- (1.) HEARD learned Counsel for the parties and perused the record.
(2.) THE petitioner has sought a writ of mandamus commanding the respondents to regularise him on the post of Principal in Sri Hanumant Sanskrit Mahavidyalaya, Hathi Barani, Varanasi (hereinafter referred to as the "college") and to pay salary of the said post w. e. f. 1-7-1994. The facts in brief as borne out from the writ petition are that the aforesaid College is imparting education in Sanskrit up to Shastri and Acharya level and is affiliated to Sampurnanand Sanskrit University, Varanasi governed by the U. P. State Universities Act, 1973 (hereinafter referred to as "1973 Act") and U. P. Higher Education Services Commission Act, 1980 (hereinafter referred to as "1980 Act" ). The petitioner was appointed as Assistant Teacher on 1-11-1977 and was confirmed on 15-8-1979. One Sri Devra Pandey working on the post of Principal of the College retired on 30-6-1994 on attaining the age of superannuation, whereafter, the petitioner being the senior most teacher was appointed as Principal on officiating basis by the management's letter dated 2-6-1994. Subsequently, the University also appointed the petitioner as officiating Principal under statute 12. 22 and since then the petitioner is continuously working as officiating Principal of the College and discharging duties. It is further said that the management passed a resolution on 15-7-1994 to appoint petitioner as Principal on officiating basis and the Manager was directed to take all requisite steps for such appointment. The petitioner took over charge on 9-7-1994 but has not been paid salary on the post of Principal despite his representation dated 18-2-1999. Learned Counsel for the petitioner submitted that for the last more than a decade he is working as officiating Principal and therefore is entitled for salary of the said post and also to be regularised thereon. Reliance is placed on Section 31-C of 1980 Act as inserted by U. P. Higher Education Service Commission (Amendment) Act, 1992 (U. P. Act No. 2 of 1992 ). It is contended that Section 31-C in so far as it excludes Principal is arbitrary and therefore, benefit of the said provision must be applied to all the teachers which includes Principal.
(3.) THE College being affiliated with Sampurnanand Sanskrit University, Varanasi, admittedly, is governed by the provisions of 1973 Act. Section 2 (19) thereof defines "teacher" and reads as under : " (19) `teacher' in relation to the provisions of this Act except Chapter XI-A, means a person employed in a University or in an institute or in a constituent or affiliated or associated college of a University for imparting instructions or guiding or conducting research in any subject or course approved by that University and includes a Principal or Director. " The procedure for appointment of teachers is prescribed under Section 31 of 1973 Act. However, the U. P. Legislature enacted 1980 Act in order to establish a service commission for selection of teachers for appointment to the Colleges affiliated or recognised by University and Section 12 thereof as substituted by U. P. Act. No. 2 of 1992 w. e. f. 22-11-1992 reads as under : "12. Procedure for appointment of teachers.- (1) Every appointment as a teacher of any college shall be made by the management in accordance with the provisions of this Act and every appointment made in contravention thereof shall be void. (2) The management shall intimate the existing vacancies and the vacancies, likely to be caused during the course of the ensuing academic year, to the Director at such time and in such manner, as may be prescribed. Explanation.- The expression "academic year" means the period of 12 months commending on July 1. (3) The Director shall notify to the Commission at such time and in such manner as may be prescribed subject-wise consolidated list vacancies intimated to him from all colleges. (4) 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 to it under sub-section (3) : Provided further that the candidates shall be required to indicate their order of preference for the various, colleges vacancies wherein have been advertised. ";