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Allahabad High Court · body

2009 DIGILAW 2615 (ALL)

RIZWANA ADIB v. STATE OF U. P.

2009-07-21

ARUN TANDON

body2009
JUDGMENT Hon’ble Arun Tandon, J.—Two teachers of the institution namely Rizwana Adib (Petitioner) and Shobha Sarkar (Respondent No. 5) have set up a claim for appointment as ad hoc Principal in the institution. An order has been passed by the Joint Director of Education dated 26.4.2008 wherein in terms of the Division Bench judgment of this Court in Special Appeal No. 313 of 2008 dated 3.3.2008, it has been held that Shobha Sarkar is entitled to be treated as regular Lecturer under Section 33 (1-A) w.e.f. 12.6.1985 in place of 6.4.1991 as was directed earlier under order dated 20.3.1996. 2. This order would result in Shobha Sarkar being treated as senior to the petitioner and therefore, to be appointed officiating Principal. The order is being challenged on the following grounds : (a) Assuming without admitting that initial appointment of the respondent was against a substantive vacancy on the post of lecturer caused due to selection and appointment of Mithilesh Saxena Lecturer Hindi as Principal of the institution. Yet it has to be ascertained as to whether such ad hoc appointment against substantive vacancy was made in accordance with Clause 5 of the First Removal of Difficulties Order, 1981 inasmuch as under Section 33 (1-A) only such teachers who had been appointed in accordance with Clause 5 of the First Removal of Difficulties Order, 1981 are entitled to be considered for regularization. (b) From the facts stated by Shobha Sarkar in her earlier writ petition No. 4218 of 2008 as quoted in paragraph 30 of the present writ petition, it is apparently clear that applications for the post of ad hoc Principal were invited by the Committee of Management and after selection papers were forwarded to the Regional Inspector of Schools for approval and approval in fact was granted vide order dated 30.12.1984. Therefore, the provisions of Clause 5 had admittedly not been applied inasmuch as under Clause 5 it is the District Inspector of Schools who is required to invite applications and thereafter determine and forward the name of the selected candidate for ad hoc appointment against substantive vacancy. 3. Faced with the aforesaid contentions Shri Shashi Nandan, Senior Advocate submits that in view of the judgment of this Court dated 30.1.2008 passed in Civil Misc. 3. Faced with the aforesaid contentions Shri Shashi Nandan, Senior Advocate submits that in view of the judgment of this Court dated 30.1.2008 passed in Civil Misc. Writ Petition No. 4218 of 2008, the issue as to whether the respondent No. 5 was appointed against a substantive vacancy on 16.4.1984 does not survive any further for consideration. It has to be accepted that initial appointment of Shobha Sarkar was made on 14.6.1984 against a substantive vacancy. He clarifies that earlier under the earlier order, Shobha Sarkar was refused regularization w.e.f. 12.6.1985 only on the ground that there was no substantive vacancy on the date of appointment. The reasons so recorded stands dislodged under the Judgment dated 30.1.2008 and, therefore, impugned order passed by the Joint Director of Education dated 26.4.2008 recording that petitioner stands regularised w.e.f. 12.6.1985 is legally justified. 4. I have heard counsel for the parties and have gone through the records of the writ petition. 5. It cannot be disputed that in view of the judgment of this Court dated 30.1.2008 passed in Writ Petition No. 4218 of 2008 it cannot be disputed that substantive vacancy was caused in the institution on 21.9.1984, against which Shobha Sarkar was offered ad hoc appointment. Therefore, it is to be held that appointment of Shobha Sarkar on ad hoc basis on 21.9.1984 was against a substantive vacancy. But the issue with regards to the legality of the order impugned cannot be closed with reference to said fact only inasmuch as for regularization under Section 33 (1-A), it is but necessary that all other statutory requirements contained in Section 33 (1-A) are also satisfied. 6. For ready reference Section 33 (1-A) is quoted herein below : “33 (1-A) Every teacher appointed by promotion, on ad hoc basis against a substantive vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order. 6. For ready reference Section 33 (1-A) is quoted herein below : “33 (1-A) Every teacher appointed by promotion, on ad hoc basis against a substantive vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order. 1981, as amended from time to time, 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.” 7. From a reading of the aforesaid section it is apparently clear that only such ad hoc teachers against a substantive vacancy prior to the cut off date mentioned is to be considered for regularization if his ad hoc appointment was in accordance with First Removal of Difficulties Order, 1981 alone. It is needless to emphasise that at the relevant point of time ad hoc appointments were being made both under Section 18 of the U.P. Secondary Education Services Selection Board Act by the Committee of Management as well as under First Removal of Difficulties Order, 1981. The legislature has provided for regularization under Section 33 (1-A) qua only Ad-hoc teachers who have been appointed as per the Provisions of First Removal of Difficulties Order, 1981 only. Benefits of regularization has been extended to Ad-hoc teachers appointed under Section 18 of the Act vide Section 33 (1-C) of the U.P. Secondary Education Selection Board Act. 8. For the benefits of Section 33 (1-A) being provided it was necessary for the Regional Joint Director of Education to satisfy himself as to whether the appointment of Shobha Sarkar in the year 1984 was in accordance with the procedure provided under Para 2 read with para 5 of the First Removal of Difficulties Order or not. Mere mentioning in the impugned order that she had been offered Ad-hoc appointment against a substantive vacancy by the Regional Joint Director of Education will not serve the purpose. Since such an exercise has not been undertaken, this Court holds that the impugned order cannot be legally sustained. Mere mentioning in the impugned order that she had been offered Ad-hoc appointment against a substantive vacancy by the Regional Joint Director of Education will not serve the purpose. Since such an exercise has not been undertaken, this Court holds that the impugned order cannot be legally sustained. Accordingly the writ petition is allowed, the order dated 26.4.2008 is hereby set aside. 9. Let the Regional Joint Director of Education re-examine the matter in light of the observations made herein above, within four weeks from the date a certified copy of this order is filed before him. He shall pass a reasoned speaking order. 10. The petitioner as well as respondent No. 4 are at liberty to file their respective claims by way of representation within two weeks from today before the Regional Joint Director of Education. 11. Writ petition is allowed, subject to the observations made herein above. ————