JUDGMENT R.A. Sharma, J.
1. Petitioner was appointed on September 25, 1986 as part-time Lecturer in the Department of Medieval and Modern History of University of Gorakhpur (hereinafter referred to as the University) by the Vice Chancellor, in exercise of his power under Section 13 (6) and (8) of the State Universities Act, 1973 (hereinafter referred to as the Act) for a period of six months or till regularly selected candidate joins, whichever was earlier. This appointment was extended from tune to time by the Vice-Chancellor. On July 19, 1987 the Executive Council of the University granted House Allowance to the part-time teachers and also allowed them to continue in service in future. In view of the above decision of the Executive Council the appointments of the petitioner as well as other parttime-teachers, were extended by the Vice-Chancellor from time to time up to November 2, 1989. On October 7, 1989 the Executive Council resolved that all part-time Lecturers to be treated as ad hoc Lecturers with effect from November 1, 1989 and be paid their salary accordingly. In pursuance of the above decision of the Executive Council the Vice-Chancellor issued appointment letter dated December 1, 1989 to the petitioner appointing him as ad hoc Lecturer for a period of six months or till regularly selected candidates joins, whichever was earlier. The period of this appointment was extended from time to time on the same terms and conditions, as were contained in the appointment letter dated December 1, 1989. However, by letter dated May 8, 1991 the Vice-Chancellor extended the appointment of the petitioner merely for about two months from May 5, 1991 to June 30, 1991. On June 29, 1991, the Head of the Department requested the Vice Chancellor to extend term of the petitioner so that the teaching in the Department may not be affected and this request was endorsed and recommended by the Dean of the Faculty and Pro-Vice Chancellor. The Vice-Chancellor, however, passed no order on the above request Although there was no order extending the term of the appointment of the petitioner, but he continued to work as ad hoc Lecturer subsequent to June 30, 1991 and was paid his salary for the months of July and August, 1991. Even after August, 1991, the petitioner continued to work and is still working as ad hoc Lecturer, but he has not been paid his salary on the ground that there is no order extending the term of his appointment after June 30, 1991. He accordingly filed this writ petition for writ of mandamus directing the respondents not to interfere with his working as ad hoc Lecturer. Further prayers for directing the respondents to issue fresh appointment letter and to pay the salary, are also made. This Court while entertaining the writ petition issued an ad interim order on September 6, 1991 directing the respondents to permit the petitioner to work as ad hoc Lecturer and to pay his salary in accordance with law, within four months from the date a certified copy of the order is produced before the Registrar, or to show cause within the same period. It appears that the above interim mandamus was not complied with by the respondents and neither salary was paid to the petitioner nor was cause shown within the time specified by the interim order dated September 6, 1991. Subsequently counter-affidavit has been filed by the respondents and the petitioner had filed rejoinder-affidavit in reply thereto.
2. Along with the counter-affidavit the University filed two orders of the Vice Chancellor, viz., the order dated August 31, 1991, whereby the services of all ad hoc and part-time Lecturers were terminated and the order dated October 5, 1991 by which the order dated August 31, 1991 was modified to the extent that the services of ad hoc teachers were declared to have been terminated with effect from June 30, 1991. By an application for amendment the petitioner has amended the writ petition so as to challenge the above two orders dated August 31, 1991 and October 5, 1991.
3. Learned Counsel for the petitioner has made three submissions in support of writ petition viz. (i) As the petitioner was appointed as part-time Lecturer in 1986 and as ad hoc Lecturer in 1989 for the period till regularly selected candidate joins and he has been working continuously since then and no regularly selected candidate has joined the Department, he is entitled to continue to work in the Department and respondents are bound to pay him the salary till regularly selected candidate joins: (ii) Under U.P. Ordinance No. 44 of 1991, which has been replaced by U.P. Act No. 1 of 1992, the services of the petitioner are liable to be regularised, and (iii) The petitioner has been discriminated against by the Vice-Chancellor who has acted arbitrarily, mala fide and on extraneous considerations. Learned Counsel for the respondents has, on the other hand, submitted that (1) the petitioner's appointment was always for fixed period and his service came to an end by efflux of time and the management was, as such, justified to terminate his services after expiry of terms for which he was appointed and he is neither entitled to continue in service nor is he entitled for regularisation of his service under U.P. Act No. 1 of 1992; and (2) as the petitioner was appointed by the Vice-Chancellor under Section 13(6) and (8) of the Act, he cannot claim regularisation. The submission about mala fide has also been disputed.
4. It is true that the petitioner was appointed as part-time Lecturer by the Vice-Chancellor under Section 13(6) and (8) of the Act vide order dated September 25, 1986 for a period of six months or till regularly selected candidate joins, whichever was earlier and this appointment was extended from time to time, but the Executive Council, vide its resolution passed on July 19, 1987, permitted all the part- time teachers of the University, including the petitioner, to continue to work in future. Subsequently by another resolution dated October 7, 1989 the Executive Council resolved that all part-time teachers in the University be made and be treated as ad hoc Lecturers and be paid their salary accordingly. It is thus apparent that all those part-time Lecturers who were permitted by the Executive Council on July 19, 1987 to continue in their respective Department in future, were made ad hoc Lecturers by the next resolution dated October 7, 1989. The Vice-Chancellor in pursuance of the above resolutions appointed the petitioner as ad hoc Lecturer for a period of six months or till regularly selected candidate joins, whichever was earlier and this type of orders were issued by the Vice-Chancellor from time to time extending the terms of his appointment No regularly selected candidate has joined the Department so far and the petitioner is still working as ad hoc Lecturer, although there is no order extending the terms of his appointment after June 30, 1991.
5. The question which is required to be decided by this Court is whether a teacher, who is appointed for certain period or till regularly selected candidate joins, whichever is earlier, is entitled to continue till duly selected candidate joins. Once a teacher is appointed against a ] vacancy which is to be filled up by regularly selected candidate, he is entitled to continue till a duly selected candidate joins the post unless his services are terminated earlier for a cause in accordance with law. Right of such an ad hoc teacher to continue in service till regularly selected candidate joins is neither forfeited nor comes to an end merely after expiry of the period for which he was appointed and the condition in the appointment letter restricting its period up to a particular date, is liable to be ignored and the latter part of the condition making the appointment till regularly selected candidate joins, is to be read as the only effective condition. It cannot be the intention of the law that the State or the Management of the educational institution should repeat the exercise of making ad hoc appointment periodically till regularly selected candidate joins.
6. It is also not open to the State and the Management to substitute one ad hoc teacher by another unless the services of the former are terminated for a cause in accordance with law. In this connection reference may be made to the case of Rattanlal v. State of Haryana (1986-I-LLJ-23) wherein the action of the Government appointing teachers on ad hoc basis at the commencement of the academic year and terminating their services before summer vacation or earlier and making such appointments and termination from year to year, was deprecated by the Supreme Court. The relevant extract from the above judgment of Supreme Court is reproduced below (p.24):
"These ad hoc teachers are unnecessarily subjected to an arbitrary 'hiring and firing' policy. These teachers who constitute the bulk of the educated unemployed are compelled to accept these jobs on ad hoc basis with miserable conditions of service. The Government appears to be exploiting this situation. This is not a sound personnel policy. It is bound to have serious repercussions on the educational institutions and the children studying there. The policy of 'ad hocism' followed by the State Government for a long period has led to the breach of Article 14 and Article 16 of the Constitution. Such a situation cannot be permitted to last any longer."
7. Again in Sri Rabinarayan Mohapatra v. State of Orissa (1991-II-LLJ-62) wherein appellant was appointed as Hindi teacher in 1982 for a period of 89 days or till a candidate selected by Selection Board was made available and his appointment was extended repeatedly for 89 days at a time after one day's break in between, till May, 1986 and after May 1986 although he continued to serve the institution but his appointment was not approved by the educational authorities, the Supreme Court condemned the practice of 'ad hocism' by giving appointment on 89 days basis with one day break and directed for payment of salary to the appellant therein after May 1986 including the salary for summer vacation and for breaks even though there was no order approving his appointment after May, 1986.
8. Similar controversy arose before this Court earlier in the case where termination of services of the teachers appointed on ad hoc basis under Section 18 of U.P. Secondary Education Service Commission and Selection Board Act, 1982, was questioned. Under Section 18 of the above Act the Management of an Intermediate College has a right to make ad hoc appointment of a teacher after the vacancy has been notified to the Secondary Education Commission and the post of such teacher has actually remained vacant for more than two months. In view of the provisions contained in Sub-section (3) of the said Section, such an appointment of an ad hoc teacher shall cease to have effect from earliest of the following days, namely, (a) when the candidate recommended by the Commission joins the post or (b) May 30 of June following the date of such appointment. In view of the above provisions ad hoc appointments made by the Management of the Colleges under Section 18 automatically ceased to be effective on the 30th day of June following the date of appointment, as the Commission could not select any candidate during this period. After 30th June, the Management had to make again the selection of the teachers for making ad hoc appointment under the same provisions. In this manner the act of making selection of ad hoc teachers used to be repeated from time to time by the Management of the Colleges causing great harassment to the teachers, who were duly selected earlier for such appointments. A Division Bench of this Court in Shiva Chandra Misra v. District Inspector of Schools, 1986 UPLBEC 248, relevant extract of which is reproduced below, has held that the Legislature could not have intended that the Management should repeat the exercise of making the ad hoc appointment of teachers under Section 18 on the expiry of 30th June following the date of such appointment even though the Commission has not recommended the name of any candidate and as such directed that teachers who have been appointed under Section 18 are to continue till candidates selected by the Commission join:
"It appears that when the legislature had enacted Section 18 of the Act it was not anticipated that the process of selection would be unduly delayed and would not be concluded even upto 30th of June following the date of such ad hoc appointments. However, as it is frequently happening the Commission is unable to complete the selection or recommend a candidate for substantive appointment against the post held by the ad hoc appointee even after 30th June following the date of ad hoc appointment. In some cases, we have noticed that 30th June following the date of ad hoc appointment has intervened more than once as a regular candidate was not selected for upto nearly two years or so. In all such cases the District Inspector of Schools stops paying salary to teachers on the ground that the ad hoc appointment does not survive after 30th June following the date of appointment relying on Clause (c) of Section 18(3). In Committee of Management of Sanatan Dharm Intermediate College. Daulatpur, District Manipuri v. District Inspector of Schools, Manipuri reported in 1985 UPLBEC 496: a Division Bench of this Court had occasion to consider the legal implications of such a situation. It observed that the legislature could not have intended that the Management should repeat the exercise of making an ad hoc appointment of a teacher under Section 18 on the expiry of 30th June following the date of such ad hoc appointment even though the Commission has not recommended the name of any candidate for substantive appointment. We are of the view that if the services of a teacher validly appointed under Section 18 have not been terminated after such ad hoc appointment or if the Commission has not recommended the name of any candidate for substantive appointment the initial appointment made by the Management with the approval of the District Inspector of Schools under Section 18 should be deemed to have been renewed by the Management upon the expiry of 30th June following the date of appointment on each occasion. We are clearly of the opinion that the legislature cannot have intended that the same exercise as was involved in the ad hoc appointment under Section 18 should be repeated on the expiry of 30th June following the date of appointment The District Inspector of Schools will, therefore, not be justified in stopping payment of salary to a teacher validly appointed under Section 18 merely because of the fact that 30th June following the date of appointment has elapsed even though the Commission may not have, in the meantime, recommended any candidate for appointment to the post held by the ad hoc appointee. This is the only way in which Sub-section (3) of Section 18 can be reasonably construed and the various Clauses (a) to (c) of Sub-section (3) reconciled. Any other construction would clearly lead to wholly unnecessary harassment to the teachers validly appointed under Section 18 of the Act."
9. Having held as above this Court allowed the writ petition by the following directions:
"The District Inspector of Schools should, therefore, treat the teachers validly appointed on ad hoc basis under Section 18 as continuing in service and pay salary to them notwithstanding the expiry of 30th June following the date of appointment till the services of such ad hoc teachers are terminated in accordance with law or till the candidate recommended by the Commission or the Board joins the post or the date mentioned in Clause (b) of Sub-section (3) of Section 18, whichever may be the earliest. The stand taken by the District Inspector of Schools to the contrary seems clearly untenable."
Same principles are reiterated by other Division Benches in subsequent cases, such as Murli Prasad v. State of U.P. 1986 UPLBEC 274; Ram Ji Pathak v. District Inspector of Schools, 1986 UPLBEC 344: and Sita Ram Yadav v. District Inspector of Schools, 1990(1) UPLBEC 41 :
10. On the same principle and the parity of reasoning ad hoc appointments of the petitioner, which were made for fixed period or till regularly selected candidate joins, whichever was ear-tier, are liable to continue till duly selected candidate joins. In such cases restriction of the period is liable to be ignored and appointee is entitled to continue till regularly selected candidate joins unless his services are terminated earlier for a cause in accordance with law. This principle will, however, not apply in a case where appointment is only for a fixed term without any alternative condition of its continuance till duly selected candidate joins. In such cases period of appointment comes to an end by efflux of time and appointee cannot claim right to continue till the post is filled in on substantive basis. For the reasons given above it was not open to the Vice- Chancellor to terminate the services of the petitioner and his order cannot be sustained.
11. That apart, as mentioned before, the Executive Council vide resolution dated July 19, 1987 permitted all part-time teachers to continue in future and in continuation of above resolution the Executive Council vide another resolution dated October 7, 1989 made the part- time Lecturers, including the petitioner, as ad hoc Lecturers and directed payment of their salary accordingly. The effect of the above resolutions of the Executive Council is that the petitioner is entitled to continue in service as ad hoc Lecturer till regularly selected candidate joins. The source of appointment of the petitioner as ad hoc Lecturer is the resolutions of the Executive Council, mentioned above, and merely because in pursuance of those resolutions the Vice-Chancellor has fixed time limit while issuing appointment letter, his right to continue in service does not come to an end. The orders of the Vice-Chancellor, terminating the services of the petitioner as such, cannot be sustained. The submission of the learned Counsel for respondents is devoid of merit and cannot be accepted.
12. By U.P. State Universities (Second Amendment) Ordinance 1991 (U.P. Ordinance No. 44 of 1991) in Sub-section (3) of Section 31 of the State Universities Act, Clause (c) has been inserted, whereunder a teacher who was appointed on or before June 30, 1991 without reference to a Selection Committee by way of short-term arrangement may be given substantive appointment by the Executive Council, if certain conditions, mentioned therein, are satisfied. This Ordinance has been replaced by U.P. Act No. 1 of 1992. Clause (c) as inserted by the U.P. Act No. 1 of 1992, is reproduced below:
"(c) Any teacher of the University who was appointed as lecturer on or before June 30, 1991 without reference to the Selection Committee by way of a short term arrangement in accordance with the provisions for the time being in force for such appointment, may be given substantive appointment by the Executive Council, if any substantive vacancy of same cadre and grade in the same department is available on the date of the commencement of the Uttar Pradesh State Universities (Second Amendment) Ordinance, 1991 if such teacher-
(i) is serving as such on the date of such commencement continuously since such initial appointment by way of short term arrangement;
(ii) 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 the initial appointment;
(iii) has been found suitable for regular appointment by the Executive Council.
A teacher appointed by way of short term arrangement as aforesaid who does not get a substantive appointment under this clause shall cease to hold such post on such date as the Executive Council may specify."
The petitioner was appointed before June 30, 1991 without reference to the Selection Committee by way of short term arrangement by the Vice-Chancellor in accordance with law and as such he is entitled for consideration of his case for regularisation of service under the above newly added clause. The submission of the learned counsel for the respondents, that as the petitioner was appointed under Section 13(6) and (8) of the Act he is not entitled for regularisation of his service under the newly added clause, cannot be accepted. As mentioned hereinbefore under the above provisions a teacher appointed for short-term arrangement even without reference to the Selection Committee, is also entitled to get substantive appointment.
13. As regards the third submission the case of the petitioner is that the Vice-Chancellor passed order dated August 31, 1991 terminating services of all ad hoc and part-time teachers in order to deprive those teachers benefits of regularisation of their services under Ordinance, regarding which the State Government has already made announcement and the order of termination, as such was based on mala fide and irrelevant considerations. It has further been argued by the learned counsel that after having terminated the services of all ad hoc and part-time lecturers on August 31, 1991, the Vice-Chancellor has restored the services of many teachers who could approach him on account of extraneous considerations. The above submission has been disputed by learned counsel for respondents. As we are allowing the writ petition on the first two points it is not necessary for this Court to go into this controversy.
14. As mentioned before, although the petitioner's appointment was not extended after June 30, 1991, but he has been working regularly since then as ad hoc lecturer in the Department and in that connection the petitioner has placed on record various letters and orders of the Head of the Department, Dean Faculty and other officials of the University in order to prove the fact that he has been working after June 30, 1991 till date and this has not been disputed by the respondents. But their stand is that the petitioner has no right to continue and work as ad hoc lecturer as there was no order extending the term of his appointment after June 30, 1991. Be that as it may, the fact that the petitioner has been working as ad hoc lecturer right from the beginning till date, has not been denied. The facts of the instant case are similar to the facts of the case of Sri. Rabinarayan Mohapatra v. State of Oris-sa, (supra) wherein also there was no approval of the appointment of the appellant therein after May, 1986, but the Supreme Court directed the respondents to treat the appellant as regularly appointed teacher and further directed for payment of his salary after May 1986 to date.
15. The writ petition is allowed with costs. The impugned orders terminating the services of the petitioner, dated August 31, 1991 and October 5, 1991 are quashed. The petitioner shall be treated to be in service even after June 30, 1991 and he will be paid his salary from September 1, 1991. The respondents are directed to pay to the petitioner the arrears of his salary and other emoluments with interest at the rate of Rs. 9/- per cent per annum, within a period of three months from the date of presentation of certified copy of this order before them and future salary shall be paid to the petitioner regularly every month as and when it falls due. The Executive Council of the University is directed to consider and decide the question of granting substantice appointment to the petitioner under the newly added Clause (C) of Section 31 of the Act.