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Allahabad High Court · body

2008 DIGILAW 1430 (ALL)

DINESH KUMAR RAJPOOT v. STATE OF UTTAR PRADESH

2008-07-28

B.K.NARAYANA, SUNIL AMBWANI

body2008
JUDGMENT By the Court.—Heard Shri Ashok Khare, Senior Advocate assisted by Smt. Arti Raje for the petitioners and learned Standing Counsel for the State respondents. 2. Learned Standing Counsel has sought instructions and filed the counter affidavit. The rejoinder affidavit has also been filed today. 3. The petitioners claim to be fully qualified and possess necessary qualifications prescribed by the University Grants Commission as well as qualifications mentioned in the Statutes of the concerned Universities for appointment as Lecturers in Post Graduate Colleges and even in the Universities. They have been awarded Ph.D. degrees and have also qualified National Eligibility Test. 4. For a long period of time, the State Government did not requisition and that the U.P. State Public Service Commission has not filled up the vacancies for the post of Lecturers in the Government Degree and Post Graduate Colleges. The acute shortage of lecturers impelled the State Government to take a policy decision and to issue a Government Order dated 1.2.2005 to appoint Lecturers in the Government Post Graduate and Degree Colleges temporarily on contract basis. It was provided that the vacancies will be advertised in the newspapers specifically stating that they shall be filled up on contract, in the concerned subjects in the colleges. These selections were to be made taking into account the eligibility and qualifications by a Selection Committee headed by the Director, Higher Education. The Committees were to consist of a Joint Director as Chairman and two officers representing the Scheduled Caste, and Other Backward caste as Members. A procedure for selection, providing quality point marks and preparation of merit list, which included interviews, was provided in the Government Order. Para 4-A of the Government Order provides that initially the contract will be for one year and thereafter if the selected candidates are not available from the U.P. Public Service Commission, the contract may be extended after a break of 15 days for the second year and that thereafter it can be extended on the same conditions for the third year also after a break of 15 days. The period was not to extend beyond three years or the age of superannuation of the concerned lecturer, whichever is earlier. 5. The petitioners were appointed and have completed the maximum period of three years as lecturers on contract basis in the concerned subjects. 6. The period was not to extend beyond three years or the age of superannuation of the concerned lecturer, whichever is earlier. 5. The petitioners were appointed and have completed the maximum period of three years as lecturers on contract basis in the concerned subjects. 6. By means of this writ petition, the petitioners are challenging the advertisement dated 16.11.2007, by which the State Government has invited applications for fresh appointment of lecturers on the vacant posts on contract basis upto 17.12.2007. The advertisement mentions only the subjects and vacancies giving the break up of the reservations. It does not give the names of the colleges in which these vacancies are available. 7. Shri Ashok Khare, Senior Advocate has relied upon a judgment of the Supreme Court in Rattan Lal and others v. State of Haryana and others, (1985) 4 SCC 43 , in which the Supreme Court said as follows : “......These ad hoc teachers are unnecessarily subjected to an arbitrary “hiring and firing” policy. These teachers who constitute the bulk of the educated unemployed are compelled to accept these jobs on an ad hoc basis with miserable conditions of service. The Government appears to be exploiting this situation. This is not a sound personnel policy. It is bound to have serious repercussions on the educational institutions and the children studying there. The policy of ‘ad hocism’ followed by the State Government for a long period has led to the breach of Article 14 and Article 16 of the Constitution. Such a situation cannot be permitted to last any longer. It is needless to say that the State Government is expected to function as a model employer. 2. We, therefore, direct the State Government to take immediate steps to fill up in accordance with the relevant rules the vacancies in which teachers appointed on an ad hoc basis are now working and to allow all those teachers who are now holding these posts on ad hoc basis to remain in those posts till the vacancies are duly filled up. The teachers who are now working on such ad hoc basis if they have the prescribed qualification may also apply for being appointed regularly in those posts. The teachers who are now working on such ad hoc basis if they have the prescribed qualification may also apply for being appointed regularly in those posts. The State Government may also consider sympathetically the question of relaxing the qualification of maximum age prescribed for appointment to those posts in the case of those who have been victims of this system of ‘ad hoc’ appointments. If any of the petitioners in these petitions has under any existing rule acquired the right to be treated as a regularly appointed teacher, his case shall be considered by the State Government and an appropriate order may be passed in his case. 3. We strongly deprecate the policy of the State Government under which ‘ad hoc’ teachers are denied the salary and allowances for the period of the summer vacation by resorting to the fictional breaks of the type referred to above. These ‘ad hoc’ teachers shall be paid salary and allowances for the period of summer vacation as long as they hold the office under this order. Those who are entitled to maternity or medical leave, shall also be granted such leave in accordance with the rules.” 8. Following this judgment, the High Court at Lucknow passed an order in Writ Petition No. 336 (SB) of 2008, disposing of the writ petition with directions that the petitioners shall be allowed to continue on the post of lecturer till regularly selected candidate is available subject to satisfaction of their work and conduct and shall be paid their honorarium regularly. The arrears were also directed to be paid within one month of the judgment dated 14.3.2008. 9. Learned Standing Counsel has filed a counter affidavit specifically stating that the petitioners shall not be replaced by the candidates selected in pursuance to advertisement dated 16.11.2007. Paragraphs 4 to 7 of the counter affidavit of Dr. Anand Prakash Pandey, Assistant Director in the Directorate of Higher Education, U.P., Allahabad are quoted as below : “4. The reply to the aforesaid queries are as below : (i) The petitioners shall not be replaced by the candidate selected under impugned advertisement dated 16.11.2007. (ii) Under impugned advertisement dated 16.11.2007 the advertised vacancies are other than the posts held by the petitioners. These vacancies have been created either by retirement/resignation or because of newly created posts. The reply to the aforesaid queries are as below : (i) The petitioners shall not be replaced by the candidate selected under impugned advertisement dated 16.11.2007. (ii) Under impugned advertisement dated 16.11.2007 the advertised vacancies are other than the posts held by the petitioners. These vacancies have been created either by retirement/resignation or because of newly created posts. Petitioners’ posts have not been advertised as yet by the Director, Higher Education for the purpose of appointment on contract basis. (iii) At present total 922 vacancies have already been notified to the Uttar Pradesh Public Service Commission through the State Government and Uttar Pradesh Public Service Commission is conducting the interview for the same. Results of 10 subjects have already been sent by the Uttar Pradesh Public Service Commission to the State Government for their postings. The State Government will soon start their postings in different Government Colleges. These subjects are Home Science, Psychology, Farsi, Music Vocal, English, Sociology, Urdu, Military Science, Geography and Chemistry. 5. That however, the aforesaid information could not reach the Hon’ble Court within time. Thus, the Hon’ble Court after hearing on 23.7.2008 made the following queries : (i) How many vacancies are available at present in department? (ii) How many vacancies are notified to the Uttar Pradesh Public Service Commission/Board till date. (iii) Whether petitioners are going to be replaced by another ad-hoc/contractual appointment? (iv) By which date selection process initiated at the level of Commission/Board will be concluded? 6. That in reply to the aforesaid queries the explanation are as follows : (i) The total existing vacancies in the post of lecturers are 944. (ii) Out of total existing vacancies till date 922 vacancies have been notified to the Uttar Pradesh Public Service Commission through the State Government. (iii) The appointees on contract basis in the year 2005 will not be replaced by selectees of impugned advertisement dated 16.11.2007. (iv) In reply to the query No. 4 it is submitted that Uttar Pradesh Public Service Commission is an autonomous body. It has already sent the results of 10 subjects to the State Government and State Government after ascertaining the location of the vacancies will issue placement order very soon. So far as date of completion of entire selection is concerned, a request has been sent by the deponent to the Commission to inform him about the same. It has already sent the results of 10 subjects to the State Government and State Government after ascertaining the location of the vacancies will issue placement order very soon. So far as date of completion of entire selection is concerned, a request has been sent by the deponent to the Commission to inform him about the same. It is submitted as soon as aforesaid information is made available by the Commission it shall be submitted by the deponent before the Hon’ble Court immediately. A request letter dated 25.7.2008 is being annexed as Annexure 1. 7. That aforesaid informations are being submitted on affidavit in compliance of Hon’ble Court’s order dated 23.7.2008. It is prayed that Hon’ble Court may kindly allow to take this supplementary counter affidavit on record.” 10. After filing of the counter affidavit and the statements given by the Standing Counsel that the petitioners are not going to be replaced by the selected candidates under advertisement dated 16.11.2007, the prayers made by the petitioners have been addressed in favour of the petitioners. 11. We are, however, concerned with the prevailing situation in which the qualified teachers are being appointed in Government Degree Colleges on contract basis for last so many years. The ‘hiring and firing’ policy adopted by the State Government not only causes uncertainty to the petitioners but also create an unhealthy situation in the colleges, where the teachers are not available and the students do not know whether the teachers will be available in the next year for teaching the students. The State Government should have taken sufficient care to fill up these large number of vacancies. It is not appropriate for the State Government to keep such highly qualified teachers possessing Ph.D. and NET qualifications on contract basis. 12. We are also conscious of the fact that these teachers, working on the contract, must face regular selections and that inter-se merit may be examined by their appointment in accordance with statutory rules on the vacant posts. Shri Ashok Khare, Senior Advocate assisted by Mrs. Arti Raje has given an undertaking to the Court that the petitioners will not claim regularisation on these posts. 13. Shri Ashok Khare, Senior Advocate assisted by Mrs. Arti Raje has given an undertaking to the Court that the petitioners will not claim regularisation on these posts. 13. Taking into account the statements given by the State Government in the counter affidavit that the petitioners shall not be replaced by the candidates selected for appointment on contract under the impugned advertisement dated 16.11.2007 and that the 922 vacancies have already been requisitioned to the U.P. Public Service Commission, we dispose of this writ petition with the directions that the petitioners and other similarly situate teachers appointed on honorarium basis shall be allowed to continue, without any right of regularization, and subject to their suitability and conduct, until regularly selected candidates replace them. The petitioners shall not raise any dispute or challenge the regular appointment or their replacement as the teachers when Public Service Commission selects and the State Government appoints regular teachers in their colleges. These orders have been made in special facts and circumstances and are not to be treated to apply to all other similar situations and services in the State. ———