Hon. Manoj Misra,J.
(Delivered by Hon. Mr. Justice Manoj Misra)
1. By this writ petition, the petitioner has challenged the order dated 22.3.2010 passed by the State Government, thereby rejecting the claim of the petitioner for payment of salary, as also for regularization on the post of lecturer in Sanskrit in D.A.V Post Graduate College, Azamgarh by providing the benefit of section 31-C of the U.P. Higher Education Services Commission Act, 1980. The petitioner has also sought for a writ of mandamus so as to command the respondents to treat him as regular/ permanent lecturer in Sanskrit with all consequential benefits.
2. The facts giving rise to this petition are that D.A.V, Post. Graduate College, Azamgarh (hereinafter referred as the 'Institution') is an aided Post Graduate College, which was earlier affiliated to the Gorakhpur University. By U.P. Act No.19 of 1987, Purvanchal University, Jaunpur (now known as Vir Bahadur Singh Purvanchal University - hereinafter referred to as 'Purvanchal University') was established, and its area of jurisdiction included the district of Azamgarh. In exercise of power under section 4(1-A) of the U.P. State Universities Act, 1973, the State Govt. notified the constitution of Purvanchal University with effect from 2.10.1987. Accordingly, since 2.10.1987, the Institution stood affiliated to the Purvanchal University. Initially no separate statutes were framed by the State Government, instead Section 50 (1-B) of the U.P. State Universities Act, 1973 provided that the statutes of Gorakhpur University, as existing on the said date, would be applicable to the Purvanchal University till framing of separate statutes. The separate statutes for Purvanchal University were framed on 2.11.2000. As the dispute in the instant case relates to a period prior to 2.11.2000, therefore, the statutes of Gorakhpur University, as they stood on 2.10.1987, were applicable irrespective of any subsequent amendment made thereto by virtue of Full Bench Decision of this Court in the case of Mohd. Tahir Vs. State of U.P and others, reported 2004(2) UPLBEC, 1406.
3. In the Institution, a substantive vacancy arose on the post of Principal. Consequently, Shri Raghunath Misra, a lecturer of the Institution for Sanskrit, was appointed as officiating Principal of the Institution on 17.7.1989. No regularly selected Principal was recommended by the Commission till Sri Raghunath Misra superannuated, therefore, he continued to officiate as a Principal till he retired on 30.6.1992.
4. Consequent to the appointment of Sri Raghunath Misra as Officiating Principal of the Institution, the management of the Institution, treating the post of lecturer in Sanskrit as vacant, initiated proceedings for appointment of lecturer in Sanskrit, on ad-hoc basis, by exercising its power under Section 16 of the U.P. Higher Education Services Commission Act, 1980, as it then existed.
5. The petitioner underwent the selection process and was appointed as ad-hoc lecturer in Sanskrit vide appointment letter dated 30.8.1989. This appointment was with effect from 1.9.1989. The petitioner claims to have been continuously serving in the institution as a lecturer in Sanskrit since the date of his appointment till coming into force of U.P. Act No.2 of 1992 whereby section 31-C was incorporated in U.P. Higher Education Service Commission Act, 1980, with effect from November 22, 1991. The provisions of section 31-C are being reproduced below:-
''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 June 30,1991 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 so appointed after three months of the notification to the Commission under sub-sections (1) of Section 16 as it stood before its omission by the Act referred to in clause (a), or if appointed within such period, no recommendation was made by the Commission within such period;
(c) possessed on the date of such commencement, the qualifications required for regular appointment to the post under the provisions of the relevant statutes in force on the date of such ad hoc appointment;
(d) is not related to any member of the management or the principal, of the college concerned in the manner mentioned in the explanation to Section 20 of the Uttar Pradesh State Universities Act, 1973;
(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 recommencement 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 under Section 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 March 31, 1992."
6. Subsequently, U.P. Act No.22 of 1992 for the words and figures ''March 31, 1992'' as occurring in sub-section (4) the word and figures ''June 30, 1992 '' was substituted with effect from March 31, 1992.
7. Later, by U.P. Act No.10 of 1997, vide section 4 thereof, further amendments were carried out in section 31-C with effect from 26.5.1997. These amendments are being reproduced below:-
Amendment of Section 31-C- In Section 31-C of the principal Act,-
(a) in sub-section (1),--
(i) in clause (a), for the word and figures " June 30, 1991'' the word and figures '' November 22, 1991'' shall be substituted.
(5) Notwithstanding anything 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."
8. The case of the petitioner was examined by the Regularization Committee in the light of the provisions of 31-C of the U.P. Higher Education Services Commission Act, 1980, as they stood prior to the amendments incorporated by U.P. Act No.10 of 1997. The Regularization Committee by its order dated 20.6.1992 rejected the claim of the petitioner for regularization on two counts: (a) there was no substantive post for lecturer in Sanskrit in the institution till 22.11.1991, therefore, there was no post on which the petitioner could have been appointed; and (b) on the date of appointment i.e. 1.9.1989, the petitioner did not hold minimum qualifications as prescribed by the first statutes applicable to the Purvanchal University.
9. With the aforesaid reasons the Regularization Committee rejected the claim for regularization of the petitioner on the post of lecturer in Sanskrit and directed that the services of the petitioner shall stand terminated with effect from 30.6.1992, as per section 31-C (4) of the U.P. Higher Education Service Commission Act, 1980.
10. Aggrieved by the order of rejection by the Regularization Committee, the petitioner invoked the writ jurisdiction of this Court vide Writ Petition No.25281 of 1992 (Dr. Piyush Kumar Srivastava Vs. State of U.P. and others) and was able to obtain an interim order on 23.7.92, which is reproduced below:-
"The petitioner is permitted to serve respondent No.4 personally by taking Dasti summon from the office within three days. Service be made returnable within four weeks. Service affidavit shall also be filed thereafter. For respondent Nos.1 to 3 the Standing Counsel is present he is allowed one month's time to file counter affidavit.
Until further orders operation of the order dated 20.6.1992 shall remain stayed. The petitioner shall be continued as lecturer in the institution in question and his functioning shall not be interfered with and he shall be paid salary also in accordance with rules."
Sd/- M.L. Bhat, J."
11. From the statement made in paragraph 28 of the writ petition it appears that though the petitioner continued to serve the Institution under the interim order of this Court, but the State paid salary for only four months namely, November and December of the year 1996 and January and February of the year 2003. It further transpires from the record that the state respondents never recognized the ad hoc appointment of the petitioner although some payments were made under the scourge of the interim order of this court.
12. The writ petition No.25218 of 1992 was finally disposed of by order dated 24.7.2009. The order passed in W.P. No.25218 of 1992 is being reproduced below:-
"As per the earlier direction, the matter has been placed today along with the record.
Since the supplementary affidavit is annexed with the formal application, therefore, leave is granted to file in the department and thereafter, it will be placed with the record.
All the contesting parties are before us. A submission has been made by the learned counsel filing a supplementary affidavit that this case can be considered by the appropriate authority i.e. Director of Higher Education since the Committee of Management has sent the matter for the purpose of consideration, Mr. Rama Nand Pandey, learned standing counsel has contended before this Court that the petitioner was not having requisite qualifications. However, according to Mr. Shashi Nandan, learned Senior Counsel appearing for the petitioner regularization can be given.
In any event, all the pros and cons are kept open for due consideration by the authority concerned in accordance with law. Therefore, while disposing the writ petition, we direct the authority concerned to consider the matter upon giving fullest opportunity of hearing by passing a reasoned order thereon within a period of two months from the date of filing of the comprehensive representation by the petitioner within period of one week from the date of communication of this order. For the purpose of effective adjudication a copy of the writ petition along with its annexures can also be treated as part and parcel of the representation.
The writ petition is disposed of.
No order is passed as to costs."
Sd/- Hon. Amitava Lala, J.
Sd/- Hon. Shishir Kumar, J.
Dt.24.7.2009"
13. Pursuant to the order dated 24.7.2009, the petitioner made a comprehensive representation to the Director of Higher Education, U.P., Allahabad and also to the Principal Secretary, Higher Education, Government of U.P, Lucknow for regularization and payment of salary. Both these representations have been considered and rejected vide order dated 22.3.2010 passed by the Secretary to the Government of U.P., Higher Education Department, Lucknow. It is this order, which has been impugned in the present petition.
14. A perusal of the order dated 22.3.2010 discloses that the claim of the petitioner for regularization and for salary was earlier rejected for the same reasons on which the claim for regularization was rejected vide order dated 20.6.1992. Two grounds have been taken for rejecting the claim for regularization: (a) that there was no substantive post up to 22.11.1991 on which the appointment of the petitioner could have been made; and (b) that the petitioner did not hold minimum qualification as prescribed for the post of lecturer by the first statutes of the Purvanchal University.
15. We have heard Sri Ashok Khare, Senior Advocate assisted by Sri Sunil Kumar Srivastava for the petitioner and the learned Standing Counsel for the State- respondents, as also Sri A.K. Singh, Advocate, who appeared for the University.
16. Learned counsel for the petitioner contended that the finding that there was no substantive vacancy on the post of lecturer in Sanskrit, as on 22.11.1991, is erroneous and contrary to law. He contends that by virtue of the officiating appointment of Sri Raghunath Misra as Principal of the Institution, who was substantively appointed lecturer in Sanskrit, there arose a substantive vacancy on the post of lecturer in Sanskrit on which the petitioner was appointed. Moreover, Sri Raghunath Misra had filed a writ petition No.39699 of 1993 before this Court wherein a direction was issued for payment of pay scale of Principal to Sri Raghunath Mishra with effect from 17.7.1989 to 30.6.1992. Therefore, it could be said that Sri Raghunath Mishra was holding the post of Principal in substantive capacity and as such he did not hold any lien on the post of lecturer in Sanskrit which was vacant and available for appointment.
17. With regards to the objection that the petitioner did not hold minimum qualifications, the learned counsel for the petitioner contended that under the first statutes of the Gorakhpur University, as they stood on the day of establishment of the Purvanchal University, there was a provision for relaxation of the qualifications, and now by virtue of the amended clause (c) of sub section 1 of section 31-C of the UP Higher Education Services Commission Act, 1980 regularisation of such ad hoc teacher could be done, where relaxation from such qualifications was given. He also contends that relaxation from holding such qualifications could be inferred from the fact that the selection committee had recommended the petitioner for appointment, on ad hoc basis, in the year 1989.
18. To test the aforesaid submission of the petitioner it is necessary to examine the qualifications possessed by the petitioner up to the date of his appointment, as also the provisions of the statutes that prescribe the minimum qualifications.
19. The petitioner has given his educational qualifications in paragraph 20 of the writ petition, which is reproduced below:-
"That the education qualifications of the petitioner as existing in the year 1989 is specified below:
Intermediate Certificate Examination with 46.8% marks;
Bachelor of Arts with 48.7% marks;
Sahitya Ratna Degree with 60.1% marks;
Master of Arts in Sanskrit with 56.3% marks;
Bhasha Vigyan (Post Graduate Diploma) with 69.6% marks;
20. In paragraph no.29 of the writ petition the petitioner has stated that he acquired additional qualifications after his initial appointment. These are: (a) A Master of Arts Degree in Hindi obtained in the year 1992; and (b) A doctorate Degree in Sanskrit awarded to the petitioner in the year 1996 on the basis of Thesis submitted in the year 1994.
21. The minimum qualifications for appointment of a Lecturer in the Faculty of Arts in the affiliated colleges, on the date of establishment of the Purvanchal University i.e. 2.10.1987, as contained in the first statutes of the Gorakhpur University, which were applicable to the Purvanchal University by virtue of section 50(1-B) of the U.P. State Universities Act, 1973, are reproduced below:-
"STATUTE 11.13(1) In the case of any college affiliated with the University, the following shall be the minimum qualifications for the post of a Lecturer in the Faculty of Arts (except the Department of Fine Arts and Music) and the Faculties of Commerce and Science; namely-
(a) An M. Phil. degree or a recognised degree beyond Masters level or published work indicating the capacity of a candidate for independent research work; and
(b) Consistently good academic record with atleast first or high second class Master' degree or an equivalent degree of a foreign University, in a relevant subject.
(5) If the Selection Committee is of the view that the research work of a candidate as evident either from his thesis or from his published work is of a very high standard, it may relax any of the qualifications prescribed in sub-clause (b) of clause (1), or sub-clause (b) of clause (2), as the case may be.
(7) For the purpose of this Statue-
(a) the expression 'high second class marks' shall have the same meaning as given to it in sub-clause (a) of clause (7) of Statute 11.01;
(b) the expression 'consistently good academic record' in relation, to Faculty of Education or Faculty of Law or other faculties shall have the same meaning as given to it in sub-clause (b) or sub-clause (c) or sub-clause (d) of clause (7) of Statute 11.01, as the case may be."
22. A perusal of the aforesaid provisions goes to show that for appointment of a lecturer in the Faculty of Arts, the candidate must possess consistently good academic record apart from other qualifications. Under Clause-5 of statute 11.13 the Selection Committee has the power to relax any of the qualifications as are prescribed in sub-clause (b) of clause (1), if it is of the view that the research work of a candidate, as evident either from his thesis or from his published work, is of a very high standard. However, the Selection Committee has no power to relax qualifications as are prescribed in sub clause (a) of clause (1)
23. In the instant case the petitioner, on the date of his appointment or till November 22, 1991, did not possess the essential qualifications as are prescribed in sub- clause (a) of clause (1) of Statute 11.13, therefore, the question of relaxation under Clause (5) does not arise. It is noteworthy that under sub clause (a) the candidate must possess an M. Phil. degree or a recognised degree beyond Masters level or published work indicating the capacity of a candidate for independent research work. Whereas, the petitioner was just Masters in Sanskrit and had not submitted any research paper or published work nor had obtained a degree beyond Masters level on the date of his appointment or even up to 22.11.1991. The doctorate in Sanskrit was obtained by the petitioner, as per his own claim, in the year 1996, on the basis of thesis submitted in the year 1994. Accordingly, the selection committee had no power to relax the prescribed qualifications so as to accommodate the petitioner. Our view draws support from a division bench decision of this court in the case of Dr. Krishna Sinha versus UP Higher Education Service Commission, Allahabad & Others reported in 1989 (7) LCD 365. The relevant portion i.e. paragraph 24 of the judgment is being reproduced below:
"Legally also, on the facts of the case, relaxation was not possible. Power to relax is contained in clause (5) of the Statute reproduced herein above. Under this clause the Selection Committee is not competent to relax the requirements of both the sub-clauses (a) and (b) of clause (1). It is competent to relax the qualification prescribed in sub clause (b) of clause (1) only. Therefore, the candidate will have to possess the qualification prescribed in sub clause (a)............Further, relaxation could be made only if the Selection Committee was of the view that the research work of the candidate was of a very high standard. This opinion was to be formed by the Selection Committee from perusal of candidate's thesis or published work. Neither the writ petition nor the application for the post contains any reference to thesis or published work. Therefore, the basic material requirement for exercising the power of relaxation was not available to the Selection Committee. Thus clause (5) was not attracted and it was not open there under to the Selection Committee to relax the prescribed qualification."
24. Even otherwise the petitioner did not have "consistently good academic record". Though the expression "Consistently Good Academic Record" has not been defined in statute 11.13, but as per clause-7 of statute 11.13, the expression "Consistently Good Academic Record" has to be seen in the light of sub-clause (d) of clause-7 of statute 11.01. For ready reference the clause-7 sub-clause (d) of statute 11.01 is being reproduced below:-
"(d) a candidate (other than a candidate for lecturership in the Faculty of Education and Law) having obtained either an average of 55 per cent marks in the two examinations prior to Master's degree that is to say Intermediate and Bachelor's degree examination (irrespective of the marks obtained in any of the two examinations), or 50% per cent marks in each of the two examinations separately, is said to have consistently good academic record.'
25. A perusal of sub-clause (d) of Clause-7 of statute 11.01 indicates that for possessing "Consistently Good Academic Record" a candidate must have an average of 55% mark in the two examinations prior to Masters degree that is to say Intermediate and Bachelor's degree examinations, or 50% mark in each of the two examinations separately.
26. The learned counsel for the petitioner has submitted before us that Sahitya Ratna Degree is equivalent to the degree of Bachelor in Arts. He has placed reliance on a judgment of this Court in the case of Purushottam Das Agarwal Vs. District Inspector of Schools, Allahabad and another, reported in (1999) 2 LBESR 951. He contends that if the marks obtained in the Intermediate Examination are added to the marks obtained in Sahitya Ratna Degree, then the average of the two would come to 54% which will make it to be high second class.
27. This submission of the petitioner cannot be accepted as the average of 46.8% and 60.1% would not come to 54%, as it would be less than 53.5%. In any view of the matter, since the statute requires the average to be 55%, the petitioner cannot be said to hold the minimum qualification of having "Consistently Good Academic Record". Thus, we are of the view that the petitioner did not hold the minimum qualifications prescribed by the first statute either on the date of his appointment or on 22.11.1991, and that it was not open for the selection Committee to relax the qualifications as it had no power to relax the qualifications prescribed by sub-clause (a) of clause (1) of Statute 11.13. Moreover, since the petitioner had not submitted any research paper, or had any published work, there was no occasion to relax the requirement of having a consistently good academic record.
28. With regard to absence of post on the date of ad hoc appointment of the petitioner, or till 22.11.1991, the learned Standing Counsel appearing for the State-respondents submitted that Sri Raghunath Mishra was only required to officiate as Principal and was not appointed as Principal of the Institution. He contended that Sri Raghunath Misra continued to hold lien over his substantive post of lecturer in Sanskrit, therefore, there was no post of lecturer in Sanskrit on which the petitioner could have been appointed on ad-hoc basis by invoking the provisions of Section 16 of the U.P. Higher Education Service Commission Act, 1980, as it then stood in the statute book.
29. There is force in the submission of the standing counsel. The appointment of a Principal of a college affiliated to a University is to be made on the recommendation made by the Higher Education Service Commission under the provision of U.P. Higher Education Service Commission Act, 1980. In absence of any recommended candidate the management has power to make officiating appointment for a period of three months and if no candidate recommended by the Commission is available within the said period then the senior most lecturer is to officiate as Principal of the college until a regular Principal is appointed. The relevant statute 13.20 is being reproduced below:-
"13.20. When the office of the Principal of an affiliated college falls vacant, the Management may appoint any teacher to officiate as Principal for a period of three months or until the appointment of a regular Principal, whichever is earlier. If on or before the expiry of the period of three months, any regular Principal is not appointed, or such a Principal does not assume office, the senior- most teacher in the college shall officiate as Principal of such college until a regular Principal is appointed."
30. A perusal of the statute 13.20 indicates that the management does not appoint a Principal but only appoints a teacher to officiate as Principal till the selection/ appointment of a regular Principal.
31. The Apex Court in the case of Arun Kumar Chatterjee Vs. South Eastern Railway and others, reported in AIR 1985 SC 482, in para 11 of its judgment observed as under:-
"According to its ordinary connotation, the word 'officiating' is generally used when a servant having held one post permanently or substantively is appointed to a post in a higher rank, but not permanently or substantively, while still retaining his lien or his substantive post i.e officiating in that post till his confirmation. Such officiating appointment may be made when there is a temporary vacancy in a higher post due to the death or retirement of the incumbent or otherwise".
32. A division bench of this court in the case of Daljeet Singh v. State of UP reported in 2007(7) AWC 7687 while negativing the claim of an officiating Principal for salary of a Principal, in paragraph 10 of its judgment, observed as under:
"We find that the petitioner was not appointed as ad hoc Principal of the College, though, he claims to have been appointed as per Statute 13.20 of the First Statute of Kanpur University Act, which provides that in case of the post of Principal of an affiliated College falls vacant, the senior most teacher of the College shall act as Principal until a duly selected teacher assumes office. Statute 13.20 does not talk of any appointment on the post of Principal either on ad hoc or on officiating basis, but only permits a senior most teacher to act as Principal till a duly selected Principal assumes office. In our view, Statute 13.20 would not cause an appointment on the post of Principal entitling the senior-most teacher to claim salary for the said post."
33. The Apex court in the case of Ramakant Shripad Sinai Advalpakar v. Union of India and others, 1991 Suppl (2) 733, observed as under:
"The distinction between a situation where a Government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as promotion. In such a case he does not get the salary of the higher post; but gets only what in service parlance is called a "charge allowance". Such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it. The person continues to hold his substantive lower post and only discharges the duties of the higher post essentially as a stop gap arrangement."
34. In view of the law noticed by us, as also the provisions of Statute 13.20 of the First Statutes of the Gorakhpur University, as were applicable to the Purvanchal University at the relevant time, when a senior lecturer officiates as a Principal of a college he does not lose his lien on the substantive post of lecturer. He continues to remain a lecturer with additional powers of a Principal. Any higher emoluments paid to such a lecturer, may be equivalent to that of a Principal, are purely on equitable considerations without changing the nature and character of his substantive appointment. Moreover the services of such lecturer continues to remain available to the Institution. Thus, we are of the view that allowing a senior lecturer to officiate as Principal of the college does not create a vacancy on the post held by such senior lecturer so as to enable an ad hoc appointment on it.
35. For regularization under Section 31-C of the U.P. Higher Education Services Commission Act, 1980, the teacher concerned should have been 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. The posts contemplated in sub clauses (i) and (iii) are not available in the present case. Whether the post contemplated by sub clause (ii) was there or not would depend on our answer to the issue as to whether on allowing a senior teacher to officiate as Principal, vacancy arises on the post that he holds substantively. Since we have already come to the conclusion that allowing a senior teacher to officiate as Principal of the college does not create a vacancy on the post held by such senior teacher, we have no hesitation to hold that there was no vacant post of Lecturer in Sanskrit in the Institution on the date when the petitioner was appointed, as also up to 22.11.1991.
36. We thus hold that the appointment of the petitioner as ad hoc lecturer in Sanskrit in the Institution was void for both the reasons taken by the state respondents while rejecting his claim for regularisation. The petitioner was neither holding the prescribed essential qualifications for the post nor did a vacant post exist on the relevant date. Since his appointment was void, no direction can be issued for its regularisation.
37. At this stage the counsel for the petitioner placed before us the provisions of sub section (5) to section 31-C of the UP Higher Education Services Commission Act, 1980, which was introduced by UP Act No.10 of 1997 (the relevant sub section has been quoted by us in paragraph 7 herein above). Taking aid of the aforesaid provision the counsel for the petitioner contends that since 30.6.1992 there was a substantive vacancy consequent to the retirement of Sri Raghunath Mishra, and that since subsequently the petitioner has also obtained all the necessary qualifications, therefore, his regularisation can be reconsidered under sub section (5) to section 31-C of the Act.
38. The above submission cannot be accepted. The benefit of sub section (5) to section 31-C comes into operation where the appointment was made after January 3, 1984 but not later than November 22, 1991 on a post contemplated by sub clauses (i), (ii) and (iii) of clause (a) to sub section (1) of section 31-C of the UP Higher Education Services Commission Act, 1980. Since we have already found that there was no post in existence up to November 22, 1991, therefore, the benefit of sub section (5) cannot be provided. Even otherwise, the benefit of amended sub clause (c) of sub section (1) of Section 31-C is not available to the petitioner as the petitioner could not have been allowed relaxation from the essential qualifications.
39. For the reasons detailed above, the petition is devoid of merit and is hereby dismissed. The interim order is discharged.
40. There is no order as to costs.
I agree.
(Hon'ble Manoj Misra, J.) (Hon'ble Sunil Ambwani, J.) Order dated: 10 /02/2012 G.S.