M.K. Sharma vs D.I.O.S.
2012 Latest Caselaw 5515 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

COURT NO.5
 
CIVIL MISC. WRIT PETITION NO.21288 OF 1994 
 
Mukesh Kumar Sharma.					....Petitioner
 
Versus
 
District Inspector of Schools,
 
Sharanpur and others. 				         ....Respondents
 
**********
 
Hon'ble Rajes Kumar, J.

There is an institution in the name of Public Inter College, which is governed by the provisions of The U.P. Intermediate Education Act, 1921; U.P. Act No.5 of 1982 and the U.P.Act No.24 of 1971.

Brief facts of the case are that one Sri Shambhu Lal Vashisth was the permanent Principal of the institution, who retired on 30.06.1990, causing a substantive vacancy of Principal. The requisition with regard  to the vacancy was sent by the management to the Secondary Education Service Commission through District Inspector of Schools. When no regular appointment was made on the post of Principal, the committee of management has appointed one Sri Jaipal Singh, permanent Lecturer Maths as officiating Principal by way of adhoc promotion. As a result of adhoc promotion of Sri Jaipal Singh as Principal, a short term vacancy arose. It appears that by letter dated 08.07.1993, Accounts Officer in the  office of District Inspector of Schools, Saharanpur accorded the sanction with regard to the filling up vacancies, including the short term vacancy of Lecturer in Maths caused by the grant of adhoc promotion to Sri Jaipal Singh. Thereafter, the management of the institution advertised the post of Lecturer in Maths in newspaper, namely, Amar Ujala on 24.07.1993. In pursuance of the said advertisement, the petitioner applied for the post of Lecturer in Maths. The petitioner being qualified has been selected and committee of management passed the resolution on 08.08.1993 appointing the petitioner on adhoc basis as Lecturer in Maths. In pursuance of the aforesaid, appointment letter has been issued to the petitioner on 14.08.1993. The petitioner joined the institution on 14.08.1993. The institution has forwarded all the papers to the District Inspector of Schools for payment of salary along with the covering letter dated 02.09.1993. The petitioner was continuously functioning but the salary has not been paid despite the several requests, the  petitioner filed the present writ petition.

On 07.07.1994 this Court has entertained the writ petition and directed the respondents to file counter affidavit and an an interim measure the respondent nos.1, 2 and 3 were directed to pay current salary to the petitioner provided he is working on the post on the basis of the order of appointment letter dated 14.08.1993.

Counter and rejoinder affidavits have been exchanged. In the counter affidavit the respondent has taken the stand that by letter dated 24.07.1993 issued by the Deputy Director of Education, Meerut there was complete ban on appointment under Section 18 of Act No.24 of 1992 and, therefore, adhoc appointment of the petitioner is not justified and is contrary to the Government Order dated 24.07.1993.

Learned counsel for the petitioner submitted that Section 18 as it existed at the relevant time was applicable to adhoc appointment of Lecturer either by way of promotion or by way of direct recruitment against the substantive vacancy and not against the filling up the post against the short term vacancy. The adhoc appointment is contemplated in Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981,  (hereinafter referred to as "Second Order, 1981")  issued in exercise of power under Section 33 of Act No.5 of 1982 is applicable in the present case. The petitioner's appointment has been made following the proper procedure, for which the respondent has not raised any dispute.  He further submitted that Sri Jaipal Singh has retired in the year 2000.

Learned Standing Counsel submitted that Sri Jaipal Singh retired in the year 2000 and the short term vacancy ceased to exist and, therefore, the petitioner could not continue against the short term vacancy.

I have considered the rival submissions and perused the record.

The appointment of the petitioner has only been disputed on the ground that by letter dated 24.07.1993 ban has been imposed for adhoc appointment of the Lecturer under Section 18 of Act No.24 of 1992.

Section 18 of the Act reads as follows:

18. Ad hoc teachers.--(1) Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and --

(a) the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher specified in the Schedule within one year from the date of such notification ; or

(b) the post of such teacher has actually remained vacant for more that two months, then, the management may appoint, by direct recruitment or promotion, a teacher on purely ad hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder.

(2) The provisions of sub-section (1) shall also apply to the appointment of a teacher (other than a teacher specified in the Schedule) on ad hoc basis with the substitution of the expression 'Board' for the expression "Commission".

(3) Every appointment of an ad hoc teacher under sub-section (1) or sub-section (2) shall cease to have effect from the earliest of the following dates, namely--

(a) when the candidate recommended by the Commission or the Board, as the case may be, joins the post;

(b) when the period of one month referred to in sub-section (4) of section 11 expires;

(c) thirteen day of June following the date of such ad hoc appointment. "

I am of the view that Section 18 applies to the filling up of substantive vacancy by way of promotion or direct recruitment. It does not apply to the adhoc appointment against the short term vacancy. For filling up the short term vacancy on adhoc basis, Second Removal and Difficulties Order, 1981 issued in exercise of power under Section 33 of Act No.5 of 1982 applies. It is not disputed that the appointment of the petitioner was made in accordance to Second Removal and Difficulties Order, 1981, therefore, the appointment of the petitioner on adhoc basis by the committee of management can not be said to be unjustified and, therefore, the petitioner  is entitled for the salary from the date of appointment.

However, I find substance in the argument of learned Standing Counsel that after the retirement of Sri Jaipal Singh in the year 2000 the short term vacancy ceased to exist. The vacancy became substantive vacancy and, therefore, the petitioner could not continue against the said short term vacancy after the retirement of Sri Jaipal Singh against short term vacancy, which did not exist. Reliance is placed on the Full Bench decision in the case of Smt. Pramila Mishra Vs. Deputy Director of Education, Jhansi Division, Jhansi and others, reported in 1997 UPLBEC, 1329. However, since the petitioner continued to work and received salary in terms of the interim order, any amount paid to him towards the salary may not be recovered, in case, if the petitioner has worked. However, the continuity of the petitioner after the retirement of Sri Jaipal Singh is held to be unjustified.

In the result, the writ petition is allowed in part as stated above. It is open to the petitioner to claim his regularization in accordance to law.

Dated : 07.11.2012.

R./