IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Writ Petition (S/B) No.486 of 2019
Pushpa Verma Petitioner
...
Vs.
The Chancellor & Others ...Respondents
With
Writ Petition (S/B) No. 492 of 2019
Kusum Lata Arya Petitioner
...
Vs.
The Chancellor & Others ...Respondents
With
Writ Petition (S/B) No.500 of 2019
Sakshi Tewari Petitioner
...
Vs.
The Chancellor & Others ...Respondents
With
Writ Petition (S/B) No. 503 of 2019
Mamta Joshi Lohumi Petitioner
...
Vs.
The Chancellor & Others ...Respondents
With
Writ Petition (S/B) No.504 of 2019
Lallan Kumar Singh Petitioner
...
Vs.
The Chancellor & Others ...Respondents
Presence:
Mr. S.S. Yadav, learned counsel for the petitioner(s).
Mr. B.D. Upadhayay, learned Senior Advocate assisted by Ms. Mamta
Bisht, learned counsel for respondent nos.2, 3 & 4.
Mr. C.S. Rawat, learned counsel for respondent no.5.
Coram: Hon’ble Manoj Kumar Tiwari, J.
Hon’ble Pankaj Purohit, J.
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Hon’ble Manoj Kumar Tiwari, J. (Oral)
Petitioners were appointed as teacher against leave
vacancy in Kumaon University in different years. According to
them, the leave vacancy has converted to a permanent vacancy,
therefore, petitioners are now entitled to be appointed in
substantive capacity. All the petitioners were appointed as
teacher in Soban Singh Jeena College, which was a campus
college of Kumaon University at the relevant point of time,
except Ms. Mamta Joshi Lohumi (petitioner in WPSB No. 503 of
2019), who was appointed in DSB College of Kumaon
University.
2. Since common questions of fact and law are involved
in these writ petitions, therefore, these writ petitions are being
heard and decided together by this common judgment. However,
for the sake of brevity, facts of WPSS No.486 of 2019 alone are
being considered in this case.
3. By means of this writ petition, Dr. Pushma Verma
has sought the following reliefs:-
“(i) Issue a writ, order or direction in the nature of certiorari
quashing the advertisement dated 07.09.2019 (Annexure No.8
of the writ petition) so far concerned to the post of Sociology
against which the petitioner is continuously working since
05.11.2012 (about 07 years).
(ii) Issue a writ, order or direction in the nature of mandamus
directing the respondent no.1, 2 & 3 to decide the case of the
petitioner in the light of page no.29 & 30 of Chapter 6 (vi) of
Section 31(3) (b) of Uttarakhand (U.P. Universities Act,
1973) (Adaptation and Modification Order, 2001) Act, 2005
(which is concerned to leave vacancy) and till then not
complete the regular selection proceeding against the post of
Assistant Professor (Sociology), which was advertised on
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07.09.2019, till then permit to continue the petitioner on the
post of Assistant Professor (Sociology) and pay the regular
salary month-to-month.”
4. In the year, 2013, petitioner was appointed as
teaching personnel in Sociology Department of Soban Singh
Jeena Campus, Kumaon University, Nainital against a leave
vacancy. According to the petitioner, she was appointed on the
recommendation of a regularly constituted selection committee as
per provisions of U.P. State Universities Act, 1973. The Leave
vacancy had occurred on account of the regular incumbent, Dr.
Himanshu Shekhar Jha proceeding on leave. Mr. Jha, as
aforesaid, was appointed as Professor in Dr. Shakuntala Mishra
National Rehabilitation University, Lucknow, therefore, the post
in question, against which petitioner was appointed has fallen
substantively vacant.
5. Petitioner contends that since she has put in more
than ten years of service as Assistant Professor and now a
substantive vacancy is available for her regular appointment on
the post of Assistant Professor, therefore, the respondents are
under a duty to consider her claim for regular appointment.
6. It is not in dispute that Soban Singh Jeena College,
Almora was a Campus College of Kumaon University, Nainital,
however, now Soban Singh Jeena College is constituent college
of a separate University known as Soban Singh Jeena University
and petitioner is presently serving in the said University.
7. Learned counsel for the petitioner refers to the
provisions contained in Section 31(3)(b) of the Uttar Pradesh
State Universities Act, 1973 (for short “ The Act, 1973”) which
reads as under:-
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“31(3)(b)Where before or after the commencement of this
Act, any teacher is appointed (after reference to a Selection
Committee) to a temporary post likely to last for more than
six months, and such post is subsequently converted into a
permanent post or to a permanent post in a vacancy caused
by the grant of leave to an incumbent for a period exceeding
ten months and such post subsequently becomes permanently
vacant or any post of same cadre and grade is newly created
or falls vacant in the same department, then unless the
Executive Council or the Management, as the case may be,
decides to terminate his services after giving an opportunity
to show cause, it may appoint such teacher in a substantive
capacity to that post without reference to a Selection
Committee :
Provided that this clause shall not apply unless the
teacher concerned holds the prescribed qualifications for the
post at the time of such substantive appointment, and he has
served continuously, for a period of not less than one year
after his appointment made after reference to a Selection
Committee:
Provided further that appointment is 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.]”
8. Learned counsel for the petitioner submits that as
petitioner was appointed in 2013 after due selection by a
regularly constituted selection committee, therefore, upon
conversion of leave vacancy into substantive vacancy, petitioner
has earned right of substantive appointment, therefore, the
advertisement, impugned in the writ petition, deserves to be
quashed and the competent authority in the University be directed
to consider petitioners’ claim for regular appointment.
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9. Learned counsel for the petitioner submits that no
one could be appointed pursuant to advertisement dated
07.09.2019, impugned in the writ petition, thus the vacancy is
available. He further submits that in view of provisions contained
in Section 31(3) (b) of the Act, the Executive Council of the
University is under a duty to take decision regarding regular
appointment of petitioners against the substantive vacancy. It is
further contended that the University-authority cannot sleep over
the right of petitioners for indefinite period of time.
10. We find some force in the submission made by
learned counsel for the petitioner. Since petitioners have put in
more than ten years of service against the post of Assistant
Professor; they were initially appointed against leave vacancy,
which has now been converted to permanent vacancy, therefore,
in view of provision contained in Section 31(3) (b) of the State
Universities Act, 1973, it is incumbent upon the Executive
Council to take decision after considering all relevant aspects of
the matter.
11. Accordingly, writ petitions are disposed of with a
direction to the Competent Authority in the University to take
decision on the claim of the petitioners for substantive
appointment on the post of Assistant Professor in the light of
provision contained in Section 31(3)(b) of the State Universities
Act, 1973, within four months from the date of production of
certified copy of this order. Till such decision is taken, status quo
as regards service of the petitioners shall be maintained.
12. Pending applications, if any, stand disposed of
accordingly.
(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.)
31.07.2024
AK