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2023 DIGILAW 675 (ALL)

State of U. P. v. Sushila Joshi

2023-03-13

SUNITA AGARWAL, VIKAS BUDHWAR

body2023
JUDGMENT : Heard Sri Rajeev Singh, learned Standing Counsel for the appellants and Sri Arvind Kumar Singh for the sole respondent. 2. This intra-Court appeal is against the judgement and order dated 13.5.2022 in Writ A No. 4124 of 2022, Dr. (Smt) Sushila Joshi v. State of U.P. and others, whereby the writ petition of the respondent had been allowed, the orders of the appellants dated 7.7.2015, 15.5.2020 and 2.6.2020 were set aside and a mandamus was issued to the appellants to regularise the services of the writ petitioner from the date of regularization of similarly situated persons, coupled with the payment of her regular salary till the date of her retirement and for computation and payment of post-retiral benefits alongwith the interest. 3. The case of the writ petitioner before the learned Single Judge was that she possesses academic qualification of passing High School with 54.80%, Intermediate with 50.40%, B.A. with 47.20%, M.A. with 57.20% and also awarded Ph.D. degree in the year 1986 from the Garhwal University, Srinagar, Garhwal. As per the writ petitioner, the State Government in exercise of the powers as conferred therein had issued a Government order dated 30.3.1987 providing for engagement of part-time volunteers (Teachers) under the Voluntary Teaching Scheme. It is the case of the writ petitioner that as the State was facing huge scarcity of the teaching staff, so in order to meet out the said contingency, the Scheme known as Voluntary Teaching Scheme for engagement of part-time teachers was introduced. According to the writ petitioner, the Government Order dated 30.3.1987 itself provided for the minimum academic qualification necessary for engaging part-time teachers which was that a candidate must possess 55% combined marks at Intermediate and Graduate level or 50% marks at Intermediate and Graduate Level, separately. A further provision of relaxation of 5% was made in case none of the candidates possessed the minimum qualifications. The writ petitioner claims to have been engaged as part-time lecturer in Government Degree College, Uttar Kashi on 12.2.1987. Pleadings further reveal that the writ petitioner joined as a part-time Lecturer in the Government Degree College, Uttar Kashi on 13.2.1987 and by order dated 6.3.2000, she was transferred to Government Degree College, Hamirpur. It is also the case of the writ petitioner that by order dated 13.3.2000, she was granted minimum pay-scale of Rs. 2200-4000. Pleadings further reveal that the writ petitioner joined as a part-time Lecturer in the Government Degree College, Uttar Kashi on 13.2.1987 and by order dated 6.3.2000, she was transferred to Government Degree College, Hamirpur. It is also the case of the writ petitioner that by order dated 13.3.2000, she was granted minimum pay-scale of Rs. 2200-4000. As per the writ petitioner, the appellants by virtue of order dated 1.4.2004 declared the writ petitioner as ad hoc Lecturer w.e.f. 10.10.1986 and she continued to work as Lecturer for more than 32 years and ultimately, superannuated in the month of May 2019. Pleadings further reveal that the claim of the writ petitioner for being regularized as a Lecturer on regular basis was turned down by the Secretary, Higher Education, Government of Uttar Pradesh at Lucknow. Petitioner further claims to have preferred Writ-A No. 9191 of 2019 (Dr. Sushila Joshi v. State of U.P. and others) before this Court alleging that similarly situated persons had been considered for regularization in terms of the Uttar Pradesh Regularization of Ad hoc Appointment (On Posts within the purview of Public Service Commission) Rules 1979, but the case of the writ petitioner was not being considered despite that she was possessing Ph.D. degree and she was entitled to relaxation. The said writ petition came to be disposed off on 15.7.2019 with a direction to the second appellant herein to consider the claim of the petitioner for relaxation in light of the possession of Ph.D. degree within two months from the date of production of certified copy of the order. As per the writ petitioner, she represented the matter before the appellants but the claim of the writ petitioner for regularization and other consequential benefits attached thereto was negated by virtue of the order dated 7.7.2015, 15.5.2020 and 2.6.2020. 4. Challenging the orders dated 7.7.2015, 15.5.2020, 2.6.2020 of the appellants, the writ petitioner filed the Writ-A No. 4124 of 2022, Dr. (Smt.) Sushila Joshi v. State of U.P. and others, which came to be allowed on 13.5.2022. 5. Aggrieved against the order dated 13.5.2022 passed in Writ-A No. 4124 of 2022 of the learned Single Judge, the State appellants have filed the present intra-Court appeal. 6. Before we bestow consideration to the arguments of the rival parties, it would be appropriate to extract the relevant provisions of the Rules and the Government Orders governing the field. 5. Aggrieved against the order dated 13.5.2022 passed in Writ-A No. 4124 of 2022 of the learned Single Judge, the State appellants have filed the present intra-Court appeal. 6. Before we bestow consideration to the arguments of the rival parties, it would be appropriate to extract the relevant provisions of the Rules and the Government Orders governing the field. ''Uttar Pradesh Higher Education (Group A) Service Rules, 1985 8. Academic qualifications.-(1) A candidate for direct recruitment to the post of Lecturer must possess the qualifications prescribed by the statutes of the various State Universities governed by the U.P. State Universities Act, 1973.'' ''Procedure for Recruitment 14. Determination of vacancies.-The appointing authority shall determine the number of vacancies to be filled during the course of the year of recruitment as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other categories under Rule 6. 15. Procedure for direct recruitment.-(1) Applications for being considered for selection shall be called by the Commission in the prescribed form, which may be obtained from the Secretary to the Commission on payment, if any. (2) The Commission shall, having regard to the need for securing the representation of candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories in accordance with Rule 6, call for interview such number of candidates, who fulfil the requisite qualifications, as they consider proper. (3) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the marks obtained by each candidate in the interview. If two or more candidate obtain equal marks, the Commission shall arrange their names in order of merit on the basis of their general suitability for the service. The number of the names in the list shall be larger (but not larger by more than 25 per cent) than the number of the vacancies. The Commission shall forward the list to the appointing authority.'' ''Rule 26. The number of the names in the list shall be larger (but not larger by more than 25 per cent) than the number of the vacancies. The Commission shall forward the list to the appointing authority.'' ''Rule 26. Relaxation in the conditions of service.-Where the State Government is satisfied that the operation of any rule regulating the conditions of service of a person appointed to the service causes undue hardship in any particular case it may, notwithstanding anything contained in the rules applicable to the case, by order, dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner : Provided that where a rule has been framed in consultation with the Commission that body shall be consulted before the requirements of the rule are dispensed with or relaxed.'' ''APPENDIX [See Rule 8(2)] 1. The following shall be the minimum qualifications for the post of Lecturer in the Faculties of Arts, Science and Commerce : (a) An M. Phil Degree or a recognised degree beyond the Master's level or published work indicating the capacity of the candidate for independent research work; and (b) consistently good academic record with at least first or high second class Master's degree or an equivalent degree of a foreign University, in the relevant subject. 2. The following shall be the minimum qualification for the post of Lecturer in the Faculty of Education : (a) An M. Phil Degree or a recognised degree beyond the Master's level or published work indicating the capacity of the candidate for independent research work; and (b) a consistently good academic record with at least first or high second class Master's degree in Education and also Master's degree or an equivalent degree of a foreign University, in the relevant subject. 3. The minimum qualifications for the post of Lecturer in the Faculty of Law shall be a degree in Master of Law with consistently good academic record. 4. If the Selection Committee is of the view that the research work of a candidate as evident either from his thesis or from his published work is of a very high standard, it may relax any of the qualifications prescribed in sub-clause (b) of clause (1), or sub-clause (b) of clause (2), as the case may be. 5. 4. If the Selection Committee is of the view that the research work of a candidate as evident either from his thesis or from his published work is of a very high standard, it may relax any of the qualifications prescribed in sub-clause (b) of clause (1), or sub-clause (b) of clause (2), as the case may be. 5. Where no candidate possessing the qualifications prescribed in sub-clause (a) of clause (1) or sub-clause (a) of clause (2) is available or considered suitable, the College on the recommendations of the Selection Committee may appoint a person possessing a consistently good academic record on the condition that he obtains such qualifications within five years of his appointment failing which he shall not be able to earn future increments until he fulfils the requirements.'' 7. The Uttar Pradesh Regularization of Ad hoc Appointment (On the post within the purview of Public Service Commission) Rules 1979 (Third Amendment) provides as under: ''1. any person who- (i) was directly appointed on ad-hoc basis before January 1, 1997 and is continuing in service, as such, on date of commencement of Uttar Pradesh regulation of ad-hoc Appointments (On posts within the purview of the Public Service Commission) (Third Amendment) Rules, 2001. (ii) possessed requisite qualification prescribed for regular appointment at the time of such ad-hoc appointment; and (iii) has completed or, as the case may be, after he has completed three years continues service shall be considered for regular appointment in permanent or temporary vacancy as may be available on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders.'' 8. Learned Standing Counsel who appears on behalf of the appellants has submitted that the learned Single Judge fell in error in quashing the orders impugned in the writ petition while directing the appellants to regularize the services of the petitioner making her entitled to retiral benefits alongwith interest, inasmuch as, the writ petitioner was neither eligible nor qualified to have been considered for regularization and for pensionary benefits. 9. Elaborating the said submission, it has been argued that the initial engagement of the writ petitioner was as a part-time voluntary teacher pursuant to the Voluntary Teaching Scheme as per the Government Order dated 30.3.1987, which nowhere can be said to be a substantive or an ad hoc appointment. 9. Elaborating the said submission, it has been argued that the initial engagement of the writ petitioner was as a part-time voluntary teacher pursuant to the Voluntary Teaching Scheme as per the Government Order dated 30.3.1987, which nowhere can be said to be a substantive or an ad hoc appointment. It has been further argued that the writ petitioner while being engaged as a voluntary part-time teacher did not face any selection committee and she was engaged without possessing the minimum qualification, as according to the clause 3 of the Government Order dated 30.3.1987, the minimum eligibility for being engaged as part-time voluntary teacher was to possess 55% marks on combined basis at Intermediate and Graduate Level or 50% marks at Intermediate or Graduate level, separately. It has been further submitted that the petitioner was only possessing 50.4% marks at Intermediate level and 47.2% at Graudate level which was neither confirming to the minimum percentage which was to be possessed on combined or separate basis in Intermediate and Graduate level. According to the learned Standing Counsel merely because the writ petitioner had obtained Ph.D. in the year 1986 from Garhwal University, Srinagar, Garhwal would also not be of any aid or help to the writ petitioner, particularly, in view of the fact that the power to relax the qualification so as to make it equivalent to possession of Ph.D. degree vests with the selection committee. It has been further argued on behalf of the appellant that even before the issuance of the Government Order dated 30.3.1987, there existed the Rules by the name of 'Uttar Pradesh Higher Education (Group A) Service Rules, 1985, which laid down the criteria for determination of the vacancies, procedure for direct recruitment and also the academic qualifications required for being appointed as a Lecturer and the provision of relaxation of the condition of service. 10. Learned Standing Counsel has also invited the attention of the Court towards the provisions of Uttar Pradesh Regularization of Ad hoc Appointment (On Posts within the purview of Public Service Commission) Rules 1979 so as to further contend that one of the necessary conditions precedent for being considered for regularization is possession of requisite qualification prescribed for regular appointment at the time of ad hoc appointment. So much so, argument has also been made by the learned Standing Counsel that the eligibility is to be seen not only at the time of the regularization but also at the time of the initial induction as once a candidate does not fulfill the requisite qualification, at the time of the induction, he cannot be considered for regularization. 11. Countering the submission of the learned Standing Counsel, Sri Arvind Kumar Singh, who appears for the respondents has sought to argue that the judgment and the order of the learned Single Judge needs no interference in the present proceedings, as the learned Single Judge has not committed any error so as to warrant interference by this Court. 12. According to Sri Singh, the writ petitioner was eligible and qualified for being regularized as a Lecturer, particularly in view of the fact that she was appointed pursuant to a Scheme floated by the appellants themselves on 12.2.1987 and she possessed not only the minimum qualifications, but also an additional qualification of Ph.D., the non-possession of 55% combined marks and 50% marks separately in Intermediate and Graduate level would be irrelevant, on the face of the notification issued by the University Grants Commission and the Government Order dated 13.10.1997 issued in exercise of power under Section 50(6) of the U.P. State Universities Act 1973. It has been further argued on behalf of the writ petitioner that the writ petitioner since 13.2.1987 had been working for almost 32 years continuously till her retirement and thus in case, there was any deficiency in her qualification, then the same stood cured with the passage of time. 13. Additional argument has also been made that taking the argument of the State appellants on face value, then too in view of the decision in the case of Sunita Sharma v. State of U.P. and others, Writ-A No. 25431 of 2018, the writ petitioner is entitled to the pensionary benefits. 14. Sri Arvind Kumar Singh, to buttress his contention, has relied upon the decisions in the case of Dr. 14. Sri Arvind Kumar Singh, to buttress his contention, has relied upon the decisions in the case of Dr. Hari Shankar Asopa v. State of U.P., (1989) 1 UPLBEC 501 , Special Appeal Defective No. 1084 of 2020, State of U.P. v. Vimal Kumar Shukla decided on 20.7.2021, Special Appeal No. 97 of 2021, State of U.P. and others v. Bhanu Pratap Sharma decided on 9.6.2021, Special Appeal No. 280 of 2020, State of U.P. v. Ashok Kumar Dixit decided on 20.7.2021 and Special Appeal No. 656 of 2022, State of U.P. and others v. Dr. Chandrashekhar Srivastava decided on 13.12.2022. 15. On the presentation of the present appeal, this Court on 22.11.2022 stayed the effect and operation of the judgment and order of the learned Single Judge leaving it open to the parties to submit their written submission alongwith authority on which they propose to rely. 16. Today, when the matter was taken up, then the counsel for the parties had made a statement at Bar that they have filed their written submission, which is on record. 17. We have heard learned counsel for the parties and have perused the record carefully. 18. The moot question, which arises for our consideration in the present appeal is as to whether the writ petitioner qualifies the eligibility criteria as founded upon the statutory rules and the Government Orders issued from time to time for the purposes of regularization, pension and other consequential benefits attached thereto. 19. It is not in dispute that the writ petitioner for the very first time was inducted as a part time voluntary Lecturer pursuant to a Government Order dated 30.3.1987 according to which a Scheme had been launched by the State Government being Voluntary Teaching Scheme to meet out the sudden crisis/scarcity of the teaching staff in the educational institution. 20. Clause 3 of the Government Order dated 30.3.1987 provides for minimum eligibility criteria, according to which a candidate for being engaged as a part-time Volunatary Teacher is to obtain aggregate 55% marks combined in Intermediate and Graduate level and 50% marks in Intermediate and Graduate level, separately, with a rider that a relaxation of 5% can be accorded in case suitable candidates are not available. Parties before us are not in dispute that prior to the issuance of the Government Order dated 30.3.1987, there existed a Rule enacted under Proviso to Article 309 of the Constitution of India, the Uttar Pradesh Higher Education (Group A) Service Rules 1985, which provides for sources of recruitment, academic qualifications, determination of vacancies, procedure for direct recruitment, relaxation on the condition of the services and also appendix under Rule 8(2) setting out the minimum qualifications. The existence of the Statutory Rule of the year 1985 itself clearly suggests that the Rules were already in Statute book, but as certain contingencies occurred pursuant whereof, a Government Order was issued on 30.3.1987 floating Voluntary Teaching Scheme for engaging part-time Voluntary Teachers. The Government Order dated 30.3.1987 only provided for induction of part-time Voluntary Teachers, but so far as to be made the members of the services, they have to qualify the eligibility criteria provided in the 1985 Rules. Though the learned counsel for the writ petitioner has argued that the writ petitioner was subjeccted to selection committee before being engaged as part-time Voluntary Teacher, but nothing has been brought on record to substantiate the said arguments. 21. Moreso, it is the case of the appellants that no selection committee was constituted for engagement of the writ petitioner as part-time Voluntary Teachers, thus there was no questions of any confirment of legal right. As regards the argument of the writ petitioner that since she possessed Ph.D. degree, then the minimum requirement of obtaining 55% marks combined at Intermediate and Graduate level or 50% marks at Intermediate and Graduate level separately would be immaterial on the basis of the Government Order dated 30.10.1997 issued by the appellants under Section 50(6) of the U.P. State Universities Act 1973 is not only misconceived but also prepostorous in view of the fact that the question of relaxation is to be governed under Rule 26 of the Uttar Pradesh Higher Education (Group A) Service Rules 1985 and the power vests with the State Government. 22. 22. Moreover, once the Appendix under Rule 8(2) of the 1985 Rules itself provides for obtaining of average 55% marks in Intermediate and Graduate level and 50% separately in Intermediate and Graduate level alongwith consistently good academic record, then it is the selection committee, which is to evaluate the suitability of the candidate for being appointed and made a member of the service in accordance with Rules. 23. It is quite surprising that the claim of the writ petitioner for regularization stood rejected on 7.7.2015, however, the writ petitioner approached this Court by filing Writ-A No. 9191 of 2019 (Dr. Sushila Joshi v. State of U.P.), seeking regularization in terms of Uttar Pradesh Regularization of Ad hoc Appointment (On Posts within the purview of Public Service Commission) Rules 1979 on the premise that since she possessed Ph.D. degree, thus the requirement under Rules of obtaining 55% marks on combined basis and 50% marks separately in Intermediate and Graduate level would be irrelevant and sought extension of the same benefits, which have been given to the similarly situated incumbents. The said writ petition was disposed off on 15.7.2019 by this Court directing the second appellant to consider the claim of the writ petitioner. The present round of litigation is outcome of the said directions. We may note that the order dated 7.7.2015 negating the claim of the writ petitioner was allowed to stand by the writ petitioner till the date of her superannuation in the month of May 2019, and the same was challenged for the first time post-retirement. The said factor itself denudes the writ petitioner for any relief. 24. The writ petitioner as per her own saying had retired in the month of May 2019, thus the entire exercise for being considered for regularization and for grant of pension is post-retirement. On a specific pointed query being made from the learned counsel for the writ petitioner as to whether any selection committee was constituted for considering the claim of the writ petitioner for being engaged/appointed or not, the learned counsel for the writ petitioner neither demonstrated the same nor placed any documents before this Court. Hence in absence of any pleading or documents on record, this Court has to draw a negative presumption against the writ petitioner. Hence in absence of any pleading or documents on record, this Court has to draw a negative presumption against the writ petitioner. Much reliance has been placed upon the Government Order dated 30.3.1987, so as to contend that the writ petitioner was though appointed on part-time voluntary basis and subsequently, her status stood transformed into an ad hoc Lecturer by virtue of the order dated 1.4.2004 with effect from 10.10.1996, thus, she is entitled for being considered for regularization and pension. 25. The said argument appears to be attractive at a first blush but it may not detain this Court for long, particularly in view of the fact that merely being declared as an ad hoc Lecturer would not be of much relevance, particularly when the 1979 Rules itself provides for possession of a requisite qualification prescribed for regular appointment at the time of such ad hoc appointment. The Rule making authority was quite conscious about the contingencies which might arise subsequently and that is why the words ''possessed requisite qualification prescribed for regular appointment at the time of such ad hoc appointment'' were employed, meaning thereby that possession of requisite qualification for regular appointment was a condition precedent at the time of ad hoc appointment. No record of the adhoc appointment ha been placed before us. The change in the status of the writ petitioner from a part-time Lecturer to an adhoc Lecturer could not be made by any Government order. Adhoc appointment can be made agaisnt a vacancy only after adopting a selection process in a case, where the substantive vacancy cannot be filled up by a regular selection process. An adhoc Lecturer has a right to continue only till a regularly selected candidate joins. Nothing in this regard has been placed before us. 26. Since the writ petitioner neither appeared before the selection committee nor she was qualified at the time of the initial engagement, her claim for being regularized does not merit consideration. Reliance placed upon the case of Dr. Chandrashekhar Srivastava (supra) is totally misplaced, inasmuch as the said judgment is not applicable in the facts of the case, particularly, when the writ petitioner was neither qualified nor engaged/appointed in accordance with the statutory rules. 27. As a natural corollary, the judgments relied upon by the writ petitioner in the case of Dr. Chandrashekhar Srivastava (supra) is totally misplaced, inasmuch as the said judgment is not applicable in the facts of the case, particularly, when the writ petitioner was neither qualified nor engaged/appointed in accordance with the statutory rules. 27. As a natural corollary, the judgments relied upon by the writ petitioner in the case of Dr. Hari Shankar Asopa (supra), Vimal Kumar Shukla (supra), Bhanu Pratap Sharma (supra), Ashok Kumar Dixit (supra) and Sunita Sharma (supra) would not come to her rescue as entitlement of pension is subject to possession of the educational qualification as prescribed under the Rules and the manner in which the incumbent enters into the service. As already observed, the writ petitioner did not face any selection committee as per the Statutory Rules either as a part time lecturer or on adhoc engagement, and she was not eligible and qualified to be made the member of the service, the learned Single Judge has committed serious error in allowing the writ petiton while quashing the orders impugned in the writ petition, further directing for regularization and grant of pensionary benefits. 28. The judgment and order of the learned Single Judge is set aside and the writ petition stands dismissed. 29. Resultantly, the special appeal is allowed.