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Allahabad High Court · body

2020 DIGILAW 20 (ALL)

Sanjay Kumar Saxena v. State of U. P.

2020-01-03

ABDUL MOIN

body2020
ORDER : Abdul Moin, J. 1. Heard learned counsel for petitioner and the learned Standing Counsel appearing on behalf of respondents no. 1, 2, 3 and 4. 2. No notice be issued to respondent no. 5 taking into consideration, the nature of order proposed to be passed. 3. With the consent of learned counsel for the contesting parties, the writ petition is being finally decided. 4. By means of present writ petition the petitioner has prayed for quashing of order dated 24.08.2017 passed by respondent no. 1 as well as decision dated 06.10.2016 taken by the Committee so far as it relates to the petitioner, copies of which are Annexures 1 and 2 to the writ petition respectively. Further prayer is for a writ of mandamus commanding the respondents to regularize the services of the petitioner on the post of Lecturer in the Department of Physics in Shri Chitragupta Post Graduate College, Mainpuri and to make payment of salary to the petitioner to the post of Lecturer regularly each and every month. 5. The case set forth by the petitioner is that he had been appointed as ad hoc Lecturer in Physics Department by respondent no. 5 vide order dated 20.11.1991, a copy of which is Annexure 14 to this petition. At the time of his appointment, the management vide orders dated 16.11.1991 and 18.11.1991, copies of which are cumulatively filed as Annexure 3 to the petition, had also granted relaxation in the qualification to the petitioner. It is contended that since his appointment the petitioner has been working on ad hoc basis in the institution. It is also contended that the institution is affiliated to Dr. B.R. Ambedkar University Agra and the provisions contained in the Uttar Pradesh State Universities Act as well as the statutes of the Agra University including the Higher Education Service Commission Act are fully applicable over the teaching and non-teaching staff of the college. 6. Section 31C was introduced in the Uttar Pradesh Higher Education Services Commission Act 1980 (hereinafter referred to as Act of 1980) by Uttar Pradesh Act no. II of 1992 with effect from 22.11.1992. 6. Section 31C was introduced in the Uttar Pradesh Higher Education Services Commission Act 1980 (hereinafter referred to as Act of 1980) by Uttar Pradesh Act no. II of 1992 with effect from 22.11.1992. In terms of Section 31C of the Act of 1980, any teacher who was appointed on ad hoc basis after 03.01.1984 but not later than 22.11.1991 on a post and was possessed on the date of such commencement the qualifications required for regular appointment to the post or was given relaxation from such qualification under the provisions of the relevant statutes in force on the date of such ad hoc appointment and had been found suitable for regular appointment by the selection committee constituted under sub-section (2) would be given substantive appointment by the management of the college, if any substantive vacancy of the same cadre and grade in the same department is available on the date of commencement of the Act. For the sake of convenience, Section 31C of the Act of 1980 is reproduced as under: 31C. For the sake of convenience, Section 31C of the Act of 1980 is reproduced as under: 31C. Regularisation of other ad hoc appointments.-(1) Any teacher, other than a principal who-] (a) was appointed on ad hoc basis after January 3, 1984 but not later than [November 22, 1991] on a post- (i) which after its due creation was never filled earlier, or (ii) which after its due creation was filled earlier and after its falling vacant, permission to fill it was obtained from the Director; or (iii) which came into being in pursuance of the terms of new affiliation or recognition granted to the College and has been continuously serving the College from the date of such ad hoc appointment up to the date of commencement of the Uttar Pradesh Higher Education Services Commission (Amendment) Act, 1992; [(b) was appointed on ad hoc basis under sub-section (1) of Section 16 as it stood before its omission by the Act referred to in clause (a), whether or not the vacancy was notified by the Commission.] (c) possessed on the date of such commencement, the qualifications required for regular appointment to the post [or was given relaxation from such qualification] under the provisions of the relevant Statutes in force on the date of such ad hoc appointment; (d) [* * *] (e) has been found suitable for regular appointment by a Selection Committee constituted under sub-section (2); may be given substantive appointment by the Management of the College, if any substantive vacancy of the same cadre and grade in the same department is available on the date of commencement of the Act referred to in clause (a).' 7. The petitioner finding himself to be eligible for substantive appointment staked his claim in terms of Section 31C of the Act 1980 by filing writ petition no. 926 (S/B) of 1994 before this Court. This Court vide judgment and order dated 24.08.1994 directed the respondents to consider for regularization of the petitioner. The copy of the order dated 24.08.1994 is Annexure 16 to the petition. The claim of the petitioner for regularization was rejected by the respondents vide the order dated 28.08.2002, a copy of which is Annexure 22 to the petition. 8. This Court vide judgment and order dated 24.08.1994 directed the respondents to consider for regularization of the petitioner. The copy of the order dated 24.08.1994 is Annexure 16 to the petition. The claim of the petitioner for regularization was rejected by the respondents vide the order dated 28.08.2002, a copy of which is Annexure 22 to the petition. 8. Being aggrieved with the aforesaid order, the petitioner again approached this Court by means of writ petition 1389 (S/B) of 2002 which was decided by this Court vide the judgment and order dated 10.07.2013, a copy of which is Annexure 23 to the writ petition, directing the respondents to look into the matter and take a decision with regard to the regularization of the petitioner and other similar situated candidates. Thereafter, the case of the petitioner was again considered and was rejected vide order dated 15.01.2014, a copy of which is Annexure 24 to the writ petition. Being aggrieved, the petitioner again filed writ petition no. 658 (S/B) 2014 in re: Sanjay Kumar Saxena vs. State of U.P. & Others, and this Court vide the judgment and order dated 18.07.2016 considering that the Director of Higher Education had no jurisdiction to pass such an order set aside the said order with a further direction to respondent no. 2 to consider the case of the petitioner for regularization in accordance with law. In pursuance thereof, respondent no. 1 has proceeded to pass the impugned order dated 24.08.2017, a copy of which is Annexure 1 to the petition, by which the claim of the petitioner for regularization has again been rejected. 9. Learned counsel for petitioner contends that the impugned order dated 24.08.2017 would indicate in paragraph 4 that the respondents have taken three grounds for rejection the claim of the petitioner namely (a) that the petitioner was not in possession of required qualification at the time of his appointment, (b) the management has not provided the recommendation to the selection committee and (c) no substantive vacancy is available on which the petitioner can be regularized. 10. 10. Learned counsel for petitioner contends that all the three grounds taken by the respondents for rejecting the claim of regularization of the petitioner are patently misconceived in as much as, so far as non-possession of qualification at the time of appointment of the petitioner is concerned, the respondent have not considered the relaxation which had been granted by the management committee in the educational qualification vide the orders dated 16.11.1991 and 18.11.1991 which have been filed as Annexure 3 to the petition, which relaxation would be in full consonance with Section 31C(1)(c) of the Act of 1980. 11. So far as the ground of the management not having provided the recommendation to selection committee is concerned, learned counsel for petitioner has invited attention of this court towards the letter which has been sent by the institution dated 16.10.2016, a copy of which is Annexure 4 to this petition, by which the institution has sent the recommendations along with the said letter to the Director of Higher Education, Allahabad. 12. So far as the ground of there being no substantive vacancy, learned counsel for petitioner has invited attention of this Court towards an order dated 23.07.2015, a copy of which is Annexure 5 to the petition, whereby at serial no. 70 one post of Lecturer, Physics is said to be existing. Learned counsel for petitioner contends that it is thus apparent that all the three grounds which have been taken by the respondents for negating the claim of regularization of the petitioner are legally unsustainable in eyes of law taking into consideration the documents which have already been referred above and consequently it is apparent that the impugned order of rejection merits to be quashed. 13. Learned counsel for petitioner has also invited the attention of the Court towards the recommendations of the committee, a copy of which is Annexure 2 to the petition, whereby at serial no. 8, while considering the claim of regularization of the petitioner, the petitioner has been shown to be working on ad hoc basis against the post of Lecturer of Zoology and thus it is contended that the respondents have proceeded with patent non-application of mind in considering the case of the petitioner for regularization and the respondents themselves are not sure of the post against which the petitioner is to be regularized. 14. 14. Shri R.D. Shahi, learned counsel for petitioner, also contends that persons similarly circumstanced have already been regularized as per the specific averments made in paragraph 7 of the petition. He also contends that respondents no. 3 and 4 while filing counter affidavit have specifically averred in paragraph 15 of the counter affidavit that the petitioner should also be regularized as other co-appointees mentioned in the paragraph under reply. 15. On the other hand, Shri Prafulla Yadav, learned counsel appearing for the respondents, on the basis of averments contained in the counter affidavit argued that all the three grounds that have been taken while rejecting the claim of the petitioner are perfectly justified in the eyes of law and once the petitioner was not in possession of qualification at the time of his appointment and the management has also not provided recommendation to the selection committee and there being no substantive vacancy, consequently there was no occasion for regularization of the petitioner. 16. Heard learned counsel for parties and perused the records. 17. From perusal of records, it comes out that the petitioner had been appointed on ad hoc basis as a Lecturer, Physics in respondent no. 5 institution. Prior to his appointment, the petitioner was also granted relaxation in educational qualification as comes out from the perusal of the recommendation dated 16.11.1991 and 18.11.1991, copies of which have been filed cumulatively as Annexure 3 to the petition. 18. Section 31C of the Act of 1980, which has a direct bearing on the case, has been quoted above. From the perusal of Section 31C of the Act of 1980, it comes out that any teacher who was appointed on ad hoc basis after 03 January 1984 but not later than 22.11.1991 and was possessed on the date of such commencement the qualification required or was given relaxation from such qualification under the provisions of the relevant statues in force on the date of such ad hoc appointment and has been found suitable for regular appointment by a selection committee constituted under sub-section (2) could be eligible for regularization. Thus the sine qua non for consideration for regularization and substantive appointment is of a teacher having been appointed between the dates of 03.01.1984 and 22.11.1991 and being possessed of the qualification or having been given relaxation from such qualification. Thus the sine qua non for consideration for regularization and substantive appointment is of a teacher having been appointed between the dates of 03.01.1984 and 22.11.1991 and being possessed of the qualification or having been given relaxation from such qualification. From perusal of records, it comes out that the petitioner had been appointed on ad hoc basis on 20.11.1991 and had also been given relaxation in the qualification by the institution through orders dated 16.11.1991 and 18.11.1991. Thus, it is apparent that the case of the petitioner is covered under the provisions of Section 31C of the Act of 1980. However, the claim of the petitioner for regularization was rejected by the respondents on three grounds as already enumerated above. What the Court finds is that all the three grounds which have been taken i.e. (a) that the petitioner was not in possession of required qualification at the time of his appointment (b) the management has not provided the recommendation of the selection committee and (c) no substantive vacancy is available on which the petitioner can be regularized, are all the grounds which get belied from the documents which are already on record. 19. In this regard, the qualification had already been relaxed by the institution at the time of the petitioner's appointment through the recommendation dated 16.11.1991 and 18.11.1991. The management of the institution has also provided the recommendation to the selection committee as would be apparent from perusal of the letter dated 16.10.2016, a copy of which is Annexure 4 to the petition. So far as the ground of there being no substantive vacancy is concerned, the order dated 23.07.2015, a copy of which is Annexure 5 to the petition, would indicate at serial no. 70 that there is a post of Physics available in the institution. Thus it is apparent that all the three grounds which have been taken by the respondents while rejecting the claim of the petitioner are legally unsustainable in the eyes of law. A relevant aspect of the matter would be that the recommendation of the selection committee dated 27.10.2016, copy of which is Annexure 2 to the petition, would indicate that the case of the regularization of the petitioner has been considered against the post of Lecturer, Zoology, while admittedly the petitioner is working on the post of Lecturer, Physics. A relevant aspect of the matter would be that the recommendation of the selection committee dated 27.10.2016, copy of which is Annexure 2 to the petition, would indicate that the case of the regularization of the petitioner has been considered against the post of Lecturer, Zoology, while admittedly the petitioner is working on the post of Lecturer, Physics. This itself speaks volumes about application of mind on the part of concerned authorities for considering the case of regularization of petitioner. 20. Taking into consideration the aforesaid discussion, it is clearly apparent that the impugned order dated 24.08.2017, copy of which is Annexure 1 to this petition and recommendation of selection committee dated 06.10.2016 which has been communicated vide letter dated 27.10.2016, copy of which is Annexure 2 to the petition, are unsustainable in the eyes of law. 21. The petition deserves to be allowed and it is allowed. 22. A writ of certiorari is issued quashing the order dated 24.08.2017 and the letter dated 27.10.2016 sending the recommendation of the selection committee dated 06.10.2016, copies of which are Annexure 1 and 2 to the petition. 23. A writ of mandamus is issued commanding the competent authority to reconsider the case of the petitioner for regularization strictly in accordance with Section 31C of the Act of 1980 considering the relaxation granted by the institution at the time of appointment of the petitioner. 24. Let such consideration be done within a period of two months from the date of production of a certified copy of this order.