- (1.) R. A. Sharma, J. Petitioner was appointed on 1-11-1976 as officiating Lecturer in Physics in Ewing Christian College, Allahabad (hereinafter referred to as the college,) which is an affiliated college of the Allahabad University, in a vacancy caused by grant of leave to the regular incumbent of that post, namely, Sri R. P. Khare. On 14-7-1978 Dr. R. C, Tripathi, who was also a Lecturer on permanent post in the Physics Department of the College, resigned. After the resignation of Dr. R. C. Tripathi, petitioner claimed that post under Section 31 (3) (b) of the State Universities Act (hereinafter referred to as the Act ). Head of the Physics Department or the college recommended the peti tioner's case to the Principal. Director of Higher Education, however, vide letter dated 1-9-1978 refused to grant permission to make any appointment against the post of Dr. R. C. Tripathi. The Principal of the college vide his letter dated 3-11- 1978 informed the Head of the Physics Department about the said order of the Director of Higher Education. Being aggrieved by it petitioner has filed this writ petition.
(2.) WHILE entertaining this writ petition on 10-11-1978 this Court passed an interim order, staying the operation of the order dated 1-9-1978 of the Director Higher Education and giving liberty to the Management of the College either to terminate the petitioner's service after giving him an opportunity to show cause or to appoint him in a substantive capacity in the post held by Dr. R. O Tripathi. This order is reproduced herein below : "issue notice. Notice on behalf of respondents 1 and 2 has already been served on the Standing Counsel. There has been no com pliance of Article 226 (4) of the Constitution as far as respondents 3 and 4 are concerned. Apart from notice being issued to res pondents 3 and 4 by registered post, the petitioner will serve them personally also and file an affidavit of service within tan days. This application shall be put up for further orders on 27th of November 1978 and notice issued to respondents 3 and 4 shall indicate that they may file counter affidavits by that date. Till 27th of November, 1978 the operation of the impugned order of the Director of Education (Higher Education), U. P. , Allahabad dated 1-9-1978 (Annexure IV to the writ petition) shall remain stayed. It is however, made clear that the Committee of Manage ment of the college concerned is at liberty either to terminate the petitioner's services after giving him an opportunity to show cause or appoint him in a substantive capacity in the post, which it is alleged has fallen vacant as a result of resignation of Dr. R. C. Tripathi. " This Court vide its order dated 27-11-1978 has directed the above interim order to continue until further orders. This order is still in operation and the petitioner has been working as a Lecturer in Physics in the college regularly after he was appointed in 1976. Counter affidavits have been filed both on behalf of the Director of Higher Education and the Principal of the College. Petitioner has filed rejoinder affidavits in reply thereto. We have heard learned counsel for the parties. Sri L. P. Naithani, learned counsel for the petitioner has made two submissions, namely, (i) in view of the provisions of Section 31 (3) (b) of the Act petitioner is entitled to be appointed in substantive capacity as Lecturer in Physics against post held by Dr. R. C. Tripathi, who had resigned on 14-7-1978 ; and (ii) petitioner has been working in the college for the last about 20 years and if he is removed from services now he will suffer great prejudice and irreparable loss. Apart from disputing the above conten tions, the case of the respondents is that the post of Dr. R. C. Tripathi was kept in abeyance due to lack of workload and, therefore, no appointment could have been made against such a post.
(3.) SECTION 31 has laid down that teachers of affiliated or associated colleges are to be appointed by the Management of those colleges on the recommendation of the Selection Committee and every such appointment shall in the first instance be on probation for one year, which may be extended for a period not exceeding one year. Clause (a) of sub-section (3) of the said section provides for short term officiating appointment in a vacancy caused by grant of leave to an incumbent for a period not exceeding tea months without reference to the Selection Committee. This provision, how ever, prohibits the appointment to any other post, which is likely to last for more than six months without such reference. Clause (b) of sub-section (3) enables the Management of the College to appoint a temporary/officiating Lecturer in substantive capacity, if the post against which the temporary/ officiating appointment was made. Has subsequently been converted into a permanent post or has become permanently vacant or a new permanent post has been created in the same cadre and grade. Sub-section (3) of Sec tion 31 of the Act, being relevant, is reproduced below :- "31. Appointment of Teachers.- (3) (a) In the case of teacher of the University other than a Professor, the Vice-Chancel I or in consulta tion with the Dean of the Faculty and the Head of the Depart ment concerned and an expert nominated by the Vice-Chancellor in that behalf and in the case of a teacher of an affiliated or associa ted college the Management in consultation with an expert nominated by the Vice-Chancellor in that behalf may make officiat ing appointment in a vacancy caused by the grant of leave to an incumbent for a period not exceeding ten months without refe rence to the Selection Committee, but shall not fill any other vacancy or post likely to last for more than six months without such reference. (b) Where before or after the commencement of this Act, any teacher is appointed (after reference to a Selection Committee) to a temporary post likely to last for more than six months, and such post is subsequently converted into 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 game department, then unless the Executive Council or the Management, as the case may be, decides to terminate his services after giving an opportunity to show cause, it may appoint such teacher in a substantive capacity to that post without reference to a Selection Committee : Provided that this clause shall not apply unless the teacher concerned holds the prescribed qualifications for the post at the time of such substantive appointment, and he has served continuously for a period of less than two years, shall be on probation for one year which may be extended for a period not exceeding one year; and the provisions of sub-section (2) shall apply accordingly. Clause (b) of sub-section (3) of Section 31 covers the cases where appointment is made after reference to Selection Committee either to a temporary post likely to last for more than six months or to a permanent post in the vacancy caused by the grant of leave to an incumbent for a period exceeding ten months and such post subsequently become permanent vacant or any post of same cadre or grade is newly created or falls vacant in the same department. The admitted position is that the petitioner was appointed on 1-11-1976 after a reference to a Selection Committee to a permanent post in vacancy caused by the grant of leave to Sri R. P. Khare and a permanent post of same cadre and grade in the same department held by Dr. R. C. Tripathi had fallen vacant on 14-7-1978. In paragraphs 4 and 7 of the writ petition, it has been stated by the petitioner that the post held by Dr. R. C. Tripathi was a permanent post created before April 1, 1975 with the permis sion of the Vice-Chancellor. In paragraphs 3 and 5 of the counter affidavit of Shahzade Khan, filed on behalf of the Director of Higher Education, above petition has been admitted. In paragraph 6 of the writ petition, petitioner has stated that he was appointed against the leave vacancy after reference to a Selection Committee. This also admitted in paragraph 4 of the aforesaid counter affidavit, in which it has been stated that the petitioner was appointed after reference to a Selection Committee with the approval of the Vice-Chancellor. Therefore, under clause (b) of the said sub-section, unless the Management of the college decides to terminate his services after giving him an opportunity to show cause, petitioner is liable to be appointed in sub stantive capacity to the post of Dr. R. C. Tripathi without reference to a Selection Committee provided he holds the prescribed qualifications for the post at the time of substantive appointment and he has served continuously for a period not less than one year after his appointment made after reference to Selection Committee. In the instance case it has been pleaded by the petitioner that he holds the prescribed qualifications for the post and he has served continuously for a period not less than one year after his appointment made after reference to a Selection Committee. These allegations have not been disputed by the respondents in their counter affidavit. Petitioner's case is, therefore, fully covered by clause (b ). The Management of the college has on 25-11-1978 already appointed the petitioner in substantive capacity under Section 31 (3) (b) of the Act with effect from 25-11-1978 itself. This appointment was made in view of the liberty given to the Manage ment by the interim order dated 10-11-1978, passed by this Court in this writ petition. Since then he is working in the college in substantive capacity.;