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Allahabad High Court · body

2000 DIGILAW 912 (ALL)

SHOBH NATH SINGH v. STATE OF UTTAR PRADESH

2000-07-13

SUDHIR NARAIN

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SUDHIR NARAIN, J. ( 1 ) THE core question in this petition is whether the petitioner is entitled for regularisation of his services to the post of Lecturer in English in Indira Gandhi Intermediate College, Jamaha, Mau aima, Allahabad (hereinafter referred to as the institution) under Section 33a (1c) of U. P. Secondary Education Services Selection Boards Act, 1982 (in short the act ). ( 2 ) THE facts leading to this writ petition and involving this question are that a post of Lecturer in english was sanctioned by the State Government in the institution on 11. 12. 1981. One Sri R. P. Ojha was appointed as ad hoc Lecturer under Second Removal of Difficulties Order, 1981, as on the said date, the appointment on ad hoc basis was banned by the Government. The Management of. the institution notified the post to the U. P. Secondary Education Services Commission (hereinafter referred to as the commission) as provided under Section 18 of the Act. The commission advertised the post in question in the newspapers on 11. 8. 1984. In the meantime it is alleged that Sri R. P. Ojha resigned from his ad hoc appointment on 3. 1. 1985. According to the petitioner, he initially went on leave with effect from 3. 1. 1985 but subsequently resigned on 1. 12. 1985. Shri Shobh Nath Singh, the petitioner, was appointed on ad hoc basis by the management of the institution against leave vacancy of Sri R. P. Ojha under Section 18 of the act on the post in question till a candidate selected by the Commission or till 30th June whichever was earlier. On 1. 1. 1986. the Management is alleged to have accepted the resignation of Sri R. P. Ojha and the post in question fell vacant subsequently against which the petitioner was continuing on ad hoc basis. ( 3 ) SRI G. P. Mlsra, respondent No. 4, was selected by the Commission and a notification to this effect was issued on 7. 7. 1989. The District inspector of Schools asked the Management of the institution on 8. 8. 1989 to issue appointment letter to Sri G. P. Misra. The Management, however, did not issue any appointment letter to him. 7. 1989. The District inspector of Schools asked the Management of the institution on 8. 8. 1989 to issue appointment letter to Sri G. P. Misra. The Management, however, did not issue any appointment letter to him. Sri G. P. Misra filed Writ Petition No. 2695 of 1989 for direction to the Management to issue appointment letter to him for the post of Lecturer in english in the Institution. This Court passed an interim mandamus on 17. 2. 1990 to issue appointment letter to him or to show cause. The Management issued appointment letter on 30. 1. 1992 and Sri G. P. Misra in pursuance of the appointment letter joined the institution on 7,2. 1992. ( 4 ) THE petitioner was claiming regularisatlon on the ground that he is entitled to be regularised to the post of Lecturer under Section 33a (1c) of 1992 Act. He filed Writ Petition No. 7988 of 1992 in this Court and also prayed for interim order in this respect. His application for interim order was rejected. The District Inspector of Schools, on the representation of the petitioner, however, regularised the services of the petitioner. Subsequently, he cancelled his order on 19. 4. 1992. The petitioner has filed this writ petition for quashing of the said order. ( 5 ) THE petitioner claimed regularisatlon of his services to the post of Lecturer in English on the ground that he satisfies the conditions laid down under Section 33a (1c) of 1982 Act. This subsection is subject to the provision of sub-section (3) (a) of Section 33a of the Act. The relevant sections read as under : "33a (1c ). Every teacher appointed by promotion or by direct recruitment before July 31, 1988 on ad hoc basis against a substantive vacancy in accordance with Section 18, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of the intermediate Education Act. 1921, shall, with effect from the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection boards (Amendment) Act, 1991. be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such ad hoc appointment to the date of such commencement. 33a (3) (a ). 1921, shall, with effect from the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection boards (Amendment) Act, 1991. be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such ad hoc appointment to the date of such commencement. 33a (3) (a ). If on the date of [commencement referred to in sub-section (1) or (1a) or (1b) or (1c)) such post had already been filled or selection for such post had already been made in accordance with this Act. " ( 6 ) THE petitioner has to satisfy that all the conditions mentioned in the sections referred to above are existing. Section 33a of 1982 Act was amended by an Ordinance (U. P. Act 26 of 1991) on 6. 4. 1991 regularising certain class of ad hoc teachers who were appointed against substantive vacancies and Section 33a (1c) was introduced. Sub-section (3) (a) puts a bar on regularisation that if on the date of commencement referred to in sub-section (1) or (1a) or (1b) or (1c) such post had already been filled or selection for such post had already been made in accordance with this Act. In Jagdish Singh Kushwaha v. U. P. Secondary Education Services Commission and others, 1993 HVD (All) 21, a Division Bench considering the provisions of Section 33a (1c)pointed out that for regularisation under this sub-section, following five conditions must be satisfied and those conditions have to co-exist and not in the alternative. Those conditions are : (1) The ad hoc appointment should be prior to 31st July, 1988 ; (2) The appointment should be against a substantive vacancy : (3) The appointment should be in accordance with Section 18 of the Act ; (4) The candidate should either possess qualifications prescribed under the Intermediate education Act. 1921. or he should have been exempted from the requirement or possessing the said qualifications ; and (5) The candidate should have been continuously serving the institution from the date of ad hoc appointment till the commencement of U. P. Act No. 26 of 1991 (6. 4. 1991 ). ( 7 ) THESE above five conditions are further restricted to the conditions laid down under subsection (3) of Section 33a of the Act. On the examination of the facts. 4. 1991 ). ( 7 ) THESE above five conditions are further restricted to the conditions laid down under subsection (3) of Section 33a of the Act. On the examination of the facts. I find that the petitioner does not fulfil the conditions for the following reasons : (1) Respondent No. 4 was duly selected by the Commission and a notification to this effect was issued by the Commission on 7. 7. 1989. Section 33a (3) (a) provides that if on the date of commencement of Section 33a (1c) any post had already been filled up or selection for such post has already been made in accordance with the Act. it shall not entitle to any teacher to substantive appointment under Section (1a) or (1b) or (1c) of the Act. The petitioner has never challenged the selection of respondent No. 4 by way of filing writ petition but here the argument is raised that respondent No. 4 could not have been selected to the post of Lecturer on the strength of a notification on a vacancy by the Management on 25. 8. 1983 when Sri R. P. Ojha was already appointed on ad hoc basis on 11. 12. 1981. Admittedly Sri R. P. Ojha was appointed on ad hoc basis. As on 25. 8. 1983 the Management was entitled to notify the vacancy to the Commission for making regular appointment by direct recruitment. The commission had also issued advertisement for selection as early as on 11. 8. 1984. Section 33a was introduced for the first time on 12. 6. 1985 by Ordinance No. 12 of 1985. Sri R. P. Ojha could not have claimed regularisation in the year 1983 when Section 33a of the Act had not come into force. Thirdly, Sri R. P. Ojha. according to respondent No. 5, had submitted resignation on 1. 12. 1985 and according to the petitioner, he had submitted resignation on 3. 1. 1985 but his resignation was admittedly accepted on 1. 1. 1986. He himself never claimed regularisation of his services under Section 33a (1 ). For regularisation under Section 33a (1), it was necessary that the teacher must be serving on the date of notification. He was not serving on 12th June. 1985. as he had taken leave on 3. 1. 1985 according to. the petitioner and thereafter never joined the institution and his resignation was accepted on 1. 1. 1986. For regularisation under Section 33a (1), it was necessary that the teacher must be serving on the date of notification. He was not serving on 12th June. 1985. as he had taken leave on 3. 1. 1985 according to. the petitioner and thereafter never joined the institution and his resignation was accepted on 1. 1. 1986. Even assuming his services may be deemed to have been regularised but that did not materially change the position as the process of selection had already started and that culminated in 1989 when respondent No. 4 was selected and duly notified by the selection Committee on 7. 7. 1989 before any rights accrued to the petitioner in the year 1991. (2) The petitioner was appointed on the leave vacancy of Sri R. P. Ojha on 1. 12. 1985. The appointment on the leave vacancy is not an appointment on substantive vacancy. The procedure for appointment by direct recruitment on ad hoc basis under Section 18 of 1982 Act is provided under the U. P. Secondary Education Services Commission (Removal of Difficulties) Order. 1981. Para 5 of the said order provides the procedure for appointment. The Management is to inform the District inspector of Schools about the details of vacancy and such Inspector shall invite applications from the local Employment Exchange and also through public in at least two newspapers having adequate circulation. The District Inspector of Schools shall cause the best candidates selected on the basis of equity point. In the case of the petitioner, this procedure was not followed. In the Full Bench decision of this Court in Radha Raizada and others v. Committee of Management Vidyawati Darbart Girls Intermediate College and others, (1994) 3 VPLBEC 1551, it has been held that if the procedure as prescribed for selection as provided under Para 5 of 1981 order has not been followed, the appointment cannot be treated as valid under Section 18 of the Act. The procedure for appointment in respect of a short-term leave vacancy is provided under U. P- Services Removal of Difficulties" (Second) Order. 1981. The duration of appointment is given in Para 3 of the said Order. It is to continue till the leave vacancy of the teacher concerned. Sri R. P. Ojha resigned on 1. 1. 1986 and the petitioner thereafter was not entitled to continue. 1981. The duration of appointment is given in Para 3 of the said Order. It is to continue till the leave vacancy of the teacher concerned. Sri R. P. Ojha resigned on 1. 1. 1986 and the petitioner thereafter was not entitled to continue. in Smt. Pramila Mishra v. Deputy Director of Education, Jhansi and others, 1987 (2) ESC 1284 (All), the Full Bench had held that a teacher appointed by the Management of the institution on ad hoc basis in short term vacancy and subsequently converted into a substantive vacancy in accordance with the provisions of the Act. was not entitled to claim a right to continue. The petitioner, even if he continued to work as Lecturer in the institution after 1986 will not be entitled to claim the right of regularlsatlon on substantive vacancy merely he was appointed on leave vacancy of Sri R. P. Ojha. (3) Section 33a (1c) contemplates direct recruitment before July 31, 1988 on ad hoc basis against a substantive vacancy in accordance with Section 18 of the Act. It does not contemplate any appointment on a short-term vacancy. The petitioner was not appointed by recruitment as provided under U. P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981. ( 8 ) FOR the reasons above, the petitioner is not entitled for regularisation under Section 33a (1c)of 1982 Act. ( 9 ) IN view of the above the writ petition is dismissed. .