Committee Of Management Through … vs The Director Of Higher Education on 5 December, 2017

                                                  IN THE SUPREME COURT OF INDIA

                                                  CIVIL APPELLATE JURISDICTION

                                                  CIVIL APPEAL NOS. 917-918 OF 2010


                         Committee of Management                           ...   Appellant
                                                                Versus

                         The Director of Higher Education  Ors.           ...   Respondents

                                                                WITH

                                                    CIVIL APPEAL NO. 919 OF 2010


                                                           JUDGMENT

Madan B. Lokur, J.

1. The primary question for consideration is whether Dr. Ramesh

Chandra Mishra, Dr. Ravindra Nath Mishra and Dr. Bachau Prasad

Pathak (the respondents) were appointed as ad hoc Lecturers with the

Lala Laxmi Narain Degree College, Sirsa, Allahabad (for short the

College). In our opinion, the answer is in the negative and for this

reason, the appeals must be allowed.

Facts

Signature Not Verified 2. On 12th January, 1988 an advertisement was issued by the College
Digitally signed by
MEENAKSHI KOHLI
Date: 2017.12.05
12:18:19 IST
Reason: for appointment to the post of Lecturers. It was stated in the

advertisement that the appointment would be on an ad hoc basis and that

C.A. Nos.917-918 etc. Page 1 of 11
the application for appointment should be received by the College on or

before 31st January, 1988.

3. There is no dispute that the respondents did not apply in terms of

the advertisement dated 12th January, 1988. However, much later, each

of them submitted a letter on different dates between August 1988 and

December 1989 to the effect that they had come to know that a post of a

part-time Lecturer is lying vacant in the College and as such they may be

considered for appointment against the part-time post. The College

considered and accepted the application sent by the respondents and they

were appointed to the post of part-time Lecturer for a fixed period of

three months on a fixed salary. They continued as such till the end of

April 1990.

4. After the period of appointment was over, the respondents filed

Writ Petition No. 35210 of 1991 in the Allahabad High Court for a

declaration that they are ad hoc Lecturers and that they should be paid

appropriate salary as ad hoc Lecturers.

5. In response, the submission made by the College to the writ

petition was that the respondents had not been appointed against any

advertisement, that they were only part-time Lecturers and that they had

not been working from May 1990 onwards.

6. The writ petition was disposed of by the High Court by a judgment

and order dated 21st August, 1995. We have gone through the decision

C.A. Nos.917-918 etc. Page 2 of 11
rendered by the High Court and it appears to us that the High Court

proceeded on the erroneous basis that the appointment of the respondents

to the post of part-time Lecturers was made pursuant to the advertisement

dated 12th January, 1988. Proceeding on this erroneous basis, the High

Court expressed the view that the respondents were entitled to the pay

scale as applicable to the ad hoc appointees and not to part-time

Lecturers.

7. The High Court also adverted to the provisions of the Uttar Pradesh

Higher Education Services Commission Act, 1980 (for short the Act) and

directed the Directorate of Higher Education to enquire into the payment

of salary to the respondents as ad hoc Lecturers and to take steps for

payment of outstanding salary to them. The High Court noted the view of

the College that the respondents were not functioning since May 1990

and also that this was disputed by the respondents. Finally, the direction

given to the Directorate of Higher Education was to dispose of the entire

matter within a period of two months in the light of the submissions

made. The operative portion of the judgment and order dated 21 st

August, 1995 passed by the High Court and which was discussed in detail

before us reads as follows:

“Further the petitioners moved an application on 27.4.92 for
payment of salary for the period after 30.4.90 supported by
certificate from Principal of College showing that petitioners had
actually worked as lecturers even after 30.4.90. This fact has not
been controverted by the respondents as such, is accepted as fact.

C.A. Nos.917-918 etc. Page 3 of 11

The other claims and counter claims made by the petitioners and
the college authorities cannot be decided in the summary
jurisdiction.

We, therefore, direct the Director of Higher Education to enquire
into the matter of payment of salary to the petitioners as ad hoc
lecturers and take steps for payment of outstanding salary to the
petitioners. According to the respondents they are not functioning
since the month of May, 1990, which is however, being disputed
by the learned Advocate for the petitioners. The Director of
Higher Education is further directed to give personal hearing to
the petitioners in the matter of payment of salary to the
petitioners. It is only upon the hearing of the petitioners he shall
pass necessary orders. The College Authorities are further
directed to take into consideration the candidature of the
petitioners who have rendered service from 1989 to April, 1990
according to the respondents in the case of filling up the future
vacancies as a special case, if there exists any regular vacancies.

It is desired that the Director of Higher Education will dispose of
the entire matter within a period of two months from the date of
the production of a certified writ petition.”

8. In compliance with the order passed by the High Court, the

Director in the Directorate of Higher Education passed a detailed order on

6th August, 1996. It was held that the respondents had not applied in

terms of the advertisement dated 12th January, 1988. It was also held that

the respondents had been appointed as part-time Lecturers only and there

was no provision in the Act to regularise the services of part-time

Lecturers. It was also held that there was nothing on record to suggest

that the respondents had put in any work with the College from May 1990

onwards or that their appointment was extended beyond April 1990.

9. Feeling aggrieved by the order passed by the Director on 6 th

August, 1996, the respondents filed Writ Petition No. 27057 of 1996
C.A. Nos.917-918 etc. Page 4 of 11
challenging the said order. During the pendency of this writ petition, the

Special Secretary, Government of Uttar Pradesh passed an order on 8th

September, 1997 to the effect that the respondents should be considered

to have been appointed as ad hoc Lecturers; that they should be

considered to have been continuously working after April 1990 and

finally their regularization should be considered. It was added that the

payment of salary to these respondents should be made by the College

from their own resources.

10. Feeling aggrieved by the order dated 8th September, 1997 the

College filed Writ Petition No. 33357 of 1997.

11. Both these writ petitions, that is Writ Petition No. 27057 of 1996

and Writ Petition No. 33357 of 1997 came to be heard and disposed of by

the High Court by a judgment and order dated 12th November, 1998. The

writ petition filed by the respondents was allowed while the writ petition

filed by the College was dismissed by the High Court.

12. Being aggrieved, the College preferred two petitions for special

leave to appeal in this Court which were admitted for final hearing and

numbered as Civil Appeal Nos. 7224-7225 of 1999.

13. The Civil Appeals filed by the College were disposed of by this

Court by an order dated 16th April, 2003. It was held that the order dated

8th September, 1997 issued by the Special Secretary could not be

sustained and the High Court was in error in upholding that order.

C.A. Nos.917-918 etc. Page 5 of 11
Accordingly, it was held that Writ Petition No. 33357 of 1997 filed by the

College challenging the order dated 8th September, 1997 deserves to be

allowed. It was also held that insofar as Writ Petition No. 27057 of 1996

is concerned (wherein the order dated 6th August, 1996 was challenged by

the respondents) it deserved to be heard afresh by the High Court and

accordingly the said writ petition was remanded to the High Court for a

fresh hearing in accordance with law. Both the Civil Appeals were

disposed of on the above basis.

14. Strangely enough while both the Civil Appeals were pending in

this Court, the Secretary, U.P. Government passed an order dated 26th

February, 2001 once again regularising the services of the respondents

and fixing their pay. This order was challenged by the College by filing

Writ Petition No. 12748 of 2004. By the impugned judgment and order

dated 1st November, 2004 the High Court remanded the matter relating to

the regularization of the respondents to the Director of Education for

passing a speaking order after considering the provisions of Section 31- C

of the Act.

15. It may be noted that in the meanwhile, pursuant to some other and

unconnected regular selection process, the College had already regularly

engaged some Lecturers including one of the respondents. The High

Court directed that in case the respondents are regularised pursuant to

C.A. Nos.917-918 etc. Page 6 of 11
judgment and order dated 1st November, 2004 then the candidates

selected by the regular process may have to be adjusted elsewhere.

16. Against both the directions of the High Court, the College

preferred Civil Appeal Nos. 917-918 of 2010 while regularly selected

candidates also challenged the judgment and order dated 1st November,

2004 since they would be directly affected. The appeal filed by the

regularly selected Lecturers is Civil Appeal No.919 of 2010.

17. By an order dated 28th February, 2005 this Court granted an interim

stay of the impugned judgment and order passed by the High Court. On

14th May, 2009 this Court modified the interim order passed on 28 th

February, 2005 by requiring a report to be filed whether the respondents

fulfil the requirements of Section 31- C of the Act.

18. In compliance with the order dated 14th May, 2009 the Director of

Higher Education passed an order on 1st December, 2009 to the effect that

the respondents “who were appointed as part-time teachers, substantially

fulfil the requirements of Section 31(C) of the U.P. Higher Education

Service Commission Act, 1980.”

19. A reading of the order dated 1st December, 2009 gives a clear

indication that even as recently as 2009 the Director of Higher Education

was of the view that the appointment of the respondents was only on a

part-time basis and not on an ad hoc basis. Since the respondents were

not appointed on an ad hoc basis (even if they fulfilled the requirements

C.A. Nos.917-918 etc. Page 7 of 11
of Section 31-C of the Act), they had no right to be regularized since they

were not so appointed.

20. On these broad facts, we heard all the affected parties on the merits

of the case.

Findings

21. In our opinion, the High Court erred in taking the view that it did.

There is absolutely no doubt that the respondents had not applied for the

post of ad hoc Lecturer pursuant to the advertisement dated 12th January,

1988. On the contrary, the respondents moved independent applications

to the effect that they had come to know through reliable sources that the

post of a part-time Lecturer was available. It is on the basis of these

applications that the respondents were appointed on a part-time basis for

a fixed period by the College and on a fixed salary. There is absolutely no

question of the respondents having been appointed on an ad hoc basis or

on any basis other than part-time or pursuant to the advertisement dated

12th January, 1988. The High Court completely overlooked this aspect of

the matter.

22. The provisions of the Act also do not come to the rescue of the

respondents. Section 16 and Section 31-C of the Act were placed before

us for consideration. These provisions read as follows:

“16. Appointment of ad hoc teachers.- (1) Where the
management has notified a vacancy to the Commission in
accordance with sub-section (2) of Section 12, and the

C.A. Nos.917-918 etc. Page 8 of 11
Commission fails to recommend the names of suitable candidates
in accordance with sub-section (1) of that section within three
months from the date of such notification, the management may
appoint a teacher on purely ad hoc basis from amongst the
persons holding qualification prescribed therefor.

(2) xxx xxx xxx”

“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;

C.A. Nos.917-918 etc. Page 9 of 11

(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) to (5) xxx xxx xxx”

23. A bare perusal of these provisions makes it quite clear that they

deal with the procedure of ad hoc selection and regularization of those

selected on an ad hoc basis. These provisions have absolutely no

application to the appointment of part-time Lecturers or their

regularization. In fact the statute does not at all provide for regularization

of part-time Lecturers.

24. There is also nothing on the record to indicate that the respondents

had worked beyond 30th April, 1990. It was only their submission that

they had worked beyond April 1990 but nothing was placed on record to

even give a suggestion that the respondents had worked beyond April

1990.

25. Under these circumstances, the question of regularization of the

respondents including the correctness of the order passed by the

Secretary, U. P. Government on 26th February, 2001 simply did not arise.

The respondents had absolutely no right in their favour and the only

option available to the High Court was to have dismissed the writ petition

filed by the respondents and to have allowed the writ petition filed by the
C.A. Nos.917-918 etc. Page 10 of 11
College and set aside the order dated 26th February, 2001 regularising the

services of the respondents.

Conclusion

26. On the facts placed before us, we find that they were not correctly

appreciated by the High Court. Consequently, we dispose of these appeals

by holding that the respondents were appointed only on a part-time basis

as Lecturers and not on an ad hoc basis; the respondents did not work in

the College beyond April 1990; the respondents had no right to be

regularised as Lecturers in the College and there is no merit in the claim

made by the respondents.

………………………J
(Madan B. Lokur)

……………………..J
(Deepak Gupta)
New Delhi;

December 5, 2017

C.A. Nos.917-918 etc. Page 11 of 11

Article source: Supreme Court

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