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DR. VIMLA VYAS versus UNIVERSITY OF ALLAHABAD & OTHERS

High Court of Judicature at Allahabad

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Dr. Vimla Vyas v. University Of Allahabad & Others - WRIT - A No. 26067 of 2002 [2004] RD-AH 1145 (12 October 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 34

Civil Misc. Writ Petition No. 26067 of 2002

Dr. Vimla Vyas

Vs.

University of Allahabad and others

********

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Dilip Gupta, J.

This Writ Petition has been filed for quashing the advertisement dated 29th May, 2002 issued by the Allahabad University inviting applications for the post of Lecturers in so far as it relates to one post of Lecturer in the Chemistry Department in General Category and for a direction upon the respondents to consider the case of the petitioner for regularisation under the provision of Section 31(3)(b) and Section 31(3)(c) (added by the petitioner by amendment) of the U.P. State Universities Act, 1973 (hereinafter referred to as the ''Act') and for a further direction upon the respondents to treat the post held by the petitioner equivalent to that of a Lecturer since the year 1980 and consequently to provide her all the benefits of the post of Lecturer.

The petitioner was awarded the Junior Research Fellowship by the Council for Scientific and Industrial Research (hereinafter referred to as the ''CSIR'). She was also awarded the P.Hd. degree in the year 1980 and then the post of Doctoral Fellowship. Subsequently, she was appointed as a Pool Officer by the CSIR by means of the letter dated 6th March, 1982. It was provided that she would be paid a sum of Rs. 700/- per month plus allowances as admissible to temporary class-I officer of the CSIR and all matters of service will be governed by the rules applicable to temporary class-I officer of the CSIR and that during the tenure of appointment as a Pool Officer, she will work under the administrative control of the Vice-Chancellor of the Allahabad University. The petitioner joined as a Pool Officer in the Department of Chemistry in the Allahabad University w.e.f. 8th March, 1982. The University Grants Commission in the year 1985 selected the petitioner as a Research Associate on a payment of Rs. 1400/- per month to work on "Study of Ultrasonic and Physico Chemical Behaviour of some Medicano Organic Compounds" in the Department of Chemistry of the Allahabad University. She continued as a Research Associate up to the year 1995 when she was appointed as a temporary Assistant Director in the Academic Staff College of the Allahabad University and the petitioner joined as such w.e.f. 14th December, 1996.

While the petitioner was continuing as a Research Associate, an advertisement dated 15th June 1983 was issued by the Allahabad University inviting applications for the post of Lecturers/Readers in different Departments of the University including the Department of Chemistry. The petitioner along with some other applicants submitted applications for appointment to the post of Lecturer and appeared before the Selection Committee but her name was not recommended and other persons were appointed as Lecturers. The petitioner filed a representation before the Chancellor of the University under Section 68 of the Act but it was rejected and against the said order of rejection the petitioner filed a writ petition in this Court being Writ Petition No. 22240 of 1995, which was also dismissed in the year 1996. The petitioner again applied for the post of Lecturer in the Chemistry Department of the Allahabad University in the year 1996 but this time also she was not selected. The petitioner also filed a representation under Section 68 of the Act before the Chancellor of the University claiming that her appointment as Assistant Director in the Academic Staff College may be treated as equivalent to that of a Lecturer in the Chemistry Department of the University. By a detailed order dated 31st January, 2003 the Chancellor of the University rejected the representation holding that the Academic Staff College of the University was a Financially Aided Scheme of the University Grants Commission and the appointments were not made under the provision of the Act and nor the posts of teaching and non-teaching staff were sanctioned by the State Government. The Academic Staff College, therefore, could not be treated as a Department of the University because it was functioning under the directions of the University Grants Commission and even the appointments were made in accordance with the directions issued by the University Grants Commission.

When the University issued an advertisement on 29th May, 2002 for filling up several posts in the University including five posts of Lecturers in the Chemistry Department, the present petition was filed for quashing the aforesaid advertisement so far as it related to one post of Lecturer in the Chemistry Department and for a direction upon the respondents to regularise the services of the petitioner as a Lecturer under Section 31(3)(b) of the Act. Subsequently by means of the amendment application dated 11th February 2003, which was allowed on 31st March 2003, the petitioner claimed substantive appointment to the post of Lecturer under the provisions of Section 31(3)(c) of the Act.

What is to be noticed is that the petitioner had throughout been contending before the University that she should be given a substantive appointment as a Lecturer under Section 31(3)(b) of the Act and though the petition was filed in July, 2002 it is for the first time by means of the amendment application dated 11th February, 2003 that the petitioner claimed the benefit of Section 31(3)(c) of the Act which was inserted by U.P. Act No. 1 of 1992 w.e.f. 22 November, 1991. The provisions of Section 31(3)(b) and 31(3)(c) of the Act are quoted below:-

" 31 (3)(b) Where before or after the commencement of this Act, any teacher is appointed (after reference to a Selection Committee) to a temporary post likely to last for more than six months, and such post is subsequently converted into a permanent post or to a permanent post in a vacancy caused by the grant of leave to an incumbent for a period exceeding ten months and such post subsequently becomes permanently vacant or any post of same cadre and grade is newly created or falls vacant in the same department, then unless the Executive Council or the Management, as the case may be, decides to terminate his services after giving an opportunity to show cause, it may appoint such teacher in a substantive capacity to that post without reference to a Selection Committee:

Provided that this clause shall not apply unless the teacher concerned holds the prescribed qualifications for the post at the time of such substantive appointment, and he has served continuously, for a period of not less than one year after his appointment made after reference to a Selection Committee:

Provided further that appointment in a substantive capacity under this clause of a teacher who had served, before such appointment, continuously for a period of less than two years, shall be on probation for one year which may be extended for a period not exceeding one year, and the provisions of sub-section (2) shall apply accordingly.

31 (3)(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 the same cadre and grade in the same department is available on November 22, 1991 if such teacher-

(i) is serving as such on November 22, 1991 continuously since such initial appointment by way of short term arrangement;

(ii) possessed on November 22, 1991 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."

Sri M.D. Singh, learned counsel for the petitioner during the course of the arguments, confined his claim to the provisions of Section 31(3)(c)of the Act. He submitted that for all practical purposes, the petitioner should be treated to have been appointed as a Lecturer on or before 30th June, 1991 and since a substantive vacancy of the same cadre and grade in the same department was available on 22nd November, 1991 and she was serving continuously on 22nd November, 1991 since initial appointment by way of short-term arrangement and possessed on 22nd November, 1991 the qualifications required for regular appointment to the post of Lecturer, her case should be considered by the Executive Council for substantive appointment. In effect the petitioner claimed that her appointment as a Pool Officer by the CSIR and as a Research Associate by the University Grants Commission and her Post Doctoral Fellowship period should all be treated as short-term arrangement appointment as a Lecturer by the University so as to entitle her for substantive appointment under the provisions of Section 31(3)(c)of the Act. Learned counsel for the petitioner further submitted that subsequently the petitioner had been appointed as an Assistant Director in the Academic Staff College of the University in the year 1996 and, therefore, the petitioner was also entitled to the benefit of Section 31(3)(c)of the Act.

Learned Senior Counsel Dr. R.G. Padia for the respondent University and the learned Senior Counsel for the two impleaded Lecturers of the Department of Chemistry Sri B.D. Mandhyan, however, submitted that the petitioner had never been appointed as a Lecturer by the University by way of short-term arrangement on or before 30th June, 1991 and, therefore, the question of applicability of Section 31(3)(c)of the Act does not arise at all. They further submitted that the petitioner was awarded the Post Doctoral Fellowship in the year 1980 by the CSIR and she worked as a Pool Officer from the year 1982 but such appointments cannot be said to be appointments by way of short-term arrangement as a Lecturer of the University and even her working as a Research Associate from 1985 under the Scheme of the University Grants Commission cannot be termed as appointment as a Lecturer in the University on short-term arrangement.

The sole question that arises for our consideration is whether the petitioner is entitled for a substantive appointment to the post of Lecturer in the Chemistry Department of the University under Section 31(3)(c)of the Act. A bare perusal of the aforesaid sub-section clearly indicates that for claiming the benefit a teacher of the University should have been appointed as a Lecturer on or before 30th June, 1991 without reference to the Selection Committee by way of a short-term arrangement in accordance with the provision for the time being in force for such appointments provided the other requirements were fulfilled. Thus it is only a teacher of the University who was appointed as a Lecturer on or before 30th June, 1991 on a short-term arrangement who could be given a substantive appointment subject to the fulfillment of the other conditions.

In the instant case, the petitioner in the year 1980, was merely doing Post Doctoral Fellowship till the year 1982 when she worked as a Pool Officer under a Scheme of the CSIR though her placement was in the Chemistry Department of the Allahabad University. From 1985 the petitioner worked as a Research Associate under the University Grants Commission though her placement was also in the Department of Chemistry. The petitioner may have been taking some classes in the Chemistry Department because under the provisions of Statutes 10.2 of the Statutes of the University, persons working as Research Fellows or Research Associates could be called to give lectures, but such working cannot be termed an appointment as a teacher or as a Lecturer by the University.

Presumably, it is for this reason that the petitioner kept silent from 1991 when Section 31(3)(c)was introduced up till the year 2003 by not claiming the benefit of this sub-section and on the other hand claimed the benefit of Section 31(3)(b) of the Act throughout but this claim was given up at the time of hearing of the petition. It is only by means of the amendment application moved on 13th February, 2003 that the petitioner for the first time claimed the benefit of Section 31(3)(c) of the Act. We make it clear that we are not rejecting the claim of the petitioner under Section 31(3)(c) on the ground of delay but the long silence from 1991 till 2003 clearly shows that the petitioner herself was doubtful about her claim under Section 31(3)(c) of the Act.

The claim of the petitioner for services as an Assistant Director in the Academic Staff College of the University cannot be accepted because she was appointed as such only in 1995 whereas the cut-off date prescribed under Section 31(3)(c) is 22nd November, 1991. Even otherwise, we are of the considered opinion that such an appointment will also not enable the petitioner to claim the benefit of Section 31 (3)(c) of the Act, as it cannot be an appointment as a Lecturer in the Department of Chemistry in the University by way of short-term arrangement. The Chancellor of the University also elaborately dealt with this aspect in his order dated 31st January, 2003 and we are unable to find any infirmity in the said order.

Learned counsel for the petitioner then placed reliance upon two decisions of this Court in the case of Vashishtha Narain Pandey Vs. Chancellor, Dean Dayal Upadhyaya University, Gorakhpur and others reported in (2002) 1 UPLBEC 620 and in the case of Sangeeta Srivastava (Dr.) Vs. University of Allahabad and others reported in (2002) 3 UPLBEC 2502. In our considered opinion both these cases are not applicable to the facts of the present case. In the case of Vashishtha Narain Pandey(supra) the petitioner had been appointed by the Vice-chancellor of the University on 20th February, 1990 as a teacher on temporary basis. In the case of Dr. Sangeeta Srivastava (supra) also the petitioner had been appointed as a Guest Lecturer by the University. Thus in both these cases the petitioners had been appointed as teachers by the University whereas in the instant case the petitioner had never been appointed as a teacher by the University in any Department of the University. It may also be pertinent to state that the petitioner had appeared twice before the Selection Committee constituted for the purposes of recommending the names to the post of Lecturers in the Department of Chemistry but on both these occasions in the year 1993 and 1996 the petitioner's name was not recommended.

We also consider it appropriate to reproduce certain portion of the paragraph 57 of a judgment of this Court in the case of Yogendra Singh Rawat and others Vs. Hemwati Nandan Bahuguna, Garhwal University and others reported in (1993) 3 UPLBEC 1699 where a Division Bench of this Court while considering the scope of the provisions of Section 31(3)(c) of the Act observed as follows:-

"However at the same time we cannot lose sight of the fact that we are dealing with the field of education which is an act or process of providing with knowledge, skill and competence by a formal course of study and these ad hoc lecturers are claiming substantive appointment in an University. University is an institution of higher learning providing facilities for teaching and research and authorised to grant academic degrees. Sub-section (1) of Section 7 of the Act casts a duty on the University to make provision for research and for the advancement and dissemination of knowledge and sub-section (4) casts a duty to hold examination for and to grant and confer degrees and other academic distinctions. The University's basis traditional functions remain unchanged, enabling students to learn from their cultural heritage, helping them to realize their intellectual and creative abilities, and encouraging them to become humane and responsible people. The University expands knowledges across to entire spectrum of disciplines, and it can add to the understanding and enjoyment of life. It continues to be needed for imaginative solutions to the problem of society (Encyclopaedia Britannia, Vol. 12, Page 186). Can these ad hoc lecturers honestly say that they are competent enough and capable of performing the duties and functions of a teacher of University and they will be able to guide the students to achieve their goal? Except for one or two (whose cases we are considering separately) no one holds a doctorate degree of has done research work of any kind much less of a high standard. Showing sympathy to them means jeopardizing the career of a large body of students who join the University in pursuit of knowledge and that too not for a year or two but over a long period".

The Appeals filed against the aforesaid decision of the Allahabad High Court were dismissed by the Supreme Court in the case of Yogendra Singh Rawat and others Vs. Hemwati Bahuguna Garhwal University and others reported in (1998) 3 SCC 704.

In the aforesaid case the petitioner had been appointed as ad hoc Lecturers but in the instant case the petitioner has not even been appointed as a teacher by the University.

Thus for the reasons stated above, we are of the considered opinion that the petitioner is not entitled to be given a substantive appointment to the post of Lecturer under Section 31(3)(c) of the Act. The Writ Petition, therefore, fails and is accordingly, dismissed. There shall be no order as to costs.

Date: 7.10.2004

NSC  


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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