- (1.) This is a reference made by a Division Bench in Civil Misc. Writ Petition No. 3538 of 2004 (Dr. Vinay Kumar Vs. the Director of Education (Higher), Allahabad and others). The three questions referred by the Hon'ble Division Bench will be found at the end of the judgement at internal Page 16.
(2.) The said three questions are set out below:- "1. Whether law laid down in Dr. Prakash Chandra Srivastava Vs. Director of Higher Education, Allahabad and Anr, 2003 (1) AWC 142 by this Court and followed in Alak n Guta (Km.) Vs. Director of Education (Higher) & Anr, 2003 (2) ESC 944, is contrary to and in violation of the letter and intent of the express language used by the legislature in Section 13 of the Act, 1980 read with Regulation 5 of Regulations, 1983? 2.Whether it is permissible for the Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution to either add or amend a statutory provision by enunciating an interpretation, which in its opinion, is just and 2. proper? 3.Whether there is a direct conflict between the ratio of the two cases Dr. Prakash Chandra Srivastava (supra) and Km. Alka Rani Gupta (supra) on one hand, and that of in Dr. Ranjana Tiwari Vs. Director, Higher Education of U.P. & Ors, (2003) 3 E.S.C. (All) 1489 on the other, which deserves to be resolved by an authoritative pronouncement?" Brief facts of the case giving rise to this reference need to be noted for appreciating the questions referred to this Bench. The U.P. Higher Education Service Commission established under Section 3 of the U. P. U.P. Higher Education Service Commission Act, 1980 issued advertisement No. 32 of 2002 advertising several vacancies of lecturers in different subjects in various non Government Colleges. The petitioner applied for the post of Lecturer Mathematics, while applying he also gave first preference to a college, namely, K. K. College, Etawah. Under the Government order dated 7.4.1998 the petitioner was appointed to teach Mathematics in K.K. College, Etawah on honorarium basis with the approval of the Director of Education dated 7.2.2004. The Commission made selection and declared merit list against thirty eight posts of lecturers Mathematics in which list the name of the petitioner was also included as against other backward category candidates . The Committee of Management claimed to have given no objection dated 30th November, 2004 for appointment of the petitioner in K.K. College, Etawah. Petitioner made a representation to the Director of Education praying for his placement in K.K. College, Etawah. Petitioner filed the present writ petition praying for a writ of mandamus commanding the respondent No. 1 , the Director of Education (Higher) U.P. Allahabad to make placement of the petitioner as Lecturer Mathematics in K.K. College, Etawah in accordance with law laid down by this Court in case of Alka Rani Gupta (Km.) Versus Director of Education (Higher ) & another, 2003 (2) ESC 944. The Division Bench before whom the writ petition came for hearing
(3.) finding itself unable to agree with the law laid down in the above mentioned judgement of Allka Rani Gutpa (Km.) Versus Director of Education (Higher) & another (supra) referred the above noted three questions for consideration by this Bench. Sri P. S. Baghel learned counsel appearing for the petitioner submitted that the law laid down by the Division Bench of this Court in Allka Rani Gutpa (Km.) Versus Director of Education (Higher) & another (supra) correctly interprets the provisions of Sections 12 and 13 of the Act as amended by U.P. Act No. 2 of 1992. He further submits that the view taken in Allka Rani Gutpa (Km.) Versus Director of Education (Higher) & another ((supra)) find support from an earlier Division Bench judgement of this Court, Dr. Prakash Chandra Srivastava Versus Director of Higher Education, Allahabad and another, 2003 (1) A.W.C. 142. The petitioner who has been appointed to teach Mathematics on honorarium basis with the approval of the Director of Education in accordance with the Government order dated 7.4.1998 is also entitled for the benefit of ratio laid down in Allka Rani Gutpa (Km.) Versus Director of Education (Higher) & another (supra) (Paragraph 10). Sri Baghel submits that the provisions of Sections 12 and 13 of the Act have been consciously amended in 1992 providing for giving of preference of the college by a candidate and further by Section 13 sub clause (3) it was mandated that due regard be given to the order of preference indicated by a candidate. Sri Baghel submits that Regulations framed under the Act, namely, the U.P. Higher Education Service Commission (Procedure for Selection of Teachers ) Regulations, 1983 having not been amended, the Regulations will give way to the provisions of Sections 12 and 13 as amended in 1992 and the preference given by a candidate cannot be ignored. He further contends that a teacher or Principal working in particular college on ad hoc basis/ honorarium basis has right to placement in the same College as per his preference where the committee of management agrees to such placement.;