Holding

A temporary post that has been continued for an extended period attains the character of a permanent post, and while a qualified lecturer’s appointment may be regularised despite procedural lapses, an appointment of an unqualified lecturer is void and cannot be sustained.

Issues considered

Whether a temporary lecturer post, continued for more than twenty years, attains the status of a permanent post under service law.
Whether failure to publish a vacancy advertisement in the three newspapers prescribed by Section 26(4) of the Kanpur and Meerut Universities Act, 1965 invalidates the appointment of a qualified lecturer.
Whether an appointment of a lecturer lacking the minimum educational qualifications prescribed by the Act is valid.
Whether the Vice‑Chancellor’s refusal to sanction the appointments was justified under the Act.

Subjects

service lawtemporary appointmentpermanent posteducational qualificationstatutory complianceuniversity actappointment regularisationselection committeevice-chancellor

Judgment

>-
J

A THE KONCH DEGREE COLLEGE, CONCH, JALAUN ETC.
v.
RAM SAJIWAN SHUKLA AND ANR.

FEBRUARY 6. 1997
_,)>

I-
B [K. RAMASWAMY ANDS. SAGHIR AHMAD, JJ.]

Service Law:

Temporary appointment-Lecture~espondent teaching in Depart-
"'.-
c ment of Ancient History on year to year basis for last 20 years-Held, the post
acquired the status to be of a pennanent nature-Government would be at
liberty to convert it as pennanent post-Respondent requires to be continued .
in service.

Service Law:
D
Kanpur and Meerut Universities Act, 1965:
"
Ss. 26(4), 31-Appointment of Lecturer-Advertisement published i11
two newspapers-Rule providing for publication i11 three newspapers-Seier,-
tion made by duly constituted committe~Vice-Chancellor negated the ap-
E proval-Mea11while a non- qualified person appointed-Vice-Chancellor
turned down this appointment for lack of prescribed educational qualifica-
tion-Held, Management should be insisted upon compliance of the rigour of
the rule-ft is mandatory on the part of the management to ensure that due
publicity should be made i11 the newspapers to put on notice all intending :;,
~
F candidates for selection-However, since the respondent was duly qualified ~

and selected and was reinstated as per the orders of this Court, it would not
be app1vpriate to i11terfere with the appointment at this distance of time
though the statutory compliance was not made by the Management-As
regards appoi11tme11t of unqualified person, even for a temporary appointment
only a qualified and competent lecturer should be selected and its approval
G
sought-Vice-Chancellor rightly appointed out the lack of prescribed educa-
tio11al qualification-His services automatically stand tenni11ated on specified
date.
-~

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5321 of
H 1983.
1024
.-{
KON CH DEGREE COLLEGE v. S.R. SHUKLA 1025

From the Judgment and Order dated 4.10.82 of the Allahabad High A
-ii.... Court in C.M.W. No. 6976 of 1975.

With
~;

Civil Appeal No. 5322 of 1983.
B
R.B. Mehrotra, A.S. Pundir, Pradeep Misra, Dr. l.B. Gaur, Dileep
Tandon and J.M. Khanna for the Appellants .
•f R.C. Verma and R.B. Misra for State.
0

S.C. Birla, S.P. Singh (NP), Ms. Vipin Gupta and E.C. Agarwala for c,
the respondents.

· The following Order of the Court was delivered :

In CA. No. 5321/83
D
/ This appeal by special leave arises from the judgment of the Division
Bench of the Allahabad High Court, made on October 4, 1982 in Civil
..
Miscellaneous Writ No. 6976/75.

The appellant had.called for selection of teachers for History subject.
The first respondent Ram Sanjeevan Shukla had applied for and was E
selected. Admittedly, he studied Ancient History as his subject. Therefore,
when his selection as lecturer was sought to be ratified to Vice-Chancellor
by his proceedings dated May 16, 1975 disapproved his appointment on
the ground that Ram Sanjeevan Shukla was unqualified to teach the subject
..A ;
of History since his study was in Ancient History. The respondent had F
' challenged the same in the writ petition. In the nieanwhile, one Umesh
Chandra Kanchan was appointed as a Lecturer in History and he claimed
the place of Ram Sanjeevan Shukla. In view of the fact that the Vice-Chan-
cellor had refused approval of the appointment of Ram Sanjeevan Shukla,
the High Court had held that the Vice- Chancellor had rightly refused to
grant approval of the· selection of Ram Sanjeevan Shukla as a Lecturer in G
History. We are informed that subsequently the Department of Ancient
History was created and the first respondent has been teaching in the
..... Department, while Umesh Chandra Kanchan has been teaching the His-
tory subject. Consequently, both the posts are continuing in the appellant's
college. We are informed that the post of Lecturer of Ancient History is a H
1026 SUPREME COURT REPORTS (1997] 1 S.C.R.
A temporary post being continued on year to year basis. We are afraid that
at this distance of time, it would be very difficult to give acceptance to the
contention that the post is a temporary post. For well over 20 years, when
the post is being continued, though on temporary basis, it acquired the
status to be of a permanent nature. As a consequence, the respondent,
B namely, Ram Sanjeevan Shukla in the Ancient History Department re-
quires to be continued and. the Government would be at liberty to convert
it as permanent post.

The appeal is accordingly disposed of. No costs.

C In CA. No. 5322/83

This appeal concerns two Lecturers, namely, Surendra Narain
Saxena and Mithilesh Kumar @ Kantesh both being Lecturers in Hindi.
The appellant had advertised for selection of the post of a Lecturer in
D. Hindi. As per the procedure in vogue for appointment in an affiliated
college, the advertisements called application requires to be made and the
selection by duly constituted committed approved by the Vice-Chancellor
.
under Section 26(4) of the Kanpur and Meerut Universities Act, 1965 (for
short, the 'Act'). In the advertisement published for recruitment, it is not
in dispute that instead of publication of vacancy in three local newspapers
E publication was made only in two newspapers. Consequently, when ap-
pointment of S.N. Saxena was sought approval, the Vice-Chancellor under
Section 26(4) of the Act negated it. He challenged the order in the writ
petition. In the meanwhile, when Thakur Das Vaidya, a teacher in service
retired, Mithilesh Kumar came to be appointed. Approval of his appoint-
F ment was also sought for and the Vice-Chancellor turned it down on the
ground that he had.not possessed the minimum qualification for appoint-
ment as a teacher and, therefore, the recommendation by the appellant-
Management was bad in law. Since the High Court set aside the order of
the vice-Chancellor and directed regularisation of the service of S.N.
Saxena, the appellant has come in appeal to this Court. Pending proceed-
G ings, a direction was obtained, on account of the dearth of a qualified
teacher to impart education in the subject, permission to reinstate
Surendra Narain Saxena who was, in the meanwhile, terminated. As a
consequence, he was reinstated and he has been continuing in service. It
is true, as rightly pointed out by the High Court, that the advertisement
H required to be made with a view to inform all the candidates who wish to
) \

KON CH DEGREE COLLEGE v. S.R. SHUKLA 1027

apply for and seek selection to the post to which the candidate is qualified A
to apply for and seek selection.
I
As regards the qualifications of Surendra Narain Saxena is con-
cerned, indisputably, he was qualified to apply for and seeks selection for
appointment as a Hindi Lecturer. He came to be selected and approval B
was declined on the ground of infraction of the rule, riamely, omission on
the part of the management to publish the advertisement in three
newspapers and instead published it only in two newspapers. It is man-
\ datory on the part of the management to ensure that due publicity should
'! be made in the newspapers to put on. notice all intending candidates for
selection, the infraction would necessarily be considered mandatory in the
c
light of the object the Act seeks to achieve. The management should be
insisted upon compliance o,f the rigour of the rule. They cannot take shelter
that all had applied for selection. But since the respondent has been
c9ntinuing, was duly qualified and selected and as per the orders of this
Court, he was reinstated, we do not, at this distance of time, incline to D
interfere with the appointment, though the statutory compliance was not
made by the appellant-Committee, to invalidate the appointment.

As regards Mithilesh Kumar @ Kantesh is concerned, the Vice-
Chancellor has rightly pointed out in his proceedings dated May 31, 1985 E
of lack of prescribed educational qualification. Thus, while refusing to
sanction the approval of the temporary appointment of Mithilesh Kumar @
Kantesh for a period upto 30.6.1978, the Vice-Chancellor has given direc-
tions to advertise the post as he did not possess the minimum qualification
prescribed by the statute. Hence, his service is automatically stands ter- F
minated on the expiry of the said period. If the management retained
Mithilesh Kumar @ Kantesh in service after that date, namely, 30.6.1978, it
was illegal and the management is not empowered to keep him in service
on the said post as he is not a teacher either duly selected and appointed
in Mahavidyalaya or qualified to hold the post. In para 2, it is reiterated that G
he did not possess the minimum qualification laid down by the statute and
the selection was not in compliance of the provisions of Section 31(3)(b) of
the Act. Even at the time of the original appointment, he was not qualified
and, therefore, the Management cannot appoint him under ·the rules. In
the light of the above directions, we do not think that the action taken by
the appellant in appointing him is in accordance with law. H
1028 SUPREME COURT REPORTS (1997] 1 S.C.R.
A It is true, as pointed out by tlie learned counsel for the appellant,
that this Court by an interim orderj given option to the appellant to take
the services of Mithilesh Kumar, "if they so desire". It would be obvious
that appellant is soliciteous to take the service of the unqualified
Mithilesh Kumar to confer unmeritered and undue favour on him and
B the direction to the management to advertise the post and to select the
qualified candidate was deliberately violated, and flouted. At this stage,
it is of relevant to note that Section 31(b) and not Section 31(3)(b), as
wrongly quoted to mislead the Court, envisages the mode of selection
of the affiliated colleges. Sub-section (1) of Section 31 says that subject
to the provisions of this Act, the teachers of the University and the
C teachers of an affiliated or associated college (other than a college
maintained exclusively by the State Government shall be appointed by
the Executive council or the Mruiligement of the affiliated or associated
college, as the case may be, ort the recommendation of a Selection
, Committee in the manner hereinafter provided. The Selection Commit-
D tee, shall meet as often as necessary. Section 31(4)( d) says that the
Selection Committee for the appointment of other teachers of an af-
filiated or associated college other than a college maintained exclusively
by the state Government shall consist of - (i) the Head of the Manage-
ment or a member of the management nominated by him who shall be
E the Chairman; (ii) the Principal of the college and another teacher of
the college nominated by the principal; (iii) two experts to be nominated
by the Vice-Chancellor. The first proviso postulates that provided that
in the case of a college where there is no Principal or other teacher
available for being a member of the Selection Committee under sub-
clause (ii), the remaining members referred to in this clause shall
F constitute such Selection Committee. It would, thus, be clear that even
for a temporary appointment, the Selection Committee requires to be
constituted as per clause (b) of sub-section (3) of Section 31 of the Act
and the selection is made before approval is sought. It would be obvious
that only a qualified and competent Lecturer should be selected and its
G approval sought. It does not appear that such a procedure was followed.
That apart, as per the statute, as pointed out by the Vice-Chancellor,
Mithilesh Kumar does not even possess of the minimum qualification
for the post. The learned counsel repeatedly reiterated that he was
qualified without placing any unimpeachable documentary evidence in
H disproof of the finding by the Vice-chancellor.
j
'-.

KON CH DEGREE COLLEGE v. S.R. SHUKLA 1029

Under those circumstances, the continuance of him cannot be ap- A
proved by .the Vice-Chancellor and, therefore, it cannot be given any
direction, as sought for by the appellant for approval. Learned counsel
pointed out the approval was subsequently given. That would relate as per
the directions of the Court and, therefore, when the appeal is disposed of,
the approval does not have any validity.
B
The appeal is accordingly dismissed. No costs.

R.P. Appeal dismissed.
-J