S.D.Agarwala, J. - (1.) THIS is a petition under Article 226 of the Constitution. Counter-affidavit and Rejoinder-Affidavit have been exchanged. Parties are agreed that the petition be disposed of finally at this stage.
(2.) A post of lecturer in Zoology Department in the Shri Saraswati Vidyalay Post Graduate College, Hapur, district Ghaziabad, fell vacant. The Committee of Management in accordance with the provisions of the U. P. Higher Education Services Commission Act, 1980 (hereinafter referred to as the Commission Act) intimated the vacancy to the Commission. The Commission had received notifications of vacancies for the post of Lecturer in Zoology in many other Colleges. In October 1983 the Commission issued an advertisement being advertisement no. 2 for filling the posts of lecturer in Zoology in various colleges. It was a combined advertisement for 13 posts in 11 colleges. On 3st March, 1984 a notification was issued by the Commission under Regulation 6, sub-clause (4) of the U. P. Higher Education Services Commission (Procedure for Selection of Teachers) Regulations, 1*83 (hereinafter referred to as the Regulations). By means of this notification the names of 13 candidates were notified as having been selected by the Commission. In this notification the name of Dr. Geeta Rani Bansal, the petitioner, was mentioned as one of the selected candidates. In this notification only the select list had been issued but it was not notified as to which candidate was selected for which post. On 13th August, 1985, the Commission issued a notification under Regulation 8 of the Regulations for the first time. By this notification the petitioner's name was notified for appointment as a lecturer in Zoology in the Saraswati Vidyalaya Post Graduate College, Hapur. After the committee of management had notified the vacancy of the post of lecturer in Zoology to the Commission for its recommendation and since no appointment was made by the Commission within time, respondent no. 4, Ashok Kumar Gupta, was appointed as an ad hoc lecturer on 22nd of October, 1982 with the approval of the Vice Chancellor and he continued to function as lecturer in the said institution. The committee of management regularised the services of Ashok Kumar Gupta in view of the provisions of section 31-B of the Commission Act which is quoted below : "31-B. Regulation of certain adhoc appointments i (1) Every teacher, other than a Principal, directly appointed on or before January 3, 1984, on ad hoc basis against a substantive vacancy in accordance with the provisions of the U. P. Higher Education Services Commission (Removal of Difficulties) Order, 1982, or the U. P. Higher Education Services Commission (Removal of Difficulties) Order, 1983, who* possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with, the provisions of the concerned Statutes, shall with effect from the date of commencement of the U. P. Higher Education Services Commission (Amendment) Act, 1985, be deemed to have been appointed in a substantive capacity provided that such teacher has been continuously serving the college from the date of such adhoc appointment up to the date of such commencement. (2) Every teacher deemed to have been appointed in substantive capacity under sub-section (1) shall be deemed to be on probation from the date of such commencement. (3) Nothing in this section shall be construed to entitle any teacher to substantive appointment if :- (a) on the date of such commencement, such post had already been filled, or selection for such post had already been made, in accordance with the provisions of this Act, or (b) such teacher was related to any member of the management, or the Principal of the College concerned.". Section 31-B was inserted in the Commission Act with effect from 22nd June, 1985. Sub-clause (3) of Section 31-B provides that the benefit of Regularisation of ad hoc appointments shall not be available to any teacher, if on the date of such commencement, such post had already been filled or selection for the said post had already been made in accordance with the provisions of the said Commission Act. Sri Ashok Khare, learned counsel for the petitioner, contended that Ashok Ktimar Gupta's ad hoc appointment could not have been regularised by the Committee of Management as the selection had already been made for the post on which Ashok Kumar Gupta was appointed as ad-hoc teacher and the action of the management in regularising the ad hoc appointment of Ashok Kumar Gupta is manifestly erroneous. Learned counsel has emphasised on the fact that sub-clause (3) of section 31-B speaks of selection and does not speak of recommendation by the Commission. The submission is that once a selection has been made by a Commission for a post which had been advertised and the result of the selection has been declared before 22nd June, 1985, on the said post appointment of an ad hoc teacher could not be regularised.
(3.) SRI Anil Tandon, learned counsel for the respondent, however, contended that sub-clause (3) of section 31-B has to be interpreted to mean that it is only after a recommendation has been made by the Commission under the Commission Act for the vacant post that it can be said that the Commission has selected a candidate for the said post. The argument is that it is only after a notification is made under Regulation 8, then alone it can be said that the selection has been made for the post in question and that is the relevant date to determine whether section 31-B of the Act applies or not. We have consequently to determine as to which is the relevant date, whether the date of notification under Regulation 6 sub-clause (4) of the Regulations or the notification made under Regulation 8 of the Regulations.;