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2011 DIGILAW 488 (ALL)

Bhupendra Singh v. The D. I. O. S.

2011-02-28

ARUN TANDON

body2011
JUDGMENT Hon'ble Arun Tandon, J. Petitioner before this Court seeks quashing of the order dated 12.11.1995 passed by the District Inspector of Schools as also a writ of mandamus directing the respondents to permit the petitioner to work as ad hoc Assistant L.T. Grade teacher and to pay him salary w.e.f. 14.11.1994. 2. Facts in short giving rise to the present writ petition are as follows : Inter College, Dandiya Mai, Shikohabad, Firozabad is an aided and recognized Intermediate College. According to the petitioner one Maharaj Singh who was working as Assistant Teacher (L.T. Grade) was promoted on the post of Lecturer (Civics) as a result whereof a vacancy in L.T. Grade was caused. Against this vacancy the Committee of Management decided to make ad hoc appointment in accordance with the provision of U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order 1981. It has further been stated that no other teacher working in C.T. Grade was eligible for such promotion against the vacancy caused due to grant of promotion to Maharaj Singh as he was teaching English to the junior classes. The petitioner is stated to have been issued an appointment letter on 07.11.1994 and he joined on 14.11.1994. The appointment was approved by the District Inspector of Schools on 03.05.1995 and the petitioner has been continuously working since then. On certain complaints being received by the District Inspector of Schools he passed an order dated 12.11.1995 whereby payment of salary to the petitioner was stopped and explanation in respect of certain facts was called for from the Management. The management is stated to have submitted its reply. Before any final orders could be passed, the petitioner has approached this Court. 3. A counter affidavit has been filed on behalf of the District Inspector of Schools and it has been stated that the post of Lecturer (Civics) was created in the institution on 29.04.1978 no appointment was made on the said post for nearly 16 years, therefore, in accordance with Regulation 20 of Chapter II of the regulations framed under the Intermediate Education Act, 1921 (as was then applicable), the post stood lapsed/surrendered. No appointment against such a post could be made unless fresh sanction was obtained from the Director. It has therefore, been stated that promotion of Maharaj Singh was illegal. Consequently there was no vacancy against which the petitioner could be appointed. No appointment against such a post could be made unless fresh sanction was obtained from the Director. It has therefore, been stated that promotion of Maharaj Singh was illegal. Consequently there was no vacancy against which the petitioner could be appointed. On merits it has also been stated that the appointment of the petitioner has been made contrary to the law laid down by the Full Bench of this Court in the case of Km. Radha Raizada vs. Committee of Management, V.D.B.I.C. and others reported in 1994 UPLBEC, 1551 as the vacancy had not been advertised in accordance with the statutory provisions applicable. It has lastly been stated that there were qualified teachers in C.T. Grade entitled for promotion against the vacancy but their promotion has not been considered and direct recruitment was illegally resorted to. 4. A counter affidavit has also been filed by the respondent no. 3 and it has been stated that Maharaj Singh was appointed/working as Assistant Teacher in L.T.Grade since 1977 and the vacancy caused due to promotion of Maharaj Singh was required to be filled by promotion at the first instance. It is stated that the respondent no. 3 who was working as C.T. Grade teacher was M.A./B.Ed. And was qualified for such promotion. 5. A rejoinder affidavit has been filed on behalf of the petitioner and along with the rejoinder affidavit an advertisement published in Hindi newspaper Dainik Jantantra has been brought on record and further it is contended that respondent no. 3 is not eligible for such promotion as he was not qualified to teach English which was one of the subject taught by Maharaj Singh. 6. I have heard learned counsel for the parties and have gone through the records of the present writ petition. Following facts emerge from the records : (a) Maharaj Singh was appointed as L.T. Grade teacher in the year 1977. (b) Post of Lecturer (Civics) was created in the year 1978. (c) Qualification in the matter of promotion on the post of Lecturer has to be considered with reference to the date of occurrence of vacancy (in the facts of the case the date of creation of the post) and on the relevant date the teacher concerned Maharaj Singh should have completed 5 years of service as L.T. Grade teacher. 7. (c) Qualification in the matter of promotion on the post of Lecturer has to be considered with reference to the date of occurrence of vacancy (in the facts of the case the date of creation of the post) and on the relevant date the teacher concerned Maharaj Singh should have completed 5 years of service as L.T. Grade teacher. 7. It is admitted that Maharaj Singh did not possess such 5 years teaching experience and there could not have been any promotion of Maharaj Singh against the said post. It is further apparent from records that the vacancy was never requisitioned and further the relevant facts which could disclose as to whether the vacancy fell within the promotion quota or direct recruitment quota have not been disclosed. This Court further finds that the vacancy is alleged to be advertised in a newspaper which is not widely circulated and even otherwise there is no material on record to establish that the procedure prescribed for ad hoc appointment under the Removal of Difficulties Order (Second) had been followed. The plea that respondent no. 3 was not qualified for the post of L.T. Grade teacher also does not appeal to the Court inasmuch as qualifications are to be judged with reference to the post against which Maharaj Singh was working and not with reference to one of the subjects which was being taught by him. 8. The aforesaid exercise had not been undertaken at any level by the District Inspector of Schools before approving the alleged appointment of Maharaj Singh. The law laid down in the case of Km. Radha Raizada (Supra) has also not been followed. 9. There is no explanation qua the plea now raised on behalf of the District Inspector of Schools that the post of Lecturer (Civics) stood lapsed in view of Regulation 20 of Chapter II of the regulations framed under the Intermediate Education Act, 1921 on the relevant date. Lastly it is not the case of the petitioner that Maharaj Singh was appointed against the post of L.T. Grade teacher (English) in the institution. 10. In the totality of the circumstances as noticed herein above, this Court finds that in absence of material facts being on record, no relief as prayed for can be granted by this Court under Article 226 of the Constitution of India. 11. Writ petition is accordingly dismissed. 12. 10. In the totality of the circumstances as noticed herein above, this Court finds that in absence of material facts being on record, no relief as prayed for can be granted by this Court under Article 226 of the Constitution of India. 11. Writ petition is accordingly dismissed. 12. Interim order, if any, stands discharged.