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2018 DIGILAW 991 (ALL)

VIJAY KUMAR SHUKLA v. STATE OF U. P.

2018-04-23

AJIT KUMAR

body2018
JUDGMENT Hon’ble Ajit Kumar, J.—Heard Sri K. Shahi, learned counsel for the petitioner and the learned Standing Counsel for the State respondents. 2. The petitioner before this Court is aggrieved by order passed by the Regional Joint Director of Education, Gorakhpur Region, Gorakhpur dated 20.7.2005 passed in compliance of the order of this Court dated 28.5.1999, whereby, direction was issued to consider the merit of the claim of petitioner for regularization. The said writ petition has questioned the order dated 17.8.1991, whereby, the financial approval to the petitioner’s appointment was refused on the ground that there was a ban on ad-hoc appointment against short term vacancy in L.T. Grade. Since the order of year 1991 passed by District Inspector of Schools (hereinafter to be referred as ‘DIOS’) refusing to accord financial approval, it appears, did not come to be quashed while passing the order dated 28.5.1999 in writ petition No. 9136 of 1992, it transpires from the record that the Regional Joint Director of Education proceeded to hold that his appointment even otherwise was invalid and that he cannot be treated to be validly continuing in service and the benefit provided for in terms of Section 33-B cannot be granted. 3. This is third round of litigation before this Court in the matter of claim of valid appointment and consequential regularization in view of the amendment being introduced in U.P. Secondary Education Service Selection Board Act, 1982 (hereinafter to be referred as ‘Act No. 5 of 1982’) from time to time. The claim of the petitioner is that inspite of his selection being made validly by the Committee of Management following the procedure as prescribed for under [U.P. Secondary Education Services Commission (Removal of Difficulties)(Second) Order, 1981 (hereinafter to be referred as ‘Second Removal of Difficulties Order, 1981’)], and on the papers thereof having been forwarded by within time on 20.7.1991, it was a duty incumbent upon the DIOS to have communicated the Committee of Management about his decision. Since the DIOS did not act upon the proposed within stipulated period of time in view of the fiction of deemed approval being created under the Second Removal of Difficulties Order, 1981', the petitioner was appointed by Committee of Management vide appointment letter dated 2.8.1991 and this is how he came to be working in the Institution since 2.8.1991. Since the DIOS did not act upon the proposed within stipulated period of time in view of the fiction of deemed approval being created under the Second Removal of Difficulties Order, 1981', the petitioner was appointed by Committee of Management vide appointment letter dated 2.8.1991 and this is how he came to be working in the Institution since 2.8.1991. The relevant paragraphs with regard to non communication of decision being made by DIOS to the Institution even after papers being forwarded to him contain are reproduced hereunder: “12. That on the basis of the resolution passed by the Committee of Management dated 19.7.1991 the Manager of the Committee of Management forwarded the relevant papers relating to the appointment of petitioner before the District Inspector of Schools, Deoria on 20.7.1991 for granting the financial approval. A true copy of the letter of the Manager of the Committee of Management dated 20.7.1991 is being filed herewith and marked as Annexure No. 2 to this writ petition. 13. That the letter dated 20.7.1991 of the Manager of the Committee of Management was received by the office of District Inspector of Schools, Deoria on 22.7.1991 but the District Inspector of Schools, Deoria had failed to communicate his decision within the period prescribed under rule 2 of U.P. Secondary Education Service Selection Board (Removal of Difficulties Order) (Second), 1981. The rule (2) of the second Removal of Difficulties Order provides that if the District Inspector of Schools, Deoria had failed to communicate his decision within seven days of the receipt of papers then the adhoc appointment will be deemed to be approved.” 4. In reply to the same, vide para 5 of the counter-affidavit, sworn by the then Associate DIOS, Deoria on behalf of all the four State respondents, it is stated that this very selection and appointment was made during the ban imposed by the State Government and therefore, no approval could have been granted and that is how the first order dated 17.8.1991 was passed refusing financial approval. Para 5 of the counter-affidavit reads as under: “5. That in reply to the contents of paragraph Nos. 9, 10, 11, 12, 13, 14, 15 & 16 of the writ petition, it is stated that the appointment of the petitioner which has been made by the Committee of Management when there was ban imposed by the State Government in making appointment. That in reply to the contents of paragraph Nos. 9, 10, 11, 12, 13, 14, 15 & 16 of the writ petition, it is stated that the appointment of the petitioner which has been made by the Committee of Management when there was ban imposed by the State Government in making appointment. AS such the appointment of the petitioner has rightly been disapproved by the District Inspector of Schools by the Order dated 17.8.2001 looking the ban in the appointment the same is still in existence.” 5. It is thereafter, the petitioner approached this Court and this Court while striking down the order of DIOS dated 17.8.1991 straightaway directed for considering the regularization under Section 33(B) of Act No. 5 of 1982. Clause 1 of Section 33(B) is reproduced herein under: “33B. It is thereafter, the petitioner approached this Court and this Court while striking down the order of DIOS dated 17.8.1991 straightaway directed for considering the regularization under Section 33(B) of Act No. 5 of 1982. Clause 1 of Section 33(B) is reproduced herein under: “33B. Regularisation of certain other appointments.—(1) Any teacher other than the Principal or Headmaster, who— (a) (i) was appointed by promotion or by direct recruitment in the lecturer grade or Trained Graduate grade on or before May 14, 1991 or in the Certificate of Teaching grade on or before May 13, 1989 against a short term vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services (Removal of Difficulties) (Second) Order, 1981 and such vacancy was subsequently converted into a substantive vacancy; or (ii) was appointed by direct recruitment on or after July 14, 1981 but not later than June 12, 1985 on ad-hoc basis against substantive vacancy in the Certificate of Teaching grade through advertisement and such appointment was approved by the Inspector; or (iii) was appointed by promotion or by direct recruitment on or after July 31, 1988 but later than May 14, 1991 on ad-hoc basis against a substantive vacancy in accordance with Section 18] [as it stood before its substitution by the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1992]; (b) possesses the qualification prescribed under or is exempted from such qualification in accordance with the provisions of the Intermediate Education Act, 1921; (c) has been continuously serving the Institution from the date of such appointment up to the date of the commencement of the Act referred to in sub-clause (iii) of clause (a); (d) is not related to any member of the management or the Principal or Head Master of the Institution concerned in the manner specified in the explanation to sub-section (3) of Section 33-A; (e) has been found suitable for appointment in a substantive capacity by a Selection Committee constituted under sub-section (2), shall be given substantive appointment by the Management.” 6. Admittedly, the claim of the petitioner did not fall in the aforesaid category of cases which were to be considered for regularization and possibly it is for this reason, even while the writ petition was filed before this Court seeking some relief subsequently being writ petition No. 52495 of 2004, the same was withdrawn. Admittedly, the claim of the petitioner did not fall in the aforesaid category of cases which were to be considered for regularization and possibly it is for this reason, even while the writ petition was filed before this Court seeking some relief subsequently being writ petition No. 52495 of 2004, the same was withdrawn. The order is quoted herein under: “After matter has been heard for some time, learned counsel for the petitioner intends to withdraw the present writ petition on the ground that matter is to be adjudicated by authority concerned as directed by this Court on earlier occasion. Consequently, present writ petition is dismissed as withdrawn.” 7. The writ petition, it appears, has come to be withdrawn as the Committee of Management was considering the continuance of the petitioner already and the matter was already engaging the attention of the State respondents pursuant to earlier order of this Court passed in Writ Petition No. 9136 of 1992. It appears that in the meanwhile, the Committee of Management passed some resolution on 20.2.2005 considering the regularization of the petitioner under Section 33(B) to get the effective relief under the order dated 28.5.1999 in Writ Petition No. 9136 of 1992. The resolution was forwarded to DIOS upon which the impugned order has been passed. 8. From the above background of case and the perusal of the order impugned, two situations emerge in the present case: the first being whether the petitioner’s appointment was validly done or not in the face of ban being imposed by the State Government on appointments against short term vacancies in the recognized Institutions; and the second being one whether continuance of the petitioner in the Institution under the order of appointment being given to the petitioner in the deeming provision clause of the Removal of Difficulties Second Order, 1981, will confer a lawful right of his continuance and thereby, benefit of future amendments in Act No. 5 of 1982 being brought by State Government from time to time. 9. As far as the imposition of ban is concerned, this Court has already held in the judgment of Km. 9. As far as the imposition of ban is concerned, this Court has already held in the judgment of Km. Prabhabati Dikshit v. U.P. Madhyamik Shiksha Sewa Ayog and another, 1992 (1) UPLBEC 582 holding that the Government Order dated 22.9.1989 and 30.7.1991 were arbitrary and violative of Article 14 of the Constitution and therefore, the ban in respect of the appointment in such Institutions, were held to be bad and both the Government Orders were quashed. Paras 4 & 5 of the judgment (supra) are quoted hereunder under: “4. I have not been shown any provision under which such a general ban can be issued for stopping selection of lecturers and L.T. Grade teachers. There is no such provision in the U.P. Secondary Education Services Commission and Selection Board Act, 1982. In fact the Government Orders dated 22.9.1989 and 30.7.1991 are contrary to the provisions of the U.P. Secondary Education Services Commission Act. A bare perusal of the provisions of the said Act shows that appointments have to be made only on the recommendation of the Commission except as provided in Section 18, sub-section 4(B) to (D) to Section 33 and 33-A. There is no power conferred by the said Act on the State Government which permits the State Government to ban selections by the Commission. The State Government has no power to stop the Commission from performing its functions which have been entrusted to it by the legislature. Hence the Government orders dated 22.9.1989 and 30.7.1991 are illegal and ultra vires. 5. The Government orders dated 22.9.1989 and 30.7.1991 are also, in my opinion, arbitrary, and hence violative of Article 14 of the Constitution. In is wholly unreasonable to ban ad-hoc appointments of teachers in High Schools and Intermediate Colleges, particularly since it is well known that the Secondary Education Commission often does not select regular teachers even long after the vacancy is notified. Hence, unless ad-hoc appointments are made the teaching work will suffer. To ban such appointments, is, therefore, clearly arbitrary.” 10. In is wholly unreasonable to ban ad-hoc appointments of teachers in High Schools and Intermediate Colleges, particularly since it is well known that the Secondary Education Commission often does not select regular teachers even long after the vacancy is notified. Hence, unless ad-hoc appointments are made the teaching work will suffer. To ban such appointments, is, therefore, clearly arbitrary.” 10. The legal position is very much clear, the law declared by the Court means that the law had always stood and striking down of a provision means that the provision did not exist at all and, therefore, merely because there was some ban, the selection cannot be faulted with and on this count the selection of the petitioner on the post against a short term vacancy cannot be held to be bad or illegal. 11. So far as the second aspect is concerned about deeming provision clause, it is noticeable that the papers were forwarded by the Committee of Management after selection on 20.7.2005 and under the relevant provisions he was to communicate with its decision within seven days, failing which, the approval was to be deemed as accorded. Para 2 clause 3(i) of Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Second Order, 1981 that reads as under: “2(3)(iv) On receipt of the approval of the District Inspector of Schools or as the case may be, on his failure, to communicate his decision within seven days of the receipt of papers by him from the Manager, the Management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager.” 12. In view of the above, the Committee of Management is not at wrong in issuing the appointment order to the petitioner on 2.8.1991. The question therefore, is now whether the subsequent order dated 17.8.1991 will have any legal effect or not and what will be the consequence, if the High Court did not quash the same in the writ petition while issuing the direction for regularization. 13. The question therefore, is now whether the subsequent order dated 17.8.1991 will have any legal effect or not and what will be the consequence, if the High Court did not quash the same in the writ petition while issuing the direction for regularization. 13. I am of the opinion that once the approval has come up as to have taken place in the eventuality of non-action at the end of DIOS under the deeming provision (supra), it was a duty incumbent upon the DIOS to have first annulled that deemed approval and should have cancelled the order of appointment itself as bad but he had not recorded any such finding in order dated 17.8.1991 and the only ground taken was that there being ban on appointment, the approval could not be granted. Under the circumstances, in my considered opinion, such an order passed by DIOS was liable to be ignored in view of legal position qua ban on appointments in recognized institutions. 14. The learned counsel for the petitioner relied upon Full Bench decision of this Court in Km. Radha Raijada v. Committee of Management, 1994 (3) UPLBEC 1551 , wherein, the deeming provision finds approval in the judgment by the Court. The Full Bench holds that “after the procedure provided in para 2 of the second order has gone through no further approval of the DIOS is required for such appointment.” 15. In view of the above, even if this High Court while directing for regularization, ignored the order of disapproval dated 17.8.1991, there was no occasion for the State respondents not to consider the claim of petitioner for regularization, if any in law was permissible. It appears that earlier plea for regularization being made under Section 33(B) and even the Committee of Management while passing the resolution dated 20.2.2005 has also referred to Section 33(B). The order impugned has been passed by the Regional Joint Director of Education on 20.7.2005. Admittedly by this time Act No. 5 of 1982 again came to be amended by Amending U.P. Act No. 5 of 2001, whereby, Section 33(F) has been introduced and as per Section 1 clause (a), the petitioner’s appointment definitely falls within the cut off date provided for. For convenience Section 33(F) is reproduced hereunder: “33F. Admittedly by this time Act No. 5 of 1982 again came to be amended by Amending U.P. Act No. 5 of 2001, whereby, Section 33(F) has been introduced and as per Section 1 clause (a), the petitioner’s appointment definitely falls within the cut off date provided for. For convenience Section 33(F) is reproduced hereunder: “33F. Regularisation of appointments against short term vacancies.—(1) Any teacher who,— (a) was appointed by promotion or by direct recruitment in the lecturer’s grade or trained graduate’s grade on or after May 14,1991 but not later than August 6,1993 against a short term vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, as amended from time to time, and such vacancy was subsequently converted into a substantive vacancy. (b) possesses the qualification prescribed under, or is exempted from such qualifications in accordance with, the provisions of the Intermediate Education Act, 1921. (c) has been continuously serving the Institution from the date of such appointment up to the date of the commencement of the Uttar Pradesh Secondary Education Services Selection Board (Amendment) Act, 2001. (d) has been found suitable for appointment in a substantive capacity by the Selection Committee referred to in clause (a) of sub-section (2) of Section 33-C in accordance with the procedure prescribed under clause (b) of the said sub-section; shall be given substantive appointment by the Management. (2)(a) The names of the teachers shall be recommended for substantive appointment in order of seniority as determined from the date of their appointment. (b) If two or more such teachers are appointed on the same date, the teacher who is elder in age shall be recommended first. (3) Every teacher appointed in a substantive capacity under sub-section (1) shall be deemed to be on probation from the date of such substantive appointment. (4) A teacher who Ls not found suitable under sub-section (1) and a teacher who is not eligible to get a substantive appointment under that sub-section shall cease to hold the appointment on such date as the State Government may by order specify. (4) A teacher who Ls not found suitable under sub-section (1) and a teacher who is not eligible to get a substantive appointment under that sub-section shall cease to hold the appointment on such date as the State Government may by order specify. (5) Nothing in this Section shall be construed to entitle any teacher to substantive appointment, if on the date of commencement of the Ordinance referred to in clause (c) of sub-section (1) such vacancy had already been filled or selection for such vacancy has already been made in accordance with this Act.” 16. Thus, Section 33(F) also contains the provision to the effect that in case if a person falls within the conditions prescribed for, such an employee shall be given substantive appointment by the Management. Meaning thereby, the intendment legislature is that if a person continued as a teacher in the category in question, it will be open for the management to confer regularization with substantive appointment upon such person. 17. In view of the above, I am unable to subscribe to the view taken by the Regional Joint Director of Education while discarding the claim of regularization of the petitioner only referring to Section 33(B). It is true that the management itself has faulted in referring to Section 33(B) in its resolution, however, from the conduct of the management in passing the resolution it comes out very clearly that the management intended to confer upon the petitioner status of substantive appointment under Act No. 5 of 1982. 18. In view of the above, the impugned order dated 20.7.2005 is hereby quashed. The Management is permitted, in case if the petitioner again moves to the management, to pass resolution in the light of provisions contained in Section 33(F)(1)(a) under the Amending Act No. 5 of 2001, within six weeks of production of certified copy of this order. In the event of any such resolution being passed, the Regional Joint Director of Education shall pass necessary order in the light of observations made and legal position clarified herein this judgment, within a further period of six weeks from the date of receipt of such resolution and papers from the Committee of Management. 19. The writ petition is allowed with aforesaid observations and directions.