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Dhruv Ji Pandey v/s State of U.P. & Others

    Civil Misc. Writ Petition No. 28421 of 2007

    Decided On, 27 February 2014

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE RAJESH KUMAR AGRAWAL & THE HONOURABLE MR. JUSTICE ASHWANI KUMAR MISHRA

    For the Appellant: Yogesh Agarwal, Advocate. For the Respondents: Pankaj Rai, Inarmal Yadav, Sheo Mani Yadav, Nirmal Yadav, Advocates.



Judgment Text

1. Heard Sri Yogesh Agarwal, learned counsel for the petitioner, Sri Pankaj Rai, learned Additional Chief Standing Counsel and Sri Ravi Prakash Srivastava, learned Standing Counsel for the respondents. By means of the present writ petition, the petitioner has challenged the order dated 30.4.2007 passed by the State Government by which the representation of the petitioner dated 26.7.2006 has been rejected.

2. The brief facts of the case are that the petitioner has been appointed as a Lecturer in Political Science in ad hoc capacity in G.D. Binani P.G. College, Mirzapur by the appointment letter dated 15.10.1991. The petitioner claimed his regularisation under the provision of Section 31-C of the U.P. Higher Education Services Commission Act, 1980 (hereinafter referred to as the ("Act").

3. It appears that when the claim of the petitioner has not been considered, he filed Civi

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l Misc. Writ Petition No. 47540 of 2006, which has been disposed of vide order dated 31.8.2006 directing the authority concerned to decide the representations of the petitioner dated 22.7.2005 and 26.7.2006. In pursuance thereof, the State Government passed the impugned order.

4. Learned counsel for the petitioner submitted that the impugned order passed by the State Government is without jurisdiction. He submitted that u/s 31-C of the Act, the Committee of Management of the College has the power to regularise the appointment on the recommendation of the Selection Committee. The constitution of the Selection Committee is given in Section 31-C(2) of the Act, therefore, the State Government has no role in the regularisation of appointment u/s 31-C of the Act.

5. Sri Pankaj Rai, learned Additional Chief Standing Counsel submitted that from the record, it appears that there was a difference of opinion between the members and, therefore, the matter has been referred to the State Government by the Selection Committee on 17.8.2003. In pursuance thereof and in pursuance of the direction given by this Court in Civil Misc. Writ Petition No. 47540 of 2006, the matter has been decided by the State Government. The State Government found that the petitioner does not fulfill the eligibility criteria for the regularisation and accordingly rejected the representations.

6. Sri Yogesh Agarwal, learned counsel for the petitioner further submitted that in case if there was a difference of opinion between the members, there is no provision under the Act which gives power to the Selection Committee to refer the matter to the State Government. It is the Selection Committee, who is vested with the power to make a recommendation to the Committee of Management either way. The power, which is not vested in the statute, cannot be exercised by the State Government and accordingly, the impugned order is without jurisdiction.

7. We have considered rival submissions and perused the record.

8. Section 31-C of the Act reads as follows:

31-C. Regularisation of other ad hoc appointments.--(1) Any teacher, other than a Principal who--

(a) was appointed on ad hoc basis after January 3, 1984 but not later than November 22, 1991 on a post--

(i) which after its due creation was never filled earlier, or

(ii) which after its due creation was filled earlier and after its falling vacant, permission to fill it was obtained from the Director; or

(iii) which came into being in pursuance of the terms of new affiliation or recognition granted to the College and has been continuously serving the College from the date of such ad hoc appointment up to the date of commencement of the Uttar Pradesh Higher Education Services Commission (Amendment) Act, 1992;

(b) was appointed on ad hoc basis under sub-section (1) of Section 16 as it stood before its omission by the Act referred to in clause (a), whether or not the vacancy was notified by the Commission.

(c) possessed on the date of such commencement, the qualifications required for regular appointment to the post or was given relaxation from such qualification under the provisions of the relevant Statutes in force on the date of such ad hoc appointment;

(d)....

(e) has been found suitable for regular appointment by a Selection Committee constituted under sub-section (2);

may be given substantive appointment by the Management of the College, if any substantive vacancy of the same cadre and grade in the same department is available on the date of commencement of the Act referred to in clause (a).

(2) The Selection Committee consisting, the following members namely--

(i) a member of the Commission nominated by the Government who shall be the Chairman;

(ii) an officer not below the rank of Special Secretary, to be nominated by the Secretary to the Government of Uttar Pradesh in the Higher Education Department;

(iii) the Director;

shall consider the cases of every such ad hoc teacher and on being satisfied about his eligibility in view of the provisions of sub-section (1), and his work and conduct on the basis of his record recommend his name to the Management of the College for appointment under sub-section (1).

(3) Where a person recommended by the Commission u/s 13 before the commencement of the Act referred to in sub-section (1) does not get an appointment because of the appointment of another person under sub-section (1) in the vacancy for which he was so recommended, the State Government shall make suitable order for his appointment in a suitable vacancy in any College and the provisions of sub-sections (5) and (6) of Section 13 and of Section 14 shall mutatis mutandis apply.

(4) A teacher appointed on ad hoc basis referred to in sub-section (1) who does not get a substantive appointment under that sub-section and a teacher appointed on ad hoc basis who is not eligible to get a substantive appointment under sub-section (1) shall cease to hold the ad hoc appointment after June 30, 1992.

(5) Notwithstanding anything to the contrary in sub-section (4), the Selection Committee constituted under sub-section (2), shall in view of the amendments made in clauses (b) to (d) of sub-section (1), by the Uttar Pradesh Higher Education Services Commission (Amendment) Act, 1997 reconsider the case of every teacher who ceased to hold appointment under sub-section (4) and if as a result of reconsideration any such teacher is found suitable for substantive appointment, he may be given substantive appointment as provided in sub-section (1), and shall be deemed never to have ceased to hold appointment.

9. Sub-section (2) of Section 31-C of the Act provides the constitution of the Selection Committee. It provides that Selection Committee shall consider the cases of every such ad hoc teacher and on being satisfied about his eligibility in view of the provisions of sub-section (1), and his work and conduct on the basis of his record recommend his name to the Management of the College for appointment under Sub-section (1). Section 31-C(1) provides that any teacher, other than a Principal, may be given substantive appointment by the Management of the College, if any substantive vacancy of the same cadre and grade in the same department is available on the date of commencement of the Act referred to in clause (a).

10. In view of the above, it is apparent that the power to give a substantive appointment is vested with the Management of the College on the recommendation of the Selection Committee. None of the provisions of the Act provides that in case of difference of opinion between the members of the Selection Committee, the matter may be referred to the State Government. Therefore, we are of the view that the reference made by the Selection Committee to the State Government on 17.8.2003 was without jurisdiction. As observed above, the State Government has no role in the regularisation of ad hoc Lecturer by the impugned order, is, thus, without jurisdiction.

11. It is settled principle of law that authority can act only within the ambit of power provided under the Act. No jurisdiction can be conferred by consent. Even if the petitioner has submitted himself before the State Government and participated in the proceeding, the jurisdiction to decide the representation cannot be conferred to the State Government.

12. In view of the above, we are of the view that the impugned order is not sustainable and is liable to be set aside. The matter is relegated to the Selection Committee constituted under sub-section (2) of Section 31-C of the Act to consider the case of the petitioner afresh in accordance to law. The Selection Committee is directed to consider the case of the petitioner within a period of three months from the date of presentation of certified copy of this order in accordance to law. It is made clear that this Court has not adjudicated the claim of the petitioner on merit. The writ petition is accordingly allowed.
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