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2019 DIGILAW 561 (UTT)

State of Uttarakhand v. Mohan Singh Mehra

2019-11-05

ALOK KUMAR VERMA, RAMESH RANGANATHAN

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JUDGMENT : Ramesh Ranganathan, J. Heard Mr. Vikas Pande, learned Standing Counsel for the State Government, Mr. B.M. Pingal, learned counsel for the respondent-writ petitioner and Mr. D.S. Mehta, learned counsel for respondents 2 and 3 and, with their consent, the Special Appeal is disposed of at the stage of admission. 2. This Special Appeal is preferred by the official respondents in Writ Petition (S/S) No. 2222 of 2018 aggrieved by the order passed by the learned Single Judge dated 19.09.2018 quashing the order dated 28.05.2018, and in directing the second respondent to consider and grant the benefit of promotion to the respondent-writ petitioner as a Lecturer (Mathematics), considering the impact of the Government Order dated 03.01.2017, within six weeks from the date of presentation of a certified copy of the order. 3. Facts, to the limited extent necessary, are that the State Government, by proceedings dated 21.12.2016, had provided a token grant of Rs. 3.00 lacs to the respondent-College. Subsequently, by proceedings dated 03.01.2017, the State Government had created four temporary posts of Lecturer in the respondent-College. The order dated 03.01.2017 stipulates that creation of these four temporary posts of Lecturer was from the date of issuance of the Government Order dated 03.01.2017 till regular appointment is made, whichever is later, till 28.02.2018, provided these temporary posts are not abolished without prior intimation. Reference to 28.02.2018, in the Government Order dated 03.01.2017, was because it is a month prior to the date on which the financial year comes to an end and, as is evident from the proceedings dated 04.12.2014, the posts created thereby were also only till 28.02.2015. Unlike the earlier Government Order dated 21.12.2016, whereby the token grant of Rs. 3.00 lacs alone was extended to the respondent-College, the Government Order dated 03.01.2017 makes it clear that the posts mentioned in the table therein would be paid the admissible salary, dearness allowance and other allowances as per Rules, by the Government; and the expenses in this regard would have to be borne under the head "Grant-In-Aid of Secondary Schools". 4. These four temporary posts of Lecturer, which were created by the Government Order dated 03.01.2017, were to be paid the admissible salary, dearness allowance and other allowances, as per Rules, by the State Government. 4. These four temporary posts of Lecturer, which were created by the Government Order dated 03.01.2017, were to be paid the admissible salary, dearness allowance and other allowances, as per Rules, by the State Government. After the said Government Order dated 03.01.2017 was issued, the Committee of Management of the respondent-College forwarded the roster to the Chief Education Officer informing him that the posts of Lecturers in Economics, Mathematics, Hindi and Biology should be filled up by promotion. The claim of the respondent-writ petitioner was for the post of Lecturer (Mathematics). 5. After receipt of the proposal the Chief Education Officer, by the order impugned in the Writ Petition dated 28.05.2018, returned the papers to the Committee of Management informing them that he had not received any information from the Director in this regard. On the petitioner invoking the jurisdiction of this Court, the learned Single Judge has, by the order under appeal, directed the appellants herein to grant the respondent-writ petitioner the benefit of promotion as a Lecturer (Mathematics) considering the impact of the Government Order dated 03.01.2017. Aggrieved thereby, the present Special Appeal. 6. Mr. Vikas Pande, learned Standing Counsel for the State Government, would submit that, in terms of Section 49 of the Uttarakhand School Education Act, 2006, approval of the Director is a prerequisite for creation of the posts; the Chief Education Officer was justified in returning the proposal submitted by the Committee of Management, since approval had not been accorded by the Director; as is evident from the Government Order dated 03.01.2017 itself, the four posts of Lecturer, created in terms of the said order, are temporary in nature; the Government Order dated 03.01.2017 makes it clear that the said posts would remain in force from the date on which the said Government Order is issued till 28.02.2017 or till the posts are abolished; no right is conferred on the respondent-writ petitioner to claim appointment to a temporary post, which was created for a specified duration; and the learned Single Judge had erred in directing the appellants to consider the case of the respondent-writ petitioner for promotion to the post of Lecturer (Mathematics) in terms of the Government Order dated 03.01.2017. 7. On the other hand Mr. 7. On the other hand Mr. B.M. Pingal, learned counsel for the respondent-writ petitioner, would submit that Section 49 of the Uttarakhand School Education Act, 2006 has no application in the present case; in the case on hand, the posts were created not by the Committee of Management, but by the Government itself by its proceedings dated 03.01.2017; reference therein to 28th February is common in almost all Government Orders including those issued earlier; the period is automatically extended thereafter; and, in terms of the roster forwarded by the Committee of Management and since the post of Lecturer (Mathematics) is to be filled up by promotion, it is the respondent-writ petitioner who, being the senior-most Assistant Teacher in Mathematics, is entitled to be considered for promotion to the post of Lecturer (Mathematics). 8. As noted hereinabove, while a reference to 28th February appears to have been made in the Government Orders issued from time to time, including the Government Order dated 04.03.2014 and the Government Order dated 03.01.2017, the fact remains that these posts of Lecturer, which were created by the Government Order dated 03.01.2017, are temporary in character and, as has been made clear in the said Government Order, would continue to remain only till they are abolished by the State Government. 9. Section 49 of the Uttarakhand School Education Act, 2006, on which reliance is placed on behalf of Mr. Vikas Pande, learned Standing Counsel for the State Government, relates to the approval of the posts and, thereunder, no institution receiving maintenance grant from the State Government shall create a new post of teacher or other employee except with the previous approval of the Director, or such other officer as may be empowered in that behalf by the Director. Approval of the Director is necessary, in terms of Section 49 of the Uttarakhand School Education Act, 2006, where a new post of a teacher or other employee is created by the institution receiving maintenance grant from the State Government. 10. In the case on hand, the four temporary posts of Lecturer were created not by the Committee of Management or the institution receiving maintenance grant, but by the State Government itself. 10. In the case on hand, the four temporary posts of Lecturer were created not by the Committee of Management or the institution receiving maintenance grant, but by the State Government itself. Approval of the Director was, therefore, wholly unnecessary and, as has been rightly held by the learned Single Judge, the Chief Education Officer was not justified in returning the papers back to the Committee of Management on this ground. 11. While we are satisfied that the Chief Education Officer ought to have considered the recommendations made by the Committee of Management, in its proceedings dated 07.04.2018, with respect to all the four temporary posts of Lecturers which were sought to be filled up by the Committee of Management by way of promotion, and rejection of the said proposal was wholly unjustified, the fact remains that, even in terms of the Government Order dated 03.01.2017, the subject posts are temporary in character. 12. Suffice it, in such circumstances, to modify the order under appeal to the limited extent that the Chief Education Officer shall consider the proposal submitted by the Committee of Management on 07.04.2018 and take an appropriate decision thereupon, in the light of the Government Order dated 03.01.2017, within two months from the date of production of a certified copy of this order. 13. Needless to state that approval, if any, accorded by the Chief Education Officer would be subject to the condition stipulated in the Government Order dated 03.01.2017; and since the posts of Lecturer, created in terms of the said Government Order, are temporary in duration, the candidates appointed to these four temporary posts of Lecturer would continue to hold office only till these posts remain in existence; and they shall not be entitled to claim any right over the said posts in case they are abolished by the State Government later. 14. The Special Appeal is, accordingly, disposed of. No costs.