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2004 DIGILAW 1051 (ALL)

Neelu Agrawal v. D. I. O. S. , Firozabad

2004-05-14

MARKANDEY KATJU, R.S.TRIPATHI

body2004
ORDER M. Katju, J.—This special appeal has been filed against the impugned judgment of the learned single Judge dated 5.4.2004. 2. We have heard learned counsel for the parties and have carefully perused the impugned judgment and we find no infirmity in the same. 3. The facts have been stated in the judgment of the learned single Judge and hence we are not repeating the same. 4. The learned single Judge has dismissed the writ petition on two grounds (i) the institution in question is a minority institution and hence the petitioner can get no benefit of Section 33B of the U. P. Secondary Education Services Selection Board Act, 1982, (ii) the petitioner does not fulfil the requirement of Section 33B. 5. The institution in question was declared as a minority institution by Government order dated 25.1.1996 Annexure-C.A. 1 to the counter-affidavit. However, in our opinion, this declaration does not mean that the institution became a minority institution only from 25.1.1996. The declaration of an institution as a minority institution is only recognition of the pre-existing minority status of the college vide N. Ammad v. Manager, Emjay High School, (1998) 6 SCC 674 . An educational institution will get the protection of Article 30 of the Constitution if in fact it is a minority institution (i.e., it is established and administered by a minority) whether registration as a minority institution is granted to it by the Government or not. 6. The provisions of the U. P. Secondary Education Service Selection Board Act, 1982 does not apply to a minority institution as a minority institution stands specifically excluded from its purview by Section 30 of the 1982 Act vide Committee of Management St. John Inter College v. Girdhari Singh and others, (2001) 2 SCC 296 and the Division Bench of this Court in Committee of Management, A. B. Vidayalay Inter College v. Raj Kumar Shukla in Special Appeal No. 298 of 1998, decided on September 15, 1999. This Division Bench relied on the Supreme Court decision in Yunus Ali Shah v. Mohamed Abdul Kalam and others, JT 1999 (3) SC 32, wherein it was held that a minority institution is entitled to terminate the services of its employee without prior approval of any concerned authority since it was entitled to the protection under Article 30 (1) of the Constitution. 7. 7. Moreover, the learned single Judge has, in our opinion, rightly held that Section 33B has no application because its conditions were not fulfilled by the appellant. On the date of the enforcement of Section 33B, the appellant was not working in the institution nor was receiving salary and also she never faced the Regional Selection Committee for appointment on substantive basis. The appellant was appointed only in ad hoc capacity against a short-term vacancy as is evident from her appointment order dated 4.7.1987 as well as the approval order 22.5.1989 granted by the Regional Inspectress of Girls Schools. She was appointed against a short-term vacancy caused by the permanent Assistant Teacher Smt. Shaheen Kausar having proceeded on leave without pay. The entitlement of an ad hoc appointee against a short-term vacancy is to continue only so long as the short-term vacancy continues to exist vide Pramila Mishra v. Deputy Director of Education, 1997 (Suppl) AWC 466 (HC-FB) : 1997 (2) LBESR 852 . The vacancy in question was advertised and the respondent No. 3 was selected who is working and her appointment has been approved by the District Inspector of Schools on 18.11.1998. Section 33A is applicable only with regard to the ad hoc appointment made against a substantive vacancy and not ad hoc appointment made against short-term vacancy. Section 33B was inserted by U. P. Act No. 1 of 1993 w.e.f. 7.8.1993 Under the said section, there does not exist any automatic regularisation. Apart from that, Section 33B (1) (c) confers entitlement for consideration only upon an ad hoc appointee who has continuously served the institution from the date of initial appointment to the date of commencement of U. P. Act No. 1 of 1993, i.e., 7.8.1993. The appellant had not been functioning on 7.8.1993, and, therefore, does not satisfy one of the essential requirements for being covered by Section 33B (even if that provision had applied). The appellant had functioned from 8.7.1988 to 30.6.1989 and thereafter from 1.2.1994 till June, 1998. Section 33C has been added to the statute book on 20.4.1998 which only confers entitlement of regularisation upon ad hoc appointment made against substantive vacancy and has no application to an ad hoc appointment made against a short-term vacancy. Even otherwise, Section 33C (1) (c) also envisages continuance in service from the date of initial appointment till the date of commencement of Section 33C, i.e., 20.4.1998. Even otherwise, Section 33C (1) (c) also envisages continuance in service from the date of initial appointment till the date of commencement of Section 33C, i.e., 20.4.1998. The appellant, however, does not satisfy the said requirement of continuous working and as such Section 33C does not apply. Subsequently on 30.12.2000 Section 33F has been added which confers entitlement for regularisation upon ad hoc appointments made against short-term vacancy. However, Section 33F (1) (c) also requires continuous working from the date of initial appointment till 30.12.2000 which the appellant does not fulfil. Further, Section 33F (5) also excludes the case of the appellant since much prior to 30.12.2000 the answering respondent had already been granted regular appointment with the requisite approval of the District Inspector of Schools. 8. For the reasons given above there is no merit in the special appeal. The special appeal is dismissed.