R.A. Sharma, J. - (1.) BY letter dated 6 -11 -1984 petitioner was appointed as lecturer on ad hoc basis in the department of Home Science in Rameshwar Prasad Agarwal Kanya Mahavidyalaya, Hathras (hereinafter referred to as the college), for a period up to 31st March, 1986, subject to the approval of the Vice -Chancellor of Agra University. It has been stated that the Vice -Chancellor has granted approval and petitioner's services have been extended till 30 -6 -1991. In the meantime the management of the college on 5 -1 -1987 intimated the vacancy for appointment of Home Science Teacher, to the U.P. Higher Education Services Commission Allahabad (hereinafter referred to as the Commission). Commission in pursuance of the aforesaid intimation advertised the post and invited applications for appointment of teacher in the college. It appears that the petitioner and others, including the respondent No. 3 applied for the post before the Commission in pursuance of its advertisement. The petitioner was not called for interview by the Commission, whereas respondent No. 3 and others were called. Respondent No. 3 was, ultimately selected by the commission for the post of lecturer in the college and intimation to that effect has been sent to the college authorities by the Commission for appointment of respondent No. 3. As the service of ad hoc appointee comes to an end after candidate selected by the Commission joins, the petitioner has filed this writ petition for quashing the advertisement and for restraining the Commission from selecting any candidate for the post of lecturer in Home Science in the college. It has further been prayed that petitioner he called for interview and he considered for selection for the aforesaid post. Respondent No. 3 has filed counter -affidavit, contesting the claim of the petitioner and in reply thereto the petitioner has filed rejoinder -affidavit. The petition is being disposed of in accordance with Rules of the Court.
(2.) THE learned counsel for petitioner has made three submissions viz. (i) as the appointment of the petitioner, made in 1984, was under Section 31(3) of the State Universities Act, 1973, the Commission has no jurisdiction to make selection under U.P. Higher Education Services Commission Act, 1980 (hereinafter, referred to as the Act); (ii) the Commission has no power to select a candidate for temporary post and (iii) the principle of last come first go should be adopted by the college authorities while terminating services of ad hoc teachers, after selection by the Commission. The learned counsel for the respondents have, however, disputed the aforesaid submission and prayed for dismissal of the writ petition. In 1980 the State of Uttar Pradesh enacted the Act for establishing a Services Commission for the selection of teachers for appointment in the colleges affiliated or recognised by any University and for other matters, connected therewith or incidental thereto. Section 12 of the Act prohibits the appointment of the teacher in any Degree College, except on the recommendation by the Commission. This section is as follows: 12. Management to make appointments etc. only on the recommendations of Commission. - -(1) Notwithstanding anything to the contrary contained in the Uttar Pradesh State Universities Act, 1973 or in the statutes made thereunder, (but subject to the provisions of Sections 16, 31 -A and 31 -B) every appointment as a teacher of any college shall, after the date notified under Sub -section (1) of Section 3, be made by the management only on the recommendation of the Commission. (2) For the purpose of making appointment of a teacher under Sub -section (I) the management shall notify the vacancy to the Commission. (3) The manner of selection of persons for appointment to the posts of teachers of a college shall be such as may be determined by regulations: Provided that the Commission shall, with a view to inviting talented persons give wide publicity in the State to the vacancies notified under Sub -section (2). (4) The provisions of this section shall not apply to the appointment of a teacher, vacancy in respect whereof has been advertised in accordance with Sub -section (10) of Section 31 of the Uttar Pradesh State Universities Act, 1973 at any time before the commencement of this Act. (5) Every appointment made in contravention of the provisions of this section shall be void. 'Appointment' as defined by Section 2(a) of the Act is reproduced below: 2 (a). "Appointment" in relation to a teacher does not include an appointment under Sub -section (3) of Section 31 of the Uttar Pradesh State Universities Act, 1973. By virtue of aforesaid definition of "appointment" the appointment under Sub -section (3) of Section 31 of the State Universities Act can be made by the management of the college in spite of enactment of the Act and for such appointment prohibition contained in Section 12 of the Act cannot be applied. Section 31(3)(a) of the State Universities Act authorises the management of the affiliated or associated college to make officiating appointment in a vacancy caused by the grant of leave to an incumbent for a period not exceeding ten months without reference to the selection committee. Section 31(3)(b) further provides that where a teacher is appointed after reference to the selection committee to a temporary post likely to last for more than six months and such post is subsequently converted in to a permanent post or to a permanent post in a vacancy caused by the grant of leave to an incumbent for a period exceeding ten months and such post subsequently becomes permanently vacant or any post of same cadre and grade is newly created or falls vacant in the same department, then the management may appoint such teacher in substantive capacity unless it decides to terminate his services. Neither Clause (a) nor Clause (b) of Section 31(3) is applicable to the petitioner. Clause (a) deals with officiating appointment for a period not exceeding ten months. It is admitted case of the petitioner that she was appointed in November, 1984 for a period ending 31 -3 -1986, which was obviously for a period exceeding ten months, Clause (a) as such cannot apply. Clause (b) is also not attracted as the petitioner's appointment was without reference to the selection committee. The petitioner has not been able to prove that she was appointed after reference to the selection committee.
(3.) IT is also not possible to accept the second submission of the learned counsel for petitioner. Section 12 of the Act prohibits the management of the college from making any appointment of a teacher except on the recommendations of the Commission. But this section itself makes its provisions subject to the provisions of Sections 16, 31 -G and 31 -B. Section 16 empowers the management of the college to make ad hoc appointment of a teacher after the vacancy is notified to the Commission and Commission fails to recommend the name of suitable candidate within the specified time, and every ad hoc appointment so made shall come to an end when the candidate recommended by the commission joins the post. Under Section 31 -A the Government has been empowered to make Removal of Difficulties orders. The Government has accordingly promulgated Removal of Difficulties Orders, providing for appointment of teacher on ad hoc basis. Section 31(b) authorises the management to regularise ad hoc appointment under certain circumstances. From perusal of the provisions of the Act, specially sections mentioned above, it is clear that prohibition contained in Section 12 of the Act, prohibiting the management from making any appointment of a teacher except on the recommendation of the Commission, is absolute, irrespective of the nature of the vacancy and the post, but there are four exceptions to it, namely (i) appointment under Section 31(3) of the State Universities Act; (ii) ad hoc appointment under Section 16 of the Act; (iii) ad hoc appointment under Removal of Difficulties Orders and (iv) appointment by way of regularisation, prohibition contained, in Section 12 of the Act will not apply to aforesaid four types of appointment and the appointment can be made in aforesaid four cases without recommendation of the Commission. It is thus clear that unless appointment falls under any of the exceptions mentioned above, the management of the college has no power to make appointment except on the recommendations of the Commission, prohibition contained in Section 12 thus covers both permanent and temporary post or vacancy unless case falls within the exceptions referred to above.;