S. C. Mathur, J. - (1.) THREATENED with termination of service from the post of Lecturer in English in Lal Bahadur Shashtri Post Graduate Degree College, Gonda, for short College, affiliated with the Avadh University, on account of selection of Km. Suchi Srivastava, opposite party no. 4, by the U. P. Higher Education Service Commission, for appointment to the said post, the petitioner, Dr. Mrs. Krishna Sinha, has approached this Court under Article 226 of the Constitution challenging the selection on the ground that there exists no vacancy in the College as she, who had been appointed on ad hoc basis under the U. P. Higher Education Services Commission (Removal of Difficulties) Order 1983, for short Difficulties Order, stands regularised on the post in question under section 31-B.of the ,U. P. Higher Education Services Commission Act, 1980 (U. P. Act No, 16 of 1980), for short Commission Act. She has claimed regularisation under section 31 (3) (b) of the U. P. State Universities Act, 1973, (U. P. Act No. 10 of 1973), for short Universities Act, also. Now the facts.
(2.) THE petitioner was appointed to the aforesaid post by order dated 30th November, 1983 issued under the signature of the Secretary of the College, Annexure 1. THE order mentions that the appointment has been made under the Difficulties Order with the approval of the Vice Chancellor, Avadh University. It also mentions that the appointment is on ad hoc basis and can be terminated at any time. THE petitioner asserts that she was selected by a Selection Committee constituted in accordance with the Universities Act and the statute having Experts nominated by the Vice Chancellor. This assertion has not been disputed in the counter-affidavit filed on behalf of the College, opposite party no. 2. In pursuance of the appointment order the petitioner joined the post on 1st December, 1983. On 22nd June, 1985 an Ordinance was issued to amend the Commission Act so as to introduce therein section 31-B. Under this section services of certain teachers appointed on ad hoc basis were sought to be regularised, this is the provision under which the petitioner claims regularisation and consequent lack of vacancy. As indicated hereinabove, the petitioner claims regularisation under section 31 (3) (b) of the Universities Act also. In paragraph 19 the petitioner has pointed out that writ petitions numbered 3249 of 1986 and 3422 of 1987 raise indentical question and have been admitted and interim orders have been passed on the basis of which teachers were continuing in service. The instant petition was filed in this Court on 10th October, 1988 when, without admitting it, the Bench directed notice to be issued to opposite parties 2 and 4, namely, the College and Km. Suchi Srivastava. Kumari Sri- yastava was directed to be served by the petitioner herself out of Court for which purpose the office was directed to supply her notices. The notices were received on 14th October, 1988 by the Clerk of the learned counsel for the petitioner but neither counter foil of the notice has been filed after service nor affidavit of service has been filed. By order dated 10th October, 1988 this petition was directed to be listed in the first week of November, 1988 along with writ petitions numbered 3249 of 1986 and 3422 of 1987. The interim order was also passed to the effect that in case the petitioner continued to hold charge, she would not be disturbed. The three petitions were listed on 7th November, 1988 when counter- affidavit in the present petition was filed on behalf of the College along with an application for vacation of the interim order. The hearing was adjourned and the interim order was continued. Ultimately hearing in the present petition started on 5th December, 1988 and concluded on 16th December, 1988. By order dated 5th December, 1988 the interim order was continued till the pronouncement of judgment. Later the other two cases were delinked. In these cases the Commission had not recommended any candidate to be appointed in place of the petitioners of those cases. In one of the cases a new counsel has been engaged by the petitioner of that case who required time to study the brief. In the other case arguments had not commenced. Since arguments in the present case had been concluded and the interim order of the Court was causing prejudice to the candidate selected by the Commission, we considered it appropriate to delink the other two cases from this case. This is how this petition is being disposed of separately.
(3.) IN the counter-affidavit filed on behalf of the College it has been asserted that the petitioner is not entitled to regularisation either under section 31-B of the Commission Act or under section 31 (3) (b) of the Universities Act. It is also asserted that on 15th July, 1988 the Commission recommended opposite party no. 4 for appointment to the post in question and on such recommendation petitioner's appointment automatically ceased under paragraph 3 of the Difficulties order. The claim under section 31-B is contested on two grounds- (1) At the time of ad hoc appointment the petitioner did not possess the prescribed minimum qualification of Post Master's Degree which she acquired only in September, 1988 from Avadh University, after the Commission had notified its recommendation on 15th July 1988; and (2) The vacancy against which the petitioner was appointed was not substantive in so much as the post was sanctioned only upto June, 1984 It is claimed that the post was sanctioned from time to time and even now the post has not been sanctioned on permanent basis. It is asserted that the last extension will expire on 30th June, 1989. Claim under section 31-B of the Commission Act : Section 31-B of the Commission Act reads as follows : - "(1) Every teacher, other than a Principal, directly appointed on or before January 3, 1984 on ad hoc basis, against a substantive vacancy in accordance with the provisions of the Uttar Pradesh Higher Education Services Commission (Removal of Difficulties) Order, 1982 or the Uttar Pradesh Higher Education Services Commission (Removal of Difficulties) Order, 1983, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of the concerned Statutes, shall with effect from the date of commencement of the Uttar Pradesh Higher Education Services Commission (Amendment) Act, 1985, be deemed to have been appointed in a substantive capacity provided that such teacher has been continuously serving the College from the date of such ad hoc appointment upto the date of such commencement. (2) Every teacher deemed to have been appointed in substantive capacity under sub-section (1) shall be deemed to be on probation from the date of such commencement. (3) Nothing in this section shall be construed to entitle any teacher to substantive appointment if- (a) on the date of such commencement, such post had already been filled, or selection for such post had already been made, in accordance with the provisions of this Act, or (b) such teacher was related to any member of the Management or the Principal of the College concerned. Explanation-For the purpose of this sub-section a person shall be deemed to be related to another if they are related in the manner mentioned in the Explanation to section 20 of the Uttar Pradesh State Universities Act, 1973." A teacher claiming regularisation under the above provision will have to satisfy the Court on the following points : (1) He was directly appointed to the post in question ; (2) The appointment was made on or before 3rd January, 1984 ; (3) The appointment was made on ad hoc basis in accordance with the provisions of the Difficulties Order ; (4) The appointment was made against a substantive vacancy ; (5) He possesses the qualifications prescribed under or is exempted from such qualifications in accordance with the provisions of the concerned Statutes; and (6) He has served the College continuously from the date of ad hoc appointment up to the date of commencement of the U. P. Higher Education Services Commission (Amendment) Act, 1985, which is 22nd June, 1985. ;