Hon’ble Ajit Kumar, J.—Heard Sri Shashi Nandan, learned Senior Advocate assisted by Sri Satendra Tripathi, Advocate for the petitioners, Sri Ashok Khare, learned Senior Advocate assisted by Sri Siddharth Khare, Sri H.N. Singh, learned Senior Advocate assisted by Sri Arvind Tiwari, Advocate, Sri Tarun Agrawal, Advocate for their respective parties under Chapter XXII Rule 5-A of Allahabad High Court Rules, 1952 and Sri B.N. Singh and Sri S.K. Pandey, learned advocates for the respondent Nos. 4 and 5 and learned Standing Counsel for rest of the respondents.

2. By means of this writ petition under Article 226 of the Constitution of India, the petitioners, who are 26 in number, have questioned the amendment of Section 31-E of the U.P. Higher Education Service Commission Act, 1980 (for brevity ‘’Act, 1980') vide U.P. Act No. 38 of 2018. While claiming the amendment to be ultra vires to Sections 12 and 13 of Act, 1980 and to the Articles 14 and 16 of the Constitution of India, the petitioners allege that the vacancies that are sought to be filled in by way of absorption of the working lecturers appointed under the Government Order dated 7th April, 1998, those vacancies were initially sought to be filled in by way of direct recruitment under the Act, 1980 vide Advertisement Nos. 44 and 45 of 2008 and 2009 respectively. They contend that thousands of applicants including them had applied against the advertisements but the State Government withdrew those advertisements under its order dated 21st May, 2015 in order to re-initiate the process as per the prescribed new qualifications under the Regulations of 2014. While the petitioners waited and waited for the 4th respondent to re-initiate the process of selection through direct recruitment, the State Legislature enacted U.P. Act No. 38 of 2018 bringing amendment to existing Section 31-E in following terms :

“(1) Subject to the provisions contained in Sections 12 and 13, if any vacancy exists, which could not be filled, under the provisions of said sections, a teacher on honorarium who has been appointed in grant-in-aid college on or before March 29, 2011, in accordance with the provisions as specified under G.O. No. 467/Sattar-2-98-3(19)93T.C., dated April 07, 1998 possessing educational qualification determined by the State Government, working and receiving honorarium thereby from State exchequer till the date of commencement of the Uttar Pradesh Higher Education Services Commission (Amendment) Act, 2018, shall be absorbed in the manner prescribed under sub-section (2).”

3. Thus, with the amendment of Section 31-E the new provision came to substitute to the existing provision giving a cut-off date of the teachers working and receiving honorarium from on or before 29th March, 2011 who were sought to be absorbed against the existing vacancies.

4. It is in the above background that the petitioners allege that the amendment has sought to overreach the existing rules of recruitment under the Act, 1980 and thus, it is against spirit, aim and object with which the Act, 1980 was enacted and now the qualified and eligible candidates from open market are deprived of their right to selection and consequential appointment. It is on this count that on the testing anvil of Articles 14 and 16 of the Constitution of India, it is argued that the amending provision is ultra vires to said articles as well as Sections 12 and 13 of the Act, 1980. It is further argued that initially when Section 31-E was introduced by the U.P. Act No. 42 of 2006, the same was questioned through large number of writ petitions, the leading one being Writ Petition No. 5210 of 2007 (Anurag Tripathi and others v. State of U.P. and others) and while upholding the said Act, the Court had observed that “The Court fails to comprehend the exact intention of the State except that there is an attempt to somehow or the other to resort to appointments which are initially stop gap/part-time/ad hoc and thereafter to regularise such