IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION (S/B) NO.52 OF 2007 Dr. A.P.S. Negi & others ………Petitioners Versus Chancellor, HNB Garhwal University & another …Respondents Dated: November 17, 2009 Sri Rajendra Dobhal, Sr. Advocate assisted by Km. Mamta Joshi, Advocate for the petitioners Sri L.P. Naithani, Senior Advocate assisted by Sri Subhash Upadhyaya, Advocate for the State Coram: HON’BLE B.C. KANDPAL, J. HON. DHARAM VEER, J. HON’BLE B.C. KANDPAL, J. (Oral) By means of this writ petition moved under Article 226 of the Constitution of India, the petitioners have prayed to issue writ in the nature of quashing the order dated 22.3.2007 (annexure no.7 to the writ petition) passed by the Chancellor, Hemwati Nandan Bahuguna Garhwal University, Srinagar Garhwal. The petitioners have also prayed for issuing a writ in the nature of mandamus commanding the Executive Council of the Garhwal University through Registrar to give substantive appointment to the petitioners in accordance with the decisions of the Executive Council. 2. Heard learned counsel for the parties and perused the record. 3. Brief facts of the case are that petitioners were appointed as Lecturers u/s 13(6) of the U.P. State 2 Universities Act, 1973 [hereinafter to be referred as the Act]. The dates of appointment of the petitioners are as follows: - 1. Dr. A.P.S. Negi 7.9.1988 2. Sri D.S. Rana 5.11.1990 3. Sri Vinod Kumar 8.12.1990 4. Sri J.S. Dhanai 7.9.1988 5. Sri Yogembar Singh Negi 23.2.1991 4. An amendment was made in the U.P. State Universities Act, 1973 by U.P. Act No.1 of 1992 and by way of amendment in sub-section (2) of Section 1 by U.P. Act No.1 of 1992, it was provided that the act will be deemed to have come into force on 22.11.1991. Sections 2 & 3 of the U.P. Act No.1 of 1992 reads as follows: - “2. In section 13 of the U.P. State Universities Act, 1973, as amended and re-enacted by the Uttar Pradesh Universities {Re-enactment and Amendment} Act, 1973, hereinafter referred to as the principal Act: - (a) in sub-section (6), after the words “where any matter” in words “other than the appointment of teacher of University” shall be inserted. (b) In sub-section (8), the words “or a teacher of the University shall be omitted.” 3. In section 31 of the Principal Act: - (a) in sub-section (1) words “The Selection Committee shall meet as often as necessary” shall be inserted at the end. (b) In sub-section (3), after clause (b) and the proviso thereto, the following clause shall be inserted namely:- (c) Any teacher of the University who was appointed as Lecturer on or before June 30, 1991 without reference to the Selection Committee by way of a short term 3 arrangement in accordance with the provisions for the time being in force for such appointment, may be given substantive appointment by the Executive Council, if any substantive vacancy of the same cadre and grade in the same department is available on November 22, 1991 if such teacher: (i) is serving as such on November 22, 1991 continuous since such initial appointment by way of short term arrangement; (ii) possessed on November 22, 1991 the qualifications required for regular appointment to the post under the provisions of the relevant Statutes in force on the date of initial appointment; (iii) has been found suitable for regular appointment by the Executive Council A teacher appointed by way of a short-term arrangement as aforesaid who does not get substantive appointment under this clause shall cease to hold such date as the Executive Council may specify.” 5. The claim of the petitioners is that the teachers who were working as Lectures prior to 30.6.1991 and till 22.11.1991, are, in such way, entitled to benefit of clause (c) of sub-section (3) of Section 31 of the Act as amended by the U.P. Act No.1 of 1992. The matter pertaining to the petitioners was also taken up by the Executive Council on 31.7.2000 along with several other teachers and the Assessment Committee which constituted by the University under the Chairmanship of the Vice Chancellor to scrutinize the claim of the petitioners, came to the conclusion that the petitioners are entitled to the benefit of Section 31(3)(c) of the Act. The petitioners were also considered for the purpose of regularization. The Executive Council issued the letter to the State Government on 4 12.9.2000/ 14.8.2001 (annexures No.2 and 3 to the writ petition) intimating therein that the petitioners are entitled to benefit u/s 31(3)(c) of the Act. The State Government vide letter dated 14.8.2001 has also passed an order that the benefit u/s 31(3)(c) of the Act can be given to the petitioners and the steps be taken to place the petitioners as Lecturers against the vacant posts but the University has not given any appointment to the petitioners as directed by the State Government. Again on 27.12.2004, the University wrote a letter to the Additional Chief Secretary, Higher Education, Uttarahand that the matter be placed before the Chancellor for appropriate action in the matter. The Chancellor vide order dated 22.3.2007 rejected the reference in view of the judgment of Hon’ble Apex Court in the case of State of Karnataka Vs. Uma Devi reported in 2006(4) SCC Page 1. 6. Feeling aggrieved by the aforesaid order passed by the Chancellor, the petitioners have approached this Court by way of this writ petition. 7. In order to adjudicate the matter in correct, it would again be necessary to read the provision of Section 31(3)(c) of the Act as amended up to date, which is as follows: - 31(3)(c) Any teacher of the University who was appointed as Lecturer on or before June 30, 1991 without reference to the Selection Committee by way of a short term arrangement in accordance with the provisions for the time being in force for such appointment, may be given substantive appointment by the Executive Council, if any substantive vacancy of the same cadre and grade in the same department is available on November 22, 1991 if such teacher: 5 (i) is serving as such on November 22, 1991 continuous since such initial appointment by way of short term arrangement; (ii) possessed on November 22, 1991 the qualifications required for regular appointment to the post under the provisions of the relevant Statutes in force on the date of initial appointment; (iii) has been found suitable for regular appointment by the Executive Council A teacher appointed by way of a short-term arrangement as aforesaid who does not get substantive appointment under this clause shall cease to hold such date as the Executive Council may specify.” 8. From a perusal of the above-quoted provision, it appears to us that the State Universities Act has provided the specific provision for appointment to be given on substantive posts. The applicability of case decided by the Hon’ble Apex Court in the case of Uma Devi (Supra) which has been taken into consideration by the Chancellor, Garhwal University while passing the impugned order is not applicable in this case. The case of Uma Devi (Supra) would be applicable in the matter where there is no specific provision for making the appointment on substantive vacancies, while in the instant case, the State Universities Act has envisaged the specific provision for this purpose. 9. We are therefore of the view that the impugned order passed by the Chancellor, Garhwal University is not sustainable in the eye of law. We accordingly set aside the impugned order dated 22.3.2007 passed by the Chancellor, Garhwal University (Annexure 7 to the petition). We also 6 direct the Garhwal University through Registrar to place the matter before the Executive Council for reconsidering the matter in light of the provisions of Section 31(3)(c) of the Act and to decide the matter in accordance with law. 10. With the aforesaid observation, the writ petition is disposed of finally. (Dharam Veer, J.) (B.C. Kandpal, J.) 17.11.2009 Rajeev Dang