Misra, J. - (1.) The question raised in this appeal is the interpretation of Section 13(4) of the U. P. Higher Education Services Commission Act, 1980 (hereinafter referred to as 'the Act') as amended in 1992.
(2.) The appellant interprets that the vacancies to be filled in under this sub-section are not only those which occur on account of death or resignation but would include any other vacancy occurring till another list is sent by the Commission under Section 13(2) of the Act. In other words, it would also include vacancies not advertised but occurring even for the subsequent academic year. In order to appreciate the question raised, the background and the facts would be useful, which are stated:
(3.) Prior to the aforesaid Act, the appointment to the post of teachers in the Non-Governmental Colleges affiliated to the various Universities in the State of Uttar Pradesh was made by the Selection Committee of the Management of the concerned college. For various reasons, the said process was not found to be congenial and the aforesaid Act was enacted. Sections 12 to 14 of the Act contained procedure for appointment of teachers as well as Principals. Section 16 provided for the appointment of teachers on ad hoc basis. Since this provision was widely abused and mis-used, as large number of teachers were appointed on the basis of favouritism and not on merits, this was deleted in 1992, wherein both Sections 12 to 14 were substituted by the U. P. Act No. 2 of 1992. In fact by this, Sections 12 to 14 were drastically amended. Amended Section 12(1) provided, - every appointment of a teacher is to be made by the Management in accordance with the provisions of the Act and any appointment made in contravention thereof is void. Under sub-section (2), the Management has to intimate the existing vacancies and the vacancies, likely to be caused during the course of the academic year, to the Director at such time and in such manner as may be prescribed. Though prescribed under rules but not satisfactorily. The academic year is also defined through the Explanation of the same section to mean "period of 12 months commencing on July 1". Under sub-section (3), the Director notifies to the Commission subjectwise consolidated list of vacancies intimated to him from all colleges. Under proviso to sub-section (4), the Commission has to give wide publicity in the State to the vacancies notified to draw talented persons. Under Section 13, the Commission recommends the names of the candidates found most suitable in each subject and such names have to be arranged in the order of merit. The recommendation has to be 25% more than the number of vacancies in that subject. Sub-section (2) of Section 13 enables the validity of such a list till the receipt of the new list from the Commission. This is a departure from the old provision under which the period was only for one year. Sub-section (4) refers to the appointment to be made from the persons on the said list in case of vacancy occurring due to death, resignation or otherwise. For ready reference, Sections 12, 13 and 14 of the Act are reproduced below: "12. Procedure for appointment of teachers- (1) Every appointment as a teacher of any college shall be made by the management in accordance with the provisions of this Act and every appointment made in contravention thereof shall be void. (2) The management shall intimate the existing vacancies and the vacancies, likely to be caused during the course of the ensuing academic year, to the Director at such time and in such manner, as may be prescribed. Explanation - The expression 'academic year' means the period of 12 months commencing on July 1. (3) The Director shall notify to the Commission at such time and in such manner as may be prescribed a subjectwise consoli-dated list of vacancies intimated to him from all colleges. (4) The manner of selection of persons for appointment to the posts of teachers of a college shall be such, as may be determined by regulation: Provided that the Commission shall with a view to inviting talented persons give wide publicity in the State to the vacancies notified to it under sub-section (3): Provided further that the candidates shall be required to indicate their order of preference for the various colleges, vacancies wherein have been advertised. 13. Recommendation of Commission.- (1) The Commission shall, as soon as possible, after the notification of vacancies to it under sub-section (3) of Section 12, hold interview with or without written examination of the candidates and send to the Director a list recommending such number of names of candidates found most suitable in each subject as may be, so far as practicable, twenty five per cent more than the number of vacancies in that subject. Such names, shall be arranged in order of merit shown in the interview, or in the examination and interview if any examination is held. (2) The lists sent by the Commission shall be valid till the receipt of a new list from the Commission. (3) The Director shall having due regard in the prescribed manner, to the order of preference if any indicated by the candidates under the second proviso to sub-section (4) of Section 12, intimate to the management the name of a candidate from the list referred to in sub-section (1) for being appointed in the vacancy intimated under sub-section (2) of Section 12. (4) Where a vacancy occurs due to death, resignation or otherwise during the period of validity of the list referred to in sub-section (2) and such vacancy has not been notified to the commission under sub-section (3) of Section 12, the Director may intimate to the management the name of a candidate from such list for appointment in such vacancy. (5) Notwithstanding anything in the preceding provisions, where abolition of any post of teacher in any college, services of the persons substantively appointed to such post is terminated the State Government may make suitable order for his appointment in a suitable vacancy, whether notified under sub-section (3) of Section 12 or not in any other college, and thereupon the Director shall intimate to the management accordingly. (6) The Director shall send a copy of the intimation made under sub-section (3) or sub-section (4) or sub-section (5) to the Candidate concerned. 14. Duty of Management. (1) the management shall, within a period of one month from the date of receipt of intimation under sub-section (3) or sub-section (4) or sub-section (5) of Section 13, issue appointment letter to the person whose name has been intimated. (2) Where the person referred to in sub-section (1) fails to join the post within the time allowed in the appointment letter or within such extended time as the management may allow in this behalf, or where such person is otherwise not available for appointment, the Director, shall on request of the management intimate fresh name from the list sent by the Commission under sub-section (1) of Section 13 in the manner prescribed." ;