Jitendra Bahadur Singh vs State Of U.P. & Others
2015 Latest Caselaw 4265 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 32  						(Reserved)                                                 
 
Case :- SPECIAL APPEAL No.1510 of 2008. 
 

 
Appellant :- Jitendra Bahadur Singh 
 
Respondent :- State Of U.P. & Others 
 
Counsel for Appellant :- P.N. Ojha,Ashok Khare,Siddharth Khare 
 
Counsel for Respondent :- C.S.C.,Ripu Daman Singh 
 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Shashi Kant,J.

(Delivered by Hon. Rakesh Tiwari, J.)

Heard Sri P.N.Ojha and Sri Vishnu Shanker Gupta, learned counsel, holding brief of Sri Ashok Khare, learned senior counsel for the appellant and Sri J.N. Maurya, learned Standing Counsel for the respondents no. 1 to 3. Perused the records.

Challenge in this intra-court appeal is to the judgement & order dated 1st October, 2004, whereby the learned single Judge, while dismissing the writ petition, has held that against the substantive vacancy, which had occurred in the institution in question, Committee of Management had no authority to appoint the writ-petitioner.

The case of appellant, in brief, is that in Patel Memorial Inter College, Atraulia, Azamgarh, which is a recognized and aided educational institution, a substantive vacancy of Assistant Teacher in L.T. Grade occurred on 1st July, 1993 due to retirement of one Sarju Prasad Srivastava on 30th June, 1993. The vacancy is said to be notified to the U.P. Secondary Education Services Commission, Allahabad on 20th May, 1993 and advertised by the Committee of Management on 3rd September, 1993 in a newspaper "Ranturya". The Committee of Management selected and appointed the petitioner on 25th September, 1993 on adhoc basis, who joined the post on 1st October, 1993. After his joining the Committee of Management, sent all relevant papers on 5th October, 1993 to the DIOS for his approval. However, when, after repeated reminders, approval to the selection and appointment of the petitioner was not accorded by the DIOS, he preferred aforesaid writ petition no. 37628 of 2003, which was dismissed vide order impugned dated 1st October, 2004 giving rise to this special appeal.

Learned counsel for the appellant contends that learned single Judge has failed to consider the provisions of Section 16 (E) read with Regulation 9(1) & (2) under chapter II of the Intermediate Education Act, 1921.

He also placed reliance upon Full Bench decision of this Court dated 22.07.2015 rendered in Special appeal (Defective) no. 215 of 2015, Santosh Kumar Singh vs. State of U.P. & others as well as Division Bench decision in the case of Ashika Prasad Shukla vs. District Inspector of Schools reported in [(1998) 3 UPLBEC 1722] in support of his case.

Per contra, Sri J.N.Maurya, learned Standing Counsel contended that neither the provisions of law nor the case laws relied upon by the learned counsel for the appellants are applicable to the facts of this case. He submits that as per the statutory provisions of law applicable to the substantive vacancies at the relevant time, the Committee of Management was divested of power, authority or jurisdiction to select and appoint the petitioner against a substantive vacancy, therefore, there is no illegality or infirmity in the view taken by the learned single Judge, hence, this special appeal is liable to be dismissed.

Having heard learned counsel for the parties and upon perusal of records, the moot question which arises for determination by the Court is as to whether the adhoc appointment of the appellant made by the Committee of Management in a substantive vacancy occurred on 1st July, 1993, is legal and valid or not ?

The validity of selection and appointment of the appellant in the aforesaid backdrop has to be tested on the touch-stone of law applicable at the relevant time when the vacancy occurred and the process of selection initiated pursuant thereto. The substantive vacancy in the instant case, occurred on 1st July, 1993 and was notified to the U.P. Secondary Education Services Commission, Allahabad on 20th May, 1993, on which, the adhoc appointment of the appellant has been made. The position of law on this subject at the relevant time was that the field was occupied by the U.P. Act No. 24 of 1992 w.e.f. 14th July, 1992. By the amending Act no. 24 of 1992, a new provision Section 18 was substituted in place of Section 18 of the Principal Act i.e. the U.P. Secondary Education Service Commission and Selection Boards Act 1982, which is reproduced below:

"18. Ad hoc teacher - (I) Where the management has notified a vacancy to the Commission in accordance with the provision of this Act and the post of such teacher has actually remained vacant for more than two months, the management may appoint by direct recruitment or promotion a teacher, on purely adhoc basis, in the manner hereinafter provided in this Section.

(2) A teacher, other than a Principal or Headmaster.' who is to be appointed by direct recruitment, may be appointed on the recommendation of the Selection Committee referred to in Sub-section (9).

(3) A teacher, other than a Principal or Headmaster who is to be appointed by promotion, may in the manner prescribed be appointed by promoting the senior most teacher possessing prescribed qualifications-

(a) in the trained graduate's grade, as lecturer, in the case of a vacancy in lecturer's grade;

(b) in the Certificate of Teaching grade, as a teacher in trained graduate's grade, in the case of vacancy (4) A vacancy in the post of a Principal may be filled by promoting the senior most teacher in the lecturer's grade.

(5) A vacancy in the post of a Headmaster may by filled by promoting the senior most teacher in the trained graduate's grade.

(6) For the purpose of making appointments under Sub-section (2) and (3), the Management shall determine the number of vacancies, as also the number of vacancies to he reserved for candidates belonging to the Scheduled Castes. Tribes and other categories in accordance with rules or the orders issued by the State Government in this behalf, if in determining the vacancies it is found that persons belonging such categories are not holding such number of posts as should have been held by them in accordance with such rules or orders then the vacancies shall be determined that first and every alternative vacancy shall be reserved for the persons of such categories until the required percentage of posts is held by them.

(7) After determining the number of vacancies as provided Sub-section (6) the Management shall within fifteen days from the date of the commencement of the Uttar Pradesh Secondary Education Service Commission and Selection Board (Second Amendment) Act 1992 intimate the vacancies to be filled by recruitment to the District Inspector of Schools. If the management fails to intimate such vacancies within the said of fifteen days the District Inspector of Schools may after verification from such institution or from his own record determine, such Vacancies himself.

(8) The District Inspector of Schools shall, on receipt of intimation of vacancies or as the case may after determining the vacancies under Sub-section (7). invite applications, from the persons possessing qualifications prescribed under the Intermediate Education Act. 1921 or the regulations made thereunder for ad hoc appointment to the post of teachers, other than Principal or Headmasters in such manner as may be prescribed.

(9)(a) For each district, there shall be a Selection Committee for selection of candidates for adhoc appointment by direct recruitment comprising:

(i) District Inspector of Schools, who shall be the Chairman;

(ii) Basic Shiksha Adhikari;

(III) District Inspectress of Girl's Schools and where there it no such Inspectress, the Principal of the Government Girl's Intermediate College and where there are more than one such College, the senior most Principal of such Colleges and where there is no such College, the Principal of the Government Girl's Intermediate College as nominated by the State Government.

(b) The Selection Committee constituted under Clause (a) shall make selection of the candidates, prepare a list of the selected candidates, allocate them to the institutions and recommend their names to the Management for appointment under Sub-section (2).

(c) The criteria and procedure for selection of candidates and the manner of preparation of list of selected candidates and their allocation to the institutions shall be such as may be prescribed.

(10) Every appointment of an ad hoc teacher under Sub-section (1), shall cease to have effect from the date when the candidate, recommended by the Commission or the Board joins the post.

(11) The provisions of Section 21 (d) shall, mutatis mutandis, apply to the teachers who are to be appointed under the provisions of this section."

A perusal of the amended section shows that procedure under sub-section (9) of Section 18 provided that there shall be a Selection Committee comprising of District Inspector of Schools, who shall be Chairman, and Basic Shiksha Adhikari & District Inspectress of Girls Schools etc. shall be members. The Selection Committee so constituted would make selection of the candidates, prepare a list of selected candidates, allocate them to an institution and recommend their names to the Management for their appointment. Whenever an ad hoc appointment will be made by direct recruitment under Sub-section (9) of Section 18, no further approval of District Inspector of Schools for such appointment would be required. However, in the instant case, admittedly, the candidature of the petitioner has neither been considered by the Selection Committee constituted under Sub-section (9) of Section 18 of U.P. Act No. 24 of 1992 nor his name has been recommended by such Selection Committee, therefore, his appointment is violative of Sub-section (9) of Section 18 of U.P. Act No. 24 of 1992.

So far as the argument of learned counsel for the appellant that learned single Judge has failed to consider the provisions of Section 16 (E) read with Regulation 9(1) & (2) under chapter II of the Intermediate Education Act, 1921, is concerned, as stated above, it is a case of adhoc appointment against a substantive vacancy, therefore, U.P. Act No. 24 of 1992 was the relevant provision of law applicable to the subject at the relevant time and not Section 16 (E) of the Intermediate Education Act, 1921.

That apart, sub-section (2) of Section 16 (E) of the Intermediate Education Act, 1921 requires advertisement of the vacancy in at least two newspapers having wide circulation in the State. However, in the instant case, admittedly, no such advertisement of the vacancy in question was made by the Committee of Management in two newspapers having wide circulation in the area. Therefore, assuming for the sake of arguments that the provision of Section 16 (E) of the Intermediate Education Act was applicable to the appointment in question, then even in that case, the appointment of the appellant was violative of, not only the provisions of sub-section (2) of Section 16 E of the said Act, but also of Articles 14 and 16 of the Constitution of India, for the reason that all eligible candidates could not get opportunity to apply for the said post for want of requisite advertisement.

As regards the Regulations 9(1) & (2) under Chapter II are concerned, both these provisions relate to short term vacancies, whereas, the vacancy in the instant case was substantive one as noted above. Hence, these provisions of law upon which reliance has been placed by the learned counsel for appellant, are of no help to him.

Before concluding, the case laws relied upon by the learned counsel for appellant may also be seen. There is no quarrel with the proposition of law laid down in the case laws cited by the learned counsel for the appellant. The Full Bench decision of this Court in Santosh Kumar Singh's case (supra) as well as Division Bench decision in the case of Ashika Prasad Shukla (supra), are clearly distinguishable on facts and law, in as much as, these are cases where question under consideration of Courts was with regard to short term vacancies, whereas in the instant case, the vacancy in question is admittedly a substantive one.

There is no illegality or infirmity in the impugned judgement, whereby, while dismissing the writ petition, writ Court has provided that though the petitioner, may not be entitled to salary from State Exchequer, but he may realize it from the Committee of Management, if it has taken work from him.

In view of the discussions made above, in the considered opinion of this Court, no case for interference by this Court in the judgement impugned is made out. The special appeal fails and is dismissed.

No order as to costs.

Dated:19.11.2015.

Kst/