JUDGMENT V.M. Sahai and Barkat Ali Zaidi, JJ.
1. An advertisement was issued in the year 1991 by the Management of Thakur Vir Singh Mahavidyalay, Tundla, an affiliated college to Agra University for appointment of Adhoc Lecturers in History, Sanskrit and Sociology. Both the petitioners applied Smt. Nirmala Singh was appointed as Lecturer in History whereas Dr. Smt. Kamlesh Verma was appointed as Lecturer in Sanskrit. The appointments were approved by the Vice Chancellor on 23.9.1991. They joined on 16.9.1991. The service of petitioners were terminated by the management by notice dated 1.6.1992. Smt. Nirmala Singh filed civil misc. writ petition No. 25250 of 1992 whereas Dr. Kamlesh Verma filed civil misc. writ petition No. 35189 of 1992 challenging the termination orders. This court stayed the termination orders. However, subsequently the petition of Smt. Nirmala Singh was dismissed as infructuous on 1.4.1998 whereas petition filed by Dr. Kamlesh Verma was dismissed in default on 11.2.1993 and the restoration application is still pending.
2. By order dated 6.3.1998 the Director Higher Education regularised, services of the petitioners. Thereafter the petitioners started receiving their salary as Lecturer. On 15.12.1999 a show cause notice was issued by the Director Higher Education to the petitioners to the effect that they are not entitled for payment of salary from the government grant and management is liable to pay their salary as the petitioners do not come within the definition of teacher. The petitioners submitted their reply to the show cause notice. Meanwhile, the State Government has passed an order dated 26.2.2001 regularising the services of 524 teachers which include the petitioners. In pursuance of the order of the State Government the Director Higher Education has passed an order on 27.2.2001 that for payment of salary to the teachers mentioned in the order dated 26.2.2001 be made and demand of funds be raised from the State Government for payment of their salary. Both these petitions have been filed by the petitioners claiming payment of salary w.e.f. November, 1999.
3. We have heard Shri Ashok Khare, learned senior counsel, assisted by Shri A.K.Singh appearing in both the petitions for the petitioners and Shri R.P. Tiwari, learned standing counsel appearing on behalf of respondents No. l to 3, 5 and 6, Shri Indal Singh, learned counsel appearing for respondent No. 4 and Shri Pankaj Mittal, learned counsel appearing for respondent No. 7.
4. It is not disputed that the petitioners were appointed in the year 1991 as Adhoc Lecturers on 16.9.1991. Their services could not be regularized in 1992 Under Section 31-C of the U.P. Higher Education Service Commission Act, 1980 (in brief Act) as the cut off date fixed for regularization of service was that the appointment should have been made on or before 30.6.1991. The services of those lecturers who had been appointed on or before 30.6.1991 were regularized. But the service of the petitioners could not be regularized as their date of appointment fell after the cut off date. The management terminated the services of the petitioner by order dated 1.6.1992, which was challenged by the petitioners before this court and this court granted interim order in favour of the petitioners.
5. Section 31-C (1)(a) of the Act was amended by U.P. Act No. 10 of 1997 and the cut of date was amended to read as 22.11.1991. Further Sub-section 5 was added to Section 31-C which is extracted as under:
"(5) Notwithstanding anything to the contrary in Sub-section (4), the selection committee constituted under Sub-section (2), shall in view of the amendments made in Clause (b) to (d) of Sub-section (1), by the Uttar Pradesh Higher Education Service 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 subjection (1) and shall be deemed never to have ceased to hold appointment."
6. The management had terminated the services of the petitioners on 1.6.1992 Under Section 31-C (4) of the Act as the Adhoc appointment of the petitioners could not be regularized as the cut of date for appointment had been fixed as 30.6.1991. The petitioners were appointed on 16.9.1991 and their date of appointment fell beyond the cut of date, therefore, they ceased to hold adhoc appointment and their service were terminated by the management. By U.P. Act No. 10 of 1997 Section 31-C of the Act was amended and the cut off date was altered from 30.6.1991 to 22.11.1991. Further a new Sub-section 5 was added which provided that every teacher who had ceased to hold appointment Under Sub-section 4 is entitled for reconsideration and if he is found suitable for appointment then he may be given substantive appointment and it shall be deemed that the earlier appointment never ceased. The petitioners were appointed prior to 22.11.1991, therefore, they were entitled for regularization of their service in view of Section 31-C as amended by U.P. Act No. 10 of 1997. The Director Higher Education, therefore, rightly passed an order on 6.3.1998 regularising the services of the petitioners, after the matter of the petitioners were considered by the committee and approved by the State Government on 27.2.1998. The Authorised Controller also passed an order on 29.4.1998 regularising adhoc appointment made on 16.9.1991 and granted pay scale Rs. 2200-4000 to the petitioners. The institution came on grant-in-aid list by order dated 3.10.1994 w.e.f. 1.10.1994. The petitioners were paid their salaries from the graht-in-aid w.e.f. 30.10.1994. The payment of salary to the petitioners were stopped by the respondents from November, 1999 and a show cause notice was issued by the Director on 15.12.1999 that payment of salary to the petitioners be made by the management as the petitioners do not come within the definition of teacher, as defined Under Section 60-A(6) of the U.P. State Universities Act, 1973.
7. The petitioners worked as adhoc lecturers w.e.f. 16.9.1991 and their appointment were terminated as they could not be regularized under the un-amended Section 31-C as it existed in 1992. The petitioners filed writ petition before this court and their termination orders were stayed. The institution came on grant-in-aid list in the year 1994. The provision of Section 60-A (6) of the U.P. State Universities Act would not apply to the case of the petitioners as they were appointed in 1991. The petitioners submitted their reply to the show cause notice dated 15.12.1999 but no order was passed by the Director. An order was passed by the State Government on 26.2.2001 by which it regularized all the teachers who had been working in aided colleges between 3.1.1984 to 22.11.1991. By this order service of 524 teachers were regularized and the name of petitioner Smt. Nirmala Singh was mentioned at serial No. 80 and name of Dr. Smt. Kamlesh Verma was mentioned at serial No. 82. The Director also passed the consequential order on 27.2.2001 that the payment of salary to 524 teachers who have been regularized be made and the demand of funds for payment of salary be made from the State Government. In view of the amendment made in Section 31-C in 1997 the writ petitions filed by the petitioners became infructuous.
8. In our opinion show cause notice issued by the Director on 15.12.1999 was rendered infructuous as the controversy was set at rest by the order of the State Government dated 22.2.2001 and the consequential order of the Director dated 27.2.2001. It would, therefore, follow that both the petitioners are entitled for payment of salary w.e.f. November, 1999.
9. In the result both the writ petitions succeed and are allowed. Writ of mandamus is issued directing respondents to make payment of salary to the petitioner with effect from November 1999 till the present date as Lecturers within a period of three months from the date a certified copy of this order is produced before respondents No. 1 and 3. The petitioners shall also be entitled for payment of their current salary.
10. Parties shall bear their own costs.