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2013 DIGILAW 1862 (ALL)

Sushil Kumar Sharma v. State of U. P. and Others

2013-07-16

ARUN TANDON, ASHOK BHUSHAN

body2013
Arun Tandon, J.;— Heard Sri H.N. Shukla, learned Senior Advocate assisted by Sri R.R. Shukla, Advocate on behalf of the petitioner, Sri M.A. Khan, Advocate on behalf of the respondent-cm and learned Standing Counsel on behalf of the State respnodents. Sri Saraswati Vidyalaya Post Graduate College, Hapur is a degree college affiliated to Meerut University, Meerut. Substantive vacancy was caused on the post of Lecturer in the subject of Commerce in the said institution. It was notified to the U.P. Higher Education Services Commission. No recommendation was forwarded by the Commission for over three years. Therefore, the Committee of Management initiated proceedings to appoint a teacher against the said vacancy on ad hoc basis. For the purpose it published an advertisement on 07.12.1990. Selection committee was constituted. Petitioner applied. The selection committee recommended one Akhil Kumar Mittal at serial no. 1 and the present petitioner Sushil Kumar Sharma at serial no. 2. The Committee of Management, however, did not agree with the recommendation of the selection committee and under resolution dated 16.02.1991 forwarded its recommendation to the Vice Chancellor for offering appointment to the present petitioner. The Vice Chancellor of the university disaggried with the decision of the Committee of Management and passed an order on 20th March, 1991 directing the Committee of Management to appoint Akhil Kumar Mittal against the vacancy. This resulted in Writ Petition No. 11009 of 1991. The writ petition was allowed vide judgment and order dated 14th February, 1992. Akhil Kumar Mittal filed Special Appeal No. 145 of 1992 against the order of the Writ Court dated 14.02.1992, which has been dismissed under the order dated 16th November, 1992. It has been held by the High Court that the appointment having been made under Section 16 of the U.P. Higher Education Service Commission Act, 1980 (hereinafter referred to as Act No. 16 of 1980), the Vice Chancellor could not have interfered with the decision of the Committee of Management as the provisions of the State Universities Act will not apply. It appears that during the pendency of the aforesaid proceedings, the Committee of Management advertised the vacancy afresh under Section 16 of the U.P. Secondary Education Services Selection Board Act fixing 11.11.1991 as the date for interview. The recommendation of the selection committee was placed for consideration before the Committee of Management on 20.12.1991. It appears that during the pendency of the aforesaid proceedings, the Committee of Management advertised the vacancy afresh under Section 16 of the U.P. Secondary Education Services Selection Board Act fixing 11.11.1991 as the date for interview. The recommendation of the selection committee was placed for consideration before the Committee of Management on 20.12.1991. The selection committee had recommended the name of Nem Chandra Garg at serial no. 1 and the name of petitioner Sushil Kumar Sharma at serial no. 2. The Committee of Management did not agree with the recommendation and instead of decided that appointment may be offered to the petitioner as he was more suitable. This decision of the Committee of Management dated 20.12.1991 was forwarded to the Vice Chancellor for his approval vide covering letter dated 23.12.1991, which was received in the office of the Vice Chancellor on 24.12.1991. Since the Vice Chancellor did not respond the petitioner, he filed this petition for a mandamus directing the respondents to issue appointment letter to the petitioner w.e.f. 20.12.1991 and for a further mandamus directing the respondents to ensure payment of arrears of salary from that date i.e. 20.12.1991 and to continue to pay him future salary accordingly. It appears that Section 16 of the U.P. Act No. 16 of 1980 itself was omitted from the Statute vide U.P. Act No. 2 of 1992 w.e.f. 22.11.1991. Counsel for the petitioner Sri H.N. Shukla submits that the omission of Section 16 of Act No. 16 of 1980 would not in any way affect his selection and appointment of the petitioner. Division Bench of this Court in the case of Km. Madhu Chauhan vs. D.I.O.S. And others; 1988 UPLBEC 397 has laid down that the Vice Chancellor has no power to interfere with the decision of the management to offer ad hoc appointment under Section 16. In view of Clause 6 of the U.P. General Clauses Act the proceedings of selection having been initiated prior to the omission of Section 16, the right of the petitioner to be appointed in pursuance to the selection shall not stand diluted. We have heard learned counsel for the parties and have examined the records of the present writ petition. In view of Clause 6 of the U.P. General Clauses Act the proceedings of selection having been initiated prior to the omission of Section 16, the right of the petitioner to be appointed in pursuance to the selection shall not stand diluted. We have heard learned counsel for the parties and have examined the records of the present writ petition. From the facts as narrated herein above, we find that so far as the earlier selection in pursuance to the advertisement subject matter of consideration in Special Appeal No. 145 of 1992 is concerned, nothing is required to be added by this Court. So far as the claim raised by means of the present writ petition is concerned, the facts on record are that the petitioner applied in pursuance to an advertisement published on 10.10.1991. Interview took place on 11.11.1991, while proceedings of selection committee were considered in the meeting of the Committee of Management held on 20.12.1991. It is the case of the petitioner that it was on 20.12.1991 that the Committee of Management decided to offer appointment to the petitioner after disagreeing with the recommendation of the selection committee, which had impaneled Nem Chandra Garg at serial no. 1. It is also admitted to the petitioner that the papers pertaining to the selection of the petitioner were forwarded to the Vice Chancellor under letter dated 13.12.1991, which were received in his office on 24.12.1991. The power to make ad hoc appointment was conferred upon the Committee of Management under Section 16 of the U.P. Act No. 16 of 1980. The power itself was withdrawn with the omission of the said section 16 vide Act No. 2 of 1992 w.e.f. 22.11.1991. In our opinion on 20th December, 1991 the Committee of Management of the institution had no authority of law to make any appointment on ad hoc basis against any substantive vacancy in view of the omission of Section 16. The reliance placed upon Section 6 of the U.P. General Clauses Act appears to be wholly misconceived. The power to make ad hoc appointment itself having been withdrawn prior to the resolution of the Committee of Management dated 20.12.1991, the decision of the Committee of Management to offer appointment to the petitioner on ad hoc basis is rendered non est i.e. without authority. The power to make ad hoc appointment itself having been withdrawn prior to the resolution of the Committee of Management dated 20.12.1991, the decision of the Committee of Management to offer appointment to the petitioner on ad hoc basis is rendered non est i.e. without authority. In view of the aforesaid, we have no hesitation to record that there cannot be a mandamus asking the Committee of Management to offer any appointment to the petitioner w.e.f. 20.12.1991, as has been prayed in the present petition, inasmuch as on that date the Committee of Management had no authority to make any ad hoc appointment left with it. For the same reason there cannot be any mandamus for payment of salary from that date from the State Exchequer. In the totality of the circumstances no relief can be granted. Writ petition lacks merit. It is dismissed accordingly. _____________