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2016 DIGILAW 2373 (ALL)

RAM ASHREY CHAUBEY v. STATE OF U. P.

2016-07-08

ARUN TANDON, SUNITA AGARWAL

body2016
ORDER : 1. Heard Shri C.K. Parekh learned counsel for the appellant and Shri Shailendra on behalf of respondents. 2. By means of the present appeal, the appellant Ram Ashrey Chaubey, an Assistant Teacher in Sri Sankat Mochan Uchchattar Madhyamik Vidyalaya, Singhpur, Sarnath, Varanasi has challenged the interim order dated 9.6.2016 passed by the learned Single Judge in Writ Petition No.28205 of 2016 (Onkar Nath Shukla v. State of U.P. & Others). 3. This case has a chequered history. It appears that a dispute arose for the post of Officiating Principal in the institute on account of death of permanent Principal Sri Kali Shanker Shukla on 28.1.1989 with regard to inter se seniority of the teachers who were claiming ad-hoc appointment as such. These three teachers were Sri Lal Ji Pandey, Sri Saroj Kumar Singh and Sri Onkar Nath Tripathi. Various writ petitions were filed and amongst them, three writ petitions were decided together on 23.4.2008. One writ petition filed by Saroj Kumar Singh was subsequently decided on 25.8.2008 with the direction to the District Inspector of Schools to decide the dispute. 4. Pursuant to the directions of this Court, the District Inspector of Schools, Varanasi considered the claim of three teachers namely Saroj Kumar Singh, Onkar Nath Shukla and Lal Ji Pandey and passed an order dated 22.5.2008. It was found that Lal ji Pandey was promoted in L.T. Grade subject to the interim order passed by this Court in the pending writ petition. 5. With regard to Saroj Kumar Singh, it was found that he was given pay-scale of L.T. Grade teacher but has not been absorbed against any substantive post. Onkar Nath Shukla, who was absorbed in L.T. Grade on 18.8.1990 was found to be the senior most teacher in the institution and a direction was given to the management to certify his signatures as Officiating Principal. 6. In the meantime, the post of Principal which was requisitioned to the Board, was sought to be filled under U.P. Secondary Education Services Selection Board, Act, 1982. One Sudhakar Dwivedi was recommended for placement vide Selection Board's Notification dated 29.6.2009. 7. This placement order was challenged by Onkar Nath Shukla, before this Court in Writ Petition No.56108 of 2009 (Onkar Nath Shukla v. State of U.P. & Others) i.e. the respondent No.5 in the present appeal. 8. One Sudhakar Dwivedi was recommended for placement vide Selection Board's Notification dated 29.6.2009. 7. This placement order was challenged by Onkar Nath Shukla, before this Court in Writ Petition No.56108 of 2009 (Onkar Nath Shukla v. State of U.P. & Others) i.e. the respondent No.5 in the present appeal. 8. The ground of challenge raised therein to the placement order of the selected candidate was that pursuant to the resolution of the Committee of Management dated 10.11.1991, Onkar Nath Shukla was given charge of the Officiating Principal vide order dated 13.11.1991 and since then he was discharging the duties of Principal of the institution. He claimed that being the senior most teacher and ad-hoc Principal, his name should have been recommended for consideration against the post of Principal with reference to Rule 11(2)(b) of the U.P. Secondary Education Services Selection Board, Rules, 1998 (hereinafter referred to 'the Rules, 1998'). No notice whatsoever was issued by the management for sending names of two senior most teachers of the institution and no information was ever received by the petitioner therein regarding consideration of his name before selection and as such the direct recruitment/placement by the Board on the post of Principal was illegal. It is noteworthy that the selection process for the post of Principal had commenced with the Advertisement published in the year 2002. 9. Simultaneously, the petitioner therein namely Onkar Nath Shukla also pleaded that he was entitled for regularization on the post of Principal in accordance with Section 33-C of U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as 'the Act, 1982') as he was appointed on ad-hoc basis against a substantive vacancy prior to the cut off date i.e. August 6, 1993. The submission was that there was no occasion for appointment of the candidate recommended by the Board in view of the pending claim for regularization of the petitioner therein under the Act, 1982. In the aforesaid writ petition, initially counter affidavit was called for. The learned counsel for the Board was directed to file counter affidavit demonstrating as to how two senior-most teachers had been called upon to attend the interview. 10. It appears that in the aforesaid writ petition an Impleadment Application has been filed by Ram Ashrey Chaubey, the appellant herein but no order was passed on the same. No counter affidavit has been filed by the respondents till date. 11. 10. It appears that in the aforesaid writ petition an Impleadment Application has been filed by Ram Ashrey Chaubey, the appellant herein but no order was passed on the same. No counter affidavit has been filed by the respondents till date. 11. The record indicates that an interim order dated 7.11.2009 was passed by this Court in the said Writ Petition No.56108 of 2009 directing that the parties shall maintain status quo with regard to the post in question. 12. In the meantime, Ram Ashrey Chaubey, the appellant herein filed Writ Petition No.43915 of 2014 (Ram Ashrey Chaubey v. State of U.P. & Others) with the prayer for quashing of the orders dated 28.8.2008 and 2.7.2014 passed by the District Inspector of Schools, rejecting his representation. 13. The order passed by the District Inspector of Schools dated 2.7.2014, records that the dispute regarding seniority of the teachers in the institution in question had already been settled vide order dated 28.8.2008. Sri Ram Ashrey Chaubey submitted his representation on 1.7.2013 i.e. after long delay and as such there was no reason to reopen the issue. 14. The appellant Ram Ashrey Chaubey assailed the aforesaid orders on the ground that his claim of seniority was not considered at all though he was an interested person. The initial appointment of Onkar Nath Shukla itself was illegal. 15. It has been stated in three paragraph Nos. 6, 7 & 8, of the writ petition that the petitioner Sri Ram Ashrey Chaubey being reserved pool teacher had been duly selected and appointed on 10.12.1986 under Section 21-D (1) read with Section 21-C (2) of the Act 1982, on the post of L.T. Grade teacher in the institution. He was given joining by the management on 12.12.1986 and as such he is the senior most teacher in the institution. Further, there has been no dispute regarding his seniority based on his position as L.T. Grade teacher appointed on 12.12.1986 and that he had a valid claim for promotion as Officiating Principal. 16. Thus following three persons have claimed their appointment/posting as Officiating Principal/Principal of the institution. (1) Onkar Nath Shukla who was given the charge as Officiating Principal by the Committee of Management on 13.11.1991, claims to be the senior most teacher. (2) Sri Sudhakar Dwivedi who was selected by the Selection Board and notified for placement as regular Principal in the institution on 29.6.2009. (1) Onkar Nath Shukla who was given the charge as Officiating Principal by the Committee of Management on 13.11.1991, claims to be the senior most teacher. (2) Sri Sudhakar Dwivedi who was selected by the Selection Board and notified for placement as regular Principal in the institution on 29.6.2009. (3) Sri Ram Ashrey Chaubey who claims to be senior to Onkar Nath in the institution having been appointed as L.T. Grade teacher on 12.12.1986, whereas as per his claim Sri Onkar Nath Shukla was appointed as L.T. Grade teacher on 18.8.1990. 17. Admittedly, the post of Principal for which these three persons stake their claim fell vacant on 28.1.1989 on account of the death of regular Principal. 18. There is nothing on record to show as to what has happened to the placement of Sudhakar Pandey who was selected by the Selection Board. He has never turned up before this Court though his placement was challenged in writ petition filed by Onkar Nath Shukla in the year 2009. 19. We are, therefore, concerned with the claim of Onkar Nath Shukla and Ram Ashrey Chaubey regarding appointment as Officiating Principal of the institution. 20. It appears that while considering the claim of Onkar Nath Shukla for regularization on the post of Principal, an inquiry was initiated to look into the validity of his appointment as L.T. Grade Teacher. The Enquiry Officer submitted his report on 13.7.2015 to the District Inspector of Schools who in turn sought guidance from the Joint Director of Education, Varanasi Division Varanasi vide letter dated 14.8.2015. 21. It appears that no response had been received and hence considering the report of the Enquiry Officer a decision was taken to stop salary of Onkar Nath Shukla till the direction/order of the Joint Director of Education. 22. In reply thereto, the Joint Director of Education vide letter dated 19.5.2016 directed the District Inspector of Schools to take action in the matter at his own level. 23. In writ petition No.28205 of 2016, the submission of Onkar Nath Shukla is that it was not open for the District Inspector of Schools to enquire into the correctness of his initial appointment in view of the earlier order dated 28.8.2008. The contention is that the petitioner is entitled for regularization on the post of Principal, salary and other consequential benefits, attached to the post. 24. The contention is that the petitioner is entitled for regularization on the post of Principal, salary and other consequential benefits, attached to the post. 24. So far as Writ Petition No.43915 of 2004 is concerned, Sri Ram Ashrey Chaubey, the petitioner therein has assailed the appointment of Onkar Nath Shukla as Officiating Principal and, further sought quashing of the orders dated 28.8.2008 & 2.7.2014 passed by the District Inspector of Schools. 25. The specific contentions therein are that Onkar Nath Shukla did not possess the requisite qualification for appointment as C.T. Grade Teacher. He was not appointed against the substantive vacancy of L.T. Grade Teacher and, therefore, he could not have been appointed as Officiating Principal under Section 18 of the Act 1982. His claim for regularization is incorrect as his initial appointment in the Feeding Cadre itself was bad. 26. In the light of the above facts, to deal with the controversy in hand it would be apt to go through the legal provisions relevant in this regard:- Section 33 C of the Act, 1982 provides for regularization of certain classes of appointment, on the recommendation of the duly constituted Selection Committee comprising of Regional Joint Director of Education as the Chairman, Regional Deputy Director of Education (Secondary) and Regional Assistant Director of Education. The regularization is to be considered by the said Committee looking to the factors given therein:- Section 33 C(1)(a)(ii) contemplates three pre-requisite conditions for regularization:- (1) Ad-hoc promotion must have been made on or after July 31, 1988 but prior to August 6, 1993. (2) It should be an appointment on ad-hoc basis made against the substantive vacancy, in accordance with Section 18 of the Act 1982. (3) The incumbent must possess prescribed qualifications under the Act, 1921, on the date of such ad-hoc promotion. (4) He has been continuously serving the institution from the date of such appointment up to the date of commencement of the Amendment Act 1998. 27. Section 18 of the Act, 1982 as it then was provides that where the manager had notified the vacancy to the Board in accordance with Sub-Section (1) of Section 10 and the post of Principal was not filled for a period of one year on account of inaction of the Board or had actually remained vacant for more than two months then, the management was empowered to appoint a person on purely ad-hoc basis. 28. Section 18, thus, contemplated that the power of the management to make ad-hoc appointment of Principal was subject to fulfilment of the pre-requisite condition that the vacancy had been notified to the Selection Board and the Board had failed to recommend a suitable candidate within one year from the date of such notification or the post remained actually vacant for more than two months after notification. 29. Thus, to examine the claim of Onkar Nath Shukla for regularization on the post of Principal as per Section 33-C(1) (a)(ii) of the Act 1982, it has to be ascertained that the management had fulfilled the conditions as prescribed under Section 18 of the Act, 1982 before making his appointment as ad-hoc Principal on 13.1.1991. The date of notification of vacancy by the management is not on record and as such no observation in this regard can be made. Further in view of the facts brought on record of Writ Petition No.43915 of 2014 by Ram Ashrey Chaubey and the letter dated 3.3.2016 of the District Inspector of Schools, the correctness of the appointment of Onkar Nath Shukla as L.T. Grade Teacher in the institution in question is also to be examined. The reason is that his appointment/regularization on the post of Principal is dependent upon the fact that he was appointed against the substantive post of L.T. Grade teacher in accordance with law and possessed requisite eligibility criteria for the post of Principal. 30. So far as Ram Ashrey Chaubey is concerned, his claim regarding appointment as ad-hoc Principal in the institution in question has not been examined on merits by the District Inspector of Schools. 31. In view of the above, we find that there are several disputed questions of fact in the matter which require examination by a Competent Authority under the U.P. Intermediate Education Act, 1921. 32. We, therefore, dispose of all the writ petitions and the Special Appeal with the direction that the Joint Director of Education, Varanasi Region, Varanasi shall consider the claim of Onkar Nath Shukla for regularization on the post of Principal keeping in view the observations made above. 33. At the same time, the claim of Ram Ashrey Chaubey as also the claim of other selected candidate from the Selection Board shall also be considered. 33. At the same time, the claim of Ram Ashrey Chaubey as also the claim of other selected candidate from the Selection Board shall also be considered. The comments/relevant records of the Committee of Management of the institution in question shall be obtained/summoned before taking such decision. The entire exercise shall be completed by respondent No.2 namely the Joint Director of Education, Varanasi Region, Varanasi within a period of two months from the date of filing of the certified copy of this order after putting notice to all the parties concerned.