Ajay Yadav And Others vs State Of U.P. And Others on 10 February, 2014

[Cites 4, Cited by 3]

Allahabad High Court

Ajay Yadav And Others vs State Of U.P. And Others on 10 February, 2014

Dr. Bheem Rao Ambedkar University, Agra is a University established under the U.P. State Universities Act, 1973 (herein after referred to as the Agra University). Two types of courses are offered by the University, (a) regular courses for which faculty members are appointed against posts which have been created by the State Government covered by Section 60 E of the State Universities Act (herein after referred to as substantive posts), (b) the University also run certain courses under Self Financed Scheme for which appointment of faculty members has been provided for under Statute 11.17 of the First Statute of the Agra University.

These teachers are appointed on contract basis on year to year basis. These writ petitions pertain to the faculty members appointed in respect of self-finance courses only. Therefore, provisions applicable to the faculty members to be appointed under self-financing scheme alone are being referred to.

Writ petition no. 20250 of 2012 (Ajay Yadav and others Vs. State of U.P. and others) has been filed by 19 petitioners, all of whom claim to have been appointed on contract basis for imparting education in respect of self-finance course run by the Agra University. Petitioners claim to have been appointed with reference to Advertisements which were published in the year 1999, dated 21.02.2000, dated 15.08.2001, dated 11.07.2002, dated 11.07.2004 and dated 10.01.2008. It is the case of the petitioners that their term of appointment is renewable on year to year basis. In the year 2009 an extension of their term of appointment was granted by the University for a period of three years in one stretch. The University, however, published Advertisement No. 01/RW-12 for making contractual appointment on the post of faculty member to impart education in respect of self-finance courses. Since the claim of the petitioners for renewal of their contract was not considered and the University had proceed to hold direct recruitment, petitioners filed the aforesaid petitions.

In the writ petitions initially an interim order was granted whereby selection proceedings in terms of the Advertisement were stayed but on 08.10.2012, the interim order was modified. The University was permitted to complete the process of selection with the rider that the claim of every petitioner for extension of the term shall be considered before completing the process of selection by direct recruitment.

In compliance to the modified interim order of the Court, the University did publish an Advertisement on 12.10.2012 affording an opportunity to all such persons who did not apply with reference to the earlier Advertisement to submit their applications latest by 22.10.2012. The selection proceedings were held and on the recommendation of the Selection Committee which met in the month of November on different dates, fresh contractual appointment was offered to the applicants with reference to the Advertisement No. 01/RW-12 including some of the petitioners. This appointment however was limited for a period of six months i.e. till the end of the academic session, to be precise up to 30th June, 2013.

The University published a fresh Advertisement dated 27.04.2013 for the purposes of making contractual appointment against all faculty post for courses run under self-financed scheme. This fresh advertisement has been challenged by means of writ petition nos. 26211 of 2013, 29538 of 2013, 29540 of 2013, 32726 of 2013, 28159 of 2013 and 32320 of 2013. The petitioners in these writ petitions are the persons who were offered contractual appointment for six months with reference to the Advertisement No. 01/RW-12. They seek quashing of the fresh advertisement of 2013 as well as a writ of mandamus to permit them to continue as contractual Lecturers for a term of five years.

Writ petition nos. 26223 of 2013, 37812 of 2013, 37810 of 2013, 32487 of 2013, 34908 of 2013 and 35597 of 2013 have been filed by those persons who were not selected with reference to Advertisement No. 1/RW-12. They seek quashing of the advertisement of 2013 and a writ of mandamus for they being permitted to continue on the post, although they have not been working since 30.09.2013.

Challenging the advertisement which has been published for fresh contractual appointment of the faculty members in respect of self-financed course run by Agra University, Sri Yogesh Kumar Saxena, Advocate, Sri G.K. Singh, Senior Advocate, Sri Anil Bhushan, Advocate as well as Sri Arvind Srivastava, Advocate on behalf of the petitioners submitted before us as follows:-

(a) Vide Government Order dated 23.08.2011, the State Government has issued directions in the matter of the appointment and continuation of the faculty members appointed in higher education institutions including the University in the self financed courses by direct recruitment. It is provided that fresh selection be resorted to only after considering claim of existing faculty members and if they are found to have performed their duties with due diligence then they may not be required to appear before Selection Committee nor fresh approval from the Vice Chancellor would be required. Petitioners, therefore, submit that in view of the Government Order, the University is obliged to consider the case of the petitioners for extension of their appointment on the basis of their performance in the previous years before resorting to any direct recruitment against the same posts. Since this has not been done, the advertisement is bad in law. It has been stated that the Vice Chancellor of the University had constituted a committee for necessary amendments being incorporated in the statute with reference to the Government Order dated 23.08.2011 and that statute 11.18 has been added after the statute 11.17 on 31.03.2012 in exercise of powers under Section 52(1) of the State University Act. The newly added statute 11.1.8 provides extension of services of faculty members appointed for self-financed courses on assessment of work.

(b) Replacement of one contractee teacher by another is per se arbitrary, (c) in respect of certain posts, reservation as mentioned in the advertisement is excessive.

(d) In the original advertisement, details of reservation had not been furnished nor the period for which the appointment was to be made had been disclosed. This information has been only supplied through corrigendum published, which has the effect of altering advertisement as a whole, which is not permissible.

Sri Y.K. Saxena, Advocate also contended that the entire exercise of advertisement which is now being undertaken is only an attempt to harass the petitioners as the petitioners had filed writ petition no.74731 of 2010 for payment of salary in terms of the direction issued by the University Grant Commission. The writ was disposed of with certain directions. Since the directions were not complied with, the petitioners had initiated contempt proceedings being contempt petition no.4591 of 2011, this has led to the annoyance of University authorities. It is their case that the advertisement made is an outcome of malafide attitude.

On behalf of the University, Sri Sanjay Kumar Singh, Advocate has pointed out that the statute 11.18 as incorporated by the University as per meeting of the Executive Council dated 31.03.2012 only makes provision for consideration of the case of the faculty members working in degree colleges in self-financed courses. The Government Order dated 23.08.2011 which has been incorporated in the statute book as per meeting dated 31.03.2012, applies only to the teachers working in degree colleges and not to the teachers who are working in the University, under the self-financed courses. Therefore, the entire case set up by the petitioners is based on incorrect statement of the facts.

He further points out that so far as faculty members appointed for imparting education in self-financed course offered by the University are concerned, the statute 11.17 specifically sub-paragraph 7 still holds the field. All such earlier applicants are only entitled to be considered by the Selection Committee constituted in pursuance to the advertisement. Those who are found suitable, their names are to be recommended for extension. Such stage has not been achieved inasmuch as selection proceedings with reference to the advertisement of the year 2013 have been put on hold because of pendency of the writ petitions before this Court. He however states that as and when process of the selection takes place, the case of the petitioners who had earlier worked under self-financed scheme shall be considered by the Selection Committee and if found suitable, extension of term of appointment shall be offered.

He further points out that the petitioners who challenged the advertisement of the year 2013 had participated in the selection proceedings held with reference to the advertisement no.1/RW-12. Those who were not selected have not been working in the University subsequent to 30.09.2012. Those who had been selected in response to the advertisement no.1/RW-12 accepted the terms and conditions of the appointment with open eyes. It was provided that contractual appointment will be till the end of the academic sessions for six months only. It is only when the term of six months was to expire, they have chosen to approach this Court by challenging subsequent advertisement of the year 2013. Having accepted the conditions advertised, the petitioners cannot be permitted to turn around and challenge the appointment which had been offered. They can not object to fresh advertisement after expire of the term.

Learned counsel for the University submits that in none of the writ petitions, statute 11.17(7) is under challenge. The University is only acting in conformity thereof. The decision of the University to publish fresh advertisement cannot be faulted with.

So far as the plea of malafide is concerned, it is submitted that the University has decided to advertise all the teaching posts under self-financed scheme which are 86 in number. The plea raised on behalf of 19 petitioners represented by Sri Y.K. Saxena is too vague to be accepted.

He also pointed out that so far as course of Gandhian studies run under self-financed scheme is concerned, no student has been admitted in the said course after 31.03.2013. This fact finds reference in paragraph nos.5 and 6 of counter affidavit filed on behalf of the University. Therefore, no faculty member is being appointed under self-financed scheme teaching the said subject.

It is submitted that in the facts and circumstances of the case, no interference with the process of selection is called for.

In rejoinder, Sri Y.K. Saxena submitted that not all the petitioners of writ petition no.20250 of 2012 had participated in the process of selection held in pursuance of the advertisement no.1/RW-12.

Sri Arvind Srivastava, Advocate in rejoinder pointed out that the students had not taken admission in Ghandian studies under self-financed course because of want of teaching faculty and, therefore, the University is not justified in not advertising the said posts.

Sri Anil Bhushan, Advocate pointed out that the teaching post in the subject of environmental science, subject matter of consideration in writ petition no.3781 of 2013, is in respect of substantive vacancy against a regular post. The petitioner was wrongly asked to work on contract basis. It is stated that the petitioner was appointed in response to the advertisement of the year 2002.

We have heard the learned counsel for the parties and examined the record of the present writ petitions.

It is not in dispute that so far as the courses run under self-financed scheme in the University are concerned, the appointment of teachers is regulated by the statute by 11.17 of the first statute of Agra University. The statute 11.17 (6), statute 11.17 (7) and statute 11.17 (15) are relevant for our purpose. The same are quoted hereinbelow:-

"11.17 (6) For the courses under self-financed scheme, the teachers shall be appointed in the preceding manner on contract basis for three or five years in an instance.

11.17 (7) On expiration of period of contract, the process of Selection Committee shall again be initiated by the Management concerned or the University, as the case may be, in the manner laid down under the statute in reference. The names of formerly appointed teachers shall be reconsidered for appointment by the Selection Committee and the Management concerned.

11.17 (15) The University/Affiliated College or Institution shall incur 75 to 80 per cent of total income, received from tuition fee, on the salaries of teaching and non-teaching staff. However, no commitment shall be made to the teachers appointed under self-financed scheme regarding pay and pay-scales. The salary to be paid to the teachers shall be subject to the income received from tuition-fee."

From simple reading of the aforesaid statutes, it is apparently clear that the appointment of teachers for imparting education in the University under self-financed scheme, is to be made on the basis of the recommendation of the Selection Committee to be constituted in accordance with the statute 11.17 (6) for a period of three or five years in an instance. Statute 11.17 (7) provides that after expiry of the period of the contract, fresh process of the selection through Selection Committee has to be initiated by the University. It is further provided that the names of formerly appointed teachers shall be reconsidered for appointment by the Selection Committee. Statute 11.17 (15) contemplates that the University shall incur 75% to 80 % of the total income, received from tuition fees, on the salaries of the teaching / non-teaching staff. However, no commitment is to be made to the teachers under self-financed scheme regarding pay and pay-scales. Their salary is to be paid subject to the income received from tuition fees.

Thus on cumulative reading of the aforesaid provisions, it is clear that the teachers are not appointed against any substantive posts, their appointment is on contract basis for fixed term. The salary to be paid to them is dependent upon the income to be derived from tuition fees in respect of the each course.

It is with reference to these terms and conditions pertaining to the nature of the posts and condition to their appointment, this Court shall examine the rights of the petitioners to continue and their challenge to fresh advertisement which has been published by the University.

We may record that the advertisement, which was published on 21.02.2000, provided that the appointment shall be on contractual basis on fixed pay of Rs.10,000/-. The advertisement which was published for teachers on 15.08.2001 mentioned that the appointment is to continue till 30.06.2002 on negotiable salary between Rs.8000/- to Rs.10,000/-. The advertisement which was published on 11.07.2004 provided that the appointment shall be on contract basis for a period of two to three years but there was absolutely no mention of the salary which would be paid. The advertisement which was published on 11.07.2004 and thereafter on 20.01.2004 mentioned that the appointment was contractual and the salary admissible to the post of lecturers would be Rs.10750/- per month. The advertisement published on 20.01.2008 by the University disclosed the appointment to be contractual with salary being negotiable and no amount in that regard was disclosed.

It is with reference to these kind of advertisements that petitioners have been offered appointment by the University under self-financed scheme. The appointment of the petitioners was contractual in nature, renewable on year to year basis with the outer time limit being fixed in some cases. But because of the statute 11.17 (6), it cannot exceed more than 3-5 years at an instance.

In none of the petitions, statute 11.17 is under challenge and, therefore, the appointment which had been offered to the petitioners has to be in consonance with the statutory provisions applicable and not dehors the same.

In these circumstances, we find that the petitioners had accepted contractual appointment with open eyes being fully aware that it was time bound. They were also aware that after expiry of the term fixed, they would be required to participate in the process of the selection to be initiated afresh under the statute 11.17 (7) subject to the condition that the Selection Committee would consider the case of all such earlier incumbents and shall make its recommendation for their appointments if they are found to be suitable.

Hon'ble Apex Court has repeatedly held that proceedings under Article 226 of the Constitution of India cannot be resorted to for the purpose of avoiding contractual obligation.

The appointments which have been offered to the petitioners, in the background of the statute 11.17, the advertisement and letter of the appointment leave no room to doubt that the same was purely contractually in nature for fixed term with fixed salary, payment of salary was dependent upon the income to be derived from tuition fees. We, therefore, hold that in the facts and circumstances, the petitioners cannot be permitted to challenge the subsequent advertisement which has been published for making contractual appointment under statute 11.17 (7) for fresh selection.

This takes the Court to the statute 11.18 which has been so vehemently pressed by the learned counsel for the petitioners in support of their contention that since they are working after selection under earlier advertisement, fresh direct recruitment for the teachers in subjects concerned cannot be resorted to till their claim for extension of their appointment is not considered by the University.

From pleadings of the writ petitions, we find that the petitioners have relied upon Government Order dated 23.08.2011 and it is their case that this Government Order has been incorporated by way of statute 11.18 by the University.

We may reproduce the Government Order dated 23.08.2011 which reads as follows:

"la[;k&218 izs"kd] vouh'k dqekj voLFkh lfpo mRrj izns'k 'kkluA lsok esa] dqy lfpo] leLr jkT; fo'ofo|ky;] mRrj izns'kA mPp f'k{kk vuqHkkx&2 y[kum% fnukad 23 vxLr] 2011 fo"k;% mPp f'k{kk ds {ks= esa LofoRriksf"kr ikB~;dze vkjEHk djus gsrq ekudksa dk fu/kkZj.kA egksn;

mDr ds laca/k esa eq>s ;g dgus dk funs'k gqvk gS fd izns'k ds v'kkldh; vuqnkfur egkfo|ky;ksa esa LofoRriksf"kr ikB~;dze lapkyu djus gsrq 'kklukns'k la[;k&2443@lRrj&2&2000&2¼85½@97] fnukad 9 ebZ] 2000 ,oa lifBr 'kklukns'k la[;k&5699@lRrj&2&2007&2(85)/97 ] fnukad 11 tuojh 2008 ds }kjk ekudksa dk fu/kkZj.k djrs gq, f'k{kdksa dh fu;qDr ,oa osru vkfn ds laca/k esa ekxZ n'kZu fl)kUr@fn'kk funsZ'k fn;s x;s gSA 'kklu ds laKku esa vk;k gS fd LofoRriksf"kr ikB~;dzeksa esa dk;Zjr f'k{kdksa dks vR;Ur de osru dk Hkqxrku gks jgk gS vkSj mUgsa dfri; vU; lqfo/kk;sa Hkh izkIr ugh gks jgh gSA vr% 'kklu }kjk lE;d fopkjksijkUr LofoRriksf"kr ikB~;dzeksa esa dk;Zjr f'k{kdksa dh leL;kvksa ds fujkdj.k gsrq fuEuor ekxZn'kZu fn'kk&funsZ'k fuxZr fd;s tkrs gS%& 1- v'kkldh; vuqnkfur egkfo|ky;ksa esa LofoRriksf"kr ikB~;dzeksa ls 'kqYd ds :i esa tks ldy /kujkf'k izkIr gksrh gS mls ,d gh cSad ds ,d gh [kkrs esa j[kk tkuk mfpr gksxk vkSj izfrekg fofHkUu ikB~;dzeksa 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~;dzeksa 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&2(85)/97] fnukad 9 ebZ] 2000 ,oa lifBr 'kklukns'k la[;k&5699@lRrj&2&2007&2(85)/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'of|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 rn~dze 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 jgsxs 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~;dze ls lacaf/kr [kkrk i`Fkd gksxk ftl [kkrs dk vko';d :i ls okf"kZd vkfMV djk;k tk;xk rFkk izR;sd o"kZ 30 twu rd fo'ofo|ky;@'kklu dks vkfMV fjiksVZ miyc/k djk;h tk;xhA 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 fjQzs'kj@vksfj;saVs'ku@odZ'kki esa Hkkx ysus dh vuqefr@Lohd`fr iznku dh tk ldrh gSA 5- LofoRriksf"kr ikB~;dze esa lafonk ij dk;Zjr f'k{kdksa gsrq 'kklukns'k la[;k&2443@lRrj&2&2000&2(85)/97 ] fnukad 09 ebZ] 2000 esa lh0ih0,Q0 O;oLFkk vufok;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 gS 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~;dze gS muds [kksys tkus dh vuqefr 'kklu ls nh tkrh gS vr% ;fn fdlh ikB~;dze esa Nk=ksa dh la[;k 'kwU; gks tkrh gS rks egkfo|ky; viuh fjiksVZ fo'ofo|ky; dks izLrqr djsxk rFkk 'kklu ds vuqeksnuksijkUr fo'ofo|ky; dh vuqefr ls gh ,sls ikB~;dze dks cUn fd;k tk ldrk gSA bl O;oLFkk dks 'kklukns'k la[;k&5699@lRrj&2&2007&2(85)/97] fnukad 11 tuojh] 2008 ds tkjh gksus dh frfFk ls ykxw fd;k tk;sA 2- mDr izkfo/kku v'kkldh; lgk;rk izkIr egkfo|ky;ksa esa lapkfyr LofoRriksf"kr ladk;ksa esa dk;Zjr f'k{kdksa ij gh ykxw gksxsA 3- mifjlanfHkZr 'kklukns'k la[;k&2443@lRrj&2&2000&2(85)/97] fnukad 9 ebZ 2000 lifBr 'kklukns'k la[;k&5699@lRrj&2&2007&2(85)/97] fnukad 11 tuojh] 2008 ds 'ks"k izkfo/kku 'krsZ ;Fkkor jgsxhA 4& mijksDr mfYyf[kr O;oLFkkvksa dks ykxw djus ds laca/k esa fo'ofo|ky; dh ifjfu;ekoyh esa rnuqlkj izkfo/kku djus dk d"V djsaA Hkonh;] ¼vouh'k dqekj voLFkh½ lfpoA la[;k ¼1½@lRrj&2&2011 rn~fnukad izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"kr%& 1- dqyifr] leLr jkT; fo'ofo|ky;] mRrj izns'kA 2- funs'kd] mPp f'k{kk] mRrj izns'k bykgkckn dks bl funsZ'k ds lkFk fd os lHkh egkfo|ky;ksa dks vuqikyu gsrq funsZf'kr dj nsaA 3- leLr {ks=h; mPp f'k{kk vf/kdkjh] mRrj izns'k dks Hkh bl funsZ'k ds lkFk fd mDr funs'kksa dk vuqikyu lqfuf'pr djk;sA 4- mPp f'k{kk foHkkx ds leLr vf/kdkjh@vuqHkkx 5- futh lfpo] ek0 ea=hth mPp f'k{kk foHkkxA 6- osc ekLVj] mPp f'k{kk foHkkx] m0iz0'kkluA 7- vij lfpo] m0iz0 jkT; mPp f'k{kk ifj"kn dks foHkkxh; osclkbV ij izn'kZu gsrq 8- oSHkkfxd vkns'k iqfLrdkA vkKk la] g0 viBuh;

lqjtu flag vuq lfpoA^^ From simple reading of the aforesaid notification, it would be seen that it applies to the teachers' appointment in degree colleges only. It has no application in the matter of the teachers to be appointed in respect of self-financed course offered by the University. The position in that regard stands further clarified by the provision which says that no approval of the University would be required in the matter of such extension of service of teachers, inasmuch as it is in respect of teachers of degree colleges only that approval of the University is necessary.

It is not in dispute that this Government Order alone has been incorporated by way of statute 11.18. Therefore, we find substance in the contention of the University that the statute 11.18 as incorporated deals with the teachers of the degree colleges and has no application in the matter of the teachers of the University appointed under self-financed scheme. Thus we find that in the statute 11.18 introduced with reference to the Government Order dated 23.08.2011 has no application in the case of the teachers appointed for imparting education under self-financed scheme in the University. Reliance placed upon statute 11.18 by the petitioners is wholly misconceived as it has no application in the case of the petitioners.

So far as plea of malafide is concerned, we find that merely because some of the petitioners filed contempt petition, it cannot be said that the University is deliberately trying to ensure that they are removed from service. The stand in that regard is also falsified from the fact that out of 19 petitioners of writ petition no.20250 of 2012 who are alleged to have filed contempt petition, 11 have been offered reappointment in terms of subsequent advertisement no.1/RW-12. Hon'ble Apex Court held that allegations of malafide are allegations of the fact which are not only to be alleged but also to be established by cogent evidence. We find that in the facts and circumstances of the case, there is no evidence worth consideration to support the plea of malafide in the matter of publication of fresh advertisement by the University in accordance with statute 11.17.07.

With regard to writ petition no.35597 of 2013 pertaining to teacher in the subject of Gandhian studies is concerned, we find that a specific stand has been taken by the University in paragraph nos. 6 and 7 of the counter affidavit that in absence of any student having being enrolled in the said subject under self-financed, the University has decided not to make any appointment of teacher in the said subject and, therefore, the subject is not advertised. From statute 11.17 (15), it is amply clear that payment of salary is only to be made from money collected towards tuition fees. If no student is enrolled, there shall be zero collection of the tuition fees, therefore, there cannot be payment of salary to such teacher. The University is, therefore, justified in not advertising the post of teacher in the subject of Gandhian studies for want of enrollment of the students as it will have no source to make payment of salary to the teacher, if any, appointed So far as writ petition no.37812 of 2013 is concerned, we hold that if the post is in respect of a regular subject the same has been filled in the manner prescribed for such substantive posts. The advertisement which has been published for appointment of the teacher for imparting education under self-financed course will not be applicable. If the petitioners had been appointed after following the procedure applicable for the self-financed scheme against a faculty post in respect of regular subject then the appointment itself was illegal. If a mistake had been committed by the University earlier, this Court will not perpetuate the same. Suffice to record that against posts qua regular subject the University must resort to the procedure which is provided for appointment against such regular posts and these vacancies should not be clubbed in the advertisement pertaining to teacher for self-financed course, the University may take such suitable action as we warrant under the law.

We must also make mention of the stand taken by the University that after permission was granted to continue the process of selection vide advertisement no.1/RW-12, all those petitioners who had applied been considered and were selected were offered contractual appointment till the end of the academic session i.e. for the period of six months, none of these petitioners choose to challenge the conditions of the appointment so offered. They accepted the same without protest. It is only when the term of six months was to expire, they have come up before this Court challenging fresh advertisement of the year 2013 and to seek extension of their appointment.

Learned counsel for the University is also right in pointing out that those who had not been selected in response to the advertisement no.1/RW-12 did not challenge the select list and in fact they are not working after 30.09.2012 in the University, therefore, question of their appointment being extended i.e. after merely five months of the term have been expired, does not arise.

Having arrived at the said conclusion, that the challenge to the advertisement published by the University must fail, we have to insist upon the University that the Selection Committee which is to constitute with reference to the advertisement of year 2013 must consider the case of all such earlier teachers formerly appointed and to recommend them for appointment, if found suitable irrespective of the fact whether they have applied or not inasmuch as under the statute 11.17 (7) there is a categorical mandate upon the Selection Committee to consider names of the teachers who had been formerly appointed under self-financed scheme.

We, therefore, dismiss all these writ petitions subject to the conditions that the Selection Committee with reference to the advertisement published on 27.04.2013 read with corrigendum published on 26.05.2013 shall consider the case of all formerly appointed teachers under self-financed scheme irrespective of the fact whether they had applied or not and shall make its recommendation if they are found suitable strictly in accordance with the statute 11.17 (7). The claim of formerly appointed teachers shall be considered irrespective of any of the observation made in this writ petition on merits.

Order Date :- 10.2.2014 Vr/rkg

Unlock Advanced Research with PRISMAI

Allahabad High Court