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ALLAHABAD HIGH COURT
ASHWANI KUMAR MISHRA, J.
GEETIKA NAGAR - Appellant
Vs.
STATE OF U P AND OTHERS - Respondent
Writ C No. 22349 of 2016, Writ A No. 23461, 24211, 24757, 25465, 25801, 22214 of 2018, 24259, 25132, 25223, 26007, 26071, 26083, 26092, 26327, 26328, 26331, 26332, 26333, 26386, 26398, 26406, 26407, 26408, 26410, 26411, 26444, 26562, 26735, 26910, 26929, 26948, 27094, 27287, 27305, 28500, 27094, 27287, 27305, 28500, 31506, 32091, 35426, 49174 of 2017, 111, 325, 350, 362, 579, 634, 807, 985, 1419, 1637 of 2019;
Decided on : 21-02-2019
U.P. Higher Education Services Commission (Amendment) Act, 2014 – U.P. Higher Education Service Commission Act, 1980 – Section 3, 11,11-A ,12,13,31(E) – Uttar Pradesh State Universities Act, 1973 – Section 31(2) – Commissions Act 1988 – Section 16,31 (1)(b),(e) – Andhra Pradesh (Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure) (Amendment) Act, 1998 – All writ petitions relates to absorption of teachers engaged on honorarium basis, in aided non-government Degree Colleges in State Method and methodology to followed for their absorption, in backdrop of applicable statutory scheme , as also previous judgments operating in field, requires determination – Challenged – Held, Absorption of teacher under Section 31-E of Act of 1980 would ordinarily against post of cadre in which teacher is working – Cadre, would limited to subject in College concerned appointing authority of teacher is Committee of Management of Institution concerned and in absence of any provision statute services of such teacher cannot be shifted to a different Institution – Being position, absorption of teacher ordinarily within aforesaid cadre itself and not beyond it – Those absorbed teachers who have already joined in terms of their absorption order constitute separate and class distinct from petitioners who have objected to their placement against other vacancies and beyond cadre – Once law found with them, and considerations of equity also favour them on account of continuance under interim order of this Court, it not just to deny them relief only because others have joined or State may have to partly amend exercise already undertaken by them for absorption – Claim of sixty nine absorbed teachers, directed to considered against existing vacancies which have not yet been filled in terms of Sections 12 & 13 of Act 1980, forthwith, preferably within four weeks, from today – Remaining vacancies advertised in terms of law laid down in Dr. Vishwajeet Singhs case, at earliest possible, in light of stand taken before this Court – Directions issued – All petitions disposed of. (Paras, 49, 64 to 68)
Facts of the case:
Petitioners challenged validity of U.P. Higher Education Services Commission (Amendment) Act, 2014 that petitioners are selected candidates against advertisement for post of Lecturers in Degree Colleges – All writ petitions relates to absorption of teachers engaged on honorarium basis, in aided non-government Degree Colleges in State Method and methodology to followed for their absorption, in backdrop of applicable statutory scheme , as also previous judgments operating in field, requires determination – Challenged.
Findings of the court:
Absorption of teacher under Section 31-E of Act of 1980 would ordinarily against post of cadre in which teacher is working – Cadre, would limited to subject in College concerned appointing authority of teacher is Committee of Management of Institution concerned and in absence of any provision statute services of such teacher cannot be shifted to a different Institution – Being position, absorption of teacher would ordinarily within aforesaid cadre itself and not beyond it – Those absorbed teachers who have already joined in terms of their absorption order constitute separate and class distinct from petitioners who have objected to their placement against other vacancies and beyond cadre – Once law found with them, and considerations of equity also favour them on account of continuance under interim order of this Court, it not just to deny them relief only because others have joined or State may have to partly amend exercise already undertaken by them for absorption – Claim of sixty nine absorbed teachers are, therefore, directed to be considered against existing vacancies which have not yet been filled in terms of Sections 12 & 13 of Act 1980, forthwith, preferably within four weeks, from today – Remaining vacancies advertised in terms of law laid down in Dr. Vishwajeet Singhs case, at earliest possible, in light of stand taken before this Court – Directions issued.
Result: All Petitions disposed of
Ashwani Kumar Mishra, J.
This bunch of writ petitions relates to absorption of teachers engaged on honorarium basis, in aided non-government Degree Colleges in the State of Uttar Pradesh. Method and methodology to be followed for their absorption, in the backdrop of applicable statutory scheme, as also the previous judgments operating in the field, requires determination.
2. Prior to 1973, Higher Education in the State of Uttar Pradesh was dispensed through different Universities and its affiliated Colleges which were established under different statutory enactments. In order to bring uniformity and for streamlining higher education in the State of Uttar Pradesh, the Parliament enacted the Uttar Pradesh State Universities Act, 1973 (hereinafter referred to as 'the Act of 1973'). The Act of 1973 contained provisions to regulate appointment of teachers in the existing Universities as also the affiliated Colleges including provisions for establishment of new Colleges. Section 31 of the Act of 1973 provided that appointment of teachers would be made only on the recommendation of Selection Committee, in terms of Sub-section (2) thereof. The constitution of Selection Committee was also prescribed. Appointment of teachers in the affiliated Degree Colleges had to be made substantive basis by way of direct recruitment by following a transparent recruitment process. However, experience showed that recruitment contemplated as per the Act of 1973, did not materialize for various reasons, necessitating the legislature to introduce a provision in 1977 for regularization of teachers hitherto engaged on ad-hoc/temporary/part time basis. Over a further period of time it was also realized that the scheme for direct recruitment of teachers on substantive basis, under the Act of 1973 has failed to deliver the desired result.
3. The State legislature, consequently, came out with a new piece of legislation known as U.P. Higher Education Service Commission Act, 1980 (hereinafter referred to as 'the Act of 1980'). Task of appointing teachers in aided Colleges was entrusted to the Higher Education Service Commission, a statutory body created under Section 3 of the said Act (hereinafter referred to as 'the Commission'). All posts sanctioned under Section 60-E of the U.P. State Universities Act, 1973, fell within its purview, except posts in aided Colleges established and administered by a minority referred to in Clause (1) of Article 30 of the Constitution or a College exclusively maintained by the State Government. By way of an amendment, introduced vide U.P. Act No. 30 of 2004, the definition of 'College' in the Act of 1980 was amended further to exclude a College running self finance course.
4. Functions of the Commission have been specified in Sections 11 and 11-A of the Act of 1980. Section 12 of the Act of 1980 prescribes the procedure for appointment of teachers and is reproduced hereinafter:-
“[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.]
[Provided that a permanent teacher of an affiliated or associated college, who has been appointed in accordance with the provisions of this Act and has completed ten years' service as such and who wishes to be transferred to any other college, may be transferred in the manner prescribed by rules from one college to another, only when the respective management of the colleges concerned give their consents in writing.
(1a) Notwithstanding any decree or order of a Court, a teacher who has been appointed as such by transfer from one college to another in pursuance of the Government Orders No. 429 Shiksha Mantri/Sattar-6-98-15-95, dated 17.8.1998 or No. 393/Sattar-l-99-15(6)-99, dated 28.10.1999 shall be deemed to h
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