S.C Mathur, J.:— Threatened with termination of service from the post of Lecturer in English in Lal Bahadur Shashtri Post Graduate Degree College, Gonda, for short College, affiliated with the Avadh University, on account of selection of Km. Suchi Srivastava, opposite party no. 4, by the U.P Higher Education Service Commission, for appointment to the said post, the petitioner, Dr. Mrs. Krishna Sinha, has approached this Court under Article 226 of the Constitution challenging the selection on the ground that there, exists no vacancy in the College as she, who had been appointed on ad hoc basis under the U.P Higher Education Services Commission (Removal of Difficulties) Order, 1983, for short Difficulties Order, stands regularised on the post in question under section 31-B of the U.P Higher Education Services Commission Act, 1980 (U.P Act No. 16 of 1980), for short Commission Act. She has claimed regularisation under section 31(3)(b) of the U.P State Universities Act, 1973, (U.P Act No. 10 of 1973), for short Universities Act, also. Now the facts.
2. The petitioner was appointed to the aforesaid post by order dated 30th November, 1983 issued under the signature of the Secretary of the College, Annexure 1. The order mentions that the appointment has been made under the Difficulties Order with the approval of the Vice Chancellor, Avadh University. It also mentions that the appointment is on ad hoc basis and can be terminated at any time. The petitioner asserts that she was selected by a Selection Committee constituted in accordance with the Universities Act and the statute having Experts nominated by the Vice Chancellor. This assertion has not been disputed in the counter-affidavit filed on behalf of the College, opposite party no. 2. In pursuance of the appointment order the petitioner joined the post on 1st December, 1983. On 22nd June, 1985 an Ordinance was issued to amend the Commission Act so as to introduce therein section 31-B. Under this section services of certain teachers appointed on ad hoc basis were sought to be regularised. This is the provision under which the petitioner claims regularisation and consequent lack of vacancy. As indicated hereinabove, the petitioner claims regularisation under section 31(3)(b) of the Universities Act also. In paragraph 19 the petitioner has pointed out that writ petitions numbered 3249 of 1986 and 3422 of 1987 raise indentical question and have been admitted and interim orders have been passed on the basis of which teachers were continuing in service. The instant petition was filed in this Court on 10th October, 1988 when, without admitting it, the Bench directed notice to be issued to opposite parties 2 and 4, namely, the College and Km. Suchi Srivastava. Kumari Srivastava was directed to be served by the petitioner herself out of Court for which purpose the office was directed to supply her notices. The notices were received on 14th October, 1988 by the Clerk of the learned counsel for the petitioner but neither counter foil of the notice has been filed after service nor affidavit of service has been filed. By order dated 10th October, 1988 this petition was directed to be listed in the first week of November, 1988 along with writ petitions numbered 3249 of 1986 and 3422 of 1987. The interim order was also passed to the effect that in case the petitioner continued to hold charge, she would not be disturbed.
3. The three petitions were listed on 7th November, 1988 when counter-affidavit in the present petition was filed on behalf of the College along with an application for vacation of the interim order. The hearing was adjourned and the interim order was continued. Ultimately hearing in the present petition started on 5th December, 1988 and concluded on 16th December, 1988. By order dated 5th December, 1988 the interim order was continued till the pronouncement of judgment. Later the other two cases were delinked. In these cases the Commission had not recommended any candidate to be appointed in place of the petitioners of those cases. In one of the cases a new counsel has been engaged by the petitioner of that case who required time to study the brief. In the other case arguments had not commenced. Since arguments in the present case had been concluded and the interim order of the Court was causing prejudice to the candidate selected by the Commission, we considered it appropriate to delink the other two cases from this case. This is how this petition is being disposed of separately.
4. In the counter-affidavit filed on behalf of the College it has been asserted that the petitioner is not entitled to regularisation either under section 31-B of the Commission Act or under section 31(3)(b) of the Universities Act. It is also asserted that on 15th July, 1988 the Commission recommended opposite party no. 4 for appointment to the post in question and on such recommendation petitioner's appointment automatically ceased under paragraph 3 of the Difficulties order.
5. The claim under section 31-B is contested on two grounds—
(1) At the time of ad hoc appointment the petitioner did not possess the prescribed minimum qualification of Post Master's Degree which she acquired only in September, 1988 from Avadh University, after the Commission had notified its recommendation on 15th July 1988; and
(2) The vacancy against which the petitioner was appointed was not substantive in as much as the post was sanctioned only upto June, 1984 It is claimed that the post was sanctioned from time to time and even now the post has not been sanctioned on permanent basis. It is asserted that the last extension will expire on 30th June, 1989.
Claim under section 31-B of the Commission Act:
Section 31-8 of the Commission Act reads as follows:—
“(I) Every teacher, other than a Principal, directly appointed on or before January 3, 1984 on ad hoc basis, against a substantive vacancy in 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 qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of the concerned Statutes, shall with effect from the date of commencement of the Uttar Pradesh Higher Education Services Commission (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 upto the date of such commencement.
(2) Every teacher deemed to have been appointed in substantive capacity under sub-section (I) shall be deemed to be on probation from the date of such commencement.
(3) Nothing in this section shall be construed to entitle any teacher to substantive appointment if—
(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 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.”
A teacher claiming regularisation under the above provision will have to satisfy the Court on the following points:
(1) He was directly appointed to the post in question;
(2) The appointment was made on or before 3rd January, 1984;
(3) The appointment was made on ad hoc basis in accordance with the provisions of the Difficulties Order;
(4) The appointment was made against a substantive vacancy;
(5) He possesses the qualifications prescribed under or is exempted from such qualifications in accordance with the provisions of the concerned Statutes; and
(6) He has served the College continuously from the date of ad hoc appointment up to the date of commencement of the U.P Higher Education Services Commission (Amendment) Act, 1985, which is 22nd June, 1985.
6. A teacher satisfying the above conditions is deemed under section 31-B to have been appointed in substantive capacity with effect from the date of commencement of the Amendment Act viz., 22nd June, 1985. There is no dispute between the parties that the petitioner satisfies conditions 1 to 3 and 6. The dispute is about conditions 4 and 5.
Condition 4—nature of vacancy—whether substantive:
7. The term substantive has not been defined in the Commission Act. Financial Hand Book Volume II containing Fundamental and Subsidiary Rules defines the term “Permanent post” but not the term “Substantive vacancy”. In clause (22) of Rule 9 the term “permanent post” is defined to mean a post carrying a definite rate of pay sanctioned without limit of time.
8. In Webster's Third New International Dictionary some of the meanings given to the word “substantive” are “having the character of an independent self-subsistent entity or thing: existing in its own right : not derivative or dependent : self-contained.”
9. In the same dictionary the term “vacancy” contains the following meanings—“time of freedom from occupation : the state or fact of being free from occupation : the time such office or property is vacant.”
10. In conjunction the term substantive vacancy may mean a vacancy which is self-contained and which is not derived from or dependent upon anything else. In other words vacancy which is dependent upon something or on the happening of some event is not a substantive vacancy. A leave vacancy, a vacancy caused by the incumbent going on deputation retaining his lien on the post from where he has gone, are vacancies dependent upon the incumbent not returning from leave or deputation. Such vacancies are, therefore, not substantive vacancies. But if nobody has a lien on the post and the post is vacant, that vacancy will be substantive as the vacancy is self-contained and is not dependent on the happening of any event like return from leave or deputation. It is not the case of the College that any body had a lien on the post to which the petitioner was appointed. Thus the vacancy against which the petitioner was appointed was substantive.
11. In his letter dated 31st August, 1985, Annexure 5, the Director of Education, U.P, also informed the College that a vacancy on which no one has lien is to be treated as substantive. In our opinion the interpretation given by the Director does not suffer from any infirmity. It may be that the post has not yet become permanent as it is being sanctioned on yearly basis but that does not make the vacancy temporary. So long as the post remains, the vacancy will be substantive; its duration may be limited to the period of sanction. For the discussion herein we are of the opinion that the vacancy against which the petitioner was appointed was substantive and not temporary as contended on behalf of the College. Accordingly the petitioner satisfies the 4th condition also.
Condition 5—Prescribed Minimum Qualifications:
12. It is not disputed that qualifications for the post are prescribed in the Statutes of the Avadh University. Statute 10.01, as amended by the Avadh University (Third Amendment) Statutes, 1981 reads as follows:—
“10.01(1) In the case of any college affiliated to the University, the following shall be the minimum qualifications for the post of a Lecturer in the Faculty of Arts (except the Department of Music), the Faculty of Commerce and the Faculty of Science, namely:
(a) an M. Phil. degree or recognised degree beyond the Master's level or published work indicating the capacity of the candidate for independent research work; and
(b) consistently good academic record with at least first or high second class Master's degree or an equivalent degree of a foreign University, in a relevant subject.
(2) ………………………………
(3) ………………………………
(4) ………………………………
(4) If the Selection Committee is of the view that the research work of a candidate as evident either from his thesis or from his published 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.
(5) Where no candidate possessing the qualification prescribed in sub-clause (a) of clause (1) or sub-clause (b) of clause (2) is available for considered suitable the College, on the recommendation of the Selection Committee may appoint a person possessing a consistently good academic record on the condition that he obtains such qualifications within five years of his appointment, failing which he shall not be able to earn future increments until he fulfils the requirements;
(6) For the purpose of this Statute— (a) marks above the mid-point between the minimum percentage of marks fixed by the University for award of first and second divisions are said to be high second class marks;
(b) ……………………….
(c) ……………………
(d) a candidate (other than a candidate for lecturership in the Faculty of Education and the Faculty of Law) having obtained either an average of 55 per cent marks in the two examinations prior to Master's degree that is to say Intermediate and Bachelor's degree examinations (irrespective of the marks obtained in any of the two examinations), or 50 per cent marks in each of the two examinations separately is said to have consistently good academic record.
(7) ………………….” (Emphasis—herein in italics—supplied)
Sub-clauses (a) & (b) of clause (1) are joined together with the conjunction “and” which shows that the qualification prescribed in these sub-clauses have to be possessed simultaneously. In other words these qualifications have to co-exist. In sub-clause (a) itself there are three alternatives viz.,
(1) M. Phil degree; or
(2) Recognised degree beyond Master's degree; or
(3) Published work.
Under section 31-B the regularisation takes effect from the date of commencement of the Amendment Act viz. 22nd June, 1985. Therefore, on this date at least the candidate seeking regularisation must possess the qualifications prescribed in Statute 10.01 On this date admittedly the petitioner did not possess either M. Phil degree or any other degree beyond Master's degree. She acquired Ph.D degree much after in September, 1988. It is not the petitioner's case that she had to her credit any published work. Accordingly, the petitioner did not possess any of the alternative qualifications mentioned in sub-clause (a).
In paragraph 1 of the writ petition the petitioner has described her qualifications in the following terms:
“That the petitioner is M.A Ph.D in English literature, she has also did English Language teaching course for the Summer Institute Lucknow University. She is also qualified from Foreign languages from British Council and she did integrated Model Training from Manchester England and also worked in a project of English Language in Iowa, U.S.A” (underlined—herein in italics—as in original).
In the above paragraph the petitioner does not disclose the year in which she obtained Ph.D degree. September, 1988 was disclosed in the counter-affidavit and the petitioner does not dispute it.
13. Let us now examine the requirements of sub-clause (b) of clause (1) of the aforesaid Statute. Annexure CA—6 to the counter—affidavit is the petitioner's application dated 5th September, 1983 for the post in question. From this application it appears that the petitioner obtained 66.2 per cent marks in High School and 46.1 per cent marks in B.A She did B.A in 1960 and then did M.A from Agra University in the year 1966, after a gap of more than five years, in IIIrd Division securing 46.5 per cent marks. In 1983 she did M.A for the second time from Avadh University in Second Division securing 56.5 per cent marks.
14. The requirement of sub-clause (b) is two fold-first, the academic record should be consistently good, and second Master's degree with first or high second class marks or an equivalent degree of a foreign University. What constitute consistently good academic record is mentioned in sub-clause (b) of clause (7). Under this sub-clause consistently good academic record is adjudged with reference to the marks obtained at the Intermediate and Bachelor's degree examinations. It is to be either average of 55 per cent marks in the two examinations or 50 per cent marks in each of the two examinations. The average can be worked out only when marks obtained at both the examinations are available. The petitioner has not disclosed the marks obtained by her at the Intermediate examination either in her application for the post or in the writ petition and the rejoinder-affidavit. Therefore, she has failed to establish that by application of the first criterion she has consistently good academic record. At the B.A examination she has secured less than 50 per cent marks, the marks obtained being 46.1 per cent and, therefore, she does not qualify for consistently good acamedic record under the alternative criterion even if we assume that her marks at the Intermediate examination were more than 50 per cent. Thus the first requirement of sub--clause (b) is not satisfied.
15. The petitioner did not secure first class marks at any examination except High School. Sub-clause (a) of clause (7) defines the term “high second class” used in sub-clause (b) of clause (1) to the aforesaid Statute. Under this sub-clause marks above the mid-point between the minimum percentage of marks fixed by the University for award of first and second division constitute high second class. At her M.A examination of Agra University the petitioner had secured 46.5 per cent marks. This does not qualify for high second class. At the examination for the same degree conducted by the Avadh University she secured 56.5 per cent marks. This indeed qualifies for high second class. But the requirement of high second class marks at Master's examination is not in isolation. It is along with consistently good academic record. We have held here in before that the petitioner's academic record was not consistently good. Therefore, the petitioner does not satisfy the requirement of sub-clause (b) of clause (1) also of the said Statute.
16. The learned counsel for the petitioner has submitted that it was competent for the Selection Committee to relax the prescribed minimum qualification. He accused the College of deliberately withholding the recommendations of the Selection Committee from the Court. According to him if the recommendations had been placed before the Court, it would have been apparent that the prescribed qualifications in respect of the petitioner had been relaxed.
17. At the very out set it may be mentioned that the petitioner has not laid any factual foundation for the argument. Whether qualifications were relaxed or not was a question of fact and required pleading before it could be raised in oral arguments. Neither the writ petition nor the rejoinder-affidavit nor the supplementary-affidavit contains a whisper of this plea. The supplementary affidavit dated 16th December, 1988, it may be mentioned, was filed after the learned counsel for the College had concluded his arguments in which he pointed out lack of qualification in the petitioner. Accordingly the petitioner's learned counsel is not entitled to raise the plea in oral arguments.
18. Legally also, on the facts of the case, relaxation was not possible. Power to relax is contained in clause (5) of the Statute reproduced here-in-above. Under this clause the Selection Committee is not competent to relax the requirements of both the sub-clauses (a) and (b) of clause (1). It is competent to relax the qualification prescribed in sub-clause (b) of clause (1) only. Therefore, the candidate will have to possess the qualification prescribed in sub-clause (a). We have mentioned here in above that the petitioner did not possess the qualifications mentioned in either clause. Further, relaxation could be made only if the Selection Committee was of the view that the research work of the candidate was of a very high standard. This opinion was to be formed by the Selection Committee from perusal of candidate's thesis or published work. Neither the writ petition nor the application for the post contains any reference to thesis or published work. Therefore, the basic material requirement for exercising the power of relaxation was not available to the Selection Committee. Thus clause (5) was not attracted and it was not open thereunder to the Selection Committee to relax the prescribed qualification.
19. In view of the above the plea of relaxation is untenable and is here-by rejected.
20. Another clause which also figured prominently in the arguments of the learned counsel for the petitioner is clause (6) of the Statute which too has been extracted hereinabove. This clause applies where no candidate answering both the qualifications i.e the qualifications prescribed under sub-clauses (a) and (b) of clause (1) is available, but a candidate is available who possesses the qualification mentioned in clause (b). In such an event, the Selection Committee may recommend the name of such candidate and the recommended candidate may be appointed. But this appointment will be on the condition that the selected candidate will acquire the lacking qualification within five years. We have held hereinabove that the petitioner did not possess the qualification prescribed in sub-clause (b) of clause (1) of Statute 10.01 Therefore, clause (6) is not attracted to the present case. Further, in the petitioner's appointment letter, Annexure 1, also no condition has been laid down that she will acquire the lacking qualification within five years. The petitioner's appointment is, therefore, not referable to clause (6) of the Statute.
21. In view of the above, the petitioner did not qualify for regularisation under section 31-B of the Commission Act.
Claim under section 31(3)(b) of Universities Act:
22. Let us now examine the petitioner's claim for regularisation under section 31(3)(b) of the Universitives Act. The provision reads as follows:—
“(3)(a) In the case of teacher of the University other than a Professor, the Vice Chancellor in consultation with the Dean of the Faculty and the Head of the Department concerned and an expert nominated by the Chancellor in that behalf and in the case of a teacher of an affiliated or associated college, the Management in consultation with an expert nominated by the Vice Chancellor in that behalf may make officiating appointment in a vacancy caused by the grant of leave to an incumbent for a period not exceeding ten months without reference to the Selection Committee, but shall not fill any other vacancy or post likely to last for more than six months without such reference.
(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 sub-sequently 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 bolds the prescribed qualifications for the post at the time of such substantive appointment, and he has served continuosly, 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.”
23. For the applicability of the above provisions the following conditions have to be satisfied:—
(A) (i) The appointment should be to a temporary post likely to last for more than six months, and
(ii) Such post should subsequently be converted into a permanent post;
(B) (i) Appointment may be to a permanent post but the vacancy should be a temporary one caused by the grant of leave for a period exceeding ten months, and
(ii) Such vacancy should subsequently become permanent, or
(iii) Some posts of the same cadre and grade should be newly created or fall vacant in the same department.
24. The conditions mentioned here in above under groups (A) and (B) are in the alternative. Therefore, possession of one of the two conditions is essential to qualify for regularisation under the above provisions if it can at all be called regularisation. In paragraph 7 of the counter-affidavit it has been stated that initially the post was created under order dated 1st November, 1983 of the Director of Higher Education upto 30th June, 1984 and thereafter its continuance was sanctioned on year to year basis and even now its creation has not been sanctioned on permanent basis as the last sanction will expire on 30th June, 1989. This assertion has not been specifically denied in the rejoinder-affidavit. Thus although condition (i) of group (A) is satisfied, condition (ii) thereof is not satisfied. Accordingly, alternative (A) is not attracted in the present case.
25. The vacancy, against which the petitioner was appointed, was not caused by the grant of leave to any incumbent of the post. The nature of vacancy remains the same; it has not undergone any change. No new post in the same cadre or grade has been created. Accordingly alternative (B) is also not attracted.
26. Under the first provisio extracted hereinabove section 31(3)(b) applies only if the concerned teacher possesses the qualifications prescribed for the post. We have held here in above that the petitioner did not possess the prescribed qualifications on the date from which she claims regularisation.
27. Further it is difficult to treat section 31(1)(b) as a provision conferring right of regularisation upon the teacher concerned. It, in fact, confers discretion upon the Management to act in either of the two ways. The first alternative is to terminate the services after giving notice to show cause. The second alternative is to appoint the teacher in substantive capacity without requiring him to face Selection Committee afresh.
28. In view of the above we are of the opinion that the petitioner's claim of regularisation under section 31(3)(b) is entirely misconceived and is hereby rjected.
Effect of Acquisition of qualification subsequently:
29. The learned counsel for the petitioner then submits that lack of prescribed qualification does not render the appointment invalid but only irregular and the irregularity is cured once the qualification is acquired. On this basis it is submitted that after completing the Ph. D. Degree the petitioner cannot be treated to be lacking in qualification. It is also the submission of the learned counsel that the Management, who appointed the petitioner knowing full well that she did not possess all the prescribed qualifications, is now estopped from asserting that she was lacking in qualification. He has invoked the principles of equity and justice also. In support of the argument he has cited —Rabindra Nath Bose v. Union of India, (1970) 1 SCC 84 : AIR 1970 SC 470, Ram Sarup v. State of Haryana, (1979) 1 SCC 168, Roshan Lal v. International Airport Authority of India, 1980 Supp SCC 449 : AIR 1981 SC 597 and Smt. Shanti Devi Verma v. The Deputy Director of Educaion, Region I Meerut, 1982 Education Cases 226.
30. The dispute in Rabindra Nath Bose's case (Supra) was of seniority between the two sets of Assistant Commissioners of Income Tax. Seniority was relevant for promotion to the post of Commissioner of Income Tax. The petitioners before their Lordships had been confirmed Assistant Commissioners in 1959. Most of the respondents, over whom seniority was claimed, had been confirmed in earlier years. Seniority List prepared on 1st August, 1953 was sought to be challenged in the year 1967 when the writ petition was filed before their Lordships. The Court declined to entertain the challenge as the same was made with inordinate delay for which there was no explanation. The delay in approaching the Court had led the respondents, who had been assigned higher positions in the Seniority List, to think that their position was unassailable. It is in this context that their Lordships observed in paragraph 35 of the report as follows:—
“We are not anxious to throw out petitions on this ground, but we must administer justice in accordance with law and principles of equity, justice and good conscience. It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years.”
31. The petitioner cannot derive any benefit from the above observations. From the very first day the petitioner was appointed to the post in question, she knew that her tenure was precarious. The appointment order, Annexure 1, clearly stated that the appointment was purely ad hoc and could be terminated any time. It further mentioned that the appointment was under the Uttar Pradesh Higher Education Services Commission (Removal of Difficulties) Order, 1983. Paragraph 3 of this Order reads as follows:—
“Every appointment of a teacher under paragraph 2 shalll be made in consultation with an expert, nominated by the Vice-Chancellor, and shall cease on the date when the Uttar Pradesh Higher Education Services Commission recommends a candidate for appointment in accordance with the provisions of the Uttar Pradesh Higher Education Services Commission Act, 1980.” The power to issue such an order had been reserved under section 31-A of the Commission Act. Accordingly, the order has statutory force. The requirement of paragraph 3 of the Order is also statutory. Under this paragraph the appointment automatically ceases on the date the Commission recommends a candidate for appointment. The Commission's recommendation is dated 5th July, 1988 and the notification of the recommendation to the Management is dated 15th July, 1988. In view of the statutory provision, the petitioner cannot claim continuance on the post in question after the availability of a candidate selected by the Commission. In view of the fact that the appointment order specifically stated that the petitioner's appointment was under the Removal of Difficulties Order, the petitioner at all times knew that she could not continue in service once a candidate selected by the Commission became available. In such a situation, there was no occasion for the petitioner to “sit back and consider that” her appointment— effected a long time ago would not be set aside after the lapse of a number of years.”
32. Ram Sarup's case (Supra) has been relied upon for submitting that lack of prescribed qualification does not render an appointment invalid but only irregular and it becomes regular as soon as the qualification is acquired. This authority has no application to the facts of the present case as in the case on hand the statute has fixed the date of regularisation, the same being commencement of the Uttar Pradesh Higher Education (Amendment) Act, 1985. This Act, as already noticed, came into force on 22nd June, 1985. Therefore, the lacking qualification will have to be acquired by the said date. Till that date admittedly the lacking qualification had not been acquired by the petitioner.
33. In Roshan Lal's case (Supra), the dispute raised in the petition was confined to seniority. During the course of arguments the appointment of some of the persons, over whom seniority was claimed, was sought to be challenged. The challenge was not entertained on the ground of delay. The delay was of about three years. In case on hand the question of petitioner's qualification became relevant only on the selection of opposite party no. 4 for the post in question This happened on 15th July, 1988 and the challenge by the Management was made through counter-affidavit filed on 7th November, 1988. There is thus no delay in the present case.
34. Smt. Shanti Devi Verma's case (supra), was relied upon for the proposition that the question of qualification is to be examined at the time of making the appointment and the management, which makes the appointment after being fully aware of the fact that the candidate does not possess the prescribed qualification, is estopped from pleading lack of qualification in the candidate subsequently. Indeed at page 230 of the report in paragraph 7 it had been observed:—
“In fact, in a case like the one before me the employers may really be estopped from pleading a disability for the purpose of dispensing with the services of an appointee, when they have themselves initially permitted such disability not to stand in the way of the candidate and allowed him to function and discharge his duties to their satisfaction. Obviously, it would not be in conformity with the principles of equity and justice that despite the fact that the appointee has acquitted himself well in his post the employer may be allowed at a later stage to turn round and remove the appointee on the ground of his initial lack of qualification at the time of his appointment. This is a principle which needs be evolved in order to protect a candidate, who with the approval tacit or otherwise, of the employer has entered into service and discharged his duties satisfactorily. The correct thing always for the appointing authority is to scrutinise and examine the qualification possessed by a candidate before appointing him and refuse to appoint who falls short of the required qualification. But having once given a go by to such requirement and permitted a candidate to prove his worth and mettle, it does not behove the employers lateron to go back on their implied assurance and take advantage of their own failure to enforce the requirement of the qualification rigidly.”
35. The principles of estoppel, equity and justice were applied in this case against the Management. These principles may be applicable against a Management but there can be no application of these principles against statute. The petitioner's ad hoc appointment, duration of that appointment, and the right accruing from that appointment are all in the present case governed by statutory provisions referred to hereinabove. From these provisions no right accrues to the petitioner once a duly selected candidate becomes available. The petitioner is ousted from the job not on account of any action of the Management but because of the provisions of statute. The Management merely has brought to the notice of the Court the said provisions when the petitioner sought to claim regularisation Further it appears that in Shanti Devi's case the lacking prescribed qualification was in respect of teaching experience which had been acquired by the time action was taken against her. In the case on hand, the petitioner had not acquired the prescribed qualification even till the date selection of opposite party no. 4 was notified. As stated hereinabove, the selection was notified to the Management on 15th July, 1988, Annexure C-7, and the petitioner acquired Ph. D. Degree in September, 1988. The selected candidate became entitled to be appointed immediately on the notification of her selection to the Management with the inevitable consequence of petitioner's ouster from the post. This authority is, therefore, of no assistance to the petitioner.
36. 1984 U.P Local Bodies and Education Cases 647, Dr. (Mrs.) Prabha Gupta v. Lucknow University, and 1984 Education Cases 216, Smt. Rekha Joshi v. Dr. Radhey Shyam, were cited for the proposition that Selection Committee was not required to give reasons for relaxing the prescrided qualification and from the mere fact that the petitioner was selected by a duly constituted Selection Committee, inference is deducible that the petitioner's name was recommended by relaxing the said qualification. We have held hereinabove that the qualification lacking in the petitioner was not relaxable. Accordingly it is not necessary to examine these authorities.
37. Another argument of the learned counsel was that the petitioner was selected in compliance with the provisions of the Universities Act and the statute and, therefore, the provisions of the Commission Act will not be applicable to her case. The argument is that the Universities Act is specific and the Commission Act contains general law and the specific will prevail over the general. In support of the legal proposition canvassed, the learned counsel cited a number of authorities. We accept the legal proposition and, therefore, it is not necessary to burden this judgment with the authorities cited by the learned counsel. However, even by acceptance of the legal proposition the petitioner's case is not advanced. At the very outset it may be pointed out that the argument that the petitioner was appointed under the Universities Act, is contrary to petitioner's own pleading contained in paragraph 4 of the writ petition wherein the petitioner has herself stated that she was appointed under the Difficulties Order. The Difficulties Order was issued in exercise of the powers reserved in the Commission Act and not in the Universities Act and, therefore, it cannot be accepted that the petitioner was not appointed under the Commission Act.
38. Learned counsel, however, relies upon the averments made in paragraph 2 of the writ petition wherein it has been stated that the petitioner “was selected for the post of Lecturer in English by a duly constituted Selection Committee in accordance with the Universities Act and the Statute with the experts nominated by the Vice-Chancellor of Avadh University” which has not been controverted in the counter-affidavit. Much emphasis was laid on the fact that the petitioner's appointment was approved by the Vice-Chancellor as is apparent from the appointment order, Annexure 1, which was not the requirement of the Commission Act or the Difficulties Order but was necessary under the Universities Act. Section 11(a) of the Universities Act does provide that no teacher recommended by the Selection Committee shall be appointed by the Management of an affiliated or associated college, other than a college maintained exclusively by the State Government, unless prior approval of the Vice-Chancellor has been obtained. Under the Commission Act there is indeed no requirement of obtaining approval from the Vice-Chancellor either under section 13 which deals with regular appointment or under section 16 which deals with ad hoc appointment, but thereby the petitioner's appointment cannot be said to be under the Universities Act, because under section 12 of the Commission Act, Universities Act ceased to be applicable so far as the procedure of selection was concerned. Under this provision read with section 3(1) in respect of appointment of teacher, after the constitution of the Commission, the matter is between the Management and the Commission. The Commission was established with effect from 1st November, 1982. The petitioner was appointed subsequently on 30th November, 1983. Therefore, her appointment necessarily has to be under the Commission Act and not under the Universities Act. In obtaining Vice-Chancellor's approval the Management, at the most, may be said to have undergone an unnecessary formality.
39. It is next submitted that opposite party no. 4 also does not possess post Master's qualification and, therefore, she cannot oust the petitioner from the post in question. It is correct that opposite party no. 4 also does not possess such qualification. Under clause (6) of Statute 10.01 reproduced hereinabove it was open to appoint such a person on the condition that he or she obtained the qualification within five years of the appointment. This condition has been specifically attached to the selection of opposite party no. 4 as is apparent from the Commission's letter dated 15th July, 1988 addressed to the Management, Annexure C—2. No such condition was attached to the appointment of the petitioner, Annexure 1. Thus while the appointment of opposite party no. 4 is within the ambit of the Statute the appointment of the petitioner is outside it.
40. In the end it was submitted that the petitioner cannot now be ousted from the post in question as the commission, realising its mistake, has cancelled the selection of opposite party no. 4 and has assigned her to a Degree College in Etawah vide order dated 2nd November, 1988. The factual assertion has been made in paragraph 18 of the rejoinder-affidavit and has been repeated in paragraph 2 of the supplementary affidavit dated 16th December, 1988. In the supplementary affidavit the name of the institution to which opposite party no. 4 has been allegedly assigned has been disclosed as Panchayat Raj Mahila Maha Vidyalaya, Etawah, and it has also been asserted that she has joined there. However a copy of the order whereby the appointment of opposite party no. 4 in the College in question has been allegedly cancelled by the Commission, has not been filed and accordingly there is nothing to substantiate the allegation. We may assume that opposite party no. 4 has joined the College at Etawah but in the absence of appointment order in pursuance of which she has joined there, the terms of appointment cannot be known. It may be that pending disposal of the instant writ petition she has been temporarily adjusted there as, because of the interim order obtained by the petitioner, opposite party no. 4 was not getting posting despite her selection by the Commission. It needs mention that the petitioner obtained interim order from this Court suppressing the date of acquisition of Ph. D. Degree. Accepting vague allegation of cancellation of selection of opposite party no. 4 from such an unfair petitioner would be putting premium on adoption of unfair practice in approaching this Court and obtaining interim order. Under the garb of this interim order the petitioner has continued in service although her services ought to have come to an end long ago and a duly selected candidate has been kept waiting in the wings. In view of the above the petition is dismissed with costs to opposite party no. 2 which are assessed at Rs. 500.00 (five hundred). Interim order shall stand discharged.
41. Immediately after the above judgment was pronounced the learned counsel for the petitioner prayed for a certificate of fitness for preferring appeal before their Lordships of the Supreme Court. Our judgment does not raise any substantial question of law of general importance which needs to be decided by their Lordships of the Supreme Court. Accordingly the certificate prayed for is refused.
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