Kamlesh Kumar Sharma vs Yogesh Kumar Gupta

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1998 Supreme(SC) 192

1998(2) Supreme 389
Supreme Court of India
(From Allahabad High Court)
K. Venkataswami and A.P. Misra, JJ.
Kamlesh Kumar Sharma -Appellant
versus
Yogesh Kumar Gupta & Ors. -Respondents
Civil Appeal No. 7904 of 1996
Decided on 9-2-1998
Counsel for the Parties :
For the Appellant : Shrish Kumar Misra, Advocate.
For the Respondents : Sunil Kumar Jain, T.N. Singh, R.B. Misre and B.M. Sharma, Advocates.

Headnote:Service Law-Education Service-U.P. Higher Education Services Commission Act, 1980 as amended in 1992-Section 13(4)- Interpretation of - Section 13(4) refers to ‘occuring due to death, resignation or otherwise’-Word ‘otherwise’ to be as read ejusdem generis-It would be a case of unforeseen vacancies which could not be conceived u/s 12(2)-The word ‘otherwise’ cannot be given wide and liberal interpretation which would exclude large number of expected applicants-Any appointment to be made on a vacancy occuring in the succeeding year for which there is no advertisement u/s 12(4), the person on the panel list of preceding academic year in question, cannot be absorbed or be appointed.
       Held that any appointment to be made on a vacancy occuring in the succeeding year in question for which there is no advertisement under the provisions of sub-section (4) of Section 12, the person on the panel list of preceding academic year in question, cannot be absorbed or be appointed. The word “otherwise” has to be read as ejusden generis that is to say in group similar to death, resignation, long leave vacancy, invalidation, person not joining after being duly selected in other words, it would be a case of unforeseen vacancies which could not be conceived under Section 12(2). Section 12(2) conceives of a vacancy which is existing on the date of vacancy is to be advertised and which is likely to be caused in future but constricted for a period ending in the ensuing academic year in question. The words “likely to be caused” under Section 12(2) are followed by the words “during the course of the ensuing academic year” that is any person likely to retire by the end of the academic year in question. In other words, such vacancies could be foreseen and not unforeseen. While vacancies under Section 13(4) are unforeseen vacancies which fall under the group, death and/or resignation. Hence the word “otherwise” cannot be given the wide and liberal interpretation which would exclude large number of expected applicants who could be waiting to apply for the vacancies occuring in the succeeding year in question. (Para 13)
       Of course, the filling of vacancies under sub-section (4) of Section 13 on the vacancies already advertised arises only in case the person does not join or on account of death or resignation or person after joining, becomes invalid or such unforeseen circumstances. In other words, all the circumstances has to be within the vacancies already advertised and not beyond it. The sphere of sub-section (4) of Section 13 is within the vacancies for which the Commission took interview or the examination, as the case may be, under sub-section (1) of Section 13. Sub-section (2) which says that the list so prepared shall be valid till the receipt of a new list from the commission only means that in case there is delay in the next new list and any vacancy occurs on account of the unforeseen reason within the vacancies advertised, the said vacancy can be filled up under sub-section (4) of Section 13. The list would not come to an end after a period of one year, as was earlier, and would continue for a limited purpose as explained above till the selection in the next academic year in question is made and recommendations are sent with a fresh list. (Para 16)

Judgment

Misra, J.-The question raised in this appeal is the interpretation of Section 13(4) of the U.P. Higher Education Services Commission Act, 1980 (hereinafter referred to as ‘the Act’) as amended in 1992.

2. The appellant interprets that the vacancies to be filled in under this sub-section are not only those which occur on account of death or resignation but would include any other vacancy occuring till another list is sent by the Commission under Section 13(2) of the Act. In other words, it would also include vacancies not advertised but occuring even for the subsequent academic year. In order to appreciate the question raised, the background and the facts would be useful, which are stated:

3. Prior to the aforesaid Act, the appointment to the post of teachers in the Non-Governmental Colleges affiliated to the various Universities in the State of Uttar Pradesh was made by the Selection Committee of the Management of the concerned college. For various reasons, the said process was not found to be congenial and the aforesaid Act was enacted. Sections 12 to 14 of the Act contained procedure for appointment of teachers as well as Principles. Section 16 provided for the appointment of teachers on ad hoc basis. Since this provision was widely abused and mis-used, as large number of teachers were appointed on the basis of favourtism and not on merits, this was deleted in 1992, wherein both Sections 12 to 14 were substituted by the U.P. Act No. 2 of 1992. In fact by this, Sections 12 to 14 were drastically amended. Amended Section 12(1) provided,-every appointment of a teacher is to be made by the Management in accordance with the provisions of the Act and any appointment made in contravention thereof is void. Under sub-section (2), the Management has to intimate the existing vacancies and the vacancies, likely to be caused during the course of the academic year, to the Director at such time and in such manner as may be prescribed. Though prescribed under rules but not satisfactorily. The academic year is also defined through the Explanation of the same section to mean “period of 12 months commencing on July 1”. Under sub-section (3), the Director notifies to the Commission subjectwise consolidated list of vacancies intimated to him from all colleges. Under proviso to sub-section (4), the Commission has to give wide publicity in the State to the vacancies notified to draw talented persons. Under Section 13, the Commission recommends the names of the candidates found most suitable in each subject and such names have to be arranged in the order of merit. The recommendation has to be 26 more than the number of vacancies in that subject. Sub-section (2) of Section 13 enables the validity of such a list till the receipt of the new list from the Commission. This is a departure from the old provision under which the period was only for one year. Sub-section (4) refers to the appointment to be made from the persons in the said list in case of vacancy occuring due to death, resignation or otherwise. For ready reference, Sections 12, 13 and 14 of the Act are reproduced below:

“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 commencing on July 1.

(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 regula

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1998 Supreme(SC) 192

Cases Referred (4)