- (1.) THIS bunch of nearly 169 petitions, is in respect of appoint ment of part-time teachers, in various Degree Colleges of the State of Uttar Pradesh affiliated to Universities covered by the U. P. State Universities Act, 1973 (herein after referred to as the Act, 1973), in terms of the Government Order dated 7. 4. 1998, on honorarium @ Rs. 100/- to be paid on per lecture basis subject to the maxi mum of Rs. 5000/- per month (now enhanced to Rs. 8, 000/-), against duly cre ated posts of Lecturers, as well as absorption of such part-time teachers against substantive vacancies of Lecturers in terms of Section 31-E of the U. P. Higher Education Services Commission Act, 1980 (hereinafter called the Commission's Act) added vide 3rd Amendment Act No. 42 of 2006. While a set of prospective applicants question the process of absorption as per Section 31-E of the Commission's Act itself. The aforesaid writ petitions may be categorized into four groups: (a) Writ petitions filed by part-time teachers appointed under Govern ment Order dated 07. 04. 1998 subject to the maximum of Rs. 5000/- per month (now enhanced to Rs. 8000/-) seeking salary at par with the regularly appointed Lecturers with a further relief for a writ of mandamus commanding the College as well as Directorate of Higher Education to not to interfere in the working of such part-time teachers till regularly selected teachers recom mended by the Commission joins. (b) Writ petitions filed by the part-time teachers with the prayer that they be absorbed against substantive vacant post of Lecturers in affiliated Degree Colleges in terms of Section 31-E of the Commission's Act. (c) Writ Petition No. 1722 of 2007, Writ Petition No. 31429 of 2007 as well as Writ Petition No, 10858 of 2008 have been filed by part-time teachers who have already obtained an order from this Court in an earlier writ petition for their continuance till regularly selected candidates from the Commission join. They now seek the relief of payment of salary at par with the regularly selected Lecturers, (d) Writ Petition No. 5210 of 2007 (Anurag Tripathi and others v. State of U. P and others, challenges the vires of Section 31-E of the U. P Higher Edu cation Services Commission Act, 1980 as added by U. P Act No. 42 of 2006 which provides absorption of part-time teachers against substantive vacan cies on the post of Lecturers.
(2.) BEFORE adverting to the facts relevant for decision of the aforesaid writ petitions, it would be worthwhile to reproduce the legislative history qua the mode and manner of appointment of Lecturers in Aided Degree Colleges affiliated to various State Universities covered by the Act, 1973. Prior to the enforcement of Act, 1973 Universities in the State of Uttar Pradesh had been established under different State Acts namely Lucknow Uni versity Act, 1920, Allahabad University Act, 1921, Agra University Act, 1926, Gorakhpur University Act, 1956, Varshney Vishwavidyaiaya Act, 1956, Kanpur and Meerut Universities Act, 1965. The Parliament with a view to tone the higher education in the State of Uttar Pradesh enacted the Act, 1973 which also inter alia provided for the appointment of teachers in the Universities/affiliated Degree Colleges. Section 31 of the Act, 1973 provided for appointment of teaching faculty of the University as well as of teachers of the affiliated colleges other than Govern ment colleges, to be made only on the recommendation of the Selection Commit tee as provided for under sub-section 2 thereof. Section 31 itself provided for constitution of different Selection Committees for different categories of posts, which were broadly classified as that of Profes sor, Reader and Lecturer for the University faculty. In respect of affiliated and associated Degree Colleges (other than Government Colleges) the teaching posts were broadly classified as that of Director/principal and Teacher (Lecturer) for whom different Selection Committees were provided. Under the aforesaid provi sions, it was contemplated by the legislature that appointment on all the teaching posts in the University as well as in Degree Colleges shall be made by direct recruitment only through open market selection. The intention being that merit alone would be the criteria for appointment on teaching post in the University as well as the affiliated Degree Colleges.
(3.) THE desire of keeping the standard of education at par excellent, expressed by the legislature at the time of enactment of Act, 1973, has been negated by providing for regularization/absorption of ad hoc teachers, temporary teachers and part-time teachers from time to time as would be clear from the following : "vide U. P. Act No. 5 of 1977 under Section 31 (3) (b), persons appointed on temporary posts up to the date of commencement of the Act of 1973 were directed to be absorbed on substantive basis against the post which were temporary at the time of appointment but had subsequently been converted into a permanent posts or against a newly created posts or against any other post substantively vacant in the same department. This absorption/regular-ization was followed by the U. P. Act No. 1 of 1992 whereby short-term ap pointees were directed to be substantively appointed by the Executive Coun cil against the substantive posts in the same cadre provided that such short-term appointees were in fact appointed on or before 30. 6. 1991 subject to the conditions stipulated therein. The process of appointment by direct recruit-ment was further diluted with the enforcement of Act No. 9 of 1985 and Act No. 4 of 1996 whereby personal promotion on the post of Reader and Profes-sorwas provided for. " Since the provision of Act, 1973 qua selection and appointment of teach ers in affiliated Degree Colleges (other than minority and Government institutions) failed to achieve the desired results, the State of Uttar Pradesh decided to estab-lish a Service Commission for selection of teachers for appointment to colleges affiliated/recognized by Universities vide Commission's Act. Section 12 of the said Act provided as follows : - "procedure for appointment of teachers.- (1) Every appointment as 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 va cancies, 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. (3) The Director shall notify to the Commission at such time and in such manner as may be prescribed a subject-wise consolidated list of 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 per-sons 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. ";