Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 273 (ALL)

SANGEETA SINGH v. STATE OF U. P.

2016-01-20

RAKESH SRIVASTAVA

body2016
JUDGMENT Hon’ble Rakesh Srivastava, J.—This writ petition has been filed praying inter alia for the following reliefs : (i) issue a writ, order or direction in the nature of mandamus commanding and directing the respondent No. 2 to grant financial approval to the appointment of the petitioners on the post of assistant teacher in the institution. (ii) issue a writ, order or direction in the nature of mandamus directing the respondent No. 2 to pass appropriate order and release the salary of the petitioner as and when due as per the law month to month. 2. Rashtriya Inter College, Mehrenw, Purenw, Jaunpur (for brevity ‘the College’) is a recognized and aided college and is governed by the provisions of Intermediate Educaiton Act, 1921 and the Regulations framed thereunder. In the College two posts of Assistant Teachers fell vacant due to retirement of Sri Kalka Prasad Singh and Sri Bhola Nath Singh, who retired on 30.6.2002 and 30.6.2007 respectively. A requisiton for selection is alleged to have been sent to the Secondary Education Services Selection Board on 26.5.2014. On 5.9.2015, the Committee of Management of the College issued an advertisement in daily newspapers ‘Tarun Mitra, Aaj’ and ‘Swatantra Bharat’ inviting applications for appointment on two posts of Assistant Teachers in the College. 3. According to the petitioners, they applied for appointment on the said posts alongwith other candidates and after interview they were selected and in pursuance of the recommendation of the Selection Committee, the Committee of Management of the College approved the appointment of the petitioners on the posts in question. Thereafter, on 29.10.2015, the papers pertaining to selection of the petitioners were forwarded to the DIOS (for short ‘DIOS’). As nothing was heard off from the DIOS in this regard, the petitioners have preferred this writ petition. 4. Shri Rajesh Kumar Singh Kaushi, the learned counsel for the petitioners has submitted that the selection of the petitioners was only till regularly selected candidates joined the posts. The counsel relying upon the decision of this Court in Sanjay Singh and others v. State of U.P. and others, 2013 (1) UPLBEC 759, has submitted that in the circumstances, the respondent No. 3 was obliged to accord approval to the appointment of the petitioners. 5. Appointment of teacher in a recognized Intermediate College is governed by the provisions of the U.P. Secondary Education (Service Selection Board) Act, 1982 (for short ‘1982 Act). 5. Appointment of teacher in a recognized Intermediate College is governed by the provisions of the U.P. Secondary Education (Service Selection Board) Act, 1982 (for short ‘1982 Act). As per Section 16 of 1982 Act, the appointment of a teacher in the Intermediate College is to be made only on the recommendation of the Board constituted under the Act and as per sub-section (2) of Section 16 of 1982 Act any appointment made in contravention of the provisions of sub-section (1) of Section 16 is void. 6. Admittedly, the posts of Assistant Teachers in the College fell vacant on substantive basis and in view of the provisions of Section 16 of 1982 Act the appointment on the said posts could only be made on the recommendation of the Board. There is no provision in the 1982 Act, which may empower the Committee of Management to make an ad hoc or temporary appointment against a substantive vacancy, and as such the petitioners could not have been selected for appointment by the Committee of Management of the College. 7. Though under Section 16-E of the Intermediate Education Act, 1921, the Committee of Management has the power to make an appointment but in exercise of the said power, an appointment can only be made against a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months, or in the case of death, termination or otherwise, of an incumbent occurring during an educational session. An appointment made under sub-section (11) of Section 16-E, as provided in the proviso, in any case, shall not continue beyond the end of the educational session during which the appointment was made. 8. In Writ A No. 22520 of 2013, Pradeep Kumar v. State of U.P. and others, a Learned Single Judge of this Court after considering the case of Sanjay Singh (supra) held that an appointment made by the Committee of Management against a substantive vacancy is a nullity. Relevant portion of the said judgment is extracted below : “In these circumstances, merely because the management has made appointment of a person, who is qualified in terms of the Appendix-A, it will not mean that the said appointment is in accordance with law. In view of Section 16 of Act, 1982, it would be a nullity. Relevant portion of the said judgment is extracted below : “In these circumstances, merely because the management has made appointment of a person, who is qualified in terms of the Appendix-A, it will not mean that the said appointment is in accordance with law. In view of Section 16 of Act, 1982, it would be a nullity. No appointment against substantive vacancy can be made except on the recommendation of the Selection Board in view of the law as it stands today. Reference Smt. Prameela Mishra v. State of U.P. and others; 1997 (2) UPLBEC 1329 and Surendera Kumar Srivastava v. State of U.P. and others; 2007(1) ESC 118.” 9. The conflict in the opinion in the case of Sanjay Singh (Supra) and Pradeep Kumar (Supra) was resolved by a Division Bench of this Court in Abhishek Tripathi v. State of U.P. and others, 2016(1) ADJ 603 (DB)(LB), wherein the case of Sanjay Singh was overruled. Para 42 of the judgment is quoted below : “42. For these reasons, we have come to the conclusion that the view of the learned Single Judge in Sanjay Singh’s case (supra) cannot be upheld as laying down the correct postion in law. The view of the learned Single Judge shall stand, accordingly, overrulled. The judgment in Pradeep Kumar (supra) is upheld subject to the principles which, we have enunciated in this judgment.” 10. In view of the above, the reliefs prayed for cannot be granted. 11. The writ petition is devoid of merit and is accordingly dismissed. ——————