TMI Blog1998 (2) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... mittee of the management of the concerned college. For various reasons, the said process was not found to be congenial and the aforesaid Act was enacted. Sections 12 or 14 of the Act contained procedure for appointment of teachers as well as Principals. Section 14 provided for the appointment of teachers on ad hoc basis. Since this provision was widely abused and mis-used, as large number of teachers were appointed on the basis of favourtism and not on merits, this was deleted in 1992, wherein both Sections 12 to 14 were substituted by the U.P. Act. No. 2 of 1992. In fact by this, Section 12 of 14 were drastically amended. Amended Section 1(1) provided, every appointment of a teacher is to be made by the management in accordance with the provisions or the Act and any appointment made in contravention thereof is void. Under Sub-section (2), the management has to intimate the existing vacancies and the vacancies, likely to be caused during the course of the academic year, to the Director at such time and in such in such manner as may be prescribed. Though prescribed under rules but not satisfactorily. The academic year is also defined through the Explanation of the same section to me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) of section 12, hold interview (with or without written examination of the candidates and send to the Director a list recommending such number of names of candidates found most suitable in each subject as may be, so far as practicable, twenty-five per cent more than the number of vacancies in that subject. Such manes shall be arranged in order of merit show in the interview, or in the examination and interview if any examination is held. (2) The lists sent by the Commission shall be valid till the receipt of a new list from the commission. (3) The Director shall having due regard in the prescribed manner, to the order to preference it any indicated by the candidates under the second proviso to sub-section (4) of Section 12, intimate to the management the name of a candidate from the list referred to in sub- section (1) for being appointed in the vacancy intimated under sub- section (2) of Section 12. (4) Where a vacancy occurs due to death, resignation or otherwise during the period or validity of the list referred to in sub-section (2) and such vacancy has not been notified to the commission under sub-section (3) of Section 12, the Director may intimate to the management ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cs . Incidentally, there were only four colleges where Physics was being taught and four selectees of different subjects, who were higher in the order of merit and whose subjects of studies were also available in the colleges, were appointed in those four colleges. Hence, the appellant could not be appointed in the absence of Physics being taught as one of the subjects therein. Because of this, thereafter the selectees, who were placed below the appellants in the merit list, were also appointed as Principals in the merit list, were also appointed as Principals in respective colleges where their subjects of studies were being taught. On the 1st July, 1993, a post of Principal in Maharaj Singh D.G. College, Saharanpur fell vacant on the retirement of mr. R.P. Sharma, who was a regular Principal of the college. The Director or Higher Education on 20th July, 1993, while exercising power under Section 13(4) of the Act, directed the management of the said college to appoint the appellant as Principal. Against this direction, respondent No.1 herein, namely, Dr. Yogesh Kumar Gupta, filed a writ Petition in the High Court for quashing of the same. Respondent No.1 exerted therein that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond one year. The vacancy as aforesaid, hence occuring on 1st July, 1993, even though falling in another academic year would also be covered by the word otherwise and hence appointment of the appellant by means of the order of Director is valid. The contention is that the purpose for amending the old law was to remove the adhocism hence the word otherwise should not be interpreted in a restricted sense. If interpreted in a wind sense, any vacancy accruing till the next list by the Commission would be absorbed and hence no vacancy would remain untilled for long. I here should be no difficulty to make appointment from the duly selected persons who are in the panel of the select list, even it there is any delay in making selection for the subsequent academic year. On behalf of the State, supporting appellant's case, learned counsel emphasised that the purpose of 25% more than the vacancies advertised under sub-section (1) of Section 13 is only to cover such exigencies, namely to appoint such persons from the said list for any subsequent vacancies occuring not only for the vacancy advertised but which may occur in any subsequent academic year in question. Learned couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent for inviting talented persons for filling up such vacancies, as notified under sub-section (3). This was keeping in mind that whenever such vacancy occurs selection should be from a larger sphere through wide advertisements which would include. Large appointment made for any vacancy not properly advertised limits sphere where it may either as under the old Act to be regularised or under the principle of equity, sympathy to be regularised it a case be made out which erodes the very foundation of a teaching institution by lowering the teaching standard. It is, keeping this objective, the aforesaid amendments in 1992 were brought in. The relevant portion of Statement of Objects and Reasons of the aforesaid Act in this regard is reproduced below:- Prefatory Note Statement of Objects and Reasons. The Uttar Pradesh Higher Education Services (Commission) Act, 1980 (U.P. ACT No. 16 of 1980) has been enacted to establish a Service commission for the selection of teachers for appointment to the colleges affiliated to or recognised by a University. Section 16 of the ACT empowered the management of Degree Colleges to appoint ad hoc teachers. Under this provision ad hoc teachers were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h vacancies could be for seen and not unforeseen. While vacancies under Section 13(4) are unforeseen vacancies which fall under the group, death and/or resignation. Hence the word otherwise cannot be given the wide and liberal interpretation which would exclude large number of expected applicants who could be waiting to apply for the vacancies occuring in the succeeding year in question. In the aforesaid case of Surinder Singh (supra) relied upon by the appellant, the Court also holds in clear words: It is in no uncertain words that this Court has held that it would be an improper exercise of power to make appointments over and above those advertised. It is only in rare and exceptional circumstances and in emergent situation that this rule can be deviated from. It should be clearly spelled out as to under what policy such a decision has been taken. Exercise of such poser has to be tested on the touchstone of reasonableness. Before any advertisement is issued, it would, therefore, be incumbent upon the authorities to take into account the existing vacancies and anticipated vacancies. It is not as a matter of course that the authority can till up more posts than advert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld :- Since the requisition was for eight posts of inspector of Police, the Board was required to send its recommendations for eight posts only. The Board, on its own, could not recommend names of 19 persons for appointment even though the requisition was for eight posts only. In Ashok Kumar and others Vs. Chairman, Banking Service Recruitment Board and others : 1996 (1) SCC 283 the Court held : Article 14 read with Article 16(1) of the constitution enshrines fundamental right to every citizen to claim consideration for appointment to a post under the State. Therefore, vacant posts arising or expected should be notified inviting applications from all eligible candidates to be considered for their selection in accordance with their merit. The recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of Constitution. The procedure adopted, therefore, in appointing the persons kept in the waiting list by the respective Boards, though the vacancies had arisen subsequently without being notified for recruitment, is unconstitutional. However, since the appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X
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