Allahabad High Court
Dr. Smt. Archana Shukla And 4 Others vs State Of U.P. Thru Secy. And 3 Others on 16 November, 2018
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 22.05.2018 Delivered on 16.11.2018 Court No. - 34 Case :- WRIT - A No. - 39754 of 2014 Petitioner :- Dr. Smt. Archana Shukla And 4 Others Respondent :- State of U.P. and 3 Others Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C.,Ajit Kumar Singh,Gautam Baghel Hon'ble Sudhir Agarwal,J.
Hon'ble Ifaqat Ali Khan,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. Heard Sri Ashok Khare, Senior Advocate assisted by Sri Kamlesh Kumar Yadav, learned counsel for petitioners, learned Standing Counsel for State of U. P. and its authorities and Sri S. P. Rai, Advocate holding brief of Sri Ajit Kumar Singh, learned counsel for respondents 2 and 3.
2. This writ petition under Article 226 has been filed by five petitioners, who were engaged as Lecturer for a tenure appointment of three years on 15.09.2009, 15.09.2009, 04.04.2009, 01.10.2009, respectively, and 01.10.2009 and thereafter have been allowed extension of five years by respondent 4, which has not been accepted by Vice Chancellor, Veer Bahadur Singh Purvanchal University, Jaunpur (hereinafter referred to as "V.C., University"). This order has been challenged by seeking a writ of certiorari for quashing the same. A writ of mandamus has also been prayed directing respondents not to interfere in the functioning of petitioners as Lecturers in Department of Education of Mariahu Snatkottar Mahavidyalay, Marihau, District-Jaunpur (hereinafter referred to as 'College').
3. Facts giving rise to present writ petition are that College is a Post Graduate College affiliated to Veer Bahadur Singh Purvanchal University, Jaunpur (hereinafter referred to "V.B.S. Purvanchal Unversity") and governed by the provisions of U. P. State Universities Act, 1973 (hereinafter referred to as "U. P. Act, 1973") and Statutes framed thereunder i.e. First Statutes of V.B.S. Purvanchal University (hereinafter referred to as 'First Statutes'). College was granted affiliation with V.B.S. Purvanchal University in 2002 for running Bachelor of Education Department under Self Finance Scheme. Subsequently, by Government Order (hereinafter referred to as 'G.O.') dated 05.02.2014, with academic session commencing from 01.05.2014, College has been taken in grant-in-aid.
4. Governing various aspects of such Educational Institutions of Higher Education, which were allowed to run under Self Finance Scheme, various G.O.s were issued from time to time. Some such orders referred in para 5 of writ petition are dated 11.11.1997, 30.10.1999, 09.05.2000, 17.01.2006, 13.12.2006, 11.01.2008 and 30.5.2013.
5. G. O. dated 11.11.1997 shows that recruitment of teachers in Institutions run under Self Financing Scheme was kept outside the purview of U. P. Higher Education Service Commission (hereinafter referred to as "U.P.H.E.S.C."). Subsequently, by G. O. dated 30.10.1999, for recruitment and appointment of teachers in Self Finance Scheme Institutions, Government contemplated constitution of a panel of Experts and relevant para 2 reads as under :
"¼2½ f'k{kdksa ds p;u esa fo'ks"kKksa] mPp f'k{kk ifj"kn~ }kjk ukfer fd;k tk;sxkA ifj"kn }kjk fo'ks"kKksa dk ,d iSuy cuk;k tk;sxkA ftlesa ,sls f'k{kd gksaxs ftldks U;wure 20 o"kZ dk vuqHko gks vFkok os de ls de jhMj gksa vFkok lEcfU/kr fo"k; esa lsokfuo`fRr izksQslj gksaA"
"(2) in case of selection of teachers, the Specialists shall be nominated by the Higher Education Commission. The Commission shall prepare a panel of Specialists, which will include such teachers, who have experience of minimum 20 years or are at-least Readers or are retired Professors in the concerned subject."
(English translation by Court)
6. Some further modifications were made by G.O. dated 09.05.2000 relating to selection and appointment of teachers in Colleges of Higher Education running under Self Finance Scheme and it read as under :
"¼2½ mi;qZDr 'kklukns'kksa esa fofgr f'k{kdksa dh p;u izfØ;k] mudk osru fu/kkZj.k ,oa vgZrkvksa ds lEcU/k esa jkT; ljdkj }kjk lE;d~ fopkj djus ds mijkUr fuEukuqlkj fu.kZ; fy;k gS & ¼1½ LofoRr iksf"kr egkfo|ky;ksa esa v/;kidksa ds p;u ds fy;s fo'ks"kK dk ukekadu fo'ofo|ky; }kjk fd;k tk;sxkA p;u dk vuqeksnu fo'ofo|ky; ls djk;k tk;sxk] ftlls p;fur O;fDr ds lEcU/k esa lwpuk fo'ofo|ky; esa Hkh miyC/k gks tk;sxhA fo'ofo|ky; ds dqyifr dk;Z ifj"kn ds vuqeksnu ls izR;sd fo"k; ds fy;s fo'ks"kKksa dk iSuy cuk;saxs] tks rhu o"kksZa rd izHkkoh jgsxkA izcU/k ra= dks ftl fo"k; esa v/;kid dk p;u djkuk gks bu iSuy esa ls fo'ks"kKksa dk p;u izcU/k ra= }kjk dj fy;k tk;sxkA ¼2½ LofoRr iksf"kr egkfo|ky;ksa esa v/;kidksa dh fu;qfDr rhu o"kZ vFkok ikap o"kZ dh lafonk ij dh tk;sxhA lafonk dh vof/k lekIr gks tkus ds ckn izcU/k ra= }kjk fQj ls p;u dh dk;Zokgh izkjEHk djus ij iwoZ esa dk;Zjr O;fDr ds uke ij fuf'pr :i ls fopkj fd;k tk;sxkA bu egkfo|ky;ksa esa fu;qDr f'k{kd laLFkk ds izcU/k ra= dks rhu ekg dk uksfVl nsdj lsok ls R;kxi= ns ldrk gSa ijUrq ;fn izcU/k ra= f'k{kd ds f'k{k.k dk;Z ls lUrq"V u gks rks izcU/k ra= vuq'kklukRed dk;Zokgh dh fLFkfr esa dqyifr dk vuqeksnu izkIr djuk vko';d gksxkA ¼3½ laLFkk dks Nk=ksa ds f'k{k.k 'kqYd ls izkIr gksus okyh vk; dk 75 ls 80 izfr'kr Hkkx laLFkk }kjk osru en esa [kpZ fd;k tk;sxkA ijUrq v/;kidksa dks fn;s tkus okys osru rFkk osrueku ds lEcU/k esa opuc)rk ¼dfeVesaV½ u fd;k tk;A v/;kidksa dks ns; osru f'k{k.k 'kqYd dh ek=k ij fuHkZj djsxkA ¼4½ f'k{kdksa dks j[ks tkus okys vuqcU/k i= esa bUgsa fn;s tkus okys osru rFkk vodk'k vkfn dk] Li"V mYys[k gksuk pkfg;sA vuqca/k i= dh ,d izfr v/;kid dks] ,d izfr egkfo|ky; esa j[kh tk; rFkk ,d izfr fo'ofo|ky; esa tek djk;h tk;A ¼5½LofoRr iksf"kr laLFkkvksa ds f'k{kdksa ds fy;s vgZrk;sa rFkk 'krsZa ogha gksaxh] tks fo'ofo|ky; vuqnku vk;ksx }kjk fu/kkZfjr gSaA ¼6½ v/;kidksa ds fy;s va'knk;h Hkfo"; fuf/k ¼dkUVªhC;wVjh izkfoMs.V Q.M½ vfuok;Z :i ls ykxw dh tk;A" (emphasis added) "(2) On due consideration of teachers' selection procedure and the determination of their pay and eligibility provided in the abovementioned government orders, the State Government has taken the following decision :-
(1) The nomination of Specialists for selection of teachers in self-financed Degree Colleges, shall be done by the University. The selection shall be got approved from the University, as a result of which information in respect of the selected candidate shall be available with the University as well. The Vice Chancellor of the University shall prepare panel of Specialists for each subject with the approval of the Executive Council, which shall remain effective for three years. The Management shall select Specialist from the panel of the subject in which teacher is to be selected.
(2) In self-financed Degree Colleges, teachers shall be appointed on contract of three years or five years. On expiry of the term of contract, the Management shall necessarily consider the name of already working person at time of re-commencing the selection process. The teachers appointed in these Degree Colleges can resign from service on giving three months notice to the Management of the Institution but if the Management is not satisfied with the teaching of the teacher, then it will be essential for the Management to seek approval of the Vice Chancellor in case of disciplinary proceeding.
(3) Out of the income being received by the Institution from the tuition fees of the students, 75 to 80 percent of the amount shall be spent by the Institution in the head of salary. However, no commitment be made in respect of the salary and pay scale to be paid to the teachers. The salary payable to the teachers shall depend on the amount of tuition fees.
(4) The salary and leave etc. admissible to the teachers should be clearly mentioned in their agreement letter of engagement. A copy of the agreement letter be given to the teacher, one copy be maintained with the Degree College and one copy be submitted with the University.
(5) The eligibility and terms for teachers of self-financed Institutions shall be the same as prescribed by the University Grants Commission.
(6) Contributory Provident Fund should be compulsorily enforced for the teachers." (English translation by Court)
7. Further amendment was made in the scheme vide G. O. dated 17.01.2006 and para 2 thereof reads as under :
"¼2½ bl lEcU/k esa f'k{kd la?k dh ekWx ij lgkuwHkwfriwoZd fopkj djrs gq, lE;d~ fopkjksijkUr ;g fu.kZ; fy;k x;k gS fd lafonk dh vof/k lekIr gksaus ds mijkUr lEcfU/kr izcU/kra= iqu% izoDrk ds in ij j[kuk pkgsa rks ,sls O;fDr dh lk{kkRdkj esa lfEefyr gksus ;k fo'ofo|ky; ls vuqeksnu dh vko';drk ugha gksxhA rnuqlkj mifLFkr lanfHkZr 'kklukns'k ds izLrj&2 ds mi izLrj&¼2½ dh fuEuor izfrLFkkfir fd;k tkrk gS%& ^^LofoRr iksf"kr egkfo|ky;ksa esa v/;kidksa dh fu;qfDr rhu o"kZ vFkok ikWp o"kZ dh lafonk ij dh tk;sxhA lafonk dh vof/k lekIr gks tkus ds ckn izcU/krU= }kjk fQj ls p;u dh dk;Zokgh izkjEHk djus ij iwoZ ls dk;Zjr O;fDr ds uke ij fuf'pr :i ls fopkj fd;k tk;sxkA iwoZ ls dk;Zjr O;fDr dks lEcfU/kr izcU/krU= ;fn iqu% izoDrk ds in ij j[kuk pkgsa rks ,sls O;fDr dks lk{kkRdkj esa lfEefyr gksus ;k fo'ofo|ky; ls vuqeksnu dh vko';drk ugha gksxhA bu egkfo|ky;ksa esa fu;qDr f'k{kd laLFkk dsa izcU/krU= dks rhu ekg dk uksfVl nsdj lsok ls R;kx&i= ns ldrk gSA ijUrq ;fn izcU/kra= f'k{kd ds f'k{k.k dk;Z ls larq"V u gks rks izcU/krU= vuq'kklfud dk;Zokgh dj lEcfU/kr f'k{kd dks lsok ls gVk ldrs gSa ijUrq vuq'kklfud dk;Zokgh dh fLFkfr esa dqyifr dk vuqeksnu izkIr djuk vko';d gksxkA^^ (emphasis added) "(2) On sympathetic consideration of the demand of the Teachers Association in this regard, it has been decided that on expiry of the term of contract, if the concerned Management wishes to re-engage on the post of Lecturer, then such person shall not be required to appear in interview or seek approval from the University. Accordingly, sub-para (2) of para 2 of the present referred government order, is submitted as under :
"In self-financed Degree Colleges, teachers shall be appointed on contract of three years or five years. On expiry of the term of contract, the Management shall necessarily consider the name of already working person at time of re-commencing the selection process. In case the Management wishes to re-engage the already working person on the post of Lecturer, then such person shall not be required to appear in interview or seek approval from University. The teachers appointed in these Institutions can resign from service on giving three months notice to the Management. However, if the Management is not satisfied with the teaching work of the teacher, then the Management can remove the concerned teacher from service after conducting disciplinary proceeding, but in case of disciplinary proceeding it will be essential to seek approval of the Vice Chancellor."
(English translation by Court)
8. Then came further change in the scheme vide G.O. Dated 13.12.2008, which reads as under :
"4& foHkkxk/;{k rFkk izoDrkvksa dks iw.kZdkfyd ,oa fu;fer :i ls fu;qDr fd;k tk;sxk rFkk mUgsa fo'ofo|ky; vuqnku vk;ksx}kjk fu/kkZfjr osrueku rFkk vU; lqfo/kk;sa ns; gksxhA dsoy ,sls izoDrk ;k foHkkxk/;{k ;k izkpk;Z tks vgZrk iw.kZ u gksus ds dkj.k mijksDr ¼2½ rFkk ¼3½ ds vUrxZr vgZrk esas f'kfFkyrk nsrs gq, rSukr fd;k tkrk gS mUgs fo'ofo|ky; vuqnku vk;ksx }kjk fu/kkZfjr osrueku ij izkpk;Z ;k foHkkxk/;{k ds in ij ,d o"kZ ds fy, rFkk izoDrk in ij twu] 2009 rd lafonk ij j[kk tk;sxkA ,sls izoDrk] tks viuh vgZrk;sa 30 twu] 2009 rd iw.kZ dj ysxsa] mUgsa vkxs ds fy, vFkkZr] vgZrk iw.kZ gksus dh frfFk ls gh fu;fer fu;qDr fd;k tk;sxhA 5& fu;qfDr lEcfU/kr leLr dk;Zokgh fo'ofo|ky; dh izFke ifjfu;ekoyh ds vuqlkj xfBr p;u lfefr dh flQkfj'kksa ds vk/kkj ij dh tk;sxhA 6& vius deZpkfj;ks ds fy, isa'ku mpnkrk Hkfo";fuf/k vkfn ls lEcfU/kr nkf;Roksa dk fuokZg laLFkku ds izcU/kd oxZ }kjk fd;k tk;sxkA 7& v/;kidksa dh fu;qfDr bl izdkj dh tk;sxh rkfd lHkh vk/kkfjr vkSj izfof/k ikB~;Øe i<+kus ds fy, fo'ks"kKrk lqfuf'pr dh tk ldsA"
(emphasis added) "4. The Head of Department and Lecturers shall be appointed on full time and regular basis, and the pay scale and other facilities prescribed by the University Grants Commission shall be admissible to them. Only such Lecturers or Head of Department or Principals, who are appointed after being granted relaxation from eligibility under aforesaid (2) and (3) due to non-fulfillment of the eligibility, shall be engaged on contract basis, at the pay scale prescribed by the University Grants Commission, for one year in case of the post of Principal or Head of Department and upto June, 2009 in case of the post of Lecturer. Such Lecturers, who shall fulfill their eligibility upto June 2009 will be engaged further, i.e. shall be appointed regularly from the date of fulfilment of eligibility.
5. The entire proceeding regarding appointment shall be conducted on the basis of recommendation of the Selection Committee constituted in accordance with the First Statutes of the University.
6. The liabilities in respect of pension, "Uchdata" Provident Fund etc. shall be discharged by the Management of the Institution.
7. The appointment of teachers shall be so made that the speciality for teaching all "Aadharit" and technical courses can be ensured." (English translation by Court)
9. Reconsidering earlier G.O.s, the scheme was modified vide G.O. dated 30.05.2013 giving following revised directions in the matter of appointment of teachers in Self Financed Colleges of Higher Education:
"1.vk'kkldh; vuqnkfur egkfo|ky;ksa esa LofoRriksf"kr ikB~;Øeksa ls 'kqYd ds :i esa tks ldy /kujkf'k izkIr gksrh gSa mls ,d gh cSad ds ,d gh [kkrs esa j[kk tkuk mfpr gksxk vkSj izfrekg fofHkUu ikB~;Øeksa dh ldy vk; dk 75 ls 80 izfr'kr /kujkf'k f'k{kdksa ds osru ij O;; dks lqfuf'pr djus gsrq [kkrs dk lapkyu egkfo|ky; ds izcU/kd ,oa izkpk;Z ds la;qDr gLrk{kjksa ls fd;k tk;sxkA
2. LofoRriksf"kr ikB~;Øeksa esa lafonk ij fu;qDr f'k{kdksa dh lafonk vof/k c<+k;s tkus ds laca/k esa 'kklukns'k la[;k & 2443@lRrj&2&2000&2¼85½@97] fnukad 9 ebZ] 2000 ,oa lifBr 'kklukns'k la[;k & 5699@lRrj&2&2007&2¼85½@97] fnukad 11 tuojh] 2008 }kjk ;g O;oLFkk dh x;h gS fd izFke ikap o"kZ dh lafonk lekIr gksus ij izcU/kra= fQj ls p;u dh dk;Zokgh izkjEHk djus esa iwoZ dk;Zjr f'k{kdksa ftudk dk;Z ,oa vkpj.k larks"ktud gks vkSj muds fo:) dksbZ vuq'kklfud dk;Zokgh izpfyr u gks] ds uke ij fuf'pr :i ls fopkj fd;k tk;sxk vkSj iwoZ ls dk;Zjr f'k{kdksa dks lk{kkRdkj esa 'kkfey djus vFkok fo'ofo|ky; ls vuqeksnu dh vko';drk ugh gksxh vkSj izR;sd ikap o"kZ ds i'pkr~ mudh lafonk dks vxys ikap o"kZ ds fy, uohuhdj.k gks tk;sxkA rnØe esa ;g O;oLFkk dh tkrh gS fd dksbZ izfrdwy ifjfLFkfr u gksus ij izcU/kra= lacaf/kr fo'ofo|ky; ds vuqeksnu ls f'k{kdksa dh lafonk dk uohuhdj.k vius Lrj ls djrs jgsaxs fdUrq izfrdwy mifLFkfr mRiUu gksus ij lacaf/kr fo'ofo|ky; ds dqyifr dk fofu'p; vafre gksxkA
3.egkfo|ky; ds LofoRriksf"kr ikB~;Øe ls lacaf/kr [kkrk i`Fkd gksxk ftl [kkrs dk vko';d :i ls okf"kZd vkfMV djk;k tk;sxk rFkk izR;sd o"kZ 30 twu rd fo'ofo|ky;@ 'kklu dks vkfMV fjiksVZ miyC/k djk;h tk;sxhA
4.lHkh vuqnkfur egkfo|ky;ksa dh mRrjiqfLrdkvksa dk ewY;kadu lafonk ij j[ks x;s dk;Zjr f'k{kdksa ls djk;k tk ldrk gS rFkk bu f'k{kdksa dks fjÝs'kj@vksfj;saVs'ku@odZ'kki esa Hkkx ysus dh vuqefr@Lohd`fr iznku dh tk ldrh gSA
5.yfEcr iksf"kr ikB~;Øe esa lafonk ij dk;Zjr f'k{kdksa gsrq 'kklukns'k l[a;k & 2443@lRrj&2&2000&2¼85½@97] fnukad 9 ebZ] 2000 esa lh0ih0,Q0 O;oLFkk vfuok;Z :i ls ykxw fd;k tkuk izkfo/kkfur gSa ,sls f'k{kd ftl fnukad ls f'k{k.k dk;Z dj jgs gSa ml frfFk@ekg ls lh0ih0,Q0 ;kstuk ykxw dh tk; rFkk izR;sd o"kZ lh0ih0,Q0 [kkrs esa tek /kujkf'k dh lkykuk lwpuk fo'ofo|ky; ,oa 'kklu dks izsf"kr dh tk;sxhA
6.v'kkldh; lgk;rk izkIr egkfo|ky;ksa esa tks LofoRr iksf"kr ikB~;Øe gS muds [kksys tkus dh vuqefr 'kklu ls nh tkrh gSA vr% ;fn fdlh ikB~;Øe esa Nk=ksa dh la[;k 'kwU; gks tkrh gS rks egkfo|ky; viuh fjiksVZ fo'ofo|ky; dks izLrqr djsxk rFkk 'kklu ds vuqeksnuijkUr fo'ofo|ky; dh vuqefr ls gh ,sls ikB~;Øe dks cUn fd;k tk ldrk gSA bl O;oLFkk dks 'kklukns'k la[;k & 5699@lRrj&2&2007&2¼85½@97] fnukad 11 tuojh] 2008 ds tkjh gksus dh frfFk ls ykxw fd;k tk;sA" (emphasis added) "1. It will be proper to deposit the gross amount being received from self-financed courses in Non-government aided Degree Colleges, in one account of one bank, and in order to meet the monthly expenses towards the salary of teachers from 75 to 80 percent of the gross income from various courses, the account shall be operated under joint signature of the Manger and Principal of the Degree College.
2. In order to extend the contract period of teachers appointed on contract basis in self-financed courses, it has been provided vide Government Order No.2443/Seventy-2-2000-2(85)/97, dated 9 May 2000 read with Government Order No.5699/Seventy-2-2007.2(85)/97, dated 11 January, 2008 that on expiry of the first contract of five years, the Management shall necessarily consider the name of already working teachers, whose work and conduct is satisfactory and no disciplinary proceeding is pending against them, and the already working teachers will not be required to appear in interview or seek approval from University, and every five years, their contract shall be renewed for next five years. Consequently, it is provided that in absence of any adverse situation, the Management shall keep renewing the contract of teachers at its level with the approval of the concerned University, but in case of any adverse situation, the determination of the Vice Chancellor of the concerned University shall be final.
3. The account related to self financed course of the Degree College shall be separate, whose audit shall necessarily be done annually, and the audit report shall be provided to the University/Government by 30th June every year.
4. The evaluation of answer books of all aided Degree Colleges can be got done through the teachers engaged on contract, and these teachers can be permitted/allowed to participate in Refresher/Orientation/Workshop.
5. In case of teachers working on contract basis in pending aided courses, it is provided in Government Order No.2443/Seventy-2-2000-2(85)/97, dated 9 May 2000 to compulsorily implement the C.P.F. Scheme. The C. P.F. Scheme be enforced from the date/month, from which date such teachers are working, and the annual information in respect of the amount deposited in each C.P.F. account shall be sent to the University and Government.
6. The permission for starting self-financed courses in Non-government aided Degree Colleges, is granted by Government. Hence, if the number of students in any course becomes zero, then the Degree College shall submit its report to the University and such course can be discontinued only with the approval of University after the approval of Government. This procedure be enforced from the date of issue of Government Order No.-5669/Seventy-2-2007-2(85)/97, dated 11 January 2008."
(English translation by Court)
10. Under aforesaid scheme of appointment of teachers in Self Financed Colleges, petitioners were initially appointed on various dates between 2006 to 2009, details whereof are given hereinunder :
Sl No Name of petitioner Date of approval granted by NCTE Date of approval granted by University Date of appointment letter Period of appointment 1 Dr. Smt. Archana Shukla 06/29/06 07/03/06 07/19/06 3 years 2 Dr. Yogesh Kumar Mishra 06/29/06 07/03/07 07/19/06 3 years 3 Dr. Awdhesh Chandra Tripathi ___ 09/14/09 04/03/09 ___ 4 Dr. Hausla Prasad Pandey ___ 09/14/09 10/12/09 3 years 5 Dr. Brijesh Kumar Dubey ___ 09/14/09 10/13/09 3 years
11. Since none of the petitioners passed NET/SLET test and/or had acquired M. Phil or Ph. D. Degree at the time of appointment, all these appointments were made with the condition that within three years, petitioners shall acquire eligibility of having passed NET/SLET test or Ph. D. Degree. National Council for Teachers Education (hereinafter referred to as 'NCTE') also granted relaxation permitting appointment as Lecturers in Department of Education with clear condition that within three years, incumbents will have to qualify NET/SLET or acquire M Phil. or Ph. D. Degree.
12. In 2012, tenure of appointment of petitioners (petitioners 1 and 2 whose tenure earlier expired in 2009 and renewed for a period of three years) was coming to end. Thereupon Management entered into fresh agreements dated 15.09.2012, 15.09.2012, 04.04.2012, 04.04.2012, 01.10.2012 and 01.10.2012 respectively with five petitioners making contract for appointment for five years. Petitioners have filed their agreements collectively as Annexure-27 but said documents show details of agreements as under:
Sl. No Name of petitioner Page no. of Paper book Date of agreement Period of contract Date of commencement of contract
1.
Dr. Smt. Archana Shukla 206 15.09.2009 3 years 15.09.2009
2. Dr. Awadhesh Chandra Tripathi 207 05.05.2012 5 years 04.04.2012
3. Dr. Yogesh Kumar Mishra 208 17.06.2013 5 years 15.09.2012
4. Dr. Hausla Prasad Pandey 209 17.06.2013 5 years 01.10.2012
5. Dr. Brijesh Kumar Dubey 210 17.06.2013 5 years 01.10.2012
6. Dr. Smt. Archana Shukla 211 17.06.2013 5 years 15.09.2012
13. In daily newspaper "Hindustan" dated 19.06.2013 published at Varanasi, an advertisement was published by College inviting applications for appointment on one post of Head of Department and five posts of Lecturers. Petitioners came to know that aforesaid advertisement has been published to make appointments for replacing them, whereupon they came to this Court in Writ Petition No.35881 of 2013, where an interim order was passed on 05.07.2013 directing Management of College to allow petitioners to continue on their respective posts and in the meantime selection pursuant to advertisement may go on, but no appointment shall be made. Above writ petition was finally disposed of vide judgment dated 25.02.2014 whereby this Court directed petitioners to approach V. C., University by making representations and he was required to consider their matter in accordance with law. Order passed by this Court reads as under :
"Heard learned counsel for the petitioner, learned counsel for the respondent-University and learned Standing Counsel for the State-respondents.
Petitioners, who are five in number, have been appointed as teachers in Mariahu Snatkottar Mahavidyalaya, Mariahu, Jaunpur for imparting education for courses run under Self-Finance.
It is the case of the petitioners that their appointment was renewed from time to time. Renewal granted in favour of the petitioners for a period of three years expired in the year 2012. The Committee of Management of the College, without passing any further orders, continued to take work from them even thereafter and paid their salary. All of a sudden, the Committee of Management has decided to make direct recruitment on same terms against the posts held by the petitioners. Hence this petition.
This process of fresh direct recruitment so initiated has been challenged with reference to the Government Order dated 30th May, 2013, which provides that before resorting to any fresh direct recruitment, the Committee of Management must examine as to whether the earlier incumbent be continued and if any decision is taken to not to grant further extension, then approval of the Vice-Chancellor would be required.
Counter affidavit has been filed on behalf of the University and it has been stated that no extension can be granted to the petitioners because they are not possessed of the prescribed minimum qualification as laid down under the First Statute of the University and reference in that regard is made to the judgment of this Court in the case of Dr. Vinay Singh & 11 Others vs. Union of India & 7 Others passed in Writ Petition-A No. 66273 of 2013 decided on 6th January, 2014.
The Committee of Management has chosen not to file any counter affidavit, although today, a Vakalatnama has been filed by Sri S.C. Tripathi, Advocate on its behalf.
We are of the considered opinion that no purpose would be served by keeping the writ petition pending, inasmuch as the decision of the Committee of Management to resort to direct recruitment and not to extend the contractual appointment of the petitioners can always be examined by the Vice-Chancellor of the University at the first instance in view of the Government Order dated 30th May, 2013.
Therefore, in the facts of the present case, we dispose of the present writ petition by providing that the petitioners may make a representation, ventilating all their grievances, supported by such documents, as may be advised, before Vice-Chancellor (respondent no.2), within two weeks from today, along with a certified copy of this order. On such representation being made, respondent no.2 shall consider and decide the same, in accordance with law by means of a reasoned speaking order, preferably within four weeks from the date the representation is made, after affording opportunity of hearing to the Committee of Management of the college.
Since under the interim order of this Court dated 5th July, 2013, the Committee of Management was permitted to make selection but no appointment was to be made, we further provide that the status quo as on date shall continue till the orders are passed by the Vice-Chancellor as indicated above."
14. Petitioners made collective representation dated 07.03.2014 before V.C., University. Aforesaid representation has been rejected by V. C., University vide order dated 11.07.2014 observing that after expiry of tenure of petitioners on contractual appointments in 2012, no further approval was given by University and petitioners' engagement being contrary to University Grants Commission (Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Other Measures For the Maintenance of Standards in Higher Education) Regulations, 2010 (hereinafter referred to as "UGC Regulations 2010"), cannot be allowed to continue, therefore, Management should proceed to make fresh recruitment/appointment.
15. Learned Senior Counsel contended that for renewal of contract of teachers' appointment, no further approval of V.C., University was required under G.O.s dated 17.01.2006 read with G.O.s dated 13.12.2008 and 30.05.2013. He further contended that petitioners possess requisite qualification specified by NCTE and UGC, inasmuch as, petitioners were awarded Ph. D. or passed NET test in different years as detailed below :
Sl.No Name of petitioner Qualifying degree/test Year of passing/ obtaining Degree 1 Dr. Smt. Archana Shukla Ph. D. (In Education) 2011 2 Dr. Yogesh Kumar Mishra Ph. D. 2013 3 Dr. Awadhesh Chandra Tripathi NET 06/01/12 4 Dr. Hausla Prasad Pandey Ph. D. 1994 5 Dr. Brijesh Kumar Dubey NET 06/01/13
16. On behalf of respondents 2 and 3, a counter affidavit has been filed stating that after approval granted by University to appointment of petitioners, vide letter dated 14.09.2009, petitioners entered into contract for three years with effect from 15.09.2009, 15.09.2009, 01.04.2009, 01.10.2009 and 01.10.2009 respectively. Aforesaid contract expired on various dates in 2012. There was no new contract of service entered with petitioners and no approval was granted by University. In the meantime UGC Regulations 2010 having come into force laying down eligibility criteria for appointment to the post of Lecturer, it was incumbent upon College to make appointments, whether fresh or by renewal of contract, strictly in accordance with eligibility conditions provided in UGC Regulations 2010. It is further stated that earlier approval granted clearly contemplated a condition that appointees shall acquire eligibility qualifications of NET/SLET or Ph. D. within three years, which appointees failed and hence they have no right to claim continuance of their appointment on the post of Lecturers.
17. In the rejoinder affidavit, petitioners have reiterated whatever they have stated in the writ petition.
18. In the backdrop of facts and pleadings of parties noticed above, first question, which in our view, needs to be examined is, "whether petitioners did possess requisite qualifications prescribed under Statute at the time of initial appointment in 2006 or in 2009, as the case may be or at the time of alleged renewal of contract in 2009 and 2012".
19. Only petitioner no.4 possessed Ph. D. Degree since 1994, but rest neither have passed NET/SLET Examination nor possessed Ph. D. Degree, either in 2006 or 2009 as the case may be. It is not in dispute before us that for the purpose of qualification to be possessed by teachers appointed in the Institutions of Higher Education, provisions made by University Grants Commission (hereinafter referred to as 'UGC') have to be complied with.
20. Section 26 of University Grants Commission Act, 1956 (hereinafter referred to as "UGC Act, 1956") confers power upon UGC to make Regulations consistent with Act and Rules made thereunder. Section 26 (1) (e) of UGC Act, 1956 reads as under :
"26.(1)(e) defining the qualifications that should ordinarily be required of any person to be appointed to the teaching staff of the University having regard to the branch of education in which he is expected to give instructions."
21. In exercise of powers conferred by Section 26 (1) (e) of UGC Act 1956, initially UGC (Qualifications Required of a Person to be Appointed to Teaching Staff of a University and Institutions Affiliated to it) Regulations 1982 (hereinafter referred to as "UGC Regulations, 1982") were framed in 1982, which came into force on 01.07.1983, prescribing qualification for teaching posts and Lecturers in Colleges as follows :
"M. Phil. degree or a recognised degree beyond Master's level."
22. In 1986, a Committee namely Malhotra Committee was constituted by UGC to examine various features of University and College Education. Malhotra Committee recommended that there should be certain minimum qualifications laid down for the posts of Teachers in Universities and Colleges. Accepting aforesaid recommendations in the meeting of Vice Chancellors held in 1989, it was decided to hold comprehensive National Eligibility Test (hereinafter referred to as 'NET') to determine eligibility for Lecturers with reference to common yardstick in its aegis. Consequently, in supersession of UGC Regulations, 1982, a new set of Regulations namely, UGC (Qualifications Required of a Person to be Appointed to the Teaching Staff of University and Institutions affiliated to It) Regulations, 1991 (hereinafter referred to as UGC Regulations 1991) were promulgated and notified on 19.09.1991 The qualifications prescribed for Lecturers in the aforesaid Regulations read as under :
"Good academic record with at least 55 % marks or equivalent grade at Masters Degree Level in relevant subject from an Indian University or an equivalent degree from a Foreign University. Candidates besides fulfilling above qualifications should have cleared the eligibility test for Lecturers conducted by UGC, CSIR or similar tests accredited by UGC. UGC Regulations 1991 also provided that any relaxation in prescribed qualification can only be made by University with prior approval of Commission." (emphasis added)
23. Validity of UGC Regulations 1991 was challenged but upheld in University of Delhi Vs. Raj Singh, 1994 Suppl.(3) SCC 516. On 10.02.1993, a Circular was issued by UGC granting exemption from appearing in eligibility test i.e. NET to candidates of following categories :
(i) All candidates who have passed NJC/CSIR/JRF Examination
(ii) All candidates who have already been awarded Ph.D. Degree
(iii) All candidates who have already been awarded M. Phil Degree up to 31st March, 1991
(iv) All candidates who would submit their Ph. D. Thesis upto 31st December 1993." (emphasis added)
24. By another Circular dated 15.06.1993, UGC extended the date from 31.03.1991 to 31.12.1992 in respect of candidates who have already been awarded M. Phil Degree by the said date and granted them exemption from appearing in NET.
25. Again vide Circular dated 21.06.1995, in UGC Regulations 1991, a proviso was added, which reads as under :
"Provided that candidates, who have submitted Ph. D. Thesis or passed M. Phil Examination by 31.12.1993, are exempted from the eligibility test for Lecturers conducted by UGC, CSIR or similar tests accredited by UGC."
26. On 24.12.1998, a notification was issued by UGC in which other things with respect to minimum qualification for appointment of Lecturers were maintained, but in respect of Ph. D. holders, it was said that University concerned, at its discretion, may exempt Ph. D. holders from NET or require NET either as a desirable or essential qualification for appointment as Lecturer in the University Departments and Colleges. It further said that any relaxation in the prescribed qualifications can only be made by University with prior approval of UGC.
27. Then in supersession of UGC Regulations 1991, a new set of Regulations were framed namely UGC (Minimum Qualifications Required for the Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to it) Regulations 2000 (hereinafter referred to as "UGC Regulations 2000"). It was made effective from 04.04.2000 and superseded UGC Regulations 1991 and also notification dated 24.12.1998 in respect to the qualifications of Teachers in the University and Institutions and Colleges affiliated to it.
28. UGC Regulations, 2000 in respect of qualifications to be possessed by Lecturers in the University and Colleges provided as under:
"No person shall be appointed to a teaching post in university or in any of institutions including constituent or affiliated colleges recognized under clause (f) of Section 2 of the University Grants Commission Act, 1956 or in an institution deemed to be a university under Section 3 of the said Act in a subject if he/she does not fulfil the requirements as to the qualifications for the subjects as provided in the Annexure.
Provided that any relaxation in the prescribed qualifications can only be made by the University Grants Commission in a particular subject in which NET is not being conducted or enough number of candidates are not available with NET qualifications for a specified period only. (This relaxation, if allowed, would be given based on sound justification and would apply to affected Universities for that particular subject for the specified period. No individual applications would be entertained.) Provided further that these regulations shall not be applicable to such cases where selections of the candidates having had the then requisite minimum qualification as were existing at the time through duly constituted Selection Committees for making appointments to the teaching posts have been made prior to enforcement of these regulations."
29. Subsequently, an amendment was made in UGC Regulations, 2000 by providing as under :-
"NET shall remain the compulsory requirement for appointment as Lecturer even for candidates having Ph. D. degree. However, the candidates who have completed M. Phil degree by 31st December, 1993 or have submitted Ph. D. thesis to the University in the concerned subject on or before 31st December, 2002, are exempted from appearing in the NET examination. In case such candidates fail to obtain Ph. D. degree, they shall have to pass the NET examination."
30. In the meantime, in order to regulate Teachers Training Institutions and Courses run by them, Parliament also enacted National Council for Teacher's Education Act, 1993 (hereinafter referred to as "NCTE Act 1993"), which came into force on 01.07.1995. NCTE was to be established vide Section 3 of aforesaid Act, 1993 and functions of NCTE were detailed in Section 12 which says that Council shall take all such steps as it may think fit for ensuring compliance of planned and co-ordinated development of teacher's education and for determination and maintenance of standards for teacher's education. Section 12 (f) confers power upon NCTE to lay down standards for qualification of staff to be deployed in Institutions of teacher's education. Section 32 confers power upon NCTE to make Regulations and Section 32 (2) (d) thereof reads as under :
"(d) the norms, guidelines and standards in respect of-
(i) the minimum qualifications for a person to be employed as a teacher under clause (d) of section 12;
(ii) the specified category of courses or training in teacher education under clause (e) of section 12;
(iii) starting of new courses or training in recognised institutions under clause (f) of section 12;
(iv) standards in respect of examinations leading to teacher education qualifications referred to in clause (g) of section 12;
(v) the tuition fees and other fees chargeable by institutions under clause (h) of section 12;
(vi) the schemes for various levels of teachers education, and identification of institutions for offering teacher development programmers under clause (1) of section 12;"
31. In exercise of powers under Section 32 (2) (d), (f) and (g) read with Section 14 and 16 of NCTE Act 1993, Regulations were framed in 2002 by NCTE and therein Appendix 7, para 5 provides qualification of teaching staff for B. Ed. Course in the Institutions running B. Ed. Programme and it reads as under :-
"(b) Lecturer -
Good academic record with M.Ed./M.A. (Education) with 55 % marks OR Good academic record with Master's Degree with 55 % marks in the relevant school subject and M.Ed./M.A.(Education) with 50 % marks OR Good academic record with Master's Degree with 55 % marks in the relevant school subject and a B. Ed. Degree with 55 % marks, with five years' teaching experience in a recognised secondary/senior secondary school. (This alternative qualification shall be applicable only in those States where prior to the establishment of the NCTE, the qualification for appointment of teachers in B. Ed. Institutions was a Post-graduate Degree in a school subject with B. Ed. However, teachers appointed with this qualification will have to acquire M. Ed. Qualification within five years).
(c) A relaxation of 5 % may be provided from 55 % to 50 % of the marks, at the Master's Level for the SC/ST category.
(d) Apart from the qualifications prescribed at (a) and (b) above, the candidates shall be required to have such other qualifications as may be prescribed by other regulatory bodies like the University Grants Commission (UGC), etc.
(e) Qualifications for other academic staff for teaching physical education, art, work experience, information technology literacy etc. shall be as prescribed by the concerned affiliating University/UGC." (emphasis added)
32. NCTE Regulations, 2002 were subsequently substituted by NCTE (Recognition Norms and Procedure) Regulations 2009 and therein also in Appendix-4, for the institutions running B. Ed. Courses, qualification for appointment of Lecturer was provided which included one of the condition as under :
"Any other stipulation prescribed by UGC/affiliating body/State Government from time to time for the positions of Principals and Lecturers shall be mandatory."
(emphasis added)
33. A Committee was constituted namely, Mungekar Committee which submitted its report recommending that NET should be made a compulsory requirement for appointment of Lecturers in addition to qualification of M. Phil or Ph. D. Degree. Consequently, Department of Higher Education, Ministry of Human Resource Development, Government of India (hereinafter referred to as the "Central Government") issued an Office Memorandum dated 12.11.2008 with following directions :
"UGC shall, for serving the national purpose of maintaining standards of higher education, frame appropriate Regulations within a period of thirty days from the date of issue of this order prescribing that qualifying in NET/SLET shall generally be compulsory for all persons appointed to teaching positions of Lecturer/Assistant Professor in Higher Education, and only persons who possess degree of Ph. D. after having been enrolled/admitted to a programme notified by the Commission, after it has satisfied itself on the basis of expert opinion, as to be or have always been in conformity with the procedure of standardization of Ph. D. prescribed by it, and also that the degree of Ph. D. was awarded by a University or Institution Deemed to be University notified by the UGC as having already complied with the procedure prescribed under the Regulations framed by the Commission for the purpose."
(emphasis added)
34. Pursuant to Government of India's Office Memorandum dated 12.11.2008, UGC promulgated Regulations 2009, 3rd Amendment, which reads as under :
"NET/SLET shall remain the minimum eligibility condition for recruitment and appointment of Lecturers in Universities/ Colleges/ Institutions.
Provided, however, that candidates, who are or have been awarded Ph. D. Degree in compliance of the "University Grants Commission (minimum standards and procedure for award of Ph. D. Degree), Regulation 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET for recruitment and appointment of Assistant Professor or equivalent position in Universities/ Colleges/ Institutions."
(emphasis added)
35. Thereafter, another Office Memorandum was issued by Government of India on 30.03.2010 under Section 20 of UGC Act 1956, which reads as under :
"(i) That the UGC shall not take up specific cases for exemption from the application of the NET Regulations of 2009 after the said Regulations have come into force, for either specific persons or for specific university/institution/college from the application of the UGC (Minimum Qualifications for appointment and career advancement of teachers in universities and colleges) 3rd Amendment Regulations, 2009 for appointment as Lecturer in universities/ colleges/institutions;
(ii) That appropriate amendment to the second proviso to Clause 2 of the UGC Regulations 2000 shall be made by UGC to give full effect to the policy directions issued by the Central Government dated 12th November, 2008, within 30 days from the date of issue of this direction; and
(iii) That the decision taken by the UGC in it's 468th meeting held on 23rd February, 2010 vide agenda item no.6.04 and 6.05 to grant specific exemptions from the applicability of NET shall not be implemented as being contrary to national policy.
The above said directions shall be implemented by the UGC forthwith." (emphasis added)
36. UGC then framed new set of Regulations namely, University Grants Commission (Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 (hereinafter referred to as "Regulations, 2010"). Therein Regulations 3.3.1 provided following qualifications for appointment of Lecturers in Universities/Colleges/Institutions:
"NET/SLET/SET shall remain the minimum eligibility condition for recruitment and appointment of Assistant Professors in Universities/ Colleges/Institutions.
Provided however, that candidates, who are or have been awarded a Ph. D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of Ph. D. Degree) Regulations, 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/ Colleges/ Institutions." (emphasis added)
37. Vide Resolutions dated 12.08.2010 and 27.09.2010, UGC communicated its opinion that since Regulations, 2010 are prospective in nature, all candidates having M. Phil. Degree on or before 10.07.2009 and all the persons who obtained Ph. D. Degree on or before 31.12.2009 and have registered themselves for Ph.D. before this date but are awarded such degrees subsequently, shall remain exempted from requirement of passing NET for the purpose of appointment as Lecturers/Assistant Professors. However, Government of India vide letter dated 03.11.2010 informed UGC that government is not agreeable with the above decision of UGC and is of the view that a candidate seeking appointment to the post of Lecturer/Assistant Professor must fulfil minimum qualifications prescribed by UGC including minimum eligibility condition having passed NET.
38. Aforesaid decision of Government of India was challenged on the ground that Regulations framed by UGC shall prevail. This issue has been settled finally by Supreme Court in P. Suseela and others Vs. University Grants Commission and others, (2015) 8 SCC 129. Court therein held as under:
"It is clear that the object of the direction of the Central Government read with the UGC Regulations of 2009/2010 are to maintain excellence in standards of higher education. Keeping this object in mind, a minimum eligibility condition of passing the national eligibility test is laid down. True, there may have been exemptions laid down by the UGC in the past, but the Central Government now as a matter of policy feels that any exemption would compromise the excellence of teaching standards in Universities/Colleges/Institutions governed by the UGC. Obviously, there is nothing arbitrary or discriminatory in this-in fact it is a core function of the UGC to see that such standards do not get diluted."
39. Supreme Court further held that Section 26 enables UGC to make Regulations only if they consistent with UGC Act, 1956. This necessarily means that such Regulation must conform to Section 20 of Act and under Section 20 of Act, Central Government is given power to give directions on the questions of policy relating to national purposes which shall guide UGC to discharge its functions under UGC Act, 1956. Having said so and stressing upon the fact that passing of NET would be compulsory, Court said:
"It is clear, therefore, that both the directions of 12th November, 2008 and 30th March, 2010 are directions made pertaining to questions of policy relating to national purposes inasmuch as, being based on the Mungekar Committee Report, the Central Government felt that a common uniform nationwide test should be a minimum eligibility condition for recruitment for the appointment of Lecturer/ Assistant Professors in Universities/ Colleges/ Institutions. This is for the obvious reason that M. Phil. degrees or Ph.D. degrees are granted by different Universities/Institutions having differing standards of excellence. It is quite possible to conceive of M. Phil/Ph.D. degrees being granted by several Universities which did not have stringent standards of excellence. Considering as a matter of policy that the appointment of Lecturers/Assistant Professors in all institutions governed by the UGC Act (which are institutions all over the country), the need was felt to have in addition a national entrance test as a minimum eligibility condition being an additional qualification which has become necessary in view of wide disparities in the granting of M. Phil./Ph.D. degrees by various Universities/Institutions. The object sought to be achieved by these directions is clear: that all Lecturers in Universities/ Colleges/ Institutions governed by the UGC Act should have a certain minimum standard of excellence before they are appointed as such. These directions are not only made in exercise of powers under Section 20 of the Act but are made to provide for coordination and determination of standards which lies at the very core of the UGC Act. It is clear, therefore, that any Regulation made Under Section 26 must conform to directions issued by the Central Government Under Section 20 of the Act." (emphasis added)
40. An otherwise decision rendered by this Court on 06.04.2012 in Civil Misc. Writ Petition No. 45477 of 2011 (Dr. Ramesh Kumar Yadav and another vs. University of Allahabad and others) was set aside by Supreme Court in aforesaid judgement and Court has clearly held as under:
"Regulations making power is subservient to directions issued under Section 20 of the Act. The fact that the UGC is an expert body does not take the matter any further. The UGC Act contemplates that such expert body will have to act in accordance with directions issued by the Central Government."
41. In the above facts and circumstances, it is clear that under UGC Regulations, 2009 and UGC Regulations, 2010 read with Government of India's Office Memorandums referred above, qualifying NET/SLET qualification is a mandatory qualification and could not have been excluded. Even in the appointment orders, it was clearly mentioned that qualification prescribed under the statute has to be obtained within one year.
42. The present petitioners claim to have been appointed in 2009 and their qualifications mentioned in University's letter dated 14.09.2009 (Annexure 22 to the writ petition) read as under :
Sl. No. Name of petitioner Qualification
1.
Sri Yogesh Kumar Mishra M. A., M. Ed.
2. Smt. Archana Shukla M. A., M. Ed.
3. Sri Anmol Dubey M. A., M. Ed.
4. Sri Haushla Pradad Pandey M. Com., M. Ed.
5. Sri Ravi Kumar Mishra M. A., M. Ed.
6. Sri Yogesh Pathak M. A., M. Ed.
7. Sri Manoj Kumar Yadav M. Sc., M. Ed.
43. The above qualifications were not consistent with Regulations of UGC applicable at that time read with Government of India's Office Memorandums dated 12.11.2008. In any case when petitioners entered into fresh agreements in 2012 and 2013, for the period of 5 years, none of them possessed requisite qualification prescribed under Regulations, 2010 read with Government of India's Office Memorandum dated 30.03.2010 in the light of law laid down by Supreme Court in P. Suseela and others Vs. University Grants Commission (supra).
44. Therefore, in our considered view, the order of Vice Chancellor impugned in the present writ petition cannot be faulted. We find no reason to interfere with the same. In order to claim a valid appointment on the post of Lecturer/Assistant Professor, whether on contract basis or otherwise, one must satisfy the condition that he/she possess requisite statutory qualification prescribed under law. An appointment of a person not qualified as per statute is void ab initio and does not confer any legal right.
45. In Dr. Bhanu Prasad Panda Vs. The Chancellor, Sambalpur University & Ors., AIR 2001 SC 3324, Court said that eligibility qualification cannot be ignored. The same view was reiterated in Mohd. Sohrab Khan Vs. Aligarh Muslim University & Ors., JT 2009(2) SC 666.
46. In Mohd. Sartaj & Anr. Vs. State of U.P. & Ors. AIR 2006 SC 3492 Court said "It is settled law that the qualification should have been seen which the candidate possessed on the date of recruitment and not at a later stage unless rules to that regard permit it." There the candidate lack training qualification on the date of appointment but subsequently acquired it. The Court declined to give any benefit on account of subsequent acquiring of qualification and held the appointment illegal since on the date of appointment, the incumbents lack requisite qualification of training.
47. Learned counsel for petitioner submitted that initially when they were appointed exemption was granted and, therefore, a right has vested in them which cannot be divested by subsequent Office Memorandum issued by Government of India under Section 20 of UGC Act, 1956 or any subsequent amendment made in the Regulations framed by UGC under Section 26. We find that a similar argument was advanced in P. Suseela and others Vs. University Grants Commission and others, (supra) but negated. Court said, "Appellants could only contend that they have a right to be considered for the post of Lecturer/Assistant Professor. This right is always subject to minimum eligibility conditions, and till such time as the Appellants are appointed, different conditions may be laid down at different times. Merely because an additional eligibility condition in the form of a NET test is laid down, it does not mean that any vested right of the Appellants is affected, nor does it mean that the Regulation laying down such minimum eligibility condition would be retrospective in operation. Such condition would only be prospective as it would apply only at the stage of appointment."
48. Here, petitioners were appointed for a fixed tenure and tenure had expired. After expiry of tenure in 2012 their fresh agreements of service for continuance have not been approved by Vice-Chancellor. Hence, no valid appointments have come into existence.
49. In the present case, petitioners were appointed even initially, with condition that they shall acquire requisite qualification which they failed. Appointments were for a fixed tenure and had already expired. Renewal of a contract is nothing but a new contract of appointment. If statutory provisions with regard to qualification/eligibility have undergone a change at the time of renewal, same would cover petitioners to be considered for re-appointment by way of a fresh contract for appointment.
50. A fade argument was advanced that Government of India's Office Memorandum if read in such a manner, petitioners having been appointed got a right of legitimate expectation to continue if their performance is satisfactory and that right has been affected adversely. It has been held that a legitimate expectation must always yield to the larger public interest. Larger public interest in the matter of educational institutions of higher education is that best qualified Teachers must be available to impart education. Therefore, even if petitioners had any legitimate expectation, it has to yield in the larger public interest to the selection of most meritorious qualified candidates to teach in the educational institutions governed by UGC Act, 1956. In taking the above view, we are fortified by similar observations made by Court in P. Suseela and others Vs. University Grants Commission and others, (supra) wherein also a similar argument was raised but rejected.
51. Moreover, even otherwise we do not find that doctrine of "legitimate expectation" is attracted in this case. Legitimate expectation is not a legal right. It is an expectation of a benefit, relief or remedy that may ordinarily flow from a promise or established practice. It refers to a regular, consistent, practicable and certain process or activity of decision making process. What is required is that expectation ought to be legitimate, i.e., reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid, cannot be a legitimate expectation. On its own, not being a right, it may not be enforceable as such, but it is a concept recognised by the Courts, for judicial review of administrative action. It is procedural in character based on requirement of a higher degree of fairness in administrative action, as consequence of promise made or promise established. Briefly, it can be said that a person is said to have legitimate expectation of a particular treatment if any right or promise is made by a party, either expressly or impliedly or if regular and consistent past practice of the authority had given room for such expectation in normal course. As a ground for relief the efficacy of this doctrine though vague, as it may be positioned just above "fairness in action" but far below the "promissory estoppel". However, it may entitle an expectation of an opportunity to show cause before the expectation is dashed or to an explanation as to the cause for denial. In appropriate cases, the Court may direct the decision making authority to follow such procedure before taking an action otherwise.
52. In Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector, E.T.I.O. and others, AIR 2007 SC 1984 Court observed that legitimate expectation is considered to be a part of principles of natural justice, if by reason of the existing state of affairs, a party is given to understand that the other party shall not take away the benefit without complying with the principles of natural justice, the said doctrine would be applicable.
53. Same is the view taken in Poonam Verma and others vs. Delhi Development Authority, JT 2007(13) SC 604; Ashok Kumar Sonkar vs. Union of India & ors., 2007(4) SCC 54 and Pramod Kumar vs. U.P. Secondary Education Services Commission and Ors. 2008(7) SCC 153.
54. In the present case none of aforesaid principals are attracted for the reason that petitioners were not qualified still appointed with a clear condition to acquire qualification within a year which they fail. In any case, at the time of very execution of contract of service/ renewal of contract in 2012, it cannot be doubted that petitioner had to conform the statutory requirement of qualification. Nobody can claim a right of appointment in the teeth of statutory provisions which prescribe certain qualification which is not possessed by such persons. Neither estopple nor any other right will come in the way to help petitioners against law. The principle of legitimate expectation, therefore, is not applicable in the case in hand.
55. In view of above discussions and our finding that petitioners did not possess requisite qualifications prescribed in the statute to justify their appointment in 2012, even on contract basis on the post of Lecturer/Assistant Professor, we have no hesitation in holding that petitioners have no right to continue as Lecturers in the College and, therefore, order of Vice Chancellor dated 11.07.2014 impugned in present writ petition, who has declined to accept petitioners' extension of appointment of 5 years, cannot be said to be invalid, hence, warrants no interference.
56. Writ petition, therefore, lacks merit and is dismissed accordingly.
57. Interim order, if any, stands vacated.
Order Date: 16.11.2018 Manish Himwan/AK