Supreme Court of India
SANTOSH KUMAR SINGHversusTHE STATE OF U.P. & ORS. ETC.
- Citation
- 1995 INSC 878
- Decided
- 12 December 1995
- Disposal
- Dismissed
Holding
The ad‑hoc appointments were void for lack of qualification and non‑fulfilment of Section 16 conditions, and therefore could not be regularised under Sections 31B or 31C; the termination order was valid and the Vice‑Chancellor’s set‑aside was set aside.
Summary
Santosh Kumar Singh was appointed as a lecturer in Agronomy at Durgaji Post Graduate College while still a student, first on 1 January 1984 and later on 1 October 1985, despite not possessing the minimum qualifications prescribed by the University Statute. The appellant claimed that the ad‑hoc appointments were permissible under the advertisement and that his service had been regularised under Section 31B of the Uttar Pradesh Higher Education Services Commission Act, later seeking regularisation under Section 31C, and challenged his termination without Vice‑Chancellor approval. The Supreme Court held that the initial appointment was void for lack of qualification and for not satisfying the pre‑condition of Section 16 of the Service Commission Act, and that the subsequent appointment also could not be regularised under either Section 31B or Section 31C. Consequently, the Director’s cancellation of the regularisation was valid and the termination order stood, rendering the Vice‑Chancellor’s set‑aside ineffective. The Court dismissed the appeals, affirming that the appellant had no legal right to continued service.
Issues considered
- Whether an ad‑hoc appointment of a lecturer without the minimum qualification prescribed by the University Statute is valid under the Service Commission Act.
- Whether the appointment satisfied the conditions of Section 16 of the Uttar Pradesh Higher Education Services Commission Act for ad‑hoc appointments.
- Whether the appellant’s service could be regularised under Section 31B of the Act.
- Whether regularisation could be sought under Section 31C of the Act.
- Whether the termination order without Vice‑Chancellor approval is void under Section 35(2) and (3) of the Uttar Pradesh State Universities Act.
Legislation cited
- Uttar Pradesh Higher Education Services Commission Act, 1980s. 12, s. 16, s. 30, s. 31B, s. 31C
- Uttar Pradesh State Universities Act, 1973s. 35(2), s. 35(3), s. 60(A), s. 60(B)
Subjects
ad‑hoc appointmentregularisationminimum qualificationservice commissionterminationvice‑chancellor approvalSection 31BSection 31CUttar Pradesh higher education law
Judgment
A SANTOSH KUMAR SINGH
v.
THE STATE OF U.P. & ORS. ETC.
DECEMBER 12, 1995
B [S.C. AGRAWAL AND G.B. PATTANAIK, JJ.j
Service Law :
University Statute (Gorakhpur wziversity)-C/auses 11, 13 sub clause
C (a) & (b)-Post of Lecture,-Minimum Qualification-Relaxation of-Power
of Selection Committee-Person appointed not holding minimum qualifica-
tion-Held, the selection committee cannot give relaxation-Appointment of
a candidate who did not possess the required qualification though ad-
hoc-Held, not justified.
D U.P. Higher Education Services Commission Act, 198{)-Sections 12 &
16-Ad-hoc appointment-Regularisatioll --Since the condition precedent for
making ad-hoc appointment was not satisfied and the appellant did not
possess the minimum qualificatiol! for such appoilltmel!l--The appointment
held, il!va/id and inoperative.
E Sections 31-B & 31-C--Regularisation--Initial appointment wholly
without jurisdiction-Therefore, the subsequent appoilltment cannot be
regularised as the same was l!Ot made Oil the date specified-Availability of
substantive vacancy-Condition !!Of fulfil/ed-{Jnder the circumstances, held,
the questiol! of regularisation does not wise.
F Uttar Pradesh State U!!iversities Act, 1973--Section 35(2) and
(3}-Tenninatioll--Approval by Vice Chal!cellor required-No such approval
was givm-Held, eve!! then the tennillatioll did !!Of become !!U/l and void.
Sectioll 60-A al!d 60-B--Approval of Govemmellt for sanctioll for the
G post-Held-Creation of a post and payment of salary are two distinct con-
cepts-State can sanction creation of post though the payment is not made
by it.
The Government of Uttar Pradesh granted sanction for M.Sc.
(Agronomy) in the Faculty of Science but in the absence of financial
H resources it was decided that the payment of salary would be made for a
568
SANTOSH KR. SINGH v. STATE 569
period of one year by the Management of the College. Therefore, the A
College issued an advertisement for the post of Lecturer in Agronomy and
also declared that the Management has power to grant relaxation in
educational qualifications. Pursuant to the aforesaid advertisement the
appellant submitted his application fol' the post. He was selected and
appointed as lecturer on 1.1.84 in the post-Graduate Agronomy Depart- B
ment. While continuing as lecturer he passed his final year M.Sc. (Agricul-
ture). In 1985 the College issued a fresh advertisement for filling up the
post of Lecturer in Agronomy on ad-hoc basis. After informing the
Secretary, Higher Education Service Commission a Selection Committee
was constituted by the Vice. Chancellor for selecting the candidate. The
Committee again selected the appellant and the Registrar of University C
approved the appointment of the appellant as an ad-hoc teacher in
Ab>ronomy for a period of six months from the date the appellant had been
holding the post al"ter his selection. The Director of Higher Education
Communicated the approval of the Government for creation of a post of
Lecturer in the college in Agronomy. The Manager of the College requested D
the Service Commission, that the post may be advertised and the appoint-
ment may be made under the Service Commission Act but in order to avoid
any dislocation in the teaching the appellant may be allowed to continue.
The Vice Chancellor approved the ad-hoc appointment of the appellant as
Lecturer for a further period of six months with a break of one day or till
the selected candidate takes charge whichever is earlier. E
In the meantime an Ordinance was promulgated which was replaced
by an Act and Section 31-B was added to the Service Commission Act 1980.
The Director of Higher Education regularised the service of the appellant
under the said Act and directed the payment of salary to the appellant. F
The Principal of the College also passe\l order that the appellant should
be paid salary from the date of the creation of the post i.e. 1.2.1986 and be
paid salary, D.A. and the permissible perquisites of the State Government
as per the Universities Act. The Director of Higher Education, U.P. then
asked the Principal of the College that salary of the appellant should be
stopped at once. Another order was passed whereby regularisation of the G
appellant was cancelled on the ground that the approval was obtained on
wrong premises. Thereafter the College terminated the services of the
appellant.
The appellant filed a Writ Petition against the order of the director H
570 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A stopping the payment of salary as well as challenging the order of termina-
tion. In the meantime the Deputy Registrar of University informed the
College that the service of the appellant could not be terminated without
the prior approval of tile Vice- Chancellor and directed that the salary of
the appellant should be paid. The Vice Chancellor set aside the order of
termination of the appellant for non-compliance of section 35(2) of the
B
State Universities Act 1960 in as much as no prior approval of Vice-
Chancellor had been taken. The Committee of Management of College filed
Writ Petition against the order of Vice-Chancellor.
The apvellant filed another Writ Petition for implementation of the
C order of the Vice-Chancellor. All the three Writ Petitions were disposed of
by the High Court by a common judgment.
The High Court dismissed the Writ Petition filed by tile appellant
and allowed the writ petition of the Management on the ground that the
D appellant's appointment itself was illegal and was no appointment in the
eye of Law and the Vice-Chancellor was in error in issuing the direction
in question. Further the appointment of the appellant was made on ad-hoc
basis without the vacancy being notified to the commission. It also came
to the conclusion that the vacancy occured only after sanction of the post
by the Government on 1.2.86 and therefore, the so called appointment of
E the appellant was illegal and without jurisdicti.on.
In appeals to this Court it was argued on behalf of the appellant that
ad-hoc appointment was made in relaxation of educational qualifications,
which was permissible under the advertisement itself~ The appointment
F was approved by the Vice- Chancellor and the service of the appellant had
been regularised by Director under the Service Commission Act and the
Director cannot cancel the regularisation of tile appellant, and that the
order of termination was passed without the approval of the Vice-Chan-
cellor.
G It was contended by the Management that tile basic appointment of
the appellant even tllough on ad-hoc basis was not permissible as he did
not have the requisite qualifications and the Director had erroneously
passed an order of regularisation and be had the power to withdi-.,; and
cancel the same when it came to the notice that the service of tll•. appellant
H could not have been regularised under the Act.
SANTOSH KR. SINGH v. STATE 571
Dismissing the appeals, this court A
HELD : 1. The High Court based its conclusion on obvious errors.
It was of the opinion that the vacancy for the post of lecturer occurred only
when it was sanctioned by the State Government on 1.2.86. This is not
factually correct. The Government had conveyed the sanction for M.Sc.
(Ag) in the faculty of science in the College hut it had been specifically B
mentioned that on account of financial stringency creation of necessary
posts for the purpose of payment of salary by the Director of Education
wonld not be feasible upto one year and therefore, payment of the salary
would have to be provided for that time by the Management itself. It is on
1.2.86 by sanctioning the post the Director took the liabilit)' of payment of C
salary from the State Exchequer, Creation of a post and payment of salary
are two distinct concepts. Even if the state does not pay for certain post it
has the right to sanction creation of post and Management takes upon the
burden of making the payment. [582-E-H]
2. The High Court also committed the error that before making the D
ad-hoc appointment it was not notified by the Management to the Service
' may be true in respect of the appointment made on
Commi.ssion. This
1.1.84 but cannot be true in respect of the appointment made on 1.10.85 in
as much as on 21.5.85 the Manager of the College had requested the
Service Commission that a person be selected for the post of lecturer E
(Agronomy) but even till the appointment made on 1.10.85, the Service
Commission had not selected any person nor sent any name. [583-B-C]
3. The High Court also did not consider the relevant documents
when it came to the conclusion that the regularisation was made on
account of concealment of relevant facts. The appellant even in bis applica- F
tion had indicated that he had not passed the M. Sc. Course yet the
committee appointed him on ad-hoc basis on 1.1.84 and thus it is not
correct that there has been any concealment of relevant facts. [583-D-E)
4. Even though the reasoning of the High Court was based on errors
of record this court is unable to interfere with the ultimate conclusion of G
the High Court as that would depend upon appellant's establishing his
right to continue in service either by virtue of the regularisation provisions
contained in Section 31-B or 31-C of the U.P. Higher Education Se..Vices
Commission Act or by establishing the fact that his service had been
regularised by the said Act. [583-F] H
572 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A 5. Under Section 12 of the Act every appointment as a teacher of any
college has to be made by the Management only on the recommendation
of the Commission. Section 16 in certain contingencies authorises the
Management to made ad-hoc appointment for a specified period. Though
the Service Commission Act provides the procedure for making appoint-
B ment to the post of teacher of a College it does not make any provision
with regard to the qualification of such teacher. But the qualification has
been prescribed in the Statute of the University. Under Statute 11.13
clause (a) person is ineligible to be appointed as a Lecturer unless he
possesses the minimum qualification of M. Phil, degree or a recognised
degree beyond Master's level or published work indicating the capacity of
C the candidate for independent research work. There cannot be any relax-
tion in respect of the qualification prescribed in sub-clause (a). Admittedly
the appellant did not have even a Master's degree on the date he was
appointed as a teacher, and when he did not have the minimnm requisite
qualification in accordance with the University Statute the Committee
D could not have relaxed the same and appointed him even on ad-hoc basis.
It is difficult to conceive that for the post of a teacher to teach in post
Graduate class, a student who is in second year M. Sc. class could at all
be appointed. (586-C-E]
Ram Swantp v. State of Haryana, (1979] 1 SCC 168, distinguished.
E
6. The initial ad-hoc appointment of the appellant as a lecturer on
1.1.84 was wholly without jurisdiction and such appointment could not
have conferred the right of regularisation on the appellant by virtue of the
Service Commission Act. Then again under Section 16 of the Service
F Commission Act an ad- hoc appointment can be made only when the
Management notifies a vacancy to the Commission and the Commission
fails to recommend the name of a suitable candidate within three months
from the date of such notification. It is not the case of the appellant nor
is there any material on record to establish that prior to 1.1.84 the
Management had at all notified the Vacancy to the Commission in accord-
G ance with sub-section (2) of Section 12 of the Service Commission Act and
the Commission failed to recomend any name within three months. Con-
sequently the condition precedent for making ad-hoc appointment in terms
of section 16 of the Service Commission Act had not been satisfied befol"f'
making the ad-hoc appointment of appellant on 1.1.84 and on this s~Dre
H also the appointment most be held to be invalid and inoperative.
SANTOSH KR. SINGH v. STATE 573
7. The second appointment was made on 1.10.85. By this date the A
appellant no doubt had passed his M. Sc. ('..g.) and the College had
requested the Senice Commission to select a person for the post of
lecturer in Agronomy and the Commission did not send any name for more
then three months. Therefore, the Management was competent to make an
ad-hoc appointment under section 16 of the Senice Commission Act. But B
then the appellant had neither M. Phi' degree nor a recognised degree
beyond Masters level nor there is any material to indicate that he had
published work indicating his capacity for independeDt research work.
Besides an ad-hoc appointment made under sub-section (1) of section 16
of the Senice Commission Act lapses under Sub-section (2) thereof after
expiry of the period stipulated 111 the Clauses (a) or (b) or (c) of section C
16. Since the Commission ks not recomended any name, clauses (a) and
(b) of sub-section (2) of section 16 will have no application and, therefore,
under clause (c) by operation of law the ad-hoc appointment of the
appellant ceased with effect from 30th June 1986. The so called ad-hoc
appointment having 1•een made on 1.10.85, such appointment cannot be D
regularised under sxtion 31· B of the A-ct. The provision of section 31-B
would indicate that appointment made on or before 3rd Jan. 1984 against
substantive var.3ncy in accordance with the provision of U.P. Higher
Education Sen•ice Commission (Removal of Difficulties) Order 1983 could
be regular'sed under the provision. The initial appointment of appellant
.. as wholly without jurisdiction, the subsequent appointment made on E
1.10.85 cannot be regularised under section 31-B, the same not having been
made on or before 3rd Jan. 1984. (586-F-H, 587-A·B, 588-F]
8. The appellant contended that he is entitled to be regularised under
Se~tion 31-C but in order to get the benefit of section 31-C it is necessary p
!hat a teacher must have been appointed on ad-hoc basis after 3rd Jan.
1984, but not later than 30th June 1991 on a post as envisaged in clauses
(i) or (ii) of the said section. Further the other conditions contained in
clauses (b), (c), (d) and (e) of section 31-C are also required to be fulfilled
and then, on the date the regularisation provision of section 31-C came
into force a substantive vacancy must be available for the senices being G
regularised. Admittedly the appellant was not in senice on the date section
31-C came into force and even no substantive vacancy was available;
further clause (e) of section 31-C also cannot be said to have been satisfied
in as much as no selection committee appointed under sub-section (2) of
section 31-C has found the appellant suitable. Admittedly the appellant H
574 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A was not in service when section 31-C came into force and therefore, the
question of considering the case for regularisation under section 31· C
does not arise at all. [590-H, 591 ·A·B]
9. So far as the effect of non-approval of the order of termination is
concerned it is no doubt true that under section 35 (2) of the Universities
B Act a decision of the Management to dismiss or remove a teacher or to
reduce him in rank or to punish him in any other manner does not take
effect unless it has been approved by the Vice-Chancellor. But Sob-section
(3) itself carves out an exception to a case where the termination order was
passed on the expiry of the period for which a teacher was appointed. The
C so called ad-hoc appointment of the appellant on 1.10.1985 in the eye of law
came to an end on June 30, 1986 under Section 16 of the Service Commis·
sion Act. Even though Vice-Chancellor had approved the appointment for
a period of six months, that also came to an end on 31st Dec. 1986. There
was no further approval to the appointment though Management of the
College Permitted the appellant to continue in service. In such a case, when
D the Director had passed an order of regularisation which he could not have
passed aud cancelled the same, the consequential order of termination does
not become nnll and void by application of Section 35 (2) and (3) of the
State Universities Act. The Vice-Chal!cellor appears to have passed the
order setting aside the order of termination not being fully aware of the
E facts and circumstances and the said order of the Vice· Chancellor, there·
fore, has rightly been set aside by the High Court. [591·D·H]
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4645-47
of 1993.
F From the Judgment and Order dated 30.4.93 of the Allahabad High
Court in W.P. No. 2137 of 1988.
G.L. Sanghi, M.L. Bhat, S.K. Mehta, Dhruv Mehta, Fazum Anam,
T.N. Singh, R.B. Misra, Ms. Purnima Bhat, and E.C. Agrawala for the
G appearing Parties.
This Judgment of the Court was delivered by
PATTANAIK, J. : The appellant in these three appeals had been
appointed as a lecturer in the subject of Agronomy while he was continuing
H as a final year student in M.Sc. (Agriculture) by the Management of Shri
SANTOSHKR.SINGH v. STATE[PATTANAIK,J.j 575
Durgaji Post Graduate College, Chandeshwar, which was an un-aided A
institute at the relevant point of time. His case in brief is that on July 31,
1982, the Deputy Secretary to Government of Uttar Pradesh intimated the
Registrar, University of Gorakhpur that Shri Durgaji Post Graduate Col-
lege, Chandeshwar, Azamgarh (hereinafter referred to as 'the College') has
been granted sanction for M. Sc. (Agronomy) in Faculty of Science with B
certain conditions mentioned therein. A copy of the said letter was also ·
forwarded to the Manager of the College intimating that it may be kept in
view that in the absence of financial resources, creation of necessary post
for the purpose of paymeilt of salary by the Director of Education (HE)
would not be feasible upto one year after start of the subject and therefore,
payment of the salary will have to be approved for that time by the C
Management itself. On receipt of the aforesaid sanction order from the
State Government, the College issued an advertisement for the post of
lecturer in Agronomy, on 15.12.1983. It was stipulated in the Advertisement
that the Management has the power to grant any relaxation in the educa-
tional qualific"tions. Pursuant to the aforesaid advertisement the appellant D
submitted ai. application on 20th December, 1983. In the application in
question, the appellant had intimated that he has been a Gold Medalist
from the Gorakhpur University in B.Sc. (Agriculture) and he had secured
76.6% marks in the first year M. Sc. (Agriculture) from the Kanpur
Ai;:iculture University and was continuing his second year M. Sc. (Agricul-
ture). It was also stated that if he is appointed, he will complete his E
remaining part of final year examination. The Management of the College
informed the appellant by letter dated 1.1.1984 that he has been appointed
as a lecturer in the Post Graduate Agronomy Department and he should
join the College. On receipt of the said letter the appellant joined the
institution immediately and continued as a lecturer. While so continuing he F
passed the final year M. Sc. examination on 18.1.1985. It is the further case
of the appellant that the Manager of the College requested the Secretary
Higher Education Services Commission that a person may be selected for
the post of lecturer, Agronomy by letter dated 21.5.1985.
As the Service Commission did not send any name, notwithstanding the G
Management's letter dated 21.5.1985, the College issued a fresh advertise-
ment on 12.8.1985 for filling up the post of lecturer in Agronomy on ad-hoc
basis. On 17.8.1985 the Manager of the College requested the Vice- Chan-
cellor for appointment of a subject expert in respect of the post of ad-hoc
lecturer in Agronomy. The appellant was also a candidate in pursuance of H
576 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A the said advertisement. The Registrar of Gorakhpur University informed
the Manager of the College by letter dated 19.9.1985, that the Vice-Chan-
cellor has nominated Professor N.M. Mishra as an expert for making
selection to the post of lecturer in Agronomy. The Selection Committee
unanimously selected the appellant for the post of lecturer and the Manger
of the College wrote to the Registrar of the University by his letter dated.
B 23.9.1985 informing that the appellant has been unanimously selected and
the appointment may be approved. The Registrar of the University in-
timated the approval of the appointment of the appellant as an ad-hoc
teacher in Agronomy for a period of six months from the date the appellant
has been holding the post after his selection. The aforesaid fact of approval
C of the appellant's appointment on ad-hoc basis was intimated to the appel-
lant by the Manager of the College by letter dated 1.10.1985. The
appellant's case, however, is that he has been continuing as a lecturer since
his original appointment on 1.1.1984. The Director of Education (Higher
Education) communicated the approval of the Government for creation of
D a post of lecturer in the College in Agronomy under Section 60(A) and (B)
of the Uttar Pradesh State Universities Act, 1973 (hereinafter referred to
as the 'University Act'). It was also indicated in the said letter that post in
question should be sent to the Higher Education Services Commission U.P.
for selection immediately. It was also indicated that the sanction is being
accorded till June 1986, and for continuation after June 30, 1986 the college
E should send details mentioning the actual strength of the students by March
31, 1986. The college was also intimated under the said letter that until and
unless the post is made permanent by the Directorate, the holder of the
post would not be confirmed and the appointment to the post could be
made only after obtaining the approval of the Vice-Chancellor under the
F provisions of the Universities Act. The Manager of the College immedi-
ately wrote a letter on 25.2.1986 to the Secretary of the Service Commission
requesting him that the post may be advertised and the appointment may
be made under the Service Commission Act and to avoid any dislocation
in the teaching the Manager also asked the appellant requesting him to
G continue as a lecturer in the College. The Registrar of the Gorakhpur
university by his letter dated 8th April, 1986 intimated the Manager of the
College that the Vice-Chancellor has approved the ad-hoc appointment of
the appellant to the post of lecturer in Agronomy till 30.6.1986 or till the
selected candidate takes over the charge, whichever is earlier. The
Manager of the College on receipt of the aforesaid letter of the Registrar
H wrote back to the Registrar on 6.5.1986 intimating that there is no justifica-
SANTOSHKR.S!NGH v.STATE[PATTANAIK,J.] 577
tion for making a fresh advertisement for the post of lecturer and since the A
appellant is a brilliant student and has been continuously working since
January 1, 1984, and the results have been 100% he may be permitted to
continue permanently. The Manager then wrote to the appellant that he
should continue with effect fro!D l.7.1986 as a lecturer. The Manager again
wrote another letter to the Vice-Chancellor for continuance of the appel- B
!ant by letter dated 26th June, 1986, and the Registrar by his Jetter dated
4th July, 1986 informed the Manager of the College that the Vice-Chan-
cellor has approved the ad- hoc appointment of the appellant for a further
period of six months with a break of one day or till the selected candidate
take over the charge whichever is earlier. On 7.1.1987, the Manager of the
Collage wrote to the Vice-Chancellor of the University requesting him that C
the appellant's service be extended so that there would be no break in the
studies during mid session since no appointment has been made by the
Service Commission nor any candidate has come to join on being selected.
In the meantime an Ordinance was promulgated on 22nd June 1985 for
regularisation of the ad-hoc teachers of the affiliated colleges being Or- D
dinance No. 14 of 1985 which has later been made an Act and Section 31B
has been added. The Director of Higher Education, Uttar Pradesh in-
timated the Manager of the College that the appellant having been ap-
. pointed after affiliation of the subject of Agronomy at the Post-graduate
level, his services are regularised under Ordinance in question. The District E
Inspector of Schools was also intimated to pay the salary of the appellant
like regularised lecturer under the Rule. The Principal of the College also
passed order that the appellant should be paid salary from the date of the
creation of post i.e. 1.2.1986. The appellant was also intimated by the
Manager of the College that his appointment has been made permanent
F
and he will be paid the salary, D.A. and the permissible perquisites of the
State Government as per U.P. Universities Act. The Director of Higher
Education U.P. then issued a letter dated 4th May, 1987 to the Principal
of the College calling upon the Principal to come to the Directorate with
the copies of the certificates and the mark sheets of the appellant and it
was also stated in the said letter that the salary of the appellant should be G
stopped at once. The appellant filed a Writ Petition in the Allahabad High
Court which was registered as Writ Petition No. 2137 of 1988 against the
order of the Director stopping the payment of salary and the appellant
prayed that he may be paid his salary. On February 25, 1988 the Director
of Higher Education informed the Manager of the College that order of H
578 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A regularisation of the appellant's services as lecturer in Agronomy stands
cancelled since the appointment of the appellant was invalid and the
approval had been obtained on a wrong premise. On receipt of the
aforesaid letter from the Director the Manager of the College terminated
the appellant's services by letter dated 29.2.1988. The appellant, therefore,
B amended the Writ Petition No. 2137 of 1988 and made additional prayer
challenging the order or termination as well as the order of cancellation of
regularisation of his services by the Director . In the meantime the Deputy
Registrar of the University wrote a letter on 22.4.1989 to the Manager of
the College calling upon him to explain as to why the services of the
appellant has been terminated without prior approval of the Vice-Chancel-
C lor. On July 3, 1989, the Deputy Registrar informed the Manager of the
College that the Vice-Chancellor has directed that appellant's salary should
be paid. Jn the Writ Petition filed by the appellant the High Court had also
issued interim mandamus directing the authorities to pay the salary of the
appellant and in pursuance of the said direction of the Univer;ity the
D Director of Higher Education was intimated by the Joint Secretary to the
Government of Uttar Pradesh that the salary of the appellant should be
paid as lecturer with effect from 12.2.1988 and the arrears should be paid
within six weeks. The Vice-Chancellor of the university by his letter dated
July 20, 1990 called upon the Manager of the College that appellant should
E be permitted to work, as the Vice- Chancellor did not approve the termina-
tion of the services of the appellant. The Vice-Chancellor then heard the
appellant as well as the Management of the College and by reasoned order
dated 18th April, 1992 set aside the order of termination of the appellant
for non-compliance of Section 35(2) of the State Universities Act inasmuch
as no prior approval of the Vice-Chancellor had been taken. The Commit-
F tee of Management of the College being aggrieved by the said order filed
a Writ Petition in the Allahabad High Court which was registered as Writ
Petition No. 16576 of 1992. The appellant himself also had filed another
application in the High Court for implementation of the Vice-Chancellor's
order dated 18.4.1992 which was registered as Writ Petition No. 2070 of
G 1992. These three Writ Petitions were disposed of by the High Court by
the impugned judgment dated 30.4.1993. The Writ Petitions filed by the
appellant were dismissed on the ground that the appellant's appointment
itself was illegal and was no appointment in the eye of law and the Writ
Petition filed by the Management was allowed on the finding that the
H Vice-Chancellor was in error in issuing the direction in question. The
SANTOSH KR. SINQH v. STATE [PATTANAIK, J.] 579
appellant, therefore, has approached this Court against the aforesaid judg- A
ment of the Allahabad High Court.
Be it be noted that Uttar Pradesh legislature passed an Act, called
U.P. Higher Education Services Commission Act, 1980 (UP Act No. 16 of
1980), (hereinafter referred to as 'the Services Commission Act') for B
establishing the Service Commission for the selection of teachers for ap-
pointment to colleges affiliated to or recognised by a University. By virtue
of Section 30 of the said Act, the provisions of the Act has the overriding
effect. Under Section 12(1) of the Service Commission Act, every appoint-
ment as a teacher of any college has to be made by the Management only
on the recommendation of the Commission, Sub- section (5) of section 12 C
of the said Act provides that every appointment made in contravention of
the provisions of the Section shall be void. Section 16 of the said Act,
however, authorises the Management to appoint a teacher on purely ad-
hoc basis from amongst the persons holding qualifications prescribed for
the post where the Management has notified the, yacancy to the Commis- D
sion in accordance with Sub-Section (2) of S_ection 12 but the Commission
fails to recommend the names of suitable candidates within three months
from the said date, such ad-hoc appointment, however, will cease with
effect from the date mentioned in Clauses (a), (b) and (c) of sub-section
(2) of Section 16.
E
After the termination of the service of the appellant one Phool
Chand, respondent No. 6 in this appeal was appointed as lecturer in
Agronomy by the Management of the College. This appointment was also
on ad-hoc basis. The Governor of U.P. promulgated another Ordinance
for regularising the services of the ad- hoc teachers, Ordinance 43 of 1991, F
and it was later on replaced by an Act, U.P. Act 2 of 1992. Section 31C
was added to the Service Commission Act and ad-hoc appointment after
3rd January, 1984 but before 30th June, 1991 were sought to be regularised.
Phool Chand prayed for regularisation of his service under the aforesaid
provisions of the Act but the Director of Education rejected his prayer by G
order dated 23rd June, 1992 against which order Phool Chand also ap-
proached the High Court by filing a Writ Petition No. 33498 of 1982.
The stand of the Management in the High Court was that the
appellant has never been appointed regularly under the Service Commis-
sion Act and even on 1.1.1984 the date on which he was first appointed on H
580 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A ad hoc basis he did not posses the requisite qualification. Accordingly it
was contended that he was not entitled to be regularised either under
Section 31B of the Service Commission Act or under Section 31C thereof.
The High Court by the impugned judgment came to the conclusion that
the appointment of the appellant Santosh Singh had been made on 1.1.1984
as well as on 30.8.1985 on ad-hoc basis without the vacancy being notified
B by the Management to the Commission. It also came to the conclusion that
the vacancy occurred only after sanction of the post by the Government on
1.2.1986 and, therefore, the so called ad-hue appointment to the appellant
Santosh Singh was illegal and without jurisdiction. According of the High
Court the condition precedent for making ad-hoc appointment under
C Section 16 of the Service Commission Act bdore making an ad-hoc ap-
pointment to the post of lecturer did not exi't and there was no vacancy
available against which the appointment could have been made, the said
vacancy having come into existence only after l.2.1986 and the respondent
not having even minimum qualification M. Sc. (Ag) when he was appointed
D on 1.1.1984, the appointment was illegal and contrary to the mandatory
provisions of the Act and such it was not liable to be regularised and
Directorate was fully justified in cancelling the earlier order of regularisa-
tion dated 19.1. :987 by the Directorate order dated 25.2.1988. The High
Court further held that earlier order has been passed under a mistake and
on account of concealment of relevant facts. With these conclusions, the
E Writ Petitions filed by the •ppellant having been dismissed and Writ
Petition filed by the Management having been allowed, the present appeals
have been preferred.
Mr. G.L. Sanghi, learned senior counsel appearing for the appellant
raises the following contentions in assailing the order of tile High Court :
F
(a) The conclusions of the High Court and reasons advanced for
the said conclusion were bast!d on obvious errors of record
and, lh~refore the ullin1ate conclusion is unsustainable in law;
G (b) The ad-hue appointment of the appellant on l.1.1984 had
been made by the Manager of the College on relaxation of
the educational qualification which was permissible under the
advertisement itself and such ad-hoc appointment had been
approved by the Vice Chancellor of the University from time
H to time and in fact ultimately the service had been regularised
SANTOSHKR.SINGH v.STATE[PATTANAIK,J.] 581
by the Director on 19.1.1987 under the provisions of Section A
31B of the Service Commission Act. It was therefore, not
permissible for the said Director to cancel the regularisation
of the appellant who had the right to be regularised under
the provisions of Section 31B of the Service Commission Act.
(c) Alternatively the appellant is entitled to be regularised under B
Section 31C of the Service Commission Act;
(d) In any view of the matter the order of termination passed by
the Manager of the College on 29.2.1988, having been passed
without approval of the Vice-Chancellor as required under C
Section 35(2) of the said Universities Act, the same is null
and void and therefore, the Vice-Chancellor had rightly can-
celled the same. The High Court committed gross error in
not examining the effect of Section 35(2) of the Universities
Act and in interfering with the order of Vice-Chancellor.
D
(e) Lastly Mr. Sanghi, learned senior counsel urged that the
appellant having served the institution at a time when there
was no available hand and the institution having taken the
benefit of his service and in the meantime the appellant
having acquired the Doctorate degree, it would be wholly E
inequitable to take away the service of the appellant par-
ticularly when he has been over-aged for joining any service.
The learned counsel appearing for the Management on the other
hand, contended that the basic appointment of the appellant on 1.1.1984
even though on ad-hoc basis was not permissible as he did not have the F
minimum qualification of M. Sc. and, therefore, the said ad-hoc appoint-
ment by no stretch of imagination could have been regularised. He further
contended that with effect from the enforcement of U.P. Higher Education
Service Commission Act 1980, the provisions of the said Act have over-
riding, effect as contained in Section 30 thereof and no appointment to the
post of a teacher could have been made by the Management without G
recommendation of the Higher Education Service Commission. The
learned counsel urged that even though the appointment of ad-hoc teacher
is contemplated under Section 16 of the said Act but the condition prece-
dent for making such appointment being not satisfied so far the appoint-
ment of the appellant is concerned, the same must be held to be invalid H
582 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A and rightly the High Court came to the conclusion that the appointment
of the appellant was invaM and inoperative. He further urged that the
Director erroneously passed an order of Regularisation under Section 31B
of the Act and therefore had the power to withdraw the same and cancel
the same when it came to his notice that the service of the appellant could
B not have been reguiarised under Section 31B of the Act. So far as the order
of the Vice-Chancellor in not approving of the termination of the service
of the appellant is concerned, the learned counsel urged that the Vice-
Chancellor has no juris:liction in view of the provisions of the Service
Commission Act and the High Court has rightly set aside the same. The
counsel appearing for the State of UP reiterated the stand taken by the
C learned senior advocate appearing for the Management.
We would now examine the correctness of the rival stand of the
parties and in that connection would examine the contentions of Mr.
Sanghi, the learned senior counsel in seriatim.
D
So far as the first submission of the learned counsel Mr. Sanghi is
concerned, we undoubtedly find sufficient force in the same inasmuch as
the High Court based its conclusion on obvious errors of record to be
mentioned hereinafter :
E (i) The High Court is of the opinion that the vacancy for the post
of lecturer occurred only when it was sanctioned by the State
Government on 1.2.1986. This is not factually correct. As has
been stated earlier on 31.7.1982 the Deputy Secretary to the
Government of U.P. had conveyed the Government's sanction
F for M. Sc.(Ag) in Faculty of Science in Shri Durgaji Post
Graduate College, Chandeshwar, Azarngarh and it had been
specifically mentioned therein that on account of financial
stringency creation of necessary posts for the purpose of
payment of salary by the Director of Education would not be
feasible upto one year after start of the subject and therefore,
G payment of the salary will have to be provided for that time
by the Management itself. It is no 1.2.1986 by sanctioning the
post, the Director took the liability of payment of salary from
the State Exchequer. Creation of a post and payment of salary
of the incumbent of the post are two distinct concept. Even
H if the State does not pay for certain post but it has the right
SANTOSH KR. SINGH v. STATE [PATTANAIK, J.] 583
to sanction creation of post and Management takes upon the A
burden of making the payment. In this view of matter the
High Court was totally in error to hold that the post in
question was created only on 1.2.1986.
(ii) The High Court also committed the error that before making
the ad-hoc appointment it was not notified by the Manage- B
ment to the Service Commission. This may by true in respect
of the appointment made on 1.1.1984 but cannot be true in
respect of the appointment made on 1.10.1985 inasmuch as
on 21.5.1985 the Manager of the College had written to the
Secretary Higher Education Service Commission requesting C
the Commission that a person be selected for the purpose of
lecturer (Agronomy) but even till the appointment made on
1.10.1985 the Service Commission had not selected any per-
son nor sent any name.
(iii) The High Court also did not consider the relevant document D
when it came to the conclusion that the regularisation was
made on account of concealment of relevant facts. It may be
noted that the appellant even in his application had indicated
that he had not passed the M. Sc. and is continuing the second
year M. Sc. course and yet the Managing Committee ap- E
pointed him on ad- hoc basis on 1.1.1984 and thus it is not
correct that there has been any concealment of relevant facts.
Even though we agree with the submissions of Mr. Sangh~ learned
senior counsel that the reasonings of the High Court in dismissing the
appellant's Writ Petitions were based on errors of record but we are unable F
to interfere with the ultimate conclusion of the High Court as that would
depend upon appellant's establishing his right to continue in his service
either by virtue of the regularisation provisions contained in Section 31B
or 31C of the Act or he establishes the fact that his service had been
regularised by the Service Commission Act. It is in thi' context we would G
examine the correctness of the other submissions of Mr. Sanghi the learned
senior counsel appearing for the appellant.
It may be noticed at this stage that with effect from the enforcement
of the Service Commission Act 1980 the appointment to the post of teacher
of any college which is an affiliated or associated college to which the H
584 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A privileges of affiliation or recognition has been granted by a University has
to be made in accordance with the provisions contained in the Service
Commission Act. Prior to the aforesaid Act came into force every college
had its own Selection Committee with certain nominees of the Vice-Chan-
cellor therein in accordance with the State Universities Act 1973. Lot of
complaints of favouratism in the selection of candidates were made from
B
time to time. To overcome the aforesaid short-comings the legislature
passed the Service Commi<sion Act and Section 30 thereof has overriding
effect. Under Section 12 of the Act every appointment as a teacher of any
college has to be made by the Management only on the recommendation
of the Commission. Section 16 in certain contingencies authorises the
c Management to make ad-hoc appointment for specified period. Though
Service Commission Act provides the procedure for making appointment
to the post of teacher of a college affiliated to the University but it does
not make any provision with regard to the qualification of such teacher.
But the qualification has been prescribed in the statute of the University.
D Under Statute 11.13, in case of any college affiliated with the University
minimum qualification for the post of lecturer in the Faculty of Arts
(Except the department of Fine Arts and Music) and the Faculties of
Commerce and Science are :
(a) An M. Phil degree or a recognised degree beyond Masters
E level or published work indicating the capacity of a candidate
for independent research work; and
(b) Consistently good academic record with all east fi"t or 'iigh
second class Master's degree or an equivalent degree of a
foreign University, in a relevant subject.
F
Clause 5 of said statute 11.13 confers the power of relaxation on the
Selection Committee which is extracted hereinbelow in extenso :
(5) If the Selection Committee is of the view that the research work
of a candidate as evident either from his thesis or from his pub-
G lished work is of a very high standard, it may relax any of the
qualifications prescribed in sub-clause (b) of clause (1), or sub-
clause (b) of clause (2), as the case may be.
The aforesaid provision makes it clear that the relaxation is possible in
H respect of the qualification prescribed in sub-clause (b) and there cannot
SANTOSHKR.SINGH v. STATE[PATTANAIK,J.] 585
be any relaxation in respei;t of the qualification prescribed in sub-clause A
(a). Consequently a person is ineligible to be appointed as a lecturer unless
he possesses the minimum qualification of M. Phil degree or a recognised
degree beyond Masters level or published work indicating the capacity of
the candidate for independent research work. Admittedly the appellant
had not held even a Master's degree on the date he was appointed as a B
teacher on 1.1.1984, what to speak of a degree beyond Master's level. It is
no doubt true that in his application he had clearly indicated that he was
pursuing his Master's degree course and was in second year M. Sc. and,
therefore, there was no concealment on his part and yet the Management
of the College appointe4 him on ad-hoc basis. But when the appellant did
not have the minimum requisite qualification, as discussed earlier, in C
accordance with the University Statute the Committee of Management
could not have relaxed the same and appointed him even on ad-hoc basis.
We also find it difficult to conceive that for the post of a lecturer to teach
in Post-Graduate class a student who is in second year M. Sc. class could
at all be appointed. Mr. Sanghi, learned senior counsel, however, placed D
strong reliance on the decision of this Court in Ram Sa1up v. State of
Haryana and Others, (1979] 1 SCC 168, where an appointment had been
made to the post of Labour-cum-Conciliation officer in breach of Rule 4
Clause (1) of the Rules and this Court had observed that such breach did
not have the effect of rendering the appointment void but it merely made E
the appointment irregular and when the appointee acquired the necessary
qualification, the appointment become regular from that date. In our
considered opinion the ratio of the aforesaid case does not in any way help
the appellant. In that case, Clause (1) of Rule 4which was under considera-
tion before the Court, provided that the person concerned must have 5
F
years experience. The appointment had been made even though the ap-
pointee did not have the minimum experience of 5 years but undoubtedly
he had the minimum educational qualification for the post and, therefore,
this Court had observed that the appointment would be valid from the date
when the appointee acquires the minimum period of experience. But in the
case in hand the University Statute prescribes the minimum qualification G
for appointment to the post of a teacher as a M. Phil degree or a
recognised degree beyond Masters level, in clause (a) of Statute 11.13 and
further provides that the candidates should have consistently good
academic record with at least first or high second class Masters degree or
an equivalent degree of a foreign University, in a relevant subject and H
586 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A Clause 5 of Statute 11.13 empowers relaxation only of the conditions
mentioned in clause (b). It is difficult for us to hold by applying the ratio
of Ram Sarup (Supra) on which Mr. Sanghi relies that even the basic
qualification can be relaxed. In our considered opinion the aforesaid
decision of this Court is of no assistance to the appellant in the matter of
B relaxation of his qualification for appointment. In this view of the matter
we unhesitatingly come to the conclusion that the initial ad- hoc appoint-
ment of the appellant as a lecturer on 1.1.1984 was wholly without jurisdic-
tion and such appointment could not have conferred the right of
regularisation on the appellant by virtue of the Regularisation Ordinance
which was later on replaced by an Act and Section 31B was inserted into
C the Service Commission Act. Then again under Section 16 of the Service
Commission Act an ad-hoc appointment can be made only when the
Management notifies a vacancy to the Commission and Commission fails
to recommend the name of a suitable candidate within 3 months from the
date of such notification. It is not the case of the appellant nor is there any
D material on record to establish that prior to 1.1.1984 the Management had
at all notified the vacancy to the Commission in accordance with sub-sec-
tion (2) of Section 12 of the Service Commission Act and the Commission
failed to recommend the name within 3 months. Consequently the condi-
tion precedent for making ad-hoc appointment in terms of Section 16 of
E the Service Commission Act had not been satisfied before making the
ad-hoc appointment of appellant on 1.1.1984 and on this score also the
appointment must be held to be invalid and inoperative.
Let us now examine the validity of the second appointment that was
made on 1.10.1985. By this date the appellant, no doubt, had passed his M.
F Sc.(Ag) examination and the Management of the college had requested the
Higher Education Service Commission on 21.5.1985 to select a person for
the post of lecturer of Agronomy in the College and the Commission did
not send any name for more than three months. Therefore, the Manage-
ment could be competent to make an ad-hoc appointment under Section
G 16 of the Service Commission Act. But then the appellant had neither a
M. Phil degree nor a recognised degree beyond Master's level nor there is
any material to indicate that he had published work indicating his capacity
for independent research work. Besides an ad-hoc appointment made
under sub-section (1) of Section 16 of the Service Commission Act lapses
H under sub-section (2) thereof after expiry of the period stipulated in the
SANTOSH KR. SINGH v. STATE [PATTANAIK, J.] 587
Clauses (a) or (b) or (c) of Section 16. Since the Commission has not A
recommended any name Clauses (a) and (b) of sub-section (2) of Section
16 will have no application and, therefore, under Clause (c) by operation
of law the ad-hoc appointment of the appellant ceased with effect from
30th June, 1986, the so called ad-hoc appointment having been made on
1.10.1985. Can such an appointment be regularised under Section 31B of B
the Service Commission Act as contended by Mr. Sanghi is the point in
issue. Section 31B is quoted hereinbelow in extenso :
"31B. Regularisation of certain ad-hoc appointments - (1) Every
teacher, other than a Principal, directly appointed on or before
January 3, 1984 on ad-hoc basis against a substantive vacancy in C
accordance with the provisions of the Uttar Pradesh Higher
Education Services Commission (Removal of Difficulties) Order,
1982 or the Uttar Pradesh Higher Education Services Commission
(Removal of Difficulties) Order, 1983, who possesses the qualifica-
tions prescribed under, or is exempted from such qualifications in D
. ·- accordance with, the provisions of the Concerned Statutes, shall
\\ith effect from the date of commencement of the Uttar Pradesh
Higher Education Services Commi'5ion (Amendment) Act, 1985,
be deemed to have been appointed in a substantive capacity
provided that such teacher has been continuously serving the
College from the date of such ad-hoc appointment up to the date E
of such commencement.
(2) Every teacher deemed to have been appointed in substantive
capacity under sub-section (1) shall be deemed to be on probation
from the date of such commencement. F
(2-a) A teacher other than a Principle directly appointed on or
before January 3, 1984 on ad-hoc basis in a vacancy referred to in
clause (iv) or clause (v) of sub-para (1) of paragraph 2 of the Uttar
Pradesh Higher Education Services Commission (Removal of Dif-
ficulties) Order, 1982 or in Clause (iv) or clause (v) of sub-para G
(1) of paragraph 2 of the Uttar Pradesh Higher Education Services
Commission (Removal of Difficulties) Order, 1983, in accordance
with the provisions of such Orders and continuously serving the
college from the date of such ad- hoc appointment till September
2, 1989, who possesses the qualifications prescribed under, or is H
588 SUPREME COURT REPORTS [1995) SUPP. 6 S.C.R.
A exempted from such qualifications in accordance with, the
provision of the concerned Statute, may be given substantive ap-
pointment by the Management of the College, if :
(a) any substantive vacancy of the same cadre and grade in the
same department is available on September 2, 1989; and
B
(b) the work and conduct of the teacher is found satisfactory.
(3) Nothing in this section shall be construed to entitle any teacher
to substantive appointment if -
c (a) on the date of such commencement, such post had already
been filled, or selection for such post had already been made, in
accordance with the provisions of this Act, or
(b) such teacher was related to any member of the Management,
D or the Principal of the College concerned.
Explanation - For the purpose of this sub-section a person shall be
deemed to be related to another if they are related in the manner
mentioned in the Explanation to Section 20 of the Uttar Pradesh
State Universities Act, 1973."
E
A plain reading of the aforesaid provision would indicate that ad-hoc
appointments made on or before 3rd January, 1984 apainst substantive
vacancy in accordance with ihe provisions of U.P. Higher Education
Service Commission (Removal of Difficulties) Order 1982 or U.P. Higher
F Education Service Commission (Removal of Difficulties) Order 1983 could
be regularised under the provision. The initial appointment of the appellant
having been held by us to be wholly without jurisdiction, the subsequent
appointment made on 1.10.1985 cannot be regularised under Section 31B,
the same not having been made on or before 3rd January, 1984. The
G contention of Mr. Sanghi on this score, therefore, fails and is accordingly
rejected.
Coming to the third submission of Mr. sanghi, Section 31C was
brought into the Statute book in 1991. It will be appropriate for us to
extract said provision in extenso for better appreciation of the point in
H issue.
SANTOSHKR.SINGH v. STATE[PATIANAIK,J.] 589
"31-C. Regularisation of other ad-hoc appointments - A
(1) Any teacher, other than a principal who -
(a) was appointed on ad-l:oc basis after January 3, 1984 but not
later than June 30, 1991 on a post -
B
(i) Which after its due creation was never filled earlier, or
(ii) which after it: due creation was filled earlier and after its
falling vacant, permission to fill it was obtained from the
Director; or
c
(iii) which came into being in pursuance of the terms of new
affiliation or recognition granted to the college and has been
continuously serving the college from the date of such ad-hoc
appointment up to the date of commencement of the Uttar
Pradesh Higher Education Service Commission (Amend- D
ment) Act, 1992;
(b) was so appointed after three months of the notification to the
Commission under sub-section (1) of Section 16 as it stood before
its omission by the Act referred to in clause (a), or if appointed
within such period, no recommendation was made by the Commis- E
sion within such period;
(c) possessed on the date of such commencement, the qualifica-
tions required for regular appointment to the post under the
provisions of the relevant statutes in force on the date of such
ad-hoc appointment; F
(d) is not related to any member of the management or the
principal, of the college concerned in the manner mentioned in
the explanation to Section 20 of the Uttar Pradesh State Univer-
sities Act, 1973; G
(e) has been found suitable for regular appointment by a Selection
Committee constituted under sub-section (2);
may be given substantive appointment by the management of the
college, if any substantive vacancy of the same cadre and grade in H
590 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A the same department is available on the date of commencement
of the Act referred to in clause (a).
(2) The Selection Committee consisting, the following members
namely-
....
B (i) The member of the Commission nominated by the Government
who shall be the Chairman;
(ii) an officer not below the rank of Special Secretary, to be
nominated by the Secretary to the Government of Uttar Pradesh
in the Higher Education Department;
c
(iii) the Director;
Shall consider the cases of every such ad hoc teacher and on being
satisfied about his eligibility in view of the provisions of sub-section
(1), and his work and conduct on the basis of his record, recom-
D mend his name to the management of the college for appointment
under sub-section (l).
(3) Where a person recommended by the Commission under
Section 13 before the commencement of the Act referred to in
E sub- section (lJ docs nol get an appointment because of the
appointment of another person under sub-section ( l) in the vacan-
cy fur which he was so recommemlLCd, the State Government shall
make suitable order fur his appointment in a suitable vacancy in
any college and the p10visions of sub-section (5) and (6) of Section
13 and of Section 14 shall mutatis mutandis apply.
F
(4) A teacher appointed on ad-hoc basis referred to in sub-section
( l) who does not get a substantive appointment under that sub-
section and a teacher appointed on ad-hoc basis who is not eligible
to get a substantive appointmrnt under sub-section (1) shall cease
tu hold the ad-hoc appointment alter "June 30, 1992."
G
In order to get the benefit of the aforesaid provision it is necessary that a
teacher must have been appointed on ad- hoc basis after 3rd January, 1984,
l,ut nut later than 30th June, 1991 on a post as envisaged in clauses (i) or
(ii) or (iii). Further the other conditions contained in Clause (b), (c), (d)
H and (e) of Section 31C are also required lo be fulfilled and then on the
SANTOSH KR. SINGH v. STATE [Pf.TTANAIK, J.] 591
date the regularisation provision of Section 31C came into force, a substan- A
tive vacancy must be available for the secvices being regularised. Admit-
tedly the appellant was not in service o,, the date Section 31C came into
force and even no substantive vacancy was available as the same had been
filled up by Phool Chand. Further Clause (e) of Section 31C (1) also cannot
be said to have been satisfied inas!lluch as no Selection Committee ap- B
pointed under sub-section (2) of Section 31C has found the appellant
suitable. Admittedly the appellcnt was not in service when Section 31C
came into force and, therefc:o, the question of considering his case for
regularisation under SectioP 31C does not arise at all. In fact the so called
regularisation made by the Director was under Section 31B which we have
already held that it couid not have been so regularised. Therefore, the C
contention of Mr. Sanghi that the appellant was entitled to be regularised
under Section 31C ca;mot be sustained.
So far as the effect of non-approval of the order of termination is
concerned it is no doubt true that under Section 35(2) of the Universities D
Act a decision of the Management to dismiss or remove a teacher or to
reduce him in rank or to punish him in any other manner does not take
effect uniess it has been approved by the Vice-Chancellor. Under sub-sec-
tion (~) of Section 35 any decision to terminate the services of a teacher,
whether by way of punishment or otherwise, snb-section (2) of Section 35
applies propriovigere and thus such decision does not become affective E
unless approved by the Vice-Chancellor. But Sub-Section (3) itself carves
out an exception to a case where the termination order was passed on the
expiry of period for which a teacher was appointed. The so-called ad-hoc
appointment of the appellant on 1.10.1985 in the eye of law came to an end
on 30th June, 1986 under Section 16 of the Service Commission Act. Even F
though Vice-Chancellor had approved the appointment for a period of six
months which was communicated by the registrar by letter dated 4.7.1986
with effect from 30th June, 1986, that also came to an end on 31st
December, 1986. There was no further approval to the appointment
thought Management of the College permitted the appellant to continue G
in service. In such a case, when the Director had passed an order of
regularisation which he could not have passed and cancelled the same, the
. consequential order of termination does not become null and void by
application of Section 35(2) and (3) of the State Universities Act. The
Vice- Chancellor appears to have passed the order setting aside the order
of termination not being fully aware of the facts and circumstances and the H
592 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A said order of the Vice-Chancellor, therefore, has rightly been set aside by
the High Court. The contention of Mr. Sanghi, the learned senior counsel
on this score accordingly cannot be sustained.
So far as the last submission of Mr. Sanghi is concerned, the same is
based more on an humanitarian consideration than on establishing the right
B of the appellant. It is true that by now the appellant has become over-age
and it is true that the appellant served the institution from 1984 till 1988
and during his tenure the institution had cent percent results. But in view
of our conclusion that the appellant's initial ad-hoc appointment was not
in accordance with the provision of the Service Commission Act and as
C such it did not confer any right of regularisation under the Regularisation
Ordinance of 1985 and even the subsequent ad-hoc appointment of 1985
did not confer a right of regularisation under the provisions of Section 31C
of the Service Commission Act, as discussed earlier, it would not be
possible for us to issue any direction in favour of the appellant. But since
the appellant has got the Ph. D. degree now as stated by Mr. Sanghi,
D appearing for the appellant and is otherwise eligible for being considered
for the post of lecturer in Agronomy but for his over age, we would observe
that in case he makes an application to the Director for being considered
for a fresh appointment and there exists any vacancy in the post of lecturer
of Agronomy either in the College in question or anywhere in the State,
E then Director may sympathetically consider the case of the appellant and
Service Commission also may consider the case of the appellant in relaxa-
tion of the age limit and after such consideration, if he is found suitable
than he may be appointed as a lecturer in Agronomy.
Subject to the aforesaid observation the appeals fail and are dis·
F ·missed. There will be, however, no order as to costs.
P.C. Appeals dismissed.
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