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2010 DIGILAW 1954 (ALL)

SANT RAM v. D. I. O. S.

2010-07-06

ARUN TANDON

body2010
JUDGMENT Hon’ble Arun Tandon, J.—The Krishak Odyogik Pal Inter College, Harharpur, District Basti is an institution recognized under the provision of Intermediate Education Act. The institution is also on the aid list of the State Government. The provisions of the U.P. High School and Intermediate (Payment of Salary) Act, 1971 as well as those of U.P. Secondary Education Services Selection Board, 1982 are fully applicable to the said institution. 2. The substantive vacancy was caused in the institution in L.T. Grade due to retirement on 1st July, 1990. The Committee of Management notified the vacancy to the District Inspector of Schools on 25.7.1991. 3. Since the U.P. Secondary Services Selection Board failed to recommend any suitable candidate, the Committee of Management invited application for the said post and the petitioner claims to have been appointed vide letter dated 8.10.1991. The petitioner joined in pursuance thereof on 9.10.1991, and claims to be working since then. 4. The District Inspector of Schools did not accord approval to the said appointment of the petitioner. He has therefore, approached this Court for a writ of mandamus directing the respondents to approve his appointment as L.T. Grade since 9.10.1991 and further not interfere in the working of the petitioner. The writ Court while entertaining the present writ petition issued an order directing the respondents to pay salary to the petitioner as L.T. Grade teacher or show cause within one month. 5. Cause has been shown although only on 18.5.1992. In the counter-affidavit filed it was stated that the requisition received from the Committee of Management was incomplete and therefore, it was not forwarded to the Selection Board. It has further been stated that in absence of the proper requisition the Committee did not have power to make any ad hoc appointment under Section 18 of the Commission Act. Therefore, the ad hoc appointment of the petitioner is illegal and he is not entitle to salary from the State Exchequer. 6. A rejoinder affidavit has been filed and it has been replied that the requisition as submitted was in prescribed proforma complete in all respect. The District Inspector of Schools did not raise any objection with regards to the proforma so submitted at any point of time. Reference is made to the document enclosed as Annexure No. 1 to the writ petition. It has therefore, been contended that the objection taken is unsustainable. The District Inspector of Schools did not raise any objection with regards to the proforma so submitted at any point of time. Reference is made to the document enclosed as Annexure No. 1 to the writ petition. It has therefore, been contended that the objection taken is unsustainable. Counsel relies upon the judgment of this Court in the case of “Aizaz Husain Rizvi v. Selection Commission and others”, which law laid down stated to have been affirmed by the Division Bench, wherein it has been held that if requisition has not been forwarded by the District Inspector of Schools to the Selection Board then the Committee will not lose its power to make ad hoc appointment under Section 18. 7. Heard learned counsel for the parties and examined the record. 8. On examination of the requisition which has been forwarded by the Committee of Management under letter dated 6.8.1991 and which bears the endorsement of receipt dated 6.8.1991. This Court finds that in the column No. 4 the college was required to disclose the categories of posts created with regards to the pay scale, those filled by way of direct recruitment and promotion separately and the actual number of persons working. In the said column 4 the only information supplied by the college is that there were 32 posts out of which 9 persons have been appointed by way of promotion in all 31 persons are working and the vacancy which was caused in 1990 is L.T. Grade is required to be filled by direct recruitment. 9. The information supplied is incomplete on the face of it. As per requirements of relevant column the petitioner was required to disclose the number of posts sanctioned with reference to the pay scale separately i.e. in Lecturer Grade, L.T. Grade and C.T. Grade in the institution and it is with reference to each of these pay scales the petitioner was required to supply information with regards to the number of persons appointed by promotion and direct recruitment separately. The college had further informed the details of persons appointed in the respective grade within the reserved categories. 10. The college has not disclosed as to how many person in L.T. Grade were working against the duly sanctioned posts, the number of persons appointed by promotion and by direct recruitment in L.T. Grade was not disclosed separately nor the details of reservation have been furnished. 10. The college has not disclosed as to how many person in L.T. Grade were working against the duly sanctioned posts, the number of persons appointed by promotion and by direct recruitment in L.T. Grade was not disclosed separately nor the details of reservation have been furnished. In absence of the aforesaid information the Selection Board could not have determined the reservation applicable to the post nor could ascertain as to whether the vacancy was within the quota for direct recruitment or promotion. 11. It is needless to emphasize under Chapter II 50% post in L.T. Grade are required to be filled by promotion from C.T. Grade. This 50% can only be worked out if the number of sanctioned posts and the persons actually working in the institution including the method of their appointment is known. The District Inspector of Schools is justified in contending that the requisition supplied was incomplete and therefore, was not acted upon. 12. The District Inspector of Schools is further right in stating that on such requisitions the Committee will not get a right to appointment a teacher on ad hoc basis under Section 18 of the Commissions Act, Section 18 reads as follows : “18. Ad hoc Teachers.—(1) Where the Management has notified a vacancy to the [Board] in accordance with sub-section (1) of Section 10 and the post of a teacher actually remained vacant for more than two months, the Management may appoint by direct recruitment or promotion a teacher on purely ad hoc basis, in the manner hereinafter provided in this section.” 13. Therefore, the first condition for Section 18 to apply is that a requisition in the prescribed proforma complete in all respect is forwarded to District Inspector of Schools as per the rules applicable. Thus in the facts of the case where the requisition is not in accordance with Section 10 (1) of the Act, 1982, the Committee cannot exercise powers under Section 18 of the Act. 14. This Court further finds from the record of the writ petition that the appointment has been offered to the petitioner on ad hoc basis against a substantive vacancy in L.T. Grade only after the vacancy was advertised on the notice board. 15. The Full Bench of this Court in the case of “Km. 14. This Court further finds from the record of the writ petition that the appointment has been offered to the petitioner on ad hoc basis against a substantive vacancy in L.T. Grade only after the vacancy was advertised on the notice board. 15. The Full Bench of this Court in the case of “Km. Radha Raizada v. Committee of Management, Vidyawati Darbari Girls Inter College, (1994) 3 UPLBEC 1551 ” has specifically held that for ad hoc appointment under the First Removal and Difficulties Order the vacancy has to be advertised in two news paper and it has been held that the advertisement of the vacancy on the notice board of the institution is no advertisement. 16. In view of the aforesaid, this Court finds that there is no ground for granting the mandamus as prayed for. 17. By means of amendment application the petitioner has prayed for a direction upon the respondents to regularize the petitioner as L.T. Grade teacher in the institution. Since the appointment of the petitioner itself was illegal and contrary to the statutory provisions applicable. No direction for regularization can be issued. 18. The Court may now consider the judgments which have been relied upon for the purpose. Supreme Court in the case of “Naresh Chand v. District Inspector of Schools and others” after noticing that the appointment of the person was in violation of the provisions of the 1982 Act, the facts of that case recorded that the teacher has continued and had been regularized by the education authority on the post in question. Then the Supreme Court in para 9 issued following directions : “On the special facts and circumstances, we are of the view that interests of justice would be served by permitting the appellant to continue as a Lecturer in Chemistry on ad hoc basis, till the vacancies are filled. Respondents 1 and 2 shall also release the salary of the appellant for the period of such ad hoc appointment. Further, as and when the Service Commission or other authority concerned with the selection and appointment invites applications for filling the posts of Lecturer in Chemistry, in the third Respondent College, the Appellant’s application for such post shall be considered by relaxing the age limit. Steps shall be taken to fill the vacancies expeditiously.” 19. A Division Bench of this Court in the case of “Dr. Steps shall be taken to fill the vacancies expeditiously.” 19. A Division Bench of this Court in the case of “Dr. Prabhu Narain Saxena v. The Chancellor, Agra University and others, 2000 (3) ESC 2075(All.), in para 14 has been held that even if the new appointment of the employees is bad on account of some infirmity but he has continued for long years under the interim order of the Court it would be unfair to remove such an employee: Para 14 of the judgment is quoted below : “14. Lastly it may be noted that the petitioner has been working since 21st December, 1987. This Court admitted the writ petition on 6.12.1988 and suspended the operation of the impugned order of the Chancellor dated 28.11.1988 and since then the petitioner is continuing in service. The petitioner was selected by the Selection Committee on merits and it has been approved by the Executive Council. It has not been shown that his selection was not on merits. In these circumstances also it will not be proper to dislodge him from working in the institution. In Rajendra Prasad Srivastava v. District Inspector of Schools, Gorakhpur, 1994 (3) ESC 117 (All), it was held that an employee whose initial appointment may be bad on account of some infirmity therein but if he has been allowed to work for some years under the stay order of the Court, it will be unfair to remove such an employee.” 20. Lastly, for the same proposition the judgment in the case of “H.C. Puttaswamy and others v. The Hon’ble Chief Justice of Karnataka High Court, Bangalore and others, AIR 1991 SC 295 " has been relied upon. 21. At the very out set the Court may record that Section 16 of the Selection Board Act, 1982 declares that if any appointment is made contrary to the provisions of the said Act the same would be void. Section 16 of the Act reads as follows : 16. 21. At the very out set the Court may record that Section 16 of the Selection Board Act, 1982 declares that if any appointment is made contrary to the provisions of the said Act the same would be void. Section 16 of the Act reads as follows : 16. Appointment to be made only on the recommendation of the Board.—(1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the regulations made thereunder but [subject to the provisions of [“Sections 12, 18, 21-B, 21-C, 21-D, 33, 33-1, 33-B, 33-C, 33-D, 33-E and 33-F, every appointment of a teacher, shall on or after the date of the commencement of the Uttar Pradesh Secondary Education Services Selection Board (Amendment) Act, 2001 be made by the management only on the recommendation of the Board”). 22. In the facts of this case the Court has found that the appointment of the petitioner was de hors the statutory provisions applicable as per the Act, 1982 and therefore it has to be treated as void in view of Section 16 of 1982 Act. No amount of judicial discretion under Article 226 of the Constitution of India can infuse life in a dead appointment. 23. The issue with regards to rights of an illegal appointee dispite his continuance under interim orders of High Court for a long duration has been recently considered by the Supreme Court in its judgment in the case of “Pramod Kumar v. U.P. Secondary Education Services Commission and others, 2008(4) ALJ 207”. And after noticing the judgment in the case of State of “Secretary, State of Karnataka and others v. Umadevi(3) and others, 2006 (4) SCC 1 ”, “National Fertilizers Ltd. and others v. Somvir Singh, 2006(5) SCC 493 , and “Mohd. Sartaj and another v. State of U.P. and others, 2006 (1) JT 331 , it has been laid down in para 19 as follows : 19.If the essential educational qualification for recruitment to a post is not satisfied, ordinarily the same cannot be condoned. Such an act cannot be ratified. An appointment which is contrary to the statute/statutory rules would be void in law. An illegality cannot be regularized, particularly, when the statute in no unmistakable term says so. Such an act cannot be ratified. An appointment which is contrary to the statute/statutory rules would be void in law. An illegality cannot be regularized, particularly, when the statute in no unmistakable term says so. Only an irregularity can be (See Secretary, State of Karnataka and others v. Umadevi (3) and others, ( (2006) 4 SCC 1 ) National Fertilizers Ltd. and others v. Somvir Singh, (2006) 5 SCC 493 ) and Post Master General, Kolkata and others v. Tutu Das (Dutta), (2007) 5 SCC 317 ).” 24. The judgment in the case of Naresh Chand (supra) lay down any binding proposition of law as is clear from the opening sentence of para 9 quoted above. The direction has been issued in the facts of the case. Such exercise of jurisdiction is referable to Article 142 of the Constitution of India. 25. The law as explained by the Division Bench of this Court in the case of Dr. Prabhu Narain Saxena (supra) stand impliedly overruled by the judgment of the Apex Court in the case of Pramod Kumar (supra). 26. The judgment in the case of H.C. Puttaswamy deals with the powers of the Hon’ble Chief Justice under Article 229 of the Constitution of India and is clearly distinguishable with the facts of the case in hand. 27. The writ petition is dismissed. —————