Hon'ble Arvind Kumar Mishra-I, J.
Heard Sri Manu Khare, Advocate on behalf of the petitioners.
Petitioners, who are two in number seeks a writ of mandamus directing the University to take a decision in accordance with the orders of Chancellor dated 20.01.2005 and to quash the appointment of two Lecturers in pursuance to Advertisement dated 14.03.2007 (Annexure 13 to the present writ petition).
Facts in short giving rise to the present writ petition are as follows :
University of Allahabad, which was earlier a State University, under the U. P. State Universities Act, 1973 is stated to have offered appointment to the petitioners, who are two in number, as Additional Lecturers in the Department of Geography vide order dated 6.04.1995 on a fixed honorarium of Rs.60/- per lecture. A copy of the appointment letter is enclosed as Annexure 1 to the present writ petition.
It is the case of the petitioners that they have been functioning in terms of the said appointment since 1995. However, their designation was changed from Additional Lecturers to that of Guest Lecturers and their honorarium was increased to Rs.100/- per lecture from Rs.60/- per lecture subject to maximum of Rs.5000/- per month. According to the petitioners they became entitled for regularization under Section 31 (3) (C) of the State Universities Act, 1973. For the purpose they made a representation before the Chancellor of the University under Section 68 of the State Universities Act, 1973. The Chancellor rejected their representation by means of the order dated 26.03.2002 and the Executive Council of the Committee also rejected the claim of the petitioners for regularization vide its Resolution dated 4.05.2002 after recording that the petitioners had not been appointed prior to the cut off date i.e. 30.06.1991 as provided for under Section 31 (3) (C) of the State Universities Act, 1973 as it then stood.
Thereafter, with reference to the judgment passed by the High Court in the case of Dr. Sangeeta Srivastava being Writ Petition No.52001 of 2000 decided on 22.05.2002, the petitioners made a second reference to the Chancellor on 6.09.2002 being Reference No.157 of 2002. This reference was also answered against the petitioners by the Chancellor vide order dated 31.12.2003/5.01.2004. The Chancellor recorded that the petitioners are not covered by the provisions of Section 31 (3) (C) of the State Universities Act, 1973. Their appointment as Guest Lecturers is not contemplated by the State Universities Act, 1973 and accordingly, their representation had no substance.
This order of the Chancellor was not subjected to any further challenge and has became final.
However, in view of the Act No.6 of 2004 whereby Section 31 (3) (C) of the State Universities Act, 1973 was amended, the petitioners made a fresh representation for they being regularized under the amended provisions of Section 31 (3) (C) of the State Universities Act, 1973. This representation of the petitioners is stated to have been allowed by the Chancellor by providing that their claim may be examined under the provisions of U. P. State Universities Act, 1973 by the Executive Council of the University. It is this order that the petitioners seeks to enforce. They also challenge the advertisement dated 14.03.2007, which had been published for the post of Lecturers of Geography, as were vacant in the department.
Manu Khare, counsel for the petitioner could not demonstrate before this Court as how the petitioners answer the description of Lecturer or Part Time Lecturer so as to fall within the four corner of Section 31 (3) (C) of the State Universities Act, 1973. It could not be established as to how in the teeth of the findings of fact recorded in the earlier order of the Chancellor dated 31.12.2003 and 5.01.2004 qua their nature of appointment how could Section 31 (3) (C) of the State Universities Act, 1973 as amended by Act No.6 of 2004 be attracted in their case.
We may record that there is absolutely no material, which can lead this Court to a conclusion that the petitioners answer the description of Lecturer or Part Time Lecturer so as to be covered by 31 (3) (C) of the State Universities Act, 1973 as amended by Act no.6 of 2004. Appointment as Guest Lecturers on payment of honorarium on per lecture basis is not contemplated by the State Universities Act, 1973. In any case petitioners do not answer the description of Lecturer or Part Time Lecturer as provided by Section 31 (3) (C) of the State Universities Act, 1973.
For the purpose reference may be had to the Division Bench Judgment of this Court in the case of Dr. Arvind Kumar Singh Vs University of Allahabad & Ors reported in 2007 (1) ADJ 526 wherein the provisions of Section 31 (3) (C) of the State Universities Act, 1973 have been interpreted. The judgment of Apex Court and the case of Dr. Sangeeta Srivastava has been examined in detail.
Counsel for the petitioner as a desperate attempt made reference to Clause 10.02 of the First Statutes of Allahabad University (when it was a State University) for suggesting that Part Time Teachers could be appointed and the case of the petitioners is covered by the said Clause.
The contention has only been raised to be rejected. Clause 10.02 of the First Statutes of the Allahabad University as it was then applicable reads as follows :
"10.02. Teachers of the University shall be appointed in the subjects on whole-time basis in the scales of pay approved by the State Government :
Provided that part-time lecturers may be appointed in subjects in which, in the opinion of the Academic Council such lecturers are required in the interest of teaching or for other reasons. Such part-time lecturers may receive salary ordinarily not exceeding one-half of the initial salary of the sclae for the post to which they are appointed. Person working as Research Fellow or as Research Assistants may be called upon to act as part-time lecturers."
From the records it is apparent that there is no such opinion of the Academic Council for appointment of Part Time Teachers in the department of Geography and further that petitioners were not appointed on the half of the initial salary of the salary applicable for the post they are appointed.
From the records, it is established that the petitioners were not paid half of the initial salary applicable for the post of Lecturers. On the contrary, they were appointed as Guest Faculties and were paid a honorarium on per lecture basis.
Even otherwise, we may record that the exercise, which has been directed to be undertaken under the order of the Chancellor dated 31.12.2003/5.01.2004 has lost its efficacy in view of the fact that Allahabad University has been declared to be a Central University by Central Act No.26 of 2005.
Section 5 (D) of the Act, 2005 provides that all teachers, who were working earlier shall continue on the same conditions and in same status unless amendments are made in the status. The issue in that regard has already been decided by this Court in the case of Dr. Mohini Verma Vs Union of India & Ors made in Writ Petition No.29241 of 2011 decided on 13.03.2014.
For the same reasons we find that there cannot be any direction to the Allahabad University, which is now a Central University, to consider the claim of the petitioners in the matter of regularization nor the petitioners are within the four corners of Section 31 (3) (C) of the State Universities Act, 1973 so as to entitle them for such regularization.
We further find that there is hardly any good ground to challenge the process of selections, which has been initiated by the University for appointment on the two vacant posts of Lecturers in the Department of Geography, University of Allahabad. The petitioners despite being aware of the advertisement either did not participate in the process of selection or if they had applied they have not been selected.
We may also record that an attempt was made on behalf of the petitioners to suggest that in view of the judgment of the Apex Court in the case of State of Karnataka & Ors Vs M. L. Kesari & Ors reported in (2010) 9 SCC 247 one time exercise is required to be undertaken by the University for the purpose of regularization of persons like the petitioner, who have been working for so many years.
In our opinion, the Act No.26 of 2005 does not admit of any method of regularization and the University cannot be mandated to act contrary to law. It is not within the domain of the University to resort to any method of regularization of back-door appointments. The Apex Court in the case of State of Karnataka & Ors. Vs. Umadevi & Ors reported in 2006 (4) SC 420 has specifically prohibited regularization of persons, who have been appointed through back-door in violation of Article 14 of the Constitution of India.
We may also refer to the latest judgment of the Apex Court in the case of Renu & Others Vs District & Sessions Judge, Tis Hazari & Anr reported in 2014 Law Suit (S.C.) 90 wherein it has been laid down that if any appointment is made without advertisement, be it temporary or regular, and the appointee becomes entitled to salary from the State Exchequer, then such an appointment would be null and void.
In view of the fact that regular selection has already been made in respect of the two vacant posts of Lecturers in the Department of Geography, University of Allahabad, we find no good ground to interfere on behalf of the petitioners.
The writ petition is, therefore, dismissed.
Interim order, if any, stands discharged.
Order Date :- 28.03.2014 M. Himwan