- (1.) We have heard Sri Ashok Khare, the learned Senior Advocate assisted by Sri Seemant Singh, Advocate for the petitioners and Sri Ravi Kant, the learned Senior Advocate, Sri Manish Goyal assisted by Sri Man Mohan Singh, Sri Anoop Kumar, Sri Kartikey Saran, Ms. Durga Tewari, Advocates and the learned Standing Counsel for the respondents.
(2.) In this petition, the petitioners have challenged the validity of the U.P.Higher Education Services Commission (Amendment) Act,2014 (U.P.Act No. 22 of 2014). The facts leading to the filing of the writ petition is, that the petitioners are the selected candidates against the advertisement nos. 37 of 2003, 38 of 2005, 42 of 2008 and 46 of 2014 for the post of Lecturers in Degree Colleges. It was urged that pursuant to the advertisement nos. 37 of 2003 and 38 of 2005, the last stage of selection has been completed, i.e., interview has been held, but, the result has not been declared on account of an interim order passed by the Supreme Court in Special Leave Petition being Civil Appeal Nos. 6385-6386 of 2010. In so far as advertisement no.42 of 2008 is concerned, it is contended that it was challenged by honorarium teachers in Writ Petition No. 51212 of 2010, Dr. Archana Mishra and others Vs. State of U.P. and others, in which an interim order was passed and thereafter the writ petition was allowed and the advertisement was quashed. The selected candidates have filed a Special Leave Petition (Civil) No. 952-956 of 2011, Dr. (Mrs.) Sudipta Banerjee Vs. State of U.P. and others, in which an interim order has been passed. In so far as advertisement no.46 of 2014 is concerned, the petitioners contend that the written examination has been held. The result is to be declared, but, in the meantime a SLP being Special Leave Petition (Civil) No. 33407 of 2014, State of Uttar Pradesh Vs. Dr. Pratima Mishra was filed before the Supreme Court, which is pending consideration. The petitioners contend that they want regular appointment as per the provision of the Act, which is not being made on account of pending litigation by the part time honorarium teachers, who are claiming regularization initially under the Government Order dated 17.04.1998and now under the provision of Section 31-E of the Uttar Pradesh Higher Education Services Commission Act, 1980 (hereinafter referred to as the Act), which was inserted by U.P. Act no.42 of 2006.
(3.) In this regard, we find that the part time teachers filed writ petition being Writ Petition No. 5110 of 2007, Anurag Tripathi and another Vs. State of U.P. and others, for payment of regular salary and absorption against a substantive post under Section 31-E of the Act. The Division Bench of this Court while disposing of the writ petition held that the part time teachers cannot be absorbed till such time the Supreme Court does not decide the matter in the case of Malvika Shekhar Vs. Director of Higher Education, U.P. and others. The Division Bench held that the Government Order dated 17.04.1998 providing absorption of part time teachers cannot be utilized since the said Government Order has been rescinded by a Government Order dated 29.03.2011. The Division Bench further held that the vacancies, which have not been advertised and notified, can only be filled up and that it was not the intention of the legislature to fill up the advertised post from part time teachers.;