Anil Kumar Singh vs State Of U.P. And Others
2012 Latest Caselaw 4488 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 5
 

 
Case :- WRIT - A No. - 38387 of 1997
 

 
Petitioner :- Anil Kumar Singh
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- G.D. Mishra,Raj Kumar Mishra
 
Respondent Counsel :- Anu Jaiswal,S.C.
 

 
Hon'ble Rajes Kumar,J.

Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.

By means of the present writ petition, the petitioner is challenging the order dated 17.10.1997 passed by the Director of Education (Secondary), U.P., Lucknow, in compliance to the order, dated 4.7.1997, passed by this Court in Writ Petition No. 20899 of 1997, by which the Director of Education has affirmed the order of the District Inspector of Schools, Etawah, dated 19.9.994 and held the appointment of the petitioner illegal and quashed the order of the Deputy Director of Education, Kanpur Region, Kanpur dated 9.12.1996 by which the appointment of the petitioner has been held valid.

The brief facts of the case are that it was the claim of the petitioner that by the resolution dated 10.12.1990 passed by the Committee of Management, the petitioner has been appointed as Lecturer in Biology on ad hoc basis in an institution S.A.V. Inter College Bharthana, Etawah a recognized Government aided institution in accordance to Section 18 of the U.P Act No. 5 of 1982. When the petitioner has not been paid salary, he filed Writ Petition No. 25530 of 1994 which has been disposed of vide order dated 4.8.2012 directing the District Inspector of Schools, Etawah to pass appropriate order after hearing the petitioner. It appears that the petitioner has filed second Writ Petition No. 27125 of 1994 which has been disposed of vide order dated 19.8.1994 directing the District Inspector of Schools, Etawah to dispose of the representation of the petitioner after giving opportunity. With reference to the aforesaid two orders passed in writ petitions, the representation of the petitioner was rejected by the District Inspector of Schools, Etawah and it has been held that the appointment of the petitioner was forged. Against the said order of the District Inspector of Schools, Etawah, the petitioner filed Writ Petition No. 9876 of 1995 which has been disposed of vide order dated 12.1.1996 directing the Deputy Director of Education, Kanpur to dispose of the representation of the petitioner. The Regional Deputy Director of Education, Kanpur vide order dated 9.12.1996 has allowed the representation of the petitioner and recognized the appointment of the petitioner on 10.12.1990 and has further directed to pay salary from the date of 1.7.1996, the actual date of taking of the charge. Against the order of the Regional Deputy Director of Education, the Committee of Management filed Writ Petition No. 20899 of 1997 which has been disposed of vide order dated 4.7.1997 directing the Director of Education (Secondary) U.P. to decide the appeal filed by the Committee of Management after giving opportunity of hearing. In pursuance thereof, the present order has been passed. The Director of Education has held that as per the report of the District Inspector of Schools, Etawah during the period 17.8.1990 to 30.6.1991 Sri Krishna Behari Agarwal was the officiating Principal of the College and not Sri Ishwar Dayal Chaturvedi. The vacant post had to be filled up by promotion quota on which Sri Raghuveer Singh Yadav was subsequently promoted. The appointment has not been made in accordance to the Full Bench decision of this Court in the case of Radha Raizada and others vs. Committee of Management, Vidyawati Darbari Girl's Inter College and others, reported in 1994 (3) UPLBEC 1551 and in accordance to the Removal of Difficulties Order, 1981 inasmuch as for the vacant post no advertisement has been made in two newspapers and as per the petitioner's own case the notice has only been affixed on the notice board.

Learned counsel for the petitioner submitted that the appointment of the petitioner on the post of Lecturer against the vacant post on ad hoc basis was made by the resolution dated 2.12.1990 passed by the then Committee of Management and the appointment letter has been issued by the then Principal of the College Sri Ishwar Dayal Chaturvedi. He submitted that the ad hoc appointment was made after affixing the notice on the notice board and, therefore, it was in accordance to law. He further submitted that during the period when the petitioner was appointed Sri Krishna Behari Agarwal was under suspension and Sri Ishwar Dayal Chaturvedi was the officiating Principal. The appointment of the petitioner was in accordance to law and the impugned order is liable to be set aside. He further submitted that the appointment letter dated 4.12.1990 was issued by the Manager and petitioner submitted the joining on 10.12.1990 through Sri Ishwar Dayal Chaturvedi. He further submitted that Sri Raghuveer Singh Yadav was also appointed on ad hoc basis on the post of Lecturer Commerce by the same resolution dated 2.12.1990 and he also joined on 10.12.1990. His appointment has been held valid by the Regional Deputy Director of Education but the order of the Deputy Director of Education in his case has not been challenged by the Committee of Management and his appointment stands valid and the writ petition filed against the order of the Deputy Director of Education has also been dismissed by this Court, therefore, on the ground of parity the petitioner's appointment should also be held valid.

I do not find substance in the argument of learned counsel for the petitioner.

The complete facts of the case of Sri Rajeev Sharma is not before this Court. In any view of the matter, in case if the illegal appointment has been made in the case of Rajeev Sharma, the appointment of the petitioner cannot be held legal on the ground of parity. The illegal act cannot be perpetuated and justified.

In the present case the Director of Education has sought the report from the District Inspector of Schools that on 10.12.1990, the date on which the petitioner claims to have been appointed who was the Principal of the College and who was the Manager. The District Inspector of Schools vide his letter dated 15.9.1997 has informed that between 17.8.1990 to 30.6.1991 Sri Krishna Behari Agarwal was the officiating Principal of the College and Sri Ishswar Dayal Chaturvedi was not the officiating Principal of the College. It is not in dispute that the petitioner claimed that the appointment letter dated 10.12.1990 was issued by said Sri Ishwar Dayal Chaturvedi. I do not see any reason to disbelieve the information given by the District Inspector of Schools, Etawah.

Further an ad hoc appointment was to be made against the vacancy under the Removal of Difficulties Order, 1981 during the relevant period as held by the Full Bench decision of this Court in the case of Radha Raizada and others vs. Committee of Management, Vidyawati Darbari Girl's Inter College and others (supra). As per the Removal of Difficulties Order, 1981 the vacant post had to be filled up by promotion and in case if it is not possible to fill up the vacancy by promotion, the same can be filled up by direct recruitment and for the direct recruitment procedure provided in paragraph 5 (2) has to be followed.

Paragraph 5 (2) provides as follows :

"The management shall, as soon as as may be, inform the District Inspector of Schools about the details of the vacancy and such Inspector shall invite applications from the local Employment and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh."

Admittedly, the aforesaid procedure has not been followed and, therefore, the appointment claimed by the petitioner on the post of Lecturer on ad hoc basis was absolutely illegal and contrary to the provisions. The Full Bench decision of this Court in the case of Radha Raizada and others vs. Committee of Management, Vidyawati Darbari Girl's Inter College and others (supra) has been approved by the Apex Court in the case of Prabhat Kumar Sharma vs. State of U.P. and others, reported in 1996 (10) SCC 62. The Apex Court has upheld the view taken by the Full Bench of this Court in the case of Radha Raizada v. Committee of Management, VDGIC and others (Supra). After affirming the view of the Full Bench of this Court, the Apex Court has observed as follows:

"7. It would thus be clear that any ad hoc appointment of the teachers under Section 18 shall be only transient in nature, pending allotment of the teachers selected by the Commission and recommended for appointment. Such ad hoc appointments should also be made in accordance with the procedure prescribed in para 5 of the First 1981 Order which was later streamlined in the amended Section 18 of the Act with which we are not presently concerned. Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees. The removal of difficulties envisaged under Section 33 was effective not only during the period when the Commission was not constituted but also even thereafter as is evident from the second para of the preamble to the First 1981 Order which reads as under:

"And whereas the establishment of the Commission and the Selection Board is likely to take some time and even after the establishment of the said Commission and Boards, it is not possible to make selection of the teachers for the first few months."

10. ... It is seen that when intimation was given by the college to the Commission for allotment of the teachers, the Act envisaged that within one year the recommendation would be made by the Commission for appointment; but within two months from the date of the intimation if the allotment of the selected candidates is not made to obviate the difficulty of the Management in imparting education to the students, Section 18 gives power to the Management to make ad hoc appointments. Section 16 is mandatory. Any appointment in violation thereof is void. As seen prior to the Amendment Act of 1982 the First 1981 Order envisages recruitment as per the procedure prescribed in para 5 thereof. It is an inbuilt procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the Management to any posts in an aided institution. It is obvious that when the salary is paid by the State to the government-aided private educational institutions, public interest demands that the teachers' selection must be in accordance with the procedure prescribed under the Act read with the First 1981 Order. Therefore, the Order is a permanent one but not transient as contended for. The Full Bench of the High Court has elaborately considered the effect of the Order and for cogent and valid reasons it has held that the Order will supplement the power to select and appoint ad hoc teachers as per the procedure prescribed under Section 18 of the Act......."

In the case of Satya Prakash Ojha vs. District Magistrate, Ballia and others, reported in 2001 (2) UPLBEC 1882, this Court held that the Order clearly provides that the Management has to give information about the vacancy to the District Inspector of Schools, who has to invite the applications from the Employment Exchange and also through public advertisement in at least two news papers having adequate circulation in Uttar Pradesh. The selection of a candidate has to be done on the basis of quality points specified in the Appendix as per Paragraph 5 of the Order. Therefore, the entire selection has to be done by the District Inspector of Schools and the Committee of Management of the institution has no authority at all to advertise the vacancy or make any kind of selection. Having regard to the provisions, relating to the adhoc appointment of the teachers, noticed by the Full Bench of this Court, referred hereinabove, for the period 1982 to 13.7.1992, the Full Bench has held that the substantive vacancy in the post of teacher is firstly required to be filled by promotion. If not available, then by direct recruitment in the manner laid down in paragraph 5 of the First Removal of Difficulties Order.

In view of the above, the writ petition has no substance and is accordingly dismissed.

Order Date :- 26.9.2012

OP