1. Heard Sri Devendra Pratap Upadhyay, learned counsel for the petitioner, Dr. Udaiveer Singh, learned Additional Chief Standing Counsel for the State-respondents and Sri Ajay Pratap Singh, learned counsel for the opposite party nos. 4 and 5.
2. The petitioner has assailed the validity of the order dated 25.11.2011 passed by the Director, Higher Education, U.P., Allahabad rejecting the claim of the petitioner which was raised in compliance of the order dated 29.8.2011 passed by this Court in Writ Service Bench No. 1225 of 2008 : Dr. Sushma vs. State of U.P. and others.
3. Initially the petitioner has only prayed that the opposite parties be directed to reinstate the petitioner in service as Part Time Lecturer (Hindi) and be paid the honorarium as per the Government Order dated 20.11.2007 and 28.2.2009 including the arrears of salary from February, 2002 till the date she was permitted to discharge the duties but on 17.4.2019 she filed an amendment application challenging the order dated 25.11.2011 and praying that the opposite parties be directed to absorb and regularize the petitioner's service w.e.f. her first date of joining i.e. 28.10.2003.
4. The brief facts of the case are that the petitioner passed M.A. in Hindi Literature in the year 1977 and completed her P.HD. in the year 1988 in Hindi Literature from Oudh University.
5. On 7.4.1998 State Government issued a Government Order in respect of engaging teachers on the basis of honorarium in various Post Graduate Colleges. Pursuant to the aforesaid Government Order dated 7.4.1998 an advertisement was published in the Hindustan News Daily on 25/26.7.2001 for engagement of teachers for Economics, Social Science, Sanskrit and Hindi as Lecturers. The date of interview was fixed as 3.9.2001. The name of the petitioner was recommended for approval on 12.9.2001 before the Director, Higher Education. However, on 21.9.2001 the Director, Higher Education sent back the merit list so prepared by saying that one Dr. Rajendra Prasad Dwivedi had obtained more marks than Dr. Sushma Shukla, the petitioner hereto, and directed the committee of management to submit a fresh merit list of the candidates. In pursuance of the aforesaid order the fresh merit list was forwarded and then on 20.10.2001 the Director, Higher Education approved the appointment of Dr. Rajendra Prasad Dwivedi on the post of Lecturer, Hindi on the honorarium basis for the Education Session 2001-02 and he worked up to February, 2002 and received the honorarium.
6. Feeling aggrieved out of aforesaid inaction the petitioner preferred Writ Petition No. 73(S/S) of 2002 with a prayer that she may be permitted to work on the post of Lecturer, Hindi on honorarium basis. This Court vide order dated 20.10.2003 recorded the statement of the then counsel for the Principal of the institution in question that the present petitioner would be allowed to join and perform her duties and shall be paid honorarium and thereafter the petitioner submitted her joining on 28.10.2003 and worked up to February, 2004 i.e. till the end of session 2003-04 and she was paid honorarium of Rs. 20,800/- for the said period.
7. Thereafter one Dr. Shardul Singh has been appointed on the post of Lecturer on 17.8.2004 as he was selected and recommended by the Commission. Since duly selected person namely Dr. Shardul Singh had come and joined on the post of Lecturer, Hindi on 17.8.2004, therefore, the claim of the petitioner had come to an end. Accordingly, the petitioner had withdrawn her writ petition on 19.8.2004 bearing Writ Petition No. 73(S/B) of 2002
8. Thereafter the petitioner filed another writ petition bearing no. 1306(S/B) of 2004 in which she mentioned that one Dr. Pratima Singh retired from service, therefore, she may be permitted to discharge the functions of Lecturer, Hindi on honorarium basis and this Court vide order dated 29.10.2004 was pleased to pass an order directing that the petitioner may be considered for appointment, if there is any vacancy in the light of the Government Order dated 7.4.1998.
9. On 24.5.2005 the then District Magistrate who was President of the Committee of Management at that point of time passed order in which he has mentioned that the education work in the session 2004-05 had been over, therefore, the case of the petitioner shall be considered in the next session. Accordingly, on 13.8.2005 the District Magistrate / President of the Committee of Management recommended the case of the petitioner for appointment on the post of Lecturer, Hindi on honorarium basis for the Education Session 2005-06 and the matter was sent before the Director, Higher Education, Allahabad for approval. On 25.10.2005 the approval was granted in favour of the petitioner and on 26.10.2005 the appointment letter was issued in favour of the petitioner and she started functioning w.e.f. 28.10.2005 to February, 2006 and for that purposes she has been paid honorarium amount of Rs. 20,800/-. Thereafter for the Education Session 2006-07 the petitioner was again permitted to work on the post of Lecturer, Hindi w.e.f. 13.9.2006 to February, 2007 and she was paid honorarium of Rs. 41,600/- for that period. However, the petitioner claimed the arrears of salary at that point of time demanding the salary of 45 months and this Court disposed of Writ Petition No. 1306(S/B)2004 directing the institution in question to consider the grievance of the petitioner regarding payment of salary, if any, and decide the same in accordance with law. In the said order dated 20.3.2007 this Court has categorically observed that the Court does not find any provision wherein her case for regularization can be considered.
10. In compliance of the order dated 20.3.2007 the District Magistrate passed an order dated 4.4.2008 which has been contained as Annexure CA-5 to the counter affidavit wherein the authority considered the entire facts and circumstances of the issue relating to the petitioner and found that the petitioner has been paid her entire honorarium for the period she has worked and no amount is outstanding.
11. In the meantime the petitioner filed one more writ petition bearing Writ Petition No. 800(S/B) 2007 for regular appointment but this Court vide judgment and order dated 16.7.2007 disposed of said writ petition directing the petitioner to prefer a representation to the competent authority and he shall take a proper decision thereon.
12. On 15.12.2008 the petitioner was again given appointment on the post of Lecturer, Hindi under the self-finance scheme as per direction being issued by the District Magistrate / President of the Committee of Management and she remained posted till 28.2.2009. The petitioner has also filed one Writ Petition No. 1225(S/B) 2008 making request that since her representation has not been decided, therefore, the direction may be issued that the authority may pass appropriate order on her representation. Since during the pendency of that writ petition the present impugned order dated 25.11.2011 has been passed, therefore, this Court disposed of the said writ petition vide order dated 12.12.2011 permitting the petitioner to assail the order dated 25.11.2011 by filing petition.
13. This Court vide order dated 22.5.2014 was pleased to stay the operation and implementation of the order dated 25.11.2011 and further directed that the petitioner shall be allowed to work on the post and shall be paid her salary. It has been informed by the petitioner and also by the learned counsel for the opposite parties that the interim order dated 22.5.2014 passed by this Court has been complied with and the petitioner has been permitted to discharge her duties and she was being paid honorarium.
14. The precise submission of the learned counsel for the petitioner is that the post of Lecturer, Hindi in the college is lying vacant and the same may be filled up strictly as per the Government Order dated 7.4.1998. As per the petitioner herself the Government Order dated 7.4.2019 provides that in the non-Government Degree College and Post Graduate Colleges teachers having qualification shall be engaged on honorarium basis and they shall be allowed to continue for the session or till the regular selection takes place. The petitioner has also submitted that despite she having been continuously discharging her duties w.e.f. 28.10.2003 she has not been regularized in terms of section 31E of the Higher Education Service Commission Act, 1980 (herein after referred to as the Act of 1980) and the impugned order dated 25.11.2011 has been passed without considering the factual and legal matrix of the issue properly, therefore, the order dated 25.11.2011 may be set aside and the opposite parties may be directed to absorb and regularize the service of the petitioner.
15. Per contra, Dr. Udaiveer Singh has submitted that there is no illegality or infirmity in the order dated 25.11.2011 inasmuch as the said order has been passed strictly in terms of section 31E of Act, 1980. For the convenience section 31E is being reproduced herein below:
"31E. Absorption of teacher on honorarium. - [(1) Subject to the provisions contained in Sections 12 and 13, if any vacancy exists, which could not be filled, under the provisions of said sections, a teacher on honorarium who has been appointed in grant-in-aid college on or before March 29,2011, in accordance with the provisions as specified under G.O. No. 467/Sattar-2-98-3(19)/93T.C., dated April 07, 1998 possessing educational qualifications determined by the State Government, working and receiving honorarium thereby from the State exchequer till the date of commencement of the Uttar Pradesh Higher Education Services Commission (Amendment) Act 2018, shall be absorbed in the manner prescribed under sub-section (2).] (2) Where any substantive vacancy in the post of a teacher in a grant-in-aid college is to be filled by direct recruitment, such post shall, at the instance of the Director, be offered by the management to teacher on honorarium referred to in sub-section (1).
(3) Where any teacher on honorarium who has been offered appointment in accordance with the provisions of sub-section (2) fails to join the post within the time allowed, which shall not be less than fifteen days, his further claim shall cease automatically.
Explanation.- For the purposes of this section -
"teacher on honorarium" means a person working in grant-in-aid college and is engaged in teaching a course of study and receiving payment from the funds of State aid on a fixed honorarium appointed on a contractual basis with the prior approval of the Director.
(4) Where the Management fails to offer any post to a teacher on honorarium in accordance with the provisions of sub-section (2) within the time specified by the Director, the Director, may himself issue the letter of appointment to such teacher on honorarium and the teacher on honorarium concerned shall be entitled to get his salary as teacher, from the date, he joins the post in pursuance of such letter of appointment."
16. Dr. Udaiveer Singh has submitted that section 31E has been inserted in the Act of 1980 vide U.P. Act No. 42 of 2006 on 28.12.2006. He has further submitted that in clause 1 of the Section 31E, the words "cannot be filled" was substituted by the words "could not be filled", vide U.P. Higher Education Services Commission (Amendment) Act, 2014. In furtherance of the said amendments carried out in the Act 1980 the State Government has issued government order dated 2.5.2016. Subsequently the said Amended Act 2014 has been challenged before the Hon'ble High Court at Allahabad in the "Writ-C No. 22349 of 2016 : Dr. Deena Nath Yadav and others vs. State of U.P. and others". In the said writ petition the Hon'ble Court has been pleased to pass an interim order dated 27.5.2016.
17. As per Dr. Udaiveer Singh, learned Additional Chief Standing Counsel after the passing of the Hon'ble Court's order dated 27.5.2016, the State Government has issued a Government Order dated 30.8.2016 and 5.12.2016. Thereafter as per letter no. U.Shi.Ayog/C-586/105/2017-18 dated 7.4.2017 issued by the U.P. Higher Education Commission, the absorption letters of those honorarium Lecturers / teachers have been issued who are fulfilling the conditions provided in Section 31E of the Act, 1980 (as amended) and were engaged on or before 1.7.2003, the cut-off date for such exercise under section 31E of the Act.
18. Therefore, Dr. Udaiveer Singh has summed up his arguments saying that the case of the petitioner has been examined on the basis of the record furnished by the College as well as under the light of Section 31E of the Act 1980 which makes it clear that the benefit of the provision of Section 31E cannot be extended to the petitioner because, firstly; the very first engagement of the petitioner as an honorarium lecturer was after the cut off date i.e. 1.7.2003, secondly; the engagement of the petitioner as honorarium lecturer did not remain in continuity, thirdly; petitioner has been paid honorarium by the Managerial Funds of the College itself, she has never been paid any honorarium from the State Exchequer and, lastly; there are 08 sanctioned posts for the Hindi Subject in the concerned college, on which, regularly selected candidate are performing their respective duties.
19. Having heard learned counsel for the parties and having perused the relevant material available on the record, I am of the considered opinion that the present petitioner has continued in the institution in question on the strength of interim order having passed in her favour time to time as she was engaged by the management to avoid adverse situation. Further, the claim of the regularization of the petitioner has already been considered by this Court and turned down vide judgment and order dated 20.3.2007 passed in W.P. No. 1306(S/B) of 2004 and as such her claim of regularisation / absorption of service may not be granted. Further, the petitioner has herself admitted in the writ petition that she had submitted her joining on the post of lecturer, Hindi on 28.10.2003 and she served on the said post w.e.f. 28.10.2005 to 28.2.2004; 26.10.2005 to 28.2.2006 and 13.9.2006 to 28.2.2007 and so on. As per section 31-E of the Act, the services of those teachers may be regularized if such teacher is working in grant-in-aid college, possessing educational qualification determined by the State Government, receiving honorarium from State exchequer, thereby working for the minimum period of three academic year and has been working till the date of commencement of the U.P. Higher Education Service Commission (Third Amendment) Act, 2006 as the cut off date thereof is 1.7.2003. In the present case the petitioner was not serving on the cut off date but has started functioning since 28.10.2003 i.e. after cut off date. Admittedly, the petitioner has discharged her duties in compliance of the interim order being passed by this Court and as per the petitioner she is still discharging her duties in compliance of the interim order dated 22.5.2014 passed by this Court in the present writ petition. Further she has received her honorarium from the management not from the State-exchequer.
20. I have noted from the Aadhar Card of the petitioner which has been annexed with the affidavit of the petitioner that the date of birth of the petitioner is 30.6.1957 so she is now more than 62 years of age. Therefore, is it clarified that the petitioner may not be permitted to discharge her duties beyond the age limit prescribed for superannuation under the law.
21. In view of the above I do not find any infirmity or illegality in the impugned order dated 25.11.2011 passed by the Director, Higher Education, U.P., Allahabad which is contained as Annexure no. 1 to the writ petition, therefore, in view of the above the present writ petition is dismissed being devoid of merit.
21. No order as to costs.
Order Date :- 27.9.2019 Om [Rajesh Singh Chauhan, J.]