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2018 DIGILAW 2393 (ALL)

Satish Chandra Srivastava v. State Of U. P.

2018-11-22

PRADEEP KUMAR SINGH BAGHEL, SALIL KUMAR RAI

body2018
JUDGMENT : 1. This Special Appeal arises out of the judgment of the learned Single Judge dated 09.07.2014 whereby the Court has refused to interfere in the order passed by the District Inspector of Schools (for short the “D.I.O.S”.) whereby the appointment of the petitioner/appellant has been held to be illegal on the ground that in spite of the ban imposed by the State Government the Committee had appointed the petitioner/appellant on the post of the Lecturer in Mathematics. 2. In brief the facts are these; Shri Shankar Ji Inter College, Pushpa Nagar, Azamgarh is a recognized institution. It receives financial aid from the State and it is governed under the provisions of the Uttar Pradesh Intermediate Education Act, 1921; the U.P. High Schools And Intermediate Colleges (Payment Of Salaries Of Teachers And Other Employees) Act, 1971 and the U.P. Secondary Education Services Selection Board Act, 1982. The case of the petitioner/appellant is that a post of Lecturer in Mathematics fell vacant on 09.08.1983. The Committee of Management notified the vacancy and when no selection was made by the U.P. Secondary Education Board (for short the “Board”), an advertisement was issued on 24.04.1994. It is stated that the petitioner was selected on the said post on ad hoc basis. The Committee of Management issued an appointment letter on 01.08.1994. It is stated that no L.T. Grade teacher was eligible for the post of Lecturer. The petitioner claims that he possesses the essential qualification and has excellent academic record. He passed his all educational qualification in first division. He did post graduation by securing 70% marks and 78% marks were secured by him in B.Ed. The Committee of Management sent all the papers to the office of the D.I.O.S. for his financial approval. 3. When no decision was taken by the D.I.O.S., the petitioner preferred a Writ Petition No.17986 of 1995, which was disposed of on 06.07.1995 directing the respondent no.2 to consider the claim of the petitioner. The Principal of the Institution in his communication dated 08.09.1995 addressed to the respondent no.2 made a request for approval of the appointment of petitioner/appellant. The D.I.O.S. passed an order declining the approval only on the ground that there was a ban by the State Government on the appointment of Lecturer on ad hoc basis. Aggrieved by the said order the petitioner/appellant preferred Writ Petition No. 23410 of 1996. The D.I.O.S. passed an order declining the approval only on the ground that there was a ban by the State Government on the appointment of Lecturer on ad hoc basis. Aggrieved by the said order the petitioner/appellant preferred Writ Petition No. 23410 of 1996. The petitioner/appellant is continuing to work since his date of appointment in the year 1994. By the impugned order the learned Single Judge dismissed the writ petition on the ground that the appointment of the petitioner/appellant itself was bad in view of the judgment of this Court in Radha Raizada Vs. Committee of Management, 1994 (2) ESC 345 (FB). 4. Aggrieved by the said order the petitioner/appellant has preferred this appeal. Sri Ashok Khare, learned Senior Advocate assisted by Mr. Atul Pandey, learned counsel appearing for the petitioner/appellant, submits that the initial appointment of the petitioner/appellant was made after full compliance of the procedure provided in the U.P. Secondary Education Services Selection Board Act, 1982 and the D.I.O.S. has rejected the resolution of the Committee of Management seeking the financial assistance only on the ground that at the time of appointment of the petitioner/appellant the State Government had imposed a ban in the year 1981. Learned Counsel for the petitioner/appellant further submits that the said ban was lifted by the State Government vide an order dated 26.09.1981, hence, there was no prohibition on the ad hoc appointment either in the year 1994 or in the year 1995 or 1996. It was next submitted by Sri Khare that the learned Single Judge has proceeded to dismiss the writ petition on fresh ground and has not expressed any opinion on the issue of ban imposed by the State Government. Lastly, it was urged that the appointment on ad hoc basis under Section 18 of the U.P. Secondary Education Services Selection Board Act, 1982 is entirely different than the ad hoc appointment under the Removal of Difficulties Order, 1981. The learned Standing Counsel has supported the judgment of the learned Single Judge. 5. We have heard learned counsel for the parties and perused the record. 6. The appointment of the petitioner/appellant on ad hoc basis was made in the year 1994 and he is working since then continuously. The learned Standing Counsel has supported the judgment of the learned Single Judge. 5. We have heard learned counsel for the parties and perused the record. 6. The appointment of the petitioner/appellant on ad hoc basis was made in the year 1994 and he is working since then continuously. A perusal of the order of the D.I.O.S. shows that he has declined to accord the financial approval only on the ground that at the time when the petitioner/appellant was appointed, the ban imposed by the State Government was in operation. No other ground has been mentioned. 7. In our view, the learned Single Judge without considering the said issue has examined the initial appointment of the petitioner/appellant and who has recorded the finding regarding the said issue. The ground on which the learned Single Judge has declared the initial appointment of the petitioner/appellant void ab initio was not a ground on which the D.I.O.S. has rejected his approval. No such argument was raised by the learned Standing Counsel before the learned Single Judge, which is evident from the order itself. 8. We do not find any material on the record which indicates that the ground mentioned by the learned Single Judge has been raised before the learned Single Judge. Hence, we are of the view that the parties should have confined their case only on the pleadings and the reasons recorded in the impugned order. 9. As regards the impugned order in the writ petition passed by the D.I.O.S. is concerned, as noted above, the only reason recorded in the impugned order is that the appointment of the petitioner/appellant was illegal as it was made during the ban imposed by the State Government vide Government Order dated 17.07.1991. The issue with regard to the Government order dated 17.07.1991, whereby the ban was imposed came to be considered by the learned Single Judge in Writ-A No.48889 of 1999, Umakant Mishra & Others Vs. D.I.O.S. & Others. In the said case the Court has held that the said Government Order was superseded vide Government Order dated 26.09.1991 and the ban was lifted. D.I.O.S. & Others. In the said case the Court has held that the said Government Order was superseded vide Government Order dated 26.09.1991 and the ban was lifted. Relevant part of the order reads as under: “In so far as first ground is concerned the appointment was made on short term vacancies in 1993 whereas the alleged ban was lifted by the State Government itself vide G.O. Dated 26.9.1991, and thus at the time of making recruitment there was no ban.” 10. In Gambhir Singh Another Vs. D.I.O.S. And Another, 2013 (4) ALJ 221, this Court has held that the ban was lifted on 26.09.1991, thus, it was operative from 29.6.1991 to 26.9.1991 for a brief period of three months. 11. A perusal of the impugned order shows that the D.I.O.S. has not considered the matter in the proper prospective, hence, we find that the orders of the learned Single Judge dated 09.07.2014 and the D.I.O.S. Dated 18.06.1996 are vitiated on the ground above. Accordingly, both the orders are set aside. It is pertinent to mention that while the Special Appeal was pending, the State Government promulgated the U.P. Secondary Education Service Selection Board (Amendment) Act, 2016 (U.P. Act No. 7 of 2016) whereby Section 33-G has been inserted in U.P. Act No. 5 of 1982 whereby the ad hoc teachers appointed prior to 25.01.1999 have been conferred entitlement for regularization. A copy of the gazette extract dated 22.03.2016 is on the record as Annexure SA-1. For the reasons mentioned above, we are of the view that the case of the petitioner/appellant for regularization be also considered by the D.I.O.S. in the light of the observations made hereinabvoe. The D.I.O.S. shall pay regard to the fact that the petitioner/appellant is working since his initial date of appointment and he has been regularly paid salary from the State fund under the provisions of the U.P. High Schools And Intermediate Colleges (Payment Of Salaries Of Teachers And Other Employees) Act, 1971. The D.I.O.S. shall pass a fresh order expeditiously preferably within three months from the date of communication of this order. 12. The Special Appeal is allowed.