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2010 DIGILAW 1473 (ALL)

RAM NIWAS SHARMA v. STATE OF U. P.

2010-05-05

ABHINAVA UPADHYA, R.K.AGRAWAL

body2010
JUDGMENT Hon’ble Abhinava Upadhya, J.—Heard learned counsel for the appellant and the learned Standing Counsel for the State-respondents. 2. The present intra Court appeal has been filed against the order of the Hon’ble Single Judge by which the writ petition of the petitioner was dismissed on the ground that the selection made by the Committee of Management is illegal as the Committee of Management had no power to make selection of a teacher in an aided institution which is governed by the provisions of U.P. Intermediate Education Act, 1921, Payment of Salaries Act, 1971 and U.P. Secondary Education Services Selection Board Act, 1982 and Regulations and Rules framed under these Acts. 3. The case set up by the petitioner-appellant is that in the Bajaj Rashtriya Inter College, Fatehpur, Sikri, District Agra, two posts of L.T.Grade Assistant Teachers were created by the Director of Education vide its order dated 31.3.1991. Upon such creation of posts, the Committee of Management proceeded to fill up the same on ad hoc basis under Section 18 of the U.P. Secondary Education Service Selection Board Act, 1982 after sending requisition to the Board and waiting for two months. Subsequently, the petitioner was selected and appointed on the said post by the Committee of management. According to the appellant papers were forwarded to the District Inspector of Schools (in short the DIOS) for grant of approval but the approval was not forthcoming nor the petitioner was getting salary, therefore, Civil Misc. Writ Petition No. 10996 of 1992 connected with Civil Misc. Writ Petition No. 30972 of 1992 and Civil Misc. Writ Petition No. 16918 of 1993 was filed. This Court after considering the case of the petitioners in the aforesaid writ petitions dismissed the petition holding therein that the appointments of the petitioners were not made in accordance with law, inasmuch as, advertisement inviting applications for the said selection was not published. The learned Single Judge in that writ petition vide the said judgment dated 12.9.1997, however observed that the Committee of Management of the concerned institution would be entitled to make appointment on the said posts in accordance with law. 4. The learned Single Judge in that writ petition vide the said judgment dated 12.9.1997, however observed that the Committee of Management of the concerned institution would be entitled to make appointment on the said posts in accordance with law. 4. On the strength of the aforesaid observation of the Court granting liberty to the Committee of Management to make appointment in accordance with law, it appears that the committee of management again proceeded to make selection itself and appointed the petitioner on the post of Assistant Teacher on 15.10.1997. 5. The contention of the petitioner before the Hon’ble Single Judge was that inspite of advertisement being made and papers duly sent to the DIOS, the appointment ought to have been approved and salary released but to the contrary the DIOS vide order dated 11.5.2006 rejected the claim of the petitioner amongst others, on the ground that the appointment was made without following the prescribed procedure and without prior approval of the DIOS. 6. Aggrieved by the aforesaid order the petitioner again came up before this Court by filing writ petition challenging the order of the DIOS dated 11.5.2006 on the ground that in the earlier writ petition No. 10996 of 1992 vide order dated 12.9.1997, liberty was granted to the committee of management to make appointment and therefore, the committee of management had proceeded to select and appoint the petitioner in accordance with law and on this ground assailed the order of the DIOS. The Hon’ble Single Judge by the judgment impugned did not accept the claim of the petitioner and dismissed the writ petition holding that the committee of management had no power to make any selection on a substantive post after coming into force of the 1995 Rules. 7. We have heard learned counsel for the parties and have carefully gone through the impugned judgment passed by the Hon’ble Single Judge and the earlier judgment passed by the Hon’ble Single Judge dated 12.9.1997 in Civil Misc. Writ Petition No. 10996 of 1992 and other connected writ petitions. 8. The U.P. Secondary Education Service Selection Board Act, 1982 provides for ad hoc appointment on substantive posts under Section 18 but the procedure to make such appointment has been provided under the Removal of Difficulties Order, 1981(First). Writ Petition No. 10996 of 1992 and other connected writ petitions. 8. The U.P. Secondary Education Service Selection Board Act, 1982 provides for ad hoc appointment on substantive posts under Section 18 but the procedure to make such appointment has been provided under the Removal of Difficulties Order, 1981(First). Paragraph-4(2) of the aforesaid order provides that any substantive vacancy occurring in the institution can be filled on ad hoc basis first by promotion of the senior most teacher in the institution in the trained graduate grade. Paragraph-5 of the said order provides for ad hoc appointment by direct recruitment where any vacancy cannot be filled by promotion under paragraph- 4, the same may be filled up by direct recruitment in accordance with law. Paragraph-5(2) of the said order provides that the management shall inform the DIOS about the details of the vacancy and such inspector shall invite applications from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in U.P. Paragraph 5(4) of the said order further provides that the Inspector shall cause the best candidates selected on the basis of quality point marks given to him. After such selection the name of the selected candidate will be forwarded to the committee of management of the institution, who in turn will issue letter of appointment to the candidate so selected. Therefore, prior to promulgation of 1995 Rules, any ad hoc appointment on substantive vacancy could be made only as per procedure prescribed in the aforesaid Removal of Difficulties Order which clearly puts an embargo upon the committee of management to select a candidate for such appointment although upon the candidate so selected and recommended by the DIOS, the committee of management alone has the power to issue letter of appointment. As stated above, this position continued from the year 1981 upto 1995. 9. In 1995 in exercise of powers conferred by Section 35 of the U.P. Secondary Education Services Commission Act, 1982, Rules by the name of U.P. Secondary Education Service Commission Rules, 1995 were framed and promulgated vide Notification dated 8.5.1995. These rules provide the procedure for making appointment in the institution. 9. In 1995 in exercise of powers conferred by Section 35 of the U.P. Secondary Education Services Commission Act, 1982, Rules by the name of U.P. Secondary Education Service Commission Rules, 1995 were framed and promulgated vide Notification dated 8.5.1995. These rules provide the procedure for making appointment in the institution. Rule 15 provides procedure for ad hoc appointments by direct recruitment and authorizes the Deputy Director of Education to advertise the posts and the Selection Committee constituted in this behalf to select the candidates and recommend their names to the institution for appointments. 10. After careful consideration of both the procedures provided under the Act for making ad hoc appointments on substantive post either under the Removal of Difficulties Order,1981 (First) or under 1995 Rules, the committee of management has no power to make selection of candidates. Although the committee of management is the appointing authority but it can make ad hoc appointments on substantive post only upon the recommendations made by the Governmental authorities. 11. The argument of the learned counsel for the petitioner is that vide judgment dated 12.9.1997 the committee of management was authorized to make appointment and therefore, in pursuance of the said judgment the committee of management has proceeded to select the petitioner in accordance with law and, therefore, his appointment cannot be faulted on the ground that the committee of management had no power to make appointment. We are unable to accept the aforesaid contention of the learned counsel for the appellant on two counts; firstly, at the time of alleged appointment of the petitioner in the year 1991 upon creation of two news posts by the Director of Education, the procedure, as provided under First Removal of Difficulties Order was not followed and therefore, the Hon’ble Single Judge has recorded a finding that the proper advertisement having not been issued the initial appointment of the petitioner in the year 1991 itself was illegal. Secondly, when the Hon’ble Single Judge has granted liberty to the committee of management to make appointment the said liberty is with the condition that the committee of management will make appointment in accordance with law and the law at the time of making appointment second time in the year 1997 was as prescribed under 1995 Rules, Rule 15 thereof or the First Removal of Difficulties Order, 1981. Both these provisions of law prescribe procedure for making appointment upon selection being made by the Governmental authorities and upon such selection the committee of management is obliged to issue letter of appointment and as such when the Hon’ble Single Judge has granted liberty to the committee of management to make appointment the said liberty will have to be read that the committee of management will make appointment upon the recommendation of the authorities as provided under the First Removal of Difficulties Order or 1995 Rules. 12. In view of the discussions made above, we have no hesitation in respectfully agreeing with the view taken by the learned Single Judge. The special appeal fails and is, accordingly, dismissed. ————