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2016 DIGILAW 173 (UTT)

Kapil Dev Upadhyay v. State of Uttarakhand

2016-04-22

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. The petitioner was appointed on a contractual basis as a visiting teacher on the post of Assistant Teacher LT Grade (Drawing) in ‘Rajkiya Ucchatar Madhyamik Vidyalaya Sisona, Block Sitarganj, District Udham Singh Nagar. He claims to have worked in that capacity for three months and thereafter he could not continue due to his illness. Thereafter, he again applied as visiting teacher, but since nothing is being done on it, he has filed the present writ petition seeking writ of Mandamus directing the education authorities to appoint the petitioner as visiting teacher. 2. The scheme of appointment of visiting teachers has been laid down in a Government Order of Uttarakhand dated 13.04.2015, wherein in order to meet a particular contingency at block level, where a post of an Assistant Teacher or a Lecturer in a Government Higher Secondary School or Intermediate School becomes vacant due to illness, retirement, resignation, etc. of a teacher and that vacancy, purely as a stop gap arrangement, can be filled from amongst the pool of teachers known as Visiting Teachers Pool. This Pool is constituted at a block level from amongst eligible candidates. 3. This scheme came to be challenged before this Court in Writ Petition (S/S) No. 598 of 2015, wherein the challenge was that the scheme of visiting teachers is against the mandate of a Constitution Bench Judgment of the Hon’ble Apex Court in the case of Secretary, State of Karnataka and Others v. Umadevi and Others reported in (2006) 4 SCC 1 . Moreover, it does not follow the reservation policy, etc. All the same, that petition was dismissed by this Court on grounds since these appointments (of visiting teachers), were purely temporary in nature, and further it did not debar a person to apply in another block, provided he resides in another block and that being purely a temporary measure to meet a particular contingency, it was held that such a scheme does not violate the provisions of the Constitution of India, as submitted, for the reason that the State here is not giving any “employment”, as it is normally contemplated. It is a temporary measure to meet a contingency, till regular selections are made where “residence” cannot be a criteria. It is a temporary measure to meet a contingency, till regular selections are made where “residence” cannot be a criteria. Moreover, it was made clear that the Government must clarify this aspect to such “teachers” who were being appointed as Visiting Teachers that they were being employed purely for a temporary period and their engagement and being temporary part time visiting teacher will not give them any lien whatsoever for absorption as “teachers” in future. It was held as under: “Primarily such a scheme does not violate the provisions of the Constitution of India as submitted for the reason that the State here is not giving any “employment”. It is a temporary measure to meet a contingency, till regular selections are made when residence cannot be a criteria. Moreover, it is made clear that the government must clarify to such “teachers” that they are being employed for a temporary period and their engagement as temporary part time visiting teacher will not give them any lien whatsoever for absorption as “teachers” in future.” 4. This has been the constant stand of the State Government before this Court that the appointment and filling of Guest Teachers/Visiting Teachers is purely a temporary arrangement to meet a particular contingency so that students may not suffer. 5. Logically, therefore, this temporary arrangement, which is without a due process of law, cannot continue for long, particularly now in the light of the fact that a regular exercise, in accordance with law, has already been made and results have to be declared. For reasons best known to the Government, results are to be declared in a phased manner, more particularly, such posts which are presently occupied by these Guest Teachers/Visiting Teachers are not to be filled. 6. Thereafter, in another bunch of writ petitions (WPSS No. 318 of 2016 being leading writ petition), where though in a regular selection process candidates were selected for the post of Assistant Teacher LT Grade but were not being appointed, as those posts were being occupied by such visiting teachers. Their writ petitions were disposed of by this Court on the assurance/statement given by Ms. Sushma Singh, Regional Additional Director (Intermediate Education) Kumaon Region, Naintial on the instructions from the Government that they shall not renew the period of guest teachers and on such posts the candidates, who have been selected, will be appointed. 7. Their writ petitions were disposed of by this Court on the assurance/statement given by Ms. Sushma Singh, Regional Additional Director (Intermediate Education) Kumaon Region, Naintial on the instructions from the Government that they shall not renew the period of guest teachers and on such posts the candidates, who have been selected, will be appointed. 7. In any case, the scheme for appointment of Guest Teachers was only there to cater to a contingency, where teachers were on leave due to sickness, maternity or any such contingency. These appointments are absolutely temporary and stop gap arrangement and the persons who occupy such posts have absolutely no right to continue on the said post endlessly. All the same, since the decision has been taken by the Government itself not to continue with the Guest Teachers and such posts which were earlier occupied by them will now be filled up by regularly selected candidates, nothing further needs to be said on this. This Court in the judgment dated 11.04.2016 rendered in the said bunch of writ petitions directed to fill all the vacancies of teachers in accordance with law, keeping 10 % posts vacant for “Rajya Andolankaris”, as this was a subject matter pending before the Division Bench of this Court in a Public Interest Litigation. This Court had clearly directed the State Government to declare the result for the Assistant Teacher (LT Grade) forthwith, and to make appointments. 8. In view of the above background, since the guest teachers is not a regular way of appointment of Assistant Teacher, the prayer as sought by the petitioner cannot be granted. In any case, the petitioner has no right to be appointed as Guest Teacher. Moreover, in view of the statement made by the officer concerned in the bunch of writ petitions, referred to above, this Court has been given to understand that the Guest Teachers shall not be appointed any further. 9. Writ petition has no merit and the same is therefore dismissed.