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2006 DIGILAW 1592 (ALL)

UDAI RAJ VISHWAKARMA v. RAJESH BHARTI

2006-07-06

B.S.CHAUHAN, DILIP GUPTA

body2006
This Special Appeal is directed against the interim order dated 8-6-2006 passed by a learned Judge of this Court in Writ Petition No. 31472 of 2006. 2. The writ petition had been filed by Rajesh Bharti, respondent No. 1 in the Special Appeal for a direction upon the Uttar Pradesh Secondary Education Services Selection Board (hereinafter referred to as the board) to appoint the petitioner on the post of Lecturer in English in the Ram Lakhan Singh Inter College, Rampur (hereinafter referred to as the rampur College) and for other consequential reliefs. 3. The learned Judge, while admitting the Appeal, issued notice to the respondents to file a counter- affidavit and further restrained the Board from taking any further action pursuant to the letter dated 13- 4-2006 sent by the District Inspector of Schools, Azamgarh (hereinafter referred to as the dios) to the Commission informing it that the petitioner cannot be appointed in the Vindeshwari Inter College, Tulsi Nagar, Azamgarh (hereinafter referred to as the azamgarh College) on account of the judgment and order dated 9-7-2002 passed by this Court in Writ Petition No. 10871 of 1996 filed by Udai Raj Vishwakarma, the appellant in this Special Appeal. Liberty was also granted to the petitioner to make a representation to the DIOS to reconsider the matter and pass a fresh order. 4. The records reveal that Raj Kumar Gupta, the regular Principal of the Azamgarh College retired on 30- 6-2004. One Raghunath Pandey, who was working as the English Lecturer in the said College was appointed as the ad hoc Principal and against the short-term vacancy that was caused on the post of English Lecturer the present appellant was appointed on ad hoc basis by means of the letter dated 24-7- 1994. The DIOS, however, did not grant approval to his appointment and his Appeal before the Joint Director of Education was also rejected by the order dated 28-2-1996. These two orders were challenged by Udai Raj Vishwakarma by filing Writ Petition No. 10871 of 1996 in which the operation of the aforesaid impugned orders was initially stayed and ultimately the petition was allowed by means of the judgment and order dated 9-7-2002. These two orders were challenged by Udai Raj Vishwakarma by filing Writ Petition No. 10871 of 1996 in which the operation of the aforesaid impugned orders was initially stayed and ultimately the petition was allowed by means of the judgment and order dated 9-7-2002. The operative part of the judgment is quoted below: "taking into account totality of the circumstances of the case and settled position that an ad hoc should not be replaced by another ad-hoc since there is nothing on record to show that any candidate appointed by the Commission joined till date, I quash the impugned order dated September 4, 1995 and February 28, 1996 (Annexures 9 and 15 to the writ petition) and direct that petitioner shall be allowed to continue on the post, pay salary as may have become due to him under law/relevant Government orders alongwith 12% per annum simple interest on the arrears and he shall be paid salary month by month in future giving due credit on revised pay-scales etc. if any, alongwith other privileges, perks etc. " 5. A Special Appeal being Special Appeal No. (87) of 2003 was filed against the aforesaid order, which is pending disposal in this Court. The present appellant also filed Contempt Petition No. 1159 of 2003 as salary was not paid to him and this Court passed the following order on 3-11-2003: "having considered the arguments of the learned Counsel for the parties, prima facie I am satisfied that there is wilful and deliberate violation of the order of the writ Court. But, considering the pendency of the defective Special Appeal, the opposite party No. 2 may comply with the order at least by paying current salary from the date of the judgment of the writ Court within a month, otherwise he shall appear in Court to enable the Court to frame charges against him on 9-12-2003. Let a copy of this order be sent alongwith notice to opposite party No. 2 within a week. A copy of this order be also given to learned Standing Counsel for compliance. List on 9-12-2003. " 6. In the meantime, the process for filling up the vacancy on a regular basis was also initiated by the Board by issuing the advertisement No. 1 of 2003. Rajesh Bharti, the writ petitioner also submitted an application pursuant to the aforesaid advertisement. List on 9-12-2003. " 6. In the meantime, the process for filling up the vacancy on a regular basis was also initiated by the Board by issuing the advertisement No. 1 of 2003. Rajesh Bharti, the writ petitioner also submitted an application pursuant to the aforesaid advertisement. He was ultimately selected by the Board and a communication dated 24-12-2005 was sent by the Board to the DIOS with a copy to the Committee of Management intimating that he had been selected in the Azamgarh College as a Lecturer in English. The DIOS then wrote a communication dated 4-2-2006 to the Manager of the Azamgarh College to issue an appointment letter to him. However, the Manager of the said College, by means of the communication dated 25-4-2006 informed the DIOS that on the post, on which the Board had appointed Rajesh Bharti, Udai Raj Vishwakarma, was already working on ad hoc basis pursuant to the judgment and order dated 9-7-2002 passed by this Court in Writ Petition No. 10871 of 1996 and the order passed in Contempt Petition. It is upon receipt of the aforesaid letter that the DIOS sent the communication dated 13-4-2006 to the Secretary of the Board for passing appropriate orders. On the record there is another communication dated 26-5-2006 sent by the DIOS, Jaunpur to the Secretary of the Board pointing out that a post of Lecturer in English is vacant in the Jaunpur College. Rajesh Bharti, thereafter filed a petition for a direction upon the Board to appoint him as a Lecturer in English in the Jaunpur College. The learned Judge, while admitting the writ petition, restrained the Board from taking any further action on the basis of the letter dated 13-4-2006 sent by the DIOS. 7. We have heard Sri Raj Kumar Jain, learned Senior Counsel for the appellant, Sri Indra Deo, learned Counsel appearing for the petitioner-respondent No. 1, learned Standing Counsel appearing for respondent Nos. 2 and 4 and Sri R. P. Dubey, learned Counsel appearing for the Board. The records indicate that the notices were sent by Registered post to the Azamgarh College and the Jaunpur College but no Counsel appeared on their behalf. 2 and 4 and Sri R. P. Dubey, learned Counsel appearing for the Board. The records indicate that the notices were sent by Registered post to the Azamgarh College and the Jaunpur College but no Counsel appeared on their behalf. Sri Raj Kumar Jain, learned Senior Counsel for the appellant submitted that in view of the judgment and order dated 9-7-2002 passed in Writ Petition No. 10871 of 1996 the appellant Udai Raj Vishwakarma has to continue on ad hoc basis as a Lecturer in English in the Azamgarh College and, therefore, the Board could not have appointed the petitioner Rajesh Bharti on the said post. He further submitted that the prayer claimed by Rajesh Bharti in the writ petition was for a direction to the Board to appoint the petitioner in the Jaunpur College and, therefore, it is clear that the petitioner is not desirous of seeking appointment in the Azamgarh College. 8. Sri Indra Deo, learned Counsel appearing for the petitioner- respondent No. 1 Rajesh Bharti, however, contended that on the basis of the communication dated 24-12-2005 sent by the Board and the communication dated 4-2-2006 sent by the DIOS, Azamgarh, the Manager of the Azamgarh College was bound to issue an appointment letter to him but for ulterior motives, he did not issue the same and nor did he permit him to join the College. He further submitted that the Azamgarh College was not justified in refusing to issue the appointment letter on the basis of the judgment and order dated 9-7-2002 in the writ petition filed by Raj Kumar Vishwakarma as the same was operative only till such time as the regularly selected candidate joined the College and since the petitioner-respondent No. 1 was the regularly selected candidate from the Board, it was obligatory for the College to issue the appointment letter. He further submitted that the petitioner had been running from pillar to post but as the appointment letter was not issued by the Azamgarh College, he was left with no option but to file the writ petition for seeking appointment in some other College, namely, Jaunpur College where a regular vacancy to the post of Lecturer in English existed. 9. He further submitted that the petitioner had been running from pillar to post but as the appointment letter was not issued by the Azamgarh College, he was left with no option but to file the writ petition for seeking appointment in some other College, namely, Jaunpur College where a regular vacancy to the post of Lecturer in English existed. 9. Learned Standing Counsel and Sri R. P. Dubey, learned Counsel appearing for the Board, submitted that under the provisions of the U. P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the act) and the U. P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as the rules) there does not exist any provision which can enable a selected candidate against one advertisement to be given appointment against some future advertisement which has been issued or is likely to be issued and, therefore, the petitioner cannot be appointed in the Jaunpur College merely because of the fact that he had been selected against a previous advertisement in the Azamgarh College. They further submitted that the Act and the Rules provide for a detailed procedure for action to be taken against the College if a selected candidate by the Board is not issued an appointment letter. 10. We have carefully considered the submissions advanced by the learned Counsel for the parties. 11. The records reveal that Udai Raj Vishwakarma, the present appellant, had been appointed on ad hoc basis as a Lecturer in English in the Azamgarh College on 24-7-1994. Section 15 of the Act provides that for the purpose of making appointment of a Teacher by direct recruitment, the management shall determine the number of vacancies existing or likely to fall vacant during the year of recruitment and notify the vacancies to the Board in such a manner and through such officer or authority as may be prescribed. It is true that the vacancy against which Udai Raj Vishwakarma was initially appointed on ad- hoc basis, arose by way of a chain reaction because the regular Principal retired on 30-6-1994 and the Lecturer in English was appointed as ad hoc Principal but there is nothing on the record to indicate as to precisely when this short-term vacancy on the post of Lecturer in English converted itself into a substantive vacancy. The records reveal that the advertisement for filling up this substantive vacancy on the post of Lecturer in English was advertised by the Board only in May, 2003 by issuing advertisement No. 1 of 2003. It must be emphasized at this stage that it is obligatory on the part of the Management concerned to immediately notify the substantive vacancy in accordance with the procedure prescribed under the Act and the Rules so that the appointment can be made without any delay but it is often seen that the Colleges deliberately do not intimate about the occurrence of the substantive vacancy so that they can continue with the ad hoc appointments of their own choice for a long period. This malady has to be curbed. In fact, in a decision given by us in Kaptan Singh v. State of U. P. , 2005 (1) ESC 307 (All), we had observed as under: "what is, however, worthy of notice in this case is that the appointments were made by the Committee of Management against short-term vacancies, which came into existence in the year 1995. It has been submitted that these short-term vacancies are still continuing and substantive appointments have not been made. This reveals a very sad state of affairs prevailing in the College. A short term vacancy, in our opinion, cannot continue to last for such a long period because this would be clearly in contravention of the provisions of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the `act ). The appointments are required to be made on the recommendation of the Board under Section 16 of the Act. Section 10 of the Act provides that for the purpose of making appointment of a teacher, by direct recruitment, the management shall determine the number of vacancies existing or likely to fall vacant during the year of recruitment and notify the vacancies to the Board in such manner and through such officer or authority as may be prescribed. In the instant case, the short-term vacancy came into existence in the year 1995 and there appears to be no reason as to why such short-term vacancies were allowed to continue for such a long period. In the instant case, the short-term vacancy came into existence in the year 1995 and there appears to be no reason as to why such short-term vacancies were allowed to continue for such a long period. It appears that the College authorities deliberately did not follow the procedure laid down in Section 10 of the Act for notifying the vacancies to the Board so that it could continue to take work from teachers appointed by them on short-term vacancies. Section 23 of the Act clearly provides punishment for failure to furnish such information if any person wilfully withholds or fails to furnish any return or information lawfully required by the Board within the time allowed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In this fact situation, admittedly, the Committee of Management had acted illegally and the appellant had been taking the benefit of a spoilt system, being a blue-eyed boy of one of the rival Committee of Management. Continuation in service either of the appellant or the respondent Nos. 6 and 7 is admittedly in violation of the statutory provisions. The Committee of Management was under a legal obligation to notify the vacancy to the Board just after the vacancy occurred but it failed to perform its legal duty only to help the so called ad hoc appointees. Their continuation in service cannot be held to be in accordance with law. There is no obligation on the part of the Court to sanctify such illegal continuation and burden the public exchequer asking the State Authorities to make the payment of the salary to the persons who have been permitted to continue in service without notifying the vacancy to the Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . We have no hesitation in holding that in such a factual situation, the State Government is not liable to make the payment of the salary to either of the appointees on short-term vacancies, who have deliberately been permitted to continue for about a decade in flagrant violation of the statutory provisions. . . . . . . . . . We have no hesitation in holding that in such a factual situation, the State Government is not liable to make the payment of the salary to either of the appointees on short-term vacancies, who have deliberately been permitted to continue for about a decade in flagrant violation of the statutory provisions. If the so called ad hoc appointees on short-term vacancies feel aggrieved, they may claim the salary from the Committee of Management which had appointed them, but the State is not liable to make any payment of salary to them. We direct the educational authorities to proceed in accordance with law against the Committee of Management for not notifying the vacancy for about a decade. " 12. In the present case even though Udai Raj Vishwakarma was appointed on ad hoc basis in the Azamgarh College on 24-7-2004, he is continuing as such till date i. e. for a period of almost 12 years. 13. We are of the opinion that time has come when stringent action should be taken against the College/dios if they fail to take timely action in intimating the substantive vacancy to the Board for making appointment. We leave the matter at this stage but issue a clear warning that in future this Court would be constrained to take serious action in case such a lapse on the part of the College/dios is brought to its notice. 14. The other question that arises for our consideration is whether the Azamgarh College is justified in taking the stand that the petitioner cannot be permitted to join the College in view of the judgment and order dated 9-7-2002 passed in the writ petition filed by Udai Raj Vishwakarma. The said petition had been filed by Udai Raj Vishwakarma as the DIOS had not granted approval to his ad hoc appointment made on 24-7-1994 on the ground that there was a ban on appointment. The Court noticed that there was no ban on appointment in Educational Institutions and that in view of the settled position that an ad hoc employee should not be replaced by another ad hoc employee and that as there was nothing to show that a candidate selected by the Commission had joined, quashed the impugned orders and directed that the petitioner shall be allowed to continue on the post. In view of the specific observations made in the judgment it is more than apparent that Udai Raj Vishwakarma could have continued as an ad hoc employee only for such time as the regularly selected candidate joined. The Azamgarh College was, therefore, not justified in resisting the appointment of the petitioner Rajesh Bharti merely on the basis of the judgment and order dated 9-7-2002 passed in the writ petition filed by Udai Raj Vishwakarma. 15. The Board had selected the petitioner Rajesh Bharti on the post of Lecturer in English in the Azamgarh College and had sent the communication dated 24-12-2005 to the DIOS. The DIOS thereafter sent the communication dated 4-2-2006 to the Azamgarh College to issue appointment letter to the petitioner. The College, however, did not issue any appointment letter on the ground that Udai Raj Vishwakarma was working on the basis of the judgment and order dated 9-7-2002. We have already held that the Azamgarh College was not justified in taking such a stand. 16. The issue that is still required to be examined is what action should be taken by the educational authorities in such a situation when the College does not issue appointment letter to the selected candidate. For finding out the answer, we have to refer to the provisions of the Act and the Rules. Section 17 of the Act clearly deals with the enquiry by Director in such cases and is as follows: "17. Inquiry by Director.- (1) Where any person is entitled to be appointed as a teacher in any institution in accordance with Chapter III, but he is not so appointed by the management within the time provided therefor, he may apply to the Director or any officer authorised by him for a direction under sub-section (2 ). (2) As far as may be within one month from the date of receipt of an application under sub-section (1), the Director or the officer authorised by him may hold an inquiry, and if he is satisfied that the management has failed to appoint the applicant as a teacher, in contravention of the provisions of this Act, he may, by order, direct: (a) the management to appoint the applicant as a teacher forthwith, and to pay him salary from the date specified in the order; and (b) the Head of the Institution concerned to take work from him as a teacher. (3) The amount of salary, if any, due to such teacher shall, on a certificate issued by the Director or the officer authorised by him, be recoverable by the Collector as arrears of land revenue from the property belonging to or vested in the society or body running the institution. Notes.-In the matter of suspension of a teacher, the District Inspector of Schools does not become functus officio and can even pass orders after expiry of sixty days and can still decide the matter of approval of suspension. Dev Prakash Sharma v. District Inspector of Schools, Aligarh, 2002 (1) AWC 361 . " 17. Section 22 of the Act provides for punishment while Section 24 deals with offences by societies. The same are as follows: "22. Punishment for appointment of teachers in contravention of the provisions of the Act.-Any person who fails to comply with the recommendations of the [board] or fails to comply with the order or direction of the Director under Section 17, or appoints a teacher in contravention of the provisions of this Act shall, on conviction, be punished with imprisonment for a term which may extend to three years or with fine which may extend to five thousand rupees or with both. 24. Offences by societies.- (1) If the person committing the offence under Section 22 or Section 23 is a society registered under the Societies Registration Act, 1860, the society as well as every person in charge of and responsible to the society for the conduct of its business at the time of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by registered society and it is proved that the offence has been committed with the consent or connivance of, or that the commission of offence is attributable to any neglect on the part of any member of the society, such member shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. " 18. It is, therefore, clear from the aforesaid provisions of the Act that under Section 17 of the Act, the selected candidate can apply to the Director or any officer authorised by him for a direction to the Management to appoint him forthwith and of the College still fails to comply with the directions issued by the Director under Section 17 of the Act or appoints a Teacher in contravention of the Act then, on conviction, shall be punished with imprisonment for a term which may extend to three years or with fine which may extend to 5,000/- Rupees or with both. The petitioner, therefore, should immediately file an application before the Director under Section 17 of the Act for seeking a direction against the Management of the Azamgarh College to appoint him as a Teacher forthwith, if he has not already filed such an application and if inspite of such directions issued by the Director, the Azamgarh College still refuses to appoint the petitioner, then in that event appropriate action in accordance with the provisions of Sections 23 and 24 of the Act can be taken. 19. The relief claimed by the petitioner for seeking appointment in some other College, namely, the Jaunpur College cannot, however, be granted as there is no provision in the Act which confers powers on the Board to appoint a person against a post which had not been advertised. The petitioner, however, cannot be denied appointment in the Azamgarh College merely on this ground because even though he had been repeatedly approaching the Azamgarh College, it refused to issue an appointment letter in his favour. There is, therefore, no infirmity in the order passed by the learned Judge restraining the Board from proceeding further on the basis of the communication dated 13-4-2006 sent by the DIOS to pass an appropriate order. 20. The present appellant could have continued as an ad hoc Teacher in terms of the judgment of this Court till such time as a regular candidate was not selected by the Board. The present appellant has unnecessarily filed this Special Appeal as in our opinion, he is not justified in stalling the appointment of a regularly selected candidate. He has already worked on ad hoc basis for a period of more than 12 years and there is no justification for him to continue on the said post. 21. The present appellant has unnecessarily filed this Special Appeal as in our opinion, he is not justified in stalling the appointment of a regularly selected candidate. He has already worked on ad hoc basis for a period of more than 12 years and there is no justification for him to continue on the said post. 21. We, therefore, not only propose to dismiss this Special Appeal but also consider it appropriate to impose cost of Rs. 10,000/- on the appellant. The Special Appeal is, accordingly, dismissed with cost of Rs. 10,000/- to be deposited within a period of one month before the DIOS, Azamgarh failing which it shall be recovered as arrears of land revenue. This cost should be paid to the petitioner Rajesh Bharti within a period of one month thereafter. Appeal dismissed. .