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1995 DIGILAW 375 (ALL)

Jitendra Pal Singh v. Committee of Management Manohar Bhushan Inter College Bareilly

1995-03-23

S.P.SRIVASTAVA

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JUDGMENT 1. S. P. Srivastava, J. Heard the learned counsel for the petitioner. Perused the record. 2. Feeling aggrieved by an order dated 22-12-1994 issued by the Manager Manohar Bhushan Intermediate College, Bareilly complying with the direction of the District Inspector of Schools dated 19-12-1994 and 14-11-1994 whereunder intimating that it was no longer possible to continue the petitioner on the post of Assistant Teacher in the L. T. Grade he was required to hand over charge of his office, the petitioner has approached this court seeking quashing of the aforesaid orders. He has also prayed that the order dated 30-6-1994 ravening Sri R. D. Peeyush from the post of Lecturer to the post of Assistant Teacher in the L. T. Grade be also quashed and the respondent-authorities be required not to interfere in the functioning of the petitioner as Assistant Teacher in L. T. Grade in the institution till the regular selection is made filling up the vacancy in the Lecturer's grade. It appears from the record that a substantive vacancy in the post of Lecturer in the institution had occurred on 30-6-1986. The management had after following the procedure prescribed appointed Sri R. O. Peeyush, an Assistant Teacher in the L. T. Grade employed in the institution, as against the said vacancy granting him the promotion which was approved by the District Inspector of Schools on 29-1- 1990. The resolution regarding the promotion of Sri R. D. Peeyush had been passed on 6-11-1989. It further appears that the petitioner was appointed as an Assistant Teacher in the L. T. Grade on 10-8- 1991 on ad hoc basis in the resultant vacancy in the L. T. Grade which was caused on account of the promotion of Sri R. D. Peeyush. 3. In the order of appointment issued in favour of the petitioner it had been specifically mentioned that the appointment which was being offered to him was purely on ad hoc basis and would continue only up to the date a properly selected candidate is provided by the Commission vide Sri R. D. Peeyush. It was also clearly mentioned in the appointment order that the said appointment was subject to the approval of the District Inspector of Schools, Bareilly. 4. It was also clearly mentioned in the appointment order that the said appointment was subject to the approval of the District Inspector of Schools, Bareilly. 4. From the materials placed on record it transpires that Sri R. D. Peeyush who had been grafted the ad hoc promotion in the Lecturer's grade as against the substantive vacancy which had come into existence on 30-6-1986 was not interested in continuing as a Lecturer on ad hoc basis and had requested the management to revert him to his substantive post of Assistant Teacher in the L. T. Grade, This request of Sri R. D. Peeyush was accepted by the Committee of Management vide its resolution No, 6 dated 30- 6-1994. Under this resolution while reverting Sri R. D. Peeyush on the substantive post of Assistant Teacher in the L. T. Grade certain penalties had also been imposed upon him requiring him to refund the excess salary which was received by him on account of his being promoted as a Lecturer which he would not have received had he continued in the next below grade. In the aforesaid resolution the Committee of Management had also directed that the petitioner will continue as an Assistant Teacher in the L. T. Grade vice Sri Anand Swarup Saxena another Assistant Teacher in the L. T. Grade who had retired on 30- 7-1994 giving rise to a substantive vacancy in. a post of Assistant Teacher in the L. T. Grade. It appears that the District Inspector of Schools did not approve of the diversion of the petitioner to another vacancy which had occurred on 30-6-1994. This was communicated to the Management vide the letter dated 14-11-1994. While disapproving this diversion, the District Inspector of Schools required that the services of the petitioner be terminated as he ceased to have any right to hold the post on account of the reversion of Sri R. D Peeyush inasmuch as the resultant vacancy which had come into existence on account of the promotion of Sri R. D. Peeyush had ceased to continue with the reversion of Sri R. D. Peeyush and his joining his substantive post in the next below grade. It may be noticed that the petitioner had been granted the appointment on ad hoc basis as against the resultant vacancy in the L. T. Grade which had occurred in the circumstances indicated hereinabove taking recourse to the method prescribed for direct recruitment. In Civil Misc. Writ Petition No. 15266 of 1992 filed by the petitioner a copy of the letter dated 10-8-1991 issued by the Manager of the College to the District Inspector of Schools has been placed on record which indicates that in order to fill up the resultant vacancy in question, a notice dated 30-7-1991 had been passed on the notice board inviting applications for appointment. In the aforesaid letter the management bad not indicated that any notice was published in any news paper as required under the Difficulties Removal Order issued under the U. P. Secondary Education Services Board Act, 1981. In the aforesaid letter it had also been indicated that only three persons had applied for appointment on the post out of which the petitioner was found most suitable. In this connection it may further be noticed that the question relating to the procedure which was to be followed while making an ad hoc appointment as against short term vacancies was considered by a Full Bench of this Court in its decision in the case of Kumuri Radha Raizada v. C. M. Vidyawati Darbari Girls Inter College repotted in 1994 ACJ 641 . The Full Bench after considering various aspects has observed that the advertisement of short term vacancy on the notice board of the institution is in fact no notice to the prospective eligible candidates as no prospective candidate is expected to visit each institution to see the notice board for finding out whether any short term vacancy has been advertised. It was also observed that since the payment of salary to the teachers appointed against the short term vacancy is the liability of the State Government the advertisement of short term vacancy must con form to the requirement of Article 16 (1) of the Constitution which prohibits the State from doing anything whether by making rule or by executive order which would deny equal opportunity to all the citizens. The Full Bench went on to observe that the provisions contained in sub-paragraph (3) of para graph 2 of the Second Removal of Difficulties Order which provides that the short term vacancy shall be notified on the notice board of the institution, does not give equal opportunity to all the eligible candidates of the District, Region or the State to apply for consideration for the appointment against the said short term vacancy. This Court indicated that such kind of notice is on eye-wash for the requirement of Article 16 of the Constitution. In such circumstances, the Full Bench held that the procedure for notify the short term vacancy should be the same as it is for the ad hoc appointment by direct recruitment under the First Removal of Difficulties Order. The management after intimating such vacancy to the District Inspector of Schools has to advertise the vacancy at least in two newspapers having adequate circulation in Uttar Pradesh in addition to notifying the said vacancy on the notice board of the Institution and further the applications may also be invited from the local employment exchange. The procedure provided for notifying the short term vacancy should be the same as contained in sub-paragraph (2) of paragraph 5 of the First Removal of Difficulties Order. Thereafter the Full Bench went on to observe, that the procedure provided in sub-paragraph (3) (i, ii, iii, iv) of paragraph 2 of the Second Removal of Difficulties Order has to be followed for making such appointment. Under the procedure provided under sub-para graph (3) of paragraph 2 of the Second Removal of Difficulties Order, the selection is required to be made on the basis of quality point marks specified in the Appendix to the First Removal of Difficulties Order. The names and particulars of the candidates so selected and other candidates along with quality point mark allotted to them are required to be forwarded by the Manager to the District Inspector of Schools seeking prior approval. The Full Bench also observed that the duration of such ad hoc appointment is till the teacher who was on leave or under suspension joins the post or when the short term vacancy otherwise ceases to exist. 5. The Full Bench also observed that the duration of such ad hoc appointment is till the teacher who was on leave or under suspension joins the post or when the short term vacancy otherwise ceases to exist. 5. In the present case what I find is that on the own showing of the petitioner ho had been appointed against a short term vacancy as is clearly alleged in paragraph 3 of the writ petition. This vacancy ceased to exist with the reversion of Sri R. D. Peeyush. From the facts noticed hereinabove it is apparent that the appointment of the petitioner was not in accordance with the statutory requirements noticed by the Full Bench to which a reference has been made above. The diversion of the petitioner as against a vacancy in the L. T. Grade which had occurred on 30 6-1994 in utter disregard of the provi sions contained in the amended Section 18 of U. P. Secondary Education Services Commission and Selection Boards Act, 1981 as brought in by U. P. Act No. 24 of 1992 cannot be held to be permissible in law. A perusal of this amended provision shows that it is substantially the same provision excepting the provision for constitution of the Selection Committee for selection of candidate for ad hoc appointment. In place of giving of quality point marks as contained in the First Removal of Difficulties Order, the method of ad hoc appointment by promotion of a teacher as observed by the Full Bench remained the same as it was during the period 14-7-1981 to 13-7-1992, under the amended section, the provision in respect of appointment against the short term vacancy also remains as it was during 14-7-1981 to 13-7- 1992. The only change that has been brought by the new Section 18 is in respect of method of ad hoc appointment by direct recruitment. Under sub-section (8) of Section 18 of the Dl strict Inspector of Schools on receipt of intimation of vacancy or as the case may be after determining the vacancy in sub- section (7) is required to invite applications from the persons possessing qualifications prescribed in the Intermediate Education Act or regulations framed thereunder for ad hoc appointment to the post of teacher. Under sub-section (9) of Section 18 a Selection Committee is to be constituted for selection of candidates for ad hoc appointment by direct recruitment comprising of District Inspector of Schools as Chairman, Basic Shiksha Adhikari and District Inspectress of Girls Schools, The Selection Committee so constituted is further required to make selection of the candidates and prepare a list of selected candidate and allocate them to the institution and recommend their name to the Management for appointment. 6. It may further be noticed that as observed by the Full Bench the provisions contained in U. P. Secondary Education Service Commission and Selection Board Amendment Act, 1992 being U. P Act No. 1 of 1993 has no adverse impact on the situation that prevailed prior to this enforcement and the method and procedure of ad hoc appointment of teacher either by promotion or by direct recruitment and the short term appointment against the short term vacancy remains the same as it was during the period beginning from commencement of the Act till 13-7-1992. Taking into consideration the facts and circumstances indicated hereinbefore, no justifiable ground has been made out from any interference by this court while exercising the extraordinary jurisdiction envisaged under Article 226 of the Constitution of India. 7. The writ petition is accordingly, dismissed in limine. Petition dismissed.