The D.I.O.S. Muzaffarnagar (Now ... vs Atma Ram Kaushik And Another
2017 Latest Caselaw 4052 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?  A.F.R. 
 
Court No. - 10
 

 
Case :- SPECIAL APPEAL No. - 490 of 2016
 

 
Appellant :- The D.I.O.S. Muzaffarnagar (Now Shamli)
 
Respondent :- Atma Ram Kaushik And Another
 
Counsel for Appellant :- Vivek Shandilya
 
Counsel for Respondent :- Shailesh Upadhyay,Lal Ji Pandey,Rakesh Pande
 

 
Hon'ble Arun Tandon,J.

Hon'ble Ritu Raj Awasthi,J.

Heard learned counsel for the parties.

This special appeal filed by the District Inspector of Schools is directed against the judgment and order of the learned Single Judge dated 21th August, 2015 passed in writ petition No. 5159 of 1995.

Facts relevant for deciding the writ petition are as under:-

Shri Jawhar Lal Nehru Inter College, Garhi Pakki, Muzaffarnagar (hereinafter referred to as the 'Institution') is an aided and recognized Intermediate College under the provisions of the U.P. Intermediate Education Act, 1921 and Regulation framed thereunder as well as provisions of U.P. Secondary Education Services Selection Board Act 1982 (hereinafter referred to as the Act 1982), Rules and Regulations framed thereunder are applicable to the teachers of the said Institution.

The records reflect that the post of Lecturer (Economics) was created in the said Institution under the order dated 17.7.1973, Atma Ram Kaushik writ petitioner was appointed L.T. Grade teacher in the said Institution on 22.10.1973, i.e. after three moths of the creation of post of Lecturer (Economics) Atma Ram Kaushik was confirmed on the post of L.T. Grade on 24.10.1973 i.e. after two days of his appointment.

The Committee of Management of the Institution offered ad hoc appointment to Atma Ram Kaushik for a period of 6 months under the order dated 11.11.1975. 

It is not in dispute that one Vinod Bhashkar Sharma was appointed against the said vacancy as Lecturer (Economics) after due selection on 27.2.1977 and that he joined on the post of Lecturer (Economics). As a result whereof Atma Ram Kaushik was restored back as an L.T. Grade teacher w.e.f. 24.4.1977.

Atma Ram Kaushik filed writ petition No. 7465 of 1999 for his appointment as regular lecturer in view of the provisions of Section 16-GG of the U.P. Intermediate Education Act, 1921 as amended  vide notification on 21.4.1977 with all consequential benefit.

While the writ petition was still pending before this Court without any interim order. Vinod Bhaskar Sharma was transferred from Shri Jawhar Lal Nehru Inter College to another Institution. As a result whereof, fresh vacancy on the post of Lecturer (Economics) was created in the Institution. Writ petition No. 7465 of 1979 filed by Atma Ram Kaushik was disposed of vide order dated 6th July, 1994 with a direction upon the District Inspector of Schools to consider the claim of Atma Ram Kaushik for regular appointment as Lecturer (Economics) in the Institution.

With reference to the provisions of Section 16-GG as amended vide notification dated 21.4.1977. The District Inspector of Schools vide order dated 30.1.1995 rejected the claim set up by the petitioner Atma Ram Kaushik, amongst other on the ground that the requirements of Section 16-GG do not stand satisfied in his case.

Not being satisfied Atma Ram Kaushik filed writ petition No. 5159 of 1995 which has been allowed by the learned Single Judge vide judgment dated 21st August, 2015, a direction has been issued to treat the petitioner Atma Ram Kaushik as Lecturer (Economics) w.e.f. 28.10.1975 and to provide all consequential benefit.

The District Inspector of Schools not being satisfied has filed this intra Court appeal.

On behalf of the appellant it is contended that there is no dispute with regard to the appointment of Vinod Bhashkar Sharma as Lecturer (Economics) in the Institution on 27.2.1977 and that as a consequence thereto, Atma Ram Kaushik was restored back as L.T. Grade Teacher. He continue to function as such and to draw his salary as L.T. Grade Teacher w.e.f. 25.4.1977.  after Vinod Bhaskar Sharma joined as lecturer on 24.4.1977.

It is, therefore, submitted that in accordance with the provisions of Section 16 GG specifically Clause 3 (A) the claim of Atma Ram Kaushik for such regularization had to be negated, which aspect of the matter has escaped attention of the learned Single Judge. It is submitted that Vinod Bhaskar Sharma was selected for the post in question and offered appointment under the letter dated 27.2.1977, which is admittedly prior to the date of commencement of Section 16 GG which was introduced only on 21.4.1977.

Learned counsel for the appellant submitted that vacancy which has been caused with the transfer of Vinod Bhashkar Sharma on 19.12.1985 has necessarily to be requisitioned U.P. Act No. 5 of 1982 Act and appointment has to be made  in conformity thereto any other mode of appointment would be void in view of Section 16 of the Act, 5 of 1982.

Nobody is present on behalf of the petitioner-respondent even in the reading revised of the cause list. The appeal was fixed for today on the request of the counsel for Atma Ram Kaushik.

In order to appreciate the controversy pertaining to claim of Atma Ram Kaushik under Section GG of Intermediate Education Act, it would be appropriate to reproduce Section 16 GG of the Act, 1921 which reads as follows:

"16GG. Regulation of appointment of ad hoc teachers. - (1) Notwithstanding anything contained in Sections 16-E, 16-F and 16-FF, every teacher of an institution appointed between August 18, 1975 and September, 30, 1976 (both dates inclusive) on ad hoc basis against a clear vacancy and possessing prescribed qualifications or having been exempted from such qualifications in accordance with the provisions of this Act, shall, with effect from the date of commencement of this section, be deemed to have been appointed in a substantive capacity, provided such teacher has been continuously serving the institution from the date of his appointment up to the commencement of this section.

Explanation. - For the purposes of this sub-section, the period during which any break in service of teacher has occurred between the date of his ad hoc appointment and the date of commencement of this section for any reason not arising out of his misconduct or his own volition shall disregarded :

Provided that nothing in this section shall be construed as entitling such teacher to any pay or allowance for any such period of break in his service.

(2) Every teacher deemed to have been appointed in a substantive capacity under sub-section (1) shall be deemed to be on probation from the date of commencement of this section.

(3) Nothing in this section shall be construed to entitle to any teacher to, -

(a) substantive appointment on any post if on the date of commencement of this section, such post has already been filled or selection for such post has already been made in accordance with this Act or the regulations made thereunder; or

(b) substantive appointment if such teacher was related to any member of the Committee of the Management or the Principal or Headmaster of the institution concerned.

Explanation. - For the purposes of this sub-section, a person shall be deemed to be related to another if, -

(a) they are members of a Hindu Undivided family; or

(b) they are husband and wife; or

(c) the one is related to the other in the manner indicated in the] [Second Schedule.]"

From a simple reading Section 16 GG Sub-section (3) of the Act 1921 as aforesaid, it would be seen that right for regular appointment being offered to person who was appointed ad hod basis between 18th Agusust 1975 to 30th September, 1976, had been conferred except in conditions mentioned, under sub-Section 3. This sub-Section clearly lays down that nothing in the Section i.e. Section 16 GG would be construed to entitle any teacher to substantive appointment on any post if on the date of commencement of the Section i.e. 21th April, 1977. The post has already been filled or selection had already been made in accordance with the provisions of the Act 1921 and Regulation made thereunder. 

It is admitted on record that Vinod Bhaskar had been selected for the post of Lecturer (Economics) prior to 21.2.1977 an appointment letter issued in his favour 15th April 1977, he actually joined on 24.4.1977.

The learned Single Judge has failed to take note of sub-Section 3 of Section 16 GG while returning a findings that since Vinod Bhaskar Shamra had not joined prior 21.4.1977. In our opinion, from a reading Sub section 3 of Section 16 GG, it is clear that the date of joining is not relevant. It is the date on which selection had been made. 

In the facts of the case, it is clear that selections as per the provisions had been made prior to the date of enforcement of the amended Section 16 GG i.e. 21.4.1977. Vinod Bhaskar Sharma was issued an appointment on 15.4.1977 after due selection. 

In view of the aforesaid the judgment and order of the learned Single Judge dated 21th August, 2015 cannot be legally sustained and is hereby set aside. 

The Special Appeal is allowed.

Order Date :- 7.9.2017

Akbar