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Allahabad High Court · body

2012 DIGILAW 1931 (ALL)

Santosh Kumar v. State of U. P. & Ors.

2012-08-27

RATES KUMAR

body2012
Rajes Kumar, J.;— Heard Sri Siddharth Khare, learned counsel for the petitioner and Sri Pankaj Rai, learned Additional Chief Standing Counsel for the respondents. The brief facts of the case are that one Sri Raja Ram Yadav, Lecturer in Economic in Shri Purshottam Singh Inter College, Rajendra Nagar, Farrukhabad retired on 30.6.1991.As a result of his retirement, on 1.7.1991 one substantive post of Economic Lecturer in Economics had fallen vacant. It appears that to fill up the said vacancy under 50% promotion quota the Committee of Management had sent a letter No. 42/91/92 dated 20.8.1991 to Deputy Director of Education, Kanpur Region, Kanpur for sending the same to the Secretary, Madhyamik Shiksha Sewa Ayog, Allahabad. Further the Committee of Management had sent a letter No. 39/91-92 dated 1.10.1991 for the approval of promotion of Sri Bireshwar Singh under 50% promotion quota under Section 18 of Act No. 5 of 1982. Meanwhile, it appears that the Committee of Management has passed a resolution dated 30.6.1991 for the ad hoc promotion of Sri Bireshwar Singh w.e.f. 1.7.1991 and sent the same for approval to the District Inspector of Schools which has been approved on 4.1.1992 under 50% promotion quota. In para 7 of the writ petition, it is stated that the Committee of Management undertook proceeding for making ad hoc appointment against the aforesaid vacancy of Assistant Teacher in L.T. grade. By means of a notice dated 5.8.1991 the management invited application for making ad hoc appointment against the aforesaid vacancy of Assistant Teacher in L.T. grade. In pursuance thereto the petitioner also applied for appointment. The resolution was passed by the Committee of Management appointing the petitioner on 25.8.1991 and appointment letter dated 26.8.1991 was issued to the petitioner for the appointment of Assistant Teacher in L.T. grade against the short term vacancy. The petitioner took the charge on 30.8.1991. The Management has forwarded all the papers to the District Inspector of Schools for grant of final sanction. By the impugned order dated 17.2.1993 the District Inspector of Schools has refused to grant approval which is impugned in the present writ petition. The District Inspector of Schools has declined to grant approval mainly on the ground that on 30.8.1991 there was no vacancy for L.T. grade teacher. By the impugned order dated 17.2.1993 the District Inspector of Schools has refused to grant approval which is impugned in the present writ petition. The District Inspector of Schools has declined to grant approval mainly on the ground that on 30.8.1991 there was no vacancy for L.T. grade teacher. The ad hoc promotion of Sri Bireshwar Singh on the post of Lecturer in Economics was approved on 4.1.1992 and prior to that there was no vacant post for L.T. Grade teacher, secondly, by the Government Order dated 30.8.1991 a ban has been imposed on the appointment. Sri Siddharth Khare, learned counsel for the petitioner submitted that in view of Full Bench decision of this Court in the case of Radha Raizada and others Vs. Committee of Management, Vidyawati Darbari Girl's Inter College and others, reported in 1994 (3) UPLBEC 1551 , there was no requirement to take the approval of ad hoc promotion. He submitted that the post had fallen vacant on 30.6.1991 and, therefore, the Committee of Management had full power to make ad hoc promotion. The Committee of Management had also power to notify the short term vacancy and accordingly the same was notified on 5.8.1991 after passing the resolution dated 30.6.1991, promoting Sri Bireshwar Singh on the post of Lecturer. Therefore, the short term vacancy arose on 30.6.1991 and accordingly the short term vacancy was notified on 5.8.1991 was in accordance to law. Sri Pankaj Rai, learned Additional Chief Standing Counsel submitted that when the vacancy arose on account of retirement of Sri Raja Ram Yadav on 30.6.1991 to fill up the said post, the Committee of Management itself wrote a letter dated 20.8.1991 to the Secretary, Madhyamik Shiksha Sewa Ayog, Allahabad and further by letter dated 1.10.1991 wrote a letter for the promotion of Sri Bireshwar Singh under 50% promotion quota. Therefore, in accordance to Section 18 (1) of Act No. 5 of 1982 where the management has notified a vacancy to the Commission in accordance with the provisions of the Act, and the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher specified in the Schedule within one year from the date of such notification; or the post of such teacher has actually remained vacant for more than two months, then, the management may appoint, by direct recruitment or promotion, a teacher purely on ad hoc basis from amongst the persons possessing qualifications prescribed under the U.P. Intermediate Education Act, 1921 or the regulation made thereunder. In the present case by the letter dated 20.8.1991 to the Secretary, Madhyamik Shiksha Sewa Ayog, Allahabad the vacancy has been notified to the Commission and, therefore, the Committee of Management has only been vested with the power to appoint by direct recruitment or promotion of a teacher, on purely ad hoc basis in case if the post remained vacant for more than two months, while in the present case, as per the own admission of the petitioner in para 7 of the writ petition the vacancy has been notified on 5.8.1991, without waiting for two months, the Committee of Management had no power to pass a resolution dated 30.6.1991 relating to the promotion of Sri Bireshwar Singh on ad hoc basis. Such resolution by itself was contrary to the provisions of Section 18 of the Act. In any view of the matter till the resolution of promotion of Sri Bireshwar Singh is approved by the District Inspector of Schools on 4.1.1992 the vacancy was not fallen vacant for the appointment of L.T. grade Teacher. Notifying the vacancy on 5.8.1991 inviting the application for making ad hoc appointment of the Assistant Teacher in L.T. grade was wholly unjustified. He further submitted that in view of the Full Bench decision of this Court in the case of Radha Raizada and others Vs. Committee of Management, Vidyawati Darbari Girl's Inter College and others (supra) for filling up short term vacancy the procedure provided under paragraph 5(2) of the First Removal of Difficulties Order, 1981 has to be followed, namely, the vacancy should be published in two newspapers but the said procedure has not been followed, therefore, the appointment is abinitio illegal. Committee of Management, Vidyawati Darbari Girl's Inter College and others (supra) for filling up short term vacancy the procedure provided under paragraph 5(2) of the First Removal of Difficulties Order, 1981 has to be followed, namely, the vacancy should be published in two newspapers but the said procedure has not been followed, therefore, the appointment is abinitio illegal. I have considered the rival submissions and perused the record. There is no dispute that the substantive post of Economics Lecturer had fallen vacant on 1.7.1991 on account of retirement of Sri Raja Ram Yadav on 30.6.1991. The Committee of Management by the letter dated 20.8.1991 had notified the vacancy to the Secretary, Madhyamik Shiksha Sewa Ayog, Allahabad and further had also wrote a letter dated 1.10.1991 for the promotion of Sri Bireshwar Singh under 50% promotion quota and, therefore, under Section 18 (1) of the Act the management has only power to appoint by direct recruitment or promotion of a teacher on purely ad hock basis in case if the post remained vacant for more than two months. Therefore, the resolution dated 30.6.1991 for the promotion of Sri Bireshwar Singh on ad hoc basis itself was illegal and contrary to the provisions of Section 18 of Act No. 5 of 1982 as amended time to time. Moreover, the approval of the resolution dated 30.6.1991 relating to the ad hoc promotion of Sri Bireshwar was granted on 4.1.1991 thus prior to the approval Sri Bireshwar Singh could not be promoted on ad hoc basis on the post of Lecturer and only on the said date the short term vacancy of L.T. grade teacher has fallen vacant. Learned Additional Chief Standing Counsel submitted that the record reveals that Sri Bireshwar Singh received salary of L.T. grade teacher up to 4.1.1992 and thereafter he received salary of Lecturer. In view of the above, on 5.8.1991 there was no short term vacancy and, therefore, the committee of management has illegally notified the vacancy on 5.8.1991. Morevover, in the case of Radha Raizada and others Vs. Committee of Management, Vidyawati Darbari Girl's Inter College and others (supra) the Full Bench has held that in case of ad hoc appointment, the procedure as contemplated under Para 5 (2) of the First Removal of Difficulties Order, 1981 be followed. The said procedure has not been followed in the present case. Committee of Management, Vidyawati Darbari Girl's Inter College and others (supra) the Full Bench has held that in case of ad hoc appointment, the procedure as contemplated under Para 5 (2) of the First Removal of Difficulties Order, 1981 be followed. The said procedure has not been followed in the present case. In view of the above, I do not find any error in the order which requires interference by this Court. The writ petition fails and is dismissed. _____________