDGMENT By the Court.—Heard Sri S.P. Pandey Advocate on behalf of the petitioner and Sri B.D. Pandey Advocate on behalf of the respondents. 2. This writ petition is directed against the order of the Vice Chancellor of Deendayal Upadhyay Gorakhpur University, Gorakhpur dated 16.1.2008 where-under the regularization of the petitioner, as earlier directed with reference to Section 31(3)(c) of the U.P. State Universities Act, 1973 (as amended by U.P. Ordinance No. 3 of 2004), has been revoked. 3. Counsel for the petitioner has vehemently contended that once regularization had been directed by the University after obtaining a report from a Four Member Committee, it is not open to Vice-Chancellor to revoke the regularization. Even otherwise it is stated that a part time teacher of an affiliated Degree College, on been appointed in the University on part time basis subsequently, is entitled for computation of the services rendered in the degree college, for the purposes of regularization, as a teacher of the University under Section 31(3)(c). Therefore, the impugned order passed by the Vice-Chancellor is legally not sustainable. 4. The facts, which are not in dispute in the present writ petition are that the petitioner was initially appointed as part time Lecturer in Degree College Bhatauli Bazar, District-Gorakhpur on 25.4.1997. The said Degree College is affiliated to Deendayal Upadhyay Gorakhpur University, Gorakhpur. The petitioner was subsequently appointed as part time Lecturer in the Hindi Department of the University and is stated to have joined on 3.8.2001. 5. The said Degree College is affiliated to Deendayal Upadhyay Gorakhpur University, Gorakhpur. The petitioner was subsequently appointed as part time Lecturer in the Hindi Department of the University and is stated to have joined on 3.8.2001. 5. By U.P. Ordinance No. 3 of 2004, Section 31(3)(c) was added to State Universities Act, which reads as follows : “(c) Any teacher of the University who was appointed as lecturer/Part time teacher on or before December 31, 1997 without reference to the Selection Committee by way of a short term or part time arrangement in accordance with the provisions for the time being in force for such appointment, may be given substantive appointment by the Executive Council, if any substantive vacancy of the same cadre and grade in the same department is available if such teacher— (i) is serving as such on December 31, 1997 continuously since such initial appointment by way of short term/part time arrangement; (ii) possessed the qualifications requires for regular appointments to the post under the provisions of the relevant Statutes in force on the date of substantive appointment; (iii) has been found suitable for regular appointment by the Executive Council. A teacher appointed by way of short term/part time arrangement as aforesaid who does not get a substantive appointment under this clause shall cease to hold such post on such date as the Executive Council may specify.” 6. That a substantive vacancy on the post of Lecturer Hindi was caused in the Hindi Department of the University. The petitioner made a request for his services being regularized under Section 31(3)(c) having regard to his initial appointment in the Degree College. The request made by the petitioner was not considered. He, therefore, filed Writ Petition No. 53838 of 2006, which was disposed of vide order dated 26.9.2006 with liberty to petitioner to make a representation before the University, which in turn was required to consider the claim of the petitioner in a time bound manner. 7. The University, on receipt of the order of this Court, constituted a Four Member Selection Committee for considering the claim of the petitioner. The said Committee recommended that Degree College affiliated to University is no less than an institute as contemplated in the Ordinance, attracting the applicability of such provisions of regularization under Section 31(3)(c). 7. The University, on receipt of the order of this Court, constituted a Four Member Selection Committee for considering the claim of the petitioner. The said Committee recommended that Degree College affiliated to University is no less than an institute as contemplated in the Ordinance, attracting the applicability of such provisions of regularization under Section 31(3)(c). On receipt of the said report, the Vice-Chancellor of the University, after obtaining legal opinion, issued an order dated 4.8.2007 offering appointment to petitioner on substantive basis. 8. The petitioner claims to have started working as regular Lecturer w.e.f. 10.10.2007. However, he was not paid salary admissible to the post of Lecturer. He, therefore, initiated contempt proceedings, being Contempt Petition No. 3370 of 2007, wherein notices were issued. 9. It is at this stage of the proceedings that the Vice-Chancellor has passed the impugned order dated 16.1.2008, whereby the order of appointment of the petitioner on substantive basis has been revoked. 10. From the facts as narrated herein above, it is apparently clear that between 25.4.1997 to 3.8.2001 the petitioner has admittedly working as part time teacher in an affiliated Degree College of the University namely Degree College Bhatauli Bazar, Gorakhpur. From a reading of Section 31(3)(c) it is apparently clear that only a teacher of the University, who was appointed on part time basis on or before December 31, 1997, is entitled to be offered substantive appointment by the Executive Council, if any substantive vacancy in the same department or in the cadre of the same department is available, on other conditions stipulated therein being satisfied namely (i) that the teacher concerned was serving as such on December 31, 1997 continuously since his initial appointment on short-term basis, (ii) he is possessed of the prescribed minimum qualification and (iii) he has been found suitable for such regularization by the Executive Council. It is not in dispute that the petitioner was not working in the University as part time or on short-term appointment as on 31st December, 1997. 11. A teacher appointed in affiliated Degree College does not answer the description of a teacher of the University as is apparent from the provisions of Section 31 of the State Universities Act itself, which specifically differentiate between the teacher to be appointed in a Degree College and a teacher to be appointed in the University. 12. 11. A teacher appointed in affiliated Degree College does not answer the description of a teacher of the University as is apparent from the provisions of Section 31 of the State Universities Act itself, which specifically differentiate between the teacher to be appointed in a Degree College and a teacher to be appointed in the University. 12. Reference may also be had to Section 31(3)(b) of the U.P. State Universities Act, whereunder substantive appointment was directed to be offered to the teachers who were appointed on temporary post likely to last for more than 6 months and subsequently such post stood converted into substantive post or permanent post both in respect of teachers of University as well as they are appointed in Degree Colleges. 13. At this stage, it may also be noticed that with the enforcement of U.P. Higher Education Service Commission Act, 1980 (hereinafter referred to as Commission Act, 1980), appointment on the post of teachers in affiliated Degree Colleges is regulated under the Commission Act, 1980 whereunder various provisions for regularization of teachers of Degree Colleges covered by the aforesaid Commission Act, 1980 have been issued from time to time namely Section 31 (1)(b) (added by Act No. 21 of 1988), Section 31-B (2)(a) (added by Act No. 26 of 1989), Section 31-C (added by U.P. Act No. 02 of 1992), Section 31-C (added by U.P. Act No. 10 of 1997). 14. In view of the aforesaid statutory provisions, we are of the considered opinion that a teacher, who has been appointed in an affiliated Degree College, cannot be equated with that of the teacher appointed in the University with reference to Section 31(3)(c) of the U.P. State Universities Act. 15. We are also of the considered opinion that any part time teacher appointed in a Degree College cannot claim benefit of the services rendered by him in the affiliated Degree College for the purposes of claiming benefit of regularization under Section 31(3)(c) of the U.P. State Universities Act on being subsequently appointed in the University on part time/short term basis. 16. 16. We, therefore, have no hesitation to hold that since on the cut off date i.e. 31st December, 1997 the petitioner was not a teacher in the University (working on short term/part time), the benefit of the regularization as per Section 31(3)(c) of the U.P. State Universities Act was not attracted in the case of the petitioner. 17. The Vice Chancellor has acted in conformity of law and is justified in holding that the regularization earlier offered to petitioner is legally not sustainable and is in defiance of the statutory provisions of Section 31(3)(c). There is no error in the order of the Vice-Chancellor so as to warrant any interference under Article 226 of the Constitution of India. Writ petition is dismissed. ————