Sushil Kumar Yadav And Another vs State Of U.P. And 3 Others
2017 Latest Caselaw 6068 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 19
 

 
Case :- WRIT - A No. - 48244 of 2017
 

 
Petitioner :- Sushil Kumar Yadav And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Satyendra Chandra Tripath,Radha Kant Ojha
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Suneet Kumar,J.

Adarsh Inter College, Itaye, District Jaunpur, is a duly recognized intermediate institution under the grant-in-aid upto High-School. The provisions of Intermediate Education Act, 19211 and U.P. High School and Intermediate College (Payment of Salaries of the Teachers and Other Employees) Act, 19712, are applicable on the institution. On the retirement of Sri Arat Nath Singh, Assistant Teacher, L.T. Grade (Science) on 30 June 2011, and on the retirement of Srinath Singh, Assistant Teacher, L.T. Grade (Social Science) on 30 June 2014, substantive vacancy occurred. The management sent requisition for both the posts on 1 July 2011 and 17 June 2015 respectively to the office of the third respondent-District Inspector of Schools, Jaunpur3. The Selection Board did not recommend candidates, consequently, management advertised the vacancies of the aforesaid posts in daily news papers, Dainik Nispaksh Swatantra Rajvarta and Hindi Dainik Tejas on 25 June 2017. Pursuant thereof, petitioners applied. On the recommendation of Selection Committee, the Management passed resolution on 9 July 2017 issuing appointment letter to the petitioners on 10 July 2017. Petitioners, thereafter, joined their respective posts on 11 July 2017.

By the instant writ petition, petitioners seek the following reliefs:

(i) Issue a writ, order or direction in suitable nature to District Inspector of Schools, Jaunpur to take necessary decision to grant approval to the appointment of petitioners as Assistant Teacher in L.T. Grade in Adarsh Inter College, Itaye, District Jaunpur.

(ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to make regular payment of salary from the date of joining i.e. 11.07.2017 in favour of the petitioners. And further not to interfere in peaceful functioning of the petitioners as an Assistant Teacher (L.T. Grade) in the said institution.

Learned Senior Counsel would submit that appointment of the petitioners have been made in terms of Section 16-E(11) of the Intermediate Act, therefore, petitioners are entitled to salary.

Learned standing counsel would submit that there is no provision for adhoc appointment, therefore, appointment of the petitioners cannot be held to be valid under the Intermediate Act.

The writ petition, on consent, is being decided at the admission stage without calling for counter affidavit as per Rules of the Court.

The facts, inter se, parties is not in dispute. The question for determination, in the given facts, is as to whether the Management has a right to make adhoc appoint of a teacher other than Headmaster or Principal, in terms of sub-section (11) of Section 16-E of Intermediate Act; and whether the appointed teacher is entitled to salary under Act 1971.

Under the Intermediate Act, as it was enacted, the power to make appointments of teachers of institutions was vested in the Committee of Management under sub-section (1) of Section 16-E. Sub-section (2) and the succeeding provisions of Section 16-E regulated the procedure for making of appointments by stipulating the intimation of vacancies to the Inspector, advertising of vacancies, the convening of a Selection Committee, the award of quality points by the Inspector and the preparation of the select list by the Selection Committee in order of preference. Sub-section (11) of Section 16-E specifically deals with appointments in the case of a temporary vacancy caused by the grant of leave to an incumbent not exceeding six months or in the case of death, termination or otherwise, of an incumbent occurring during an educational session. Under sub-section (11), it is stipulated that temporary vacancies of that nature would be filled up by direct recruitment or promotion without reference to the Selection Committee in such manner and subject to such conditions as may be prescribed. Under the proviso to sub-section (11), it has been stipulated that no appointment which is made under this sub-section shall, in any case, continue beyond the end of the educational session during which the appointment was made. In other words, the end of the educational session is marked under sub-section (11) as the terminal date upon which an appointment which is made either by direct recruitment or by promotion against a temporary vacancy of the nature prescribed in sub-section (11) will cease to exist.

The object of enacting the Uttar Pradesh Secondary Education Services Selection Board Act, 19824 was to deal with a situation where it was felt by the legislature that the selection of teachers under the provisions of the Intermediate Act, and its regulations had not been free and fair. The field of selection was restricted, which, in the view of the legislature, had adversely affected the availability of suitable teachers and the standards of education. Hence the Secondary Education Services Selection Board came to be constituted. Under the provisions of Section 16, it came to be stipulated that notwithstanding anything contained in the Intermediate Act, or the regulations made thereunder, every appointment of a teacher shall be made only on the recommendation of the Board by the management. The position that an appointment made otherwise than on the recommendation of the Board cannot be permissible is elucidated in sub-section (2) which provides that an appointment made in contravention of the provisions of sub-section (1) shall be void.

Prior to 1999, the matter relating to the selection and appointment of teachers on an ad hoc basis was provided for in various Removal of Difficulties Orders which were issued by the State Government. At that stage and particularly, in the absence of a detailed procedure for making ad hoc appointments under Section 18 of the Act of 1982, these Removal of Difficulties Orders governed the procedure for making ad hoc appointments against substantive vacancies or short term vacancies, as the case may be, respectively. In Radha Raizada Vs Committee of Management, Vidyawati Darbari Girls Inter College and Ors.5, the Full Bench held that appointments which were made de hors the First and the Second Orders would be void ab initio and would not confer any right on the appointees to claim their salary.

In Prabhat Kumar Sharma Vs State of Uttar Pradesh6, the Supreme Court upheld the view taken by the Full Bench of this Court in Radha Raizada (supra).

Full Bench in Smt Pramila Mishra Vs Deputy Director of Education & Ors.7, held that it has been a well settled principle of law that a clear distinction has been maintained between a substantive vacancy and a short term vacancy on the post of a teacher, the Full Bench, while emphasizing this distinction, held that the procedure to be followed in making appointments and the considerations to be borne in mind in making such appointments in the two cases are distinct and different from each other.

Finally, by U P Act 5 of 2001 with effect from 30 December 2000, adhoc appointment of teachers was done away with. The substituted provisions of Section 18, as they stand now, only provide for appointment of ad hoc Principals and Headmasters.

In a recent decision of a Full Bench of txhis Court in Santosh Kumar Singh Vs State of Uttar Pradesh and Ors.8, it was held as follows:

"19. Sub-section (11) of Section 16-E has thus made a specific provision in regard to appointments in the case of temporary vacancies caused by (i) the grant of leave to an incumbent for a period not exceeding six months; (ii) by death, termination or otherwise of an incumbent occurring during an educational session. The object of the provision is to ensure that where a temporary vacancy arises as a result of fortuitous circumstances, such as leave, death, termination or otherwise, the educational needs of students should not be disturbed. The purpose of making an arrangement in the case of a temporary vacancy is to protect the interest of education so that students are not left in the lurch by the absence of a teacher in the midst of an academic session. The proviso to sub-section (11), however, stipulates that an appointment which is made under the provisions of sub-section (11) shall, in no case, continue beyond the end of the educational session during which the appointment was made. .... .... ........ ...."

While answering the reference, the Full Bench held that:

"20. (c) Under Section 16-E of the Intermediate Education Act, 1921, the Committee of Management is empowered to make an appointment against a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or in the case of death, termination or otherwise, of an incumbent occurring during an educational session. An appointment made under sub-section (11) of Section 16-E as provided in the proviso thereto shall, in any case, not continue beyond the end of educational session during which the appointment was made...."

Now, it is in this background, that it would be necessary to elucidate the provisions of Act 1971. The expression 'teacher' in Section 2 (e) of the Act is defined to mean a Principal, Headmaster, or other teacher "in respect of whose employment" the maintenance grant is paid by the State Government to the institution. In other words, the definition of the expression 'teacher' is related to the person in respect of whose employment the maintenance grant is paid. The definition relates not to the post as much as the person in respect of whose employment the maintenance grant is paid.

The issue before the Court in Abhishek Tripathi vs. State of U.P. through Secy. Secondary Education, Lko, & Ors.9, was whether a writ of mandamus can, as a matter of first principle, be issued for directing the payment of salary by the State to a teacher appointed without complying with mandatory legal provisions.

The Court held as follows:

".... .... .... The second important legislative development is Section 33- E as a result of which, the Removal of Difficulties Orders came to be rescinded. In consequence, and founded on the principle, it has been laid down by the Division Bench in Daya Shankar Mishra (supra) and by the Full Bench in Santosh Kumar Singh (supra), that any appointment to a temporary vacancy would have to meet the requirements as spelt out in Section 16-E (11) of the Intermediate Education Act 1921 and the regulations framed thereunder. There is no other source of power or provision that would enable the management to make an appointment where the field is completely regulated by the aforesaid statutory provisions."

Learned standing counsel would submit that the decision rendered in Abhishek Tripathi (supra), has been stayed by the Supreme Court in Special Leave Petition.

Learned Senior Counsel would submit that the interim order would have no bearing insofar as it relates to the payment of salary of a teacher appointed by the Management in terms of sub-section 11 of Section 16-E. In Santosh Kumar Singh (supra), it has been held that in the event of the institution being deprived of teachers, the students shall suffer irreparable loss and injury, which would violate their fundamental right under Article 21-A of the Constitution of India and under the Right of Children to Free and Compulsory Education Act, 2009. Abhishek Tripathi (supra) does recognizes the right of the management to make temporary appointment under sub-section 11, which is the only source of power left with the Management to make adhoc appointment.

Learned standing counsel, however, would not dispute that Management shall have right and authority to make appointment of teachers for eleven months in terms of Section 16-E(11) against substantive vacancies in an academic session or for the period of absence of a teacher against short term vacancy, which, in any event shall not exceed eleven months in an academic session. For such an appointment, teacher would be entitled to salary under the Act 1971.

The Act of 1982 prohibits the Management from making appointment on substantive vacancy. 'Vacancy' and 'substantive appointment' has been defined under the various Rules10/11 framed thereunder. Section 16 begins with a non obstante clause, thereby, making all appointments in contravention of Act of 1982 void. Substantive appointment defined under the Rules framed under Act of 1982 does not include adhoc appointment. Section 32 provides that the provisions of Intermediate Act and Regulations framed thereunder, insofar as they are not inconsistent with the provisions of Act of 1982 or Rules or Regulations framed thereunder shall continue to be inforce for the purpose of selection, appointment, promotion etc. of a teacher. On a plain reading of the provisions, it is clearly inferable that the Management continues to have power and authority to make appointment, temporary/adhoc under sub-section (11) of Section 16-E of Intermediate Act for a period not exceeding eleven months. The salary of such teachers insofar it pertains to the institutions under the grant-in-aid would necessarily have to be borne by the State under the Act 1971.

In the circumstances, the third respondent-District Inspector of Schools, Jaunpur, shall consider the representation of the petitioners for according approval as Assistant Teacher in L.T. Grade, thereafter, shall pass appropriate orders with regard to their entitlement to salary.

It is clarified that the third respondent while granting approval shall record in the order that the appointment is under Section 16-E(11) and would not exceed 11 months in the academic session. In the event of a regular teacher not being appointed, during the said period, in that event, the term of the teacher shall be renewed on the recommendation of the Management.

With the aforesaid directions, writ petition is disposed of.

Order Date :- 31.10.2017

Shubham Agrahari