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gunturu madhubabu (lecturer)     03 November 2016

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any judgement is there ,about regularised adhoc lecturers

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Ms.Usha Kapoor (CEO)     03 November 2016

Lecturers  Who have ben appointed on adhoc basis cn be regularized provided they have requisite qualificartion and experience at the time of regulariztion.I''m reproducing case law in this connection which would be useful to you.

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?Court No. - 29

Case :- WRIT - A No. - 671 of 2016

Petitioner :- Dr. Laxmi Kishore
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Sudhanshu Srivastava
Counsel for Respondent :- C.S.C.

Hon'ble V.K. Shukla,J.
Hon'ble Mahesh Chandra Tripathi,J.
Dr. Laxmi Kishore is before this Court with a request to command the respondents to decide the representation dated 28.9.2014 followed by the representations dated 10.10.2014 and 5.2.2015 within a time frame.
From the record in question this much is reflected that petitioner has been before this Court in Writ Petition No. 41652 of 2008 (Dr. Smt. Laxmi Kishore Vs. State of U.P. & Ors.) and this Court, at the said point of time, has proceeded to pass the following judgment;
"Heard Shri H.N. Singh, learned counsel for the petitioner. Learned Standing Counsel appears for the State respondents.
The petitioner was appointed as Guest Lecturer on 20.1.1989. She filed a writ petition for regularisation of her services. In Writ Petition No.22716 of 1993, Km. Renu Tiwari Vs. Director, Higher Education, Allahabad, 1997 (1) ESC 164 (Alld) the High Court found that since the petitioners were working since 1998 to 1993 and interim orders were granted under which they have continued to work, they have right to be considered for regularisation. The petitioner's writ petition was also decided in terms of the directions issued in Km. Renu Tiwari's case.
The State Government in pursuance of these directions issued Office Memorandum dated 1.4.2004 treating all the petitioners including Dr. Laxmi Kishor, the petitioner in this writ petition to be appointed on adhoc basis w.e.f. 10.10.1996.
The petitioner, thereafter, claimed the benefit of regularisation under the U.P. Regularisation of Adhoc Appointments (On the posts within the purview of the Public Service Commission), Rules, 1979. Her request for regularisation as Government Servant teaching in Government Post Graduate Colleges has been rejected on the ground that on the date of her adhoc appointment she was not qualified for appointment as Lecturer. She has 54.37% marks in Post Graduate examination, whereas the eligibility for appointment was amended on 15.3.1989 providing for atleast 55% marks in the post graduation vide amendment in the Statues made under the U.P. State Universities Act, 1973. Her representation has been dismissed by the State Government on 15.3.2009 in pursuance of the directions issued by this Court on 28.11.2006 in Writ Petition No.64640 of 2006.
It is submitted by Shri H.N. Singh that the petitioner was initially appointed as Guest Lecturer on 20.1.1989. The minimum qualifications for appointment as Lecturer in the college were amended on 15.3.1989. The petitioner should be treated to be appointed on adhoc basis on 20.1.1989 and in any case since the petitioner working and discharging same duties as performed by regularly appointed lecturers, her appointment should be treated to be valid and that the qualification as they were applicable on 20.1.1989 should be made applicable to her.
Rule 4 of the Rules of 1990 is quoted as below:-
"4. Regulation of ad hoc appointments- (1) Any person who-
(i) was directly appointed on adhoc basis before January 1, 1977 and is continuing in service, as such, on the date of commencement of these rules:
(ii) possessed requisite qualifications prescribed for regular appointment at the time of such adhoc appointment and
(iii) has completed or, as the case may be, after he has completed three years continuous service; and"
The petitioner was appointed on the intervention of the High Court on adhoc basis w.e.f. 10.10.1996. On that date she was not eligible to be appointed as Lecturer as she did not possess requisite qualifications i.e. atleast 55% in the post graduation examination.
The principles of law relating to regularisation have been reconsidered in the decision in the Constitution Bench decision in Secretary, State of Karnataka Vs. Uma Devi, (2006) 4 SCC 1. The Supreme Court held that the courts have no power to direct regularisation and that regularisation cannot be made even by the State Government except under statutory rules as a one time measure.
In the present case the special leave petition against the judgment in Km. Renu Tiwari's case was dismissed. The petitioner, therefore, got the benefits of appointment on adhoc basis vide office memorandum dated 1.4.2004 w.e.f. 10.10.1996. She, however, cannot be given benefit of regularisation dehorse the rules. The Rules of 1979 clearly provided that the benefit of regularisation can be given to only those persons, who possess requisite qualifications prescribed for regular appointment at the time of their adhoc appointment. The petitioner was not qualified to be appointed as Lecturer on 10.10.1996 and thus she is not entitled to any relief from the Court.
The submission that the petitioner holds a PHD degree in Political Science in 1999 and has been teaching since 1989, and would be deprived of the retiral benefits only on account of fraction of percentage of marks can be considered by the State Government for regularisation under the Rules. This Court would not venture into the matter of laying down or relaxing the minimum qualification prescribed for appointment and for regularisation on individual hardships in a case. It is admitted to the petitioner that a number of teachers appointed on adhoc basis having the requisite qualification have since been regularised under the Rules of 1979.

The writ petition is accordingly dismissed with observations that it will be open to the petitioner to pursue the matter with the State Government for regularistion in accordance with law."
This much is also reflected that, thereafter, another writ petition in question has been filed before this Court by the petitioner being Writ Petition No. 1874 of 2010 (Dr. Smt. Laxmi Kishore Vs. State of U.P. & Ors.) and this Court has disposed of the said writ petition on 23.7.2012 by asking the Principal Secretary, Higher Education, Government of U.P. at Lucknow to take decision in the matter. Pursuant to the order passed by this Court, claim of petitioner has been adverted to and adjudicated vide order dated 25.3.2013. The said order has been subjected to challenge in Writ Petition No. 66418 of 2013 and this Court on 5.12.2013 once again proceeded to pass the final order, which is as follows;
"Heard learned counsel for the petitioner and learned Standing Counsel and perused the record.
This writ petition is directed against an order dated 25.3.2013 by which the claim of the petitioner for regularization has been rejected.
It appears that the petitioner was appointed as a Guest Lecturer on 20.1.1989. Several similarly placed teachers claimed regularization and preferred writ petition no.22716 of 1993 and a Division Bench of this Court vide judgment and order dated 10.10.1996 allowed the writ petition and directed the State Government to pay at least the minimum of the scale as was being paid to regular teachers and also to consider the claim for regularization (1997 (1) ESC 164). The matter was taken before the Apex Court but the Special Leave to Appeal was dismissed. The petitioner was also placed similarly and as such she also filed writ petition before this Hon'ble which was disposed off in the same terms.
In pursuance of the aforesaid direction, State Government issued Office Memorandum dated 1.4.2004 treating all the teachers including the present petitioner to be appointed on adh oc basis with effect from 10.10.1996 i.e. the date of the judgment of the High Court. It appears that several other teachers were regularized but the petitioner was not regularized and therefore she claimed the benefit of regularization under the U.P. Regularization of Adhoc Appointments (On the posts within the purview of the Public Service Commission) Rules, 1979. However, the same was rejected on the ground that on the date of adhoc appointment, she was not qualified for appointment as Lecturer as she had obtained 54.37% marks in post graduate examination though eligibility for regularization which was amended in 1989 providing at least 55% in post graduation.She challenged the said decision before this Court through writ petition no.41652 of 2008 but a Division Bench of this Court relying upon the decision in the case of Secretary, State of Karnataka Vs. Uma Devi [(2006) 4 SCC 1.] had rejected the contention on the ground that no regularization can be done dehors the rules. While dismissing the said writ petition vide order dated 29.3.2010, it left a window open therein that the petitioner may pursue the matter with the State Government. The State Government has now again rejected the claim on the same ground by the impugned order.
It is urged that since the petitioner was appointed in 1988 and the amendment for obtaining of 55% in post graduation being made in 1989, it would not apply to the petitioner especially where the qualification for adhoc appointment and regular appointment was the same.
The entire argument, which is sought to be raised, was available to the petitioner at the first instance when she approached this Court through writ petition no.41652 of 2008 but she did not raise it or press it. It is settled law that where several arguments are available, they have to be raised at the first instance and she cannot raise it in piecemeal. Further, if the arguments of the petitioner were to be accepted, she would loose even the status of adhoc employee because this aspect as to whether she was eligible for adhoc appointment was never considered at any level. There was no direction in any of the judgments that the petitioner or her likewise would be deemed to be adhoc employee from the time of their initial engagement. The rights crystalized at least from 10.10.1996, the date from which the petitioner was treated to be adhoc appointee and that is also the date of the judgment of this Court . The petitioner has reaped the benefit of the said order of the Government, cannot now turn around in say fixing the date of the adhoc appointment is arbitrary. In the opinion of the court, the impugned order does not suffer from any illegality.
For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Accordingly, the writ petition is dismissed."
Petitioner once again is before this Court with a request that her representation in question be decided by the authorities concerned.
We have the occasion to peruse the record in question and what we find from the same is that the chapter, that has been closed by the two judgments of this Court in the garb of getting representation decided, petitioner has tried to re-open the already decided matter. In the garb of deciding representation we cannot create a forum for review of the order of this Court. Petitioner's reliance on the order dated 22.12.2014 (Annexure-6) is also out of context, as on the earlier occasion this Court has clearly mentioned that petitioner would not get benefit of Ph.D. degree, as she has attained said degree in the year 1999 and as far as Dr. Om Prakash Singh is concerned, he has his Ph.D. degree in the year 1996. Such an approach of petitioner cannot be appreciated by us, as such, we cannot proceed to accord any relief to petitioner.
Writ petition is dismissed, accordingly.
Order Date :- 11.1.2016




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