State of Uttaranchal and another v. Jai Narain Singh
2006-01-04
B.C.KANDPAL, CYRIAC JOSEPH
body2006
DigiLaw.ai
JUDGEMENT 1. This special appeal Is filed against the judgment in Writ Petition No. 2583 of 2001 (S/S). The appellants are the respondents Nos. 1 and 2 in the writ petition. The respondent herein is the second petitioner in the writ petition. 2. The writ petitioner (respondent herein) was appointed as Assistant Teacher in Science (LT Grade) in the Nagar Palika Inter College, Kathgodam. In the appointment letter, it was specifically stated that the appointment was on ad hoc basis and that the appointment could be terminated as and when a candidate selected by the Secondary Education Services Selection Board (hereinafter referred to as the Board) joined duty. It was also stated that the salary of the petitioner would be paid from the Parent Teacher Association Fund. The said appointment of the petitioner was never approved by any educational authorities. According to the petitioner, since such approval was not necessary, approval was not sought. However, the petitioner continued in service. When candidates were selected by the Board for regular appointment, the petitioner filed the writ petition in the High Court of Allahabad in the year 1996 claiming regularisation of his appointment and obtained an interim order staying the appointment of the candidate selected by the Board. In view of the stay order, the candidate selected by the Board could not be appointed and the petitioner continued in service. 3. During the pendency of the writ petition, Section 33-C was incorporated in the U.P. Secondary Education (Services Selection Board) Act, 1982 (hereinafter referred to as the 'Act) with effect from 20-04-1998. As per Section 33-C, 'any teacher who was appointed by promotion or by direct recruitment on or after May 14, 1991 but not later than August 6, 1993 on ad hoc basis against substantive vacancy in accordance with Section 18, in the Lecturer Grade or Trained Graduate Grade, shall be given substantive appointment by the Management'. Admittedly, Assistant Teacher (LT Grade) and Trained Graduate Grade are one and the same. After coming into force of Section 33-C, the petitioner amended the writ petition to claim regularisation of his appointment under Section 33-C of the Act. Order in the writ petition : "Heard Sri S.N. Babulkar, learned counsel for the petitioners.
Admittedly, Assistant Teacher (LT Grade) and Trained Graduate Grade are one and the same. After coming into force of Section 33-C, the petitioner amended the writ petition to claim regularisation of his appointment under Section 33-C of the Act. Order in the writ petition : "Heard Sri S.N. Babulkar, learned counsel for the petitioners. The respondents are directed to pass appropriate order, as the petitioners are entitled to the benefit of section 33 C of the U. P. Secondary Education Service Selection Board Act 1982 and arrears of salary shall be paid to the petitioners as the petitioners are teaching." Pursuant to the said order of the Court, the Joint Director of Education, Kumaon Region considered the matter and passed an order dated 08-10-2003 rejecting the claim of the petitioner. The claim was rejected on the ground that, for regularisation under Section 33-C, the ad hoc appointment should have been made In accordance with Section 18 of the above-mentioned Act, but the appointment of the petitioner was not In accordance with Section 18. It was also stated In the order dated 08-10-2003 that the District Inspector of Schools, Nainital had not approved the ad hoc appointment of the petitioner, for the reason that It was not In accordance with Section 18. It was further stated that before making the appointment, the vacancy was not advertised in newspapers or names of candidates were not called for from the Employment Exchange. The petitioner again amended the writ petition for Including a prayer to quash the said order dated 08-10-2003 of the Joint Director of Education, Kumaon Region. 4. The writ petition was finally disposed of by the Single Bench as per the judgment Impugned in this Special Appeal. In the judgment of the learned Single Judge, the claim of the petitioner was upheld and the objections raised by the respondents in the writ petition (appellants herein) were overruled. Aggrieved by the said judgment of the learned Single Judge, this Special Appeal has been filed. 5. The first contention raised by the learned counsel for the appellants is that the appointment of the petitioner was not made by the Management, but by the Manager and hence it was not In accordance with Section 18 of the Act. According to him, an ad hoc appointment under Section 18 of the Act ought to be made by the Management.
According to him, an ad hoc appointment under Section 18 of the Act ought to be made by the Management. This contention was rejected by the learned Single Judge. We are inclined to agree with the learned Single Judge. The word "Management" is defined in Section 2(f) of the Act. According to Section 2(f), "Management in relation to an Institution means the committee of management or person or authority vested with the power to manage and conduct the affairs of that institution". The person vested with the power to manage and conduct the affairs of an institution Is called the Manager. Therefore, the expression 'Management' includes Manager also. As the petitioner was admittedly appointed by the Manager of the institution, It cannot be said that his appointment was not in accordance with Section 18. It is also to be noted that the Management, as such, cannot issue any order and that any decision or order of the Management has to be conveyed or issued by someone authorised to do so on behalf of the Management. In this case, the Management of the Institution has not disputed the right or competence of the Manager to make the appointment on behalf of the Management. Hence, we do not find any merit In the first contention raised by the learned counsel for the appellants. 6. Learned counsel for the appellants then pointed out that one of the reasons stated by the Joint Director of Education, Kumaon Region for rejecting the claim of the writ petitioner was that before making the appointment, the vacancy was not advertised In newspapers or names of candidates were not called for from the Employment Exchange. Learned counsel contended that the appointment of the petitioner was not In accordance with Section 18 due to the said defect also. This point Is not seen argued before the learned Single Judge. This contention Is not raised In the appeal memorandum also. Hence, the learned counsel for the appellants is not entitled to raise this contention before this Court. Even otherwise, the learned counsel for the appellants could not point out any rule or Government Order which required, at the relevant time, that before making any ad hoc appointment, the Management should advertise the for names of candidates from the Employment Exchange. In such circumstances, there Is no merit in the second contention raised by the learned counsel for the appellants. 7.
In such circumstances, there Is no merit in the second contention raised by the learned counsel for the appellants. 7. The third contention raised by the learned counsel for the appellants Is that the petitioner's ad hoc appointment was never approved by the District Inspector of Schools presumably for the reason that It was not In accordance with the provisions of Section 18. He also pointed out 'that the salary of the petitioner was being paid from the Parent Teacher Association Fund and not by the Government. The petitioner had never rnade any complaint regarding the refusal of the Government to pay his salary. However, any order refusing approval to the appointment of the petitioner has not been placed on record either by the, appellants or by the respondent. Hence, it is not possible to decide whether the District Inspector of Schools had actually refused approval of appointment of the petitioner and If he had, for what reason. At the same time, It Is admitted by the .learned counsel for the petitioner (respondent herein) that the petitioner's appointment was not approved by any educational authority and that he was not being paid by the Government. It Is also admitted that no such approval was sought by the petitioner or the Management. Learned counsel for the respondent invited our attention to the judgment of a Division Bench of the Allahabad High Court in Chhatrapal Vs District Inspector of Schools, Barely and others reported in 1988 UPLBEC 640 holding that neither the provisions of the U.P. Secondary Education Service Commission and Selection Board Act, 1982 nor the Removal of Difficulties Order Issued thereunder, Section that approval of the District Inspector of Schools is necessary for the ad hoc appointment made by the Management under Section 18 of the Act. 8. In Such circumstances, we were inclined to give one more opportunity to the appellants to place on record necessary materials to show that an ad hoc appointment made under Section 18 of the Act required approval by the District Inspector of Schools and that approval for the respondent's appointment was sought but it was refused by the competent authority for valid and sufficient reasons and that in all cases of appointment under Section 18, the Government was liable to pay salary / honorarium' to the teacher. Hence, the appellants were given further opportunity to place on record necessary materials' to show.
Hence, the appellants were given further opportunity to place on record necessary materials' to show. that an ad hoc appointment made under Section 18 of the Act required approval by the District Inspector of Schools and that approval of the respondent's appointment was sought but it was refused by the competent authority for valid and sufficient reasons and that in all cases of .appointment under Section 18, the Government was liable to pay salary / honorarium to the teacher. But the appellants could not place on record any such materials. 9. Learned counsel for the appellants contended that the respondent's ad-hoc appointment was not made In accordance with the procedure laid down In the U.P. Secondary Education (Services Selection Board) Rules, 1998. This contention is only to be rejected, because, the appointment of the respondent was in the year 1993 and the above-mentioned Rules came into force only in 1998 and obviously, the said Rules could not govern the appointment of the respondent In 1993. 10. Learned counsel for the appellants then contended that the' respondent's ad hoc appointment was not as per the procedure laid down in the U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as 1981 Order). The said 1981 Order was Issued in exercise of the powers under Section 33 of the U.P. Secondary Education Service Commission and Selection Boards' Ordinance 1981 (U.P. Ordinance NO.8 of 1981). The said order was issued in view of the fact that the establishment of the Commission and the Selection Board under the Ordinance was likely to take some time and even after the establishment of the Commission and the Board, it would not be possible to make selection of the teachers for the first few months and in view of the fact that a number of vacancies in the post of Teachers in various institutions recognised under the Intermediate Education Act 1921 existed and the failure or delay in filling-up of such vacancies was likely to create difficulties. In other words, the 1981 Order was issued for the above-mentioned limited purpose and it cannot have application to appointments made 10 or 12 years later.
In other words, the 1981 Order was issued for the above-mentioned limited purpose and it cannot have application to appointments made 10 or 12 years later. At any rate, with the coming into force of the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982, the 1981 Order issued under the Ordinance would have ceased to operate, unless specifically saved by the provisions of the said Act. There is no such saving of the 1981 Order in the provisions of the said Act. 11. In the judgment of the Allahabad High Court in Suresh Chandra Vs District Inspector of Schools, Saharanpur and others reported in 1991 (2) UPLBEC 1097, reference is' seen made to Removal of Difficulties Order issued under Section 33 of the above-mentioned Act. Learned Addl. Chief Standing Counsel is not in a position to state whether actually any such Removal of Difficulties Order was issued under Section 33 of the Act. 12. According to the proviso to Sub-Section 1 of Section 33, no such order under Sub-Section 1 of Section 33 shall be made after two years from the date of commencement of the Act. In view of the said provision, it is doubtful whether the 1981 Order or the Order issued under Sub-Section 1 of Section 33 of the Act can remain in force beyond a period of two years from the date of coming into force of the Act. 13. For the reasons stated above, we hold that there is no merit in this Special Appeal. Hence, the Special Appeal is dismissed.