Gajraj Singh And Another vs State Of U.P. And 5 Others
2018 Latest Caselaw 1559 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 7
 
Case :- WRIT - A No. - 14188 of 2018
 
Petitioner :- Gajraj Singh And Another
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- P.K. Upadhyay,D.M.Tripathi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri P.K. Upadhyay, learned counsel for the petitioners and Sri R.P. Dubey, the learned Additional Chief standing counsel for the State-respondents.

2. This writ petition has been filed for the following relief:

i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 8.5.2018 passed by the respondent no.4 (Annexure No.6 to the writ petition).

ii) issue a writ, order or direction in the nature of mandamus directing the respondent no.4 to pay the salary to the petitioners on the post of Assistant Teacher (L.T. Grade) and Lecturer in Chemistry respectively.

3. By the impugned order dated 8.5.2018, passed by the respondent no.4, the approval sought by the Committee of Management of Gandhi Smarak Inter College, Surajan Nagar, Jay Nagar, District -Moradabad, has been declined on the ground that a procedure for temporary appointments on occurrence of short term vacancy in non Government aided Secondary School has been provided by Government Order No.1867/15-12-2017-1600 (342)/2017 dated 26.10.2017, which has not been followed by the respondent No.6 - Committee of Management.

4. Learned counsel for the petitioner submits as under:

(i) Advertisement to fill up temporary short terms vacancies was issued by the respondent No.6 - Committee of Management on 29.3.2018, in one daily Newspaper "Shah Times" Moradabad. The interview was held on 6.4.2018 and the appointment letter was issued on 7.4.2018. Pursuant to the appointment letters, the petitioners joined in the institution in question in the month of April 2018. Thus, the entire procedure for appointment was completed much prior to the impugned order dated 8.5.2018. Therefore, the impugned order or the Government order can not be enforced retrospectively.

(ii) In Santosh Kumar Singh Vs. State of U.P. and others, 2015 (7) ADJ 179 (Paras 1, 18,19 and 20) a Full Bench of this Court held that under Section 16-E of the Intermediate Education Act, 1921, (hereinafter referred to as "the 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 the 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 the educational session during which the appointment was made. Thus, the impugned order dated 8.5.2018, is in breach of the Full Bench Judgment of this Court inasmuch as the Full Bench has clearly recognise the power of committee of management to make appointment against a temporary vacancy caused in certain circumstances in Section 16-E of the Act.

(iii) By judgment dated 31.10.2017, in Writ - A No.48244 of 2017 (Sushil Kumar Yadav and another Vs. State of U.P. 3 others), another Bench of this Court has considered the temporary appointment under Section 16-E (11) of the Act and directed the D.I.O.S. concerned to consider the representation for according approval as Assistant Teacher in L.T. Grade, and pass an appropriate order with regard to their entitlement to salary. The approval for appointment shall not exceed 11 months in the academic session. In the event, regular teacher is not appointed, during the academic session, the term of the teacher appointed against a temporary vacancy shall be renewed on the recommendation of the Management.

(iv) In Writ - A No.29201 of 2017, Shishir Kumar and another

Vs. District Inspector of Schools, Jaunpur and 2 Others, decided on 4.9.2017, following the law laid down by the full Bench in Santosh Kumar Singh (supra), the order dated 20.5.2017, rejecting the appointment to the post of Assistant Teacher against short term vacancy, was quashed.

5. Sri R.P. Dubey, the learned Additional Chief standing counsel for the State-respondents, supports the impugned order and submits that the right of the Committee of Management for appointment against temporary vacancy under Section 16-E(11) of the Act, 1921, has not been interfered with by Government Order dated 26.10.2017. The Government Order merely facilitates the Committee of management to appointment against temporary vacancy. A pool of retired teachers has been constituted district wise which is available on the website and any Committee of Management, in case of occurrence of a temporary vacancy, may fill up the vacancy temporarily as per provisions of Section 16 - E of the Act 1921.

Discussion and Findings

6. I have carefully considered the submissions of learned counsels for the parties.

7. Section 16-E(11) of the Act 1921, reads as under :

"(11) Notwithstanding anything contained in the foregoing sub-sections, appointments in the case of a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or by death, termination or otherwise of an incumbent occurring during an educational session, may be made by direct recruitment or promotion without reference to the Selection Committee in such manner and subject to such conditions as may be prescribed:

Provided that no appointment made under this sub-section shall, in any case, continue beyond the end of the educational session during which such appointment was made."

8. A full Bench of this Court in the case of Santosh Kumar Singh (supra), has explained the provisions of Section 16-E (11) of the U.P. Act 1921 as under:

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; or (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. The proviso is intended to ensure that the purpose of appointment against a temporary vacancy caused due to the absence of a teacher in the midst of an academic session is met by continuing the appointment during and until the end of the academic session but not further. This is a provision which has been made by the state legislature in its legislating wisdom. The statutory provision provides both for the circumstances in which a temporary vacancy can be filled up and the length of an appointment made against a temporary vacancy. The difficulty which arises is because the Board, which has been constituted under the Act, does not fulfill its mandate of promptly selecting teachers for regular appointment. The District Inspector of Schools is in possession of necessary factual data in regard to the dates of appointment and retirement of teachers of aided institutions. This can be summoned by the Board even if the management does not comply with its duty to intimate vacancies. There can be no justification for the Board not to discharge its duties with dispatch and expedition. This is liable to result in a situation where the educational needs of students are seriously disturbed due to the unavailability of duly selected teachers. Ad hoc appointments in temporary vacancies also cause a state of uncertainty for teachers and lay them open to grave exploitation at the hands of certain managements of educational institutions. Thus, considering the matter both from the perspective of the interest of education as well as the welfare of teachers, it is necessary that the Board must take due and proper steps well in advance of an anticipated vacancy to initiate the process of selection. Similarly, the State Government would do well to streamline the procedure for making appointments in respect of temporary vacancies consistent with the mandate of Section 16-E (11) so that, while the interest of students is protected, the teachers are not exposed to exploitation.

20. We consequently answer the reference in the following terms:

(a) Despite the rescission of the Removal of Difficulties Orders by Section 33-E of U P Act No 13 of 1999 with effect from 25 January 1999, the power of the Committee of Management to make appointments against short term vacancies, where the process of appointment had been initiated prior to 25 January 1999 by the publication of an advertisement, would continue to be preserved;

(b) On the enforcement of the provisions of Section 33-E, the power of a Committee of Management to make ad hoc appointments against short term vacancies would not stand abrogated in a case where the process of selection had been initiated prior to 25 January 1999;

(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; and

(d) The judgment of the Division Bench in Subhash Chandra Tripathi (supra) is affirmed as laying down a correct interpretation of the judgment in A A Calton (supra).

9. In Sushil Kumar Yadav (supra), learned single Judge of this Court followed the law laid down by the full Bench in the case of Santosh Kumar Singh (supra), and held as under:

"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."

10. In the case of Shishir Kumar (supra) another Single Judge of this Court quashed an order rejecting the claim for appointment of the petitioners of that writ petition to the post of Assistant Teacher on the ground that the order was passed without reference to the law laid down by the Full Bench in the case of Santosh Kumar Singh (supra).

11. It appears that after the Full Bench judgment in the case of Santosh Kumar Singh (supra) the State Government issued a Government order No.1867/15-12-2017-1600 (342)/2017 f'k{kk vuqHkkx & 12, dated 26.10.2017, as under:

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mi;qZDr fo"k;d d`i;k vius i=kad% f'[email protected]@2017&18] fnukad 25 flrEcj] 2017 dk lanHkZ xzg.k djsa] tks v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa esa fjDr lgk;d v/;kid ,oa izoDrk ds inksa ij lsokfuo`Rr lgk;d v/;kidksa ,oa izoDrkvks ls] tks okf"kZd 'kSf{kd l= 01 tqykbZ ls ebZ esa xzh"ekodk'k ?kksf"kr gksus rd dh vof/k esa 70 o"kZ dh vk;q iw.kZ u dj jgs gks] dks ekuns; ij f'k{k.k dk;Z fy;s tkus ds lEcU/k esa gSA

2- bl laca/k esa eq>s ;g dgus dk funs'k gqvk gS fd lE;d~ fopkjksijkUr [email protected]=kvksa ds izHkkfor v/;;u ds n`f"Vxr mRrj izns'k ek/;fed f'k{kk vf/kfu;e] 1921 ¼;Fkkla'kksf/kr½ dh /kkjk bZ&11 esa fd;s x;s izko/kku ds vkyksd esa] lgk;d v/;[email protected] ds vkdfLed fu/ku] lsokP;qr fd;s tkus ;k lsokfuo`fRr ds QyLo:i in fjDr gksus dh fLFkfr esa vYidkfyd O;oLFkk ds vUrxZr m0iz0 ek/;fed f'k{kk lsok p;u cksMZ ls p;fur vH;FkhZ vkus vFkok 01 tqykbZ ls xzh"ekodk'k gksus dh vof/k rd] tks Hkh igys ?kfVr gks] rd ds fy, v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa esa fjDr lgk;d v/;kid ,oa izoDrk ds inksa ij lsokfuo`Rr lgk;d v/;kidksa ,oa izoDrkvksa ls tks 70 o"kZ dh vk;q iw.kZ u dj jgk gks] ls vkosnu izkIr dj lsokfuo`Rr izoDrkvksa dks :i;s 20 gtkj izfrekg ,oa lgk;d v/;kidksa dks :i;s 15 gtkj izfrekg ds ekuns; ij oSdfYid O;oLFkk vUrxZr muls f'k{k.k dk;Z fy;s tkus dk fu.kZ; fy;k x;k gSA

3- lsokfuo`Rr lgk;[email protected]/;[email protected] ds iwy xBu gsrq ftyk fo|ky; fujh{kd }kjk lsokfuo`Rr lgk;d v/;[email protected] ls izR;sd o"kZ 01 viSzy ls 20 viSzy rd vkosnu i= vkeaf=r dj iwy dk xBu fd;k tk;sxkA orZeku 'kSf{kd l= 2017&18 pwWfd izkjEHk gks pqdk gS vr% bl gsrq p;u rRdky izHkko ls izkjEHk fd;k tk;sxkA tuin Lrj ij lsokfuo`Rr lgk;d v/;[email protected] ds iwy dks ek/;fed f'k{kk ifj"kn] m0iz0 dh csclkbZV ij Hkh iznf'kZr fd;k tk;sxk rFkk tuin esa fdlh Hkh fo|ky; esa lgk;d v/;[email protected] dh vYidkfyd :i ls tc dHkh vko';drk gksxh] izcU/[email protected]/k lfefr dh ekax ij ftyk fo|ky; fujh{kd }kjk iwy ls f'k{k.k dk;Z gsrq lsokfuo`Rr lgk;d v/;[email protected] miyC/k djk;k tk;sxk vkSj bu f'k{kdksa dh fu;qfDr dk vuqeksnu lacaf/kr ftyk fo|ky; fujh{kd }kjk fd;k tk;sxkA ,sls lsokfuo`Rr lgk;d v/;[email protected] 'kSf{kd l= ds chp esa laLFkk esa dk;Z ij yxk;s tkus ds i'pkr xzh"ekodk'k izkjEHk gksus rd dk;Z djasxs rFkk 'kklu }kjk vuqeU; ekuns; dk Hkqxrku ftyk fo|ky; fujh{kd }kjk fd;k tk;sxkA

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12. It appears that pursuant to the aforesaid Government order dated 26.10.2017, the Director of Education (Secondary) U.P., Lucknow, issued instructions vide letter f'[email protected]&[email protected]&18, dated 30.10.2017, which was followed by another instructions of the Director of Education (Secondary) U.P. Lucknow, being letter No. f'[email protected]&[email protected]&19, dated 6.4.2018, which is reproduced below:

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2& bl lEcU/k esa lwP; gS fd mRrj izns'k ek/;fed f'k{kk vf/kfu;e] 1921 dh /kkjk bZ&11 esa fd;s x;s izko/kkuksa ds vkyksd esa lgk;d v/;[email protected] ds 06 ekg ls vukf/kd vof/k ds vodk'k ij tkus] vkdfLed fu/ku] lsokP;qr fd;s tkus ;k vU;Fkk in fjDr gksus dh fLFkfr esa vYidkfyd O;oLFkk ds vUrxZr m0iz0 ek/;fed f'k{kk lsok p;u cksMZ ls p;fur vH;FkhZ ds vkus rd vFkok 01 tqykbZ ls xzh"ekodk'k dh vof/k rd] tks Hkh igys ?kfVr gks] rd ds fy, v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa esa fjDr lgk;d v/;kid ,oa izoDrk ds in ij lsokfuo`Rr lgk;d v/;kidksa ,oa izoDrkvks ls tks 70 o"kZ dh vk;q iw.kZ u dj jgs gks] ls vkosnu izkIr dj lsokfuo`Rr izoDrkvks dks :0 20 gtkj ,oa lgk;d v/;kidks dks :0 15 gtkj izfr ekg ds ekuns; ij oSdfYid O;oLFkk fd;s tkus gsrq 'kklukns'k la[;k&[email protected]&12&2017&1600¼342½@2017 fnukad 26 vDVwcj] 2017 }kjk fu.kZ; fy;k x;kA mijksDr 'kkldh; O;oLFkk ds vuqikyu gsrq lsokfuo`Rr lgk;d v/;[email protected] izoDrkvks ls izR;sd o"kZ 01 vizSy ls 20 vizSy rd vkosnu i= izkIr dj iwy dk xBu fd;k tkus dh vis{kk dh x;hA mYys[kuh; gS fd ftyk fo|ky; fujh{kdksa }kjk mijksDrkuqlkj d`r dk;Zokgh ls f'kfoj dk;kZy; dks voxr ugh djk;k x;k gSA

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13. Pursuant to the aforequoted Government Order dated 26.10.2017 and instructions of the Director of Education, dated 30.10.2017 and 6.4.2018, steps were taken by the District Inspector of Schools, Moradabad and by office Memorandum dated 5.4.2018 it was informed to all concerned that a pool of retired teachers has been constituted and on demand of the Manager/Committee of Management, teachers shall be provided from the pool against vacant posts.

14. Thus, as on the date of which the petitioners claim that they were appointed by the respondent no.6 - Committee of Management, a pool of retired teachers was available and the Committee of Management was free to make appointment against a temporary vacancy in terms of the Provisions of Section 16 -E(11) of the Act 1921. Providing a pool of retired teachers by the State Government facilitates the Committee of Management to exercise its power under Section 16-E (11) of the Act 1921 and to select teachers from amongst the pool of experienced and competent retired teachers. Thus, the Government Order dated 26.10.2017 has not interfered with the rights of the Committee of Management to appoint teachers against temporary vacancies under Section 16-E(11) of the Act 1921, rather it has facilitated the Committee of Management to make qualitative appointments of teachers which shall ultimately benefit the students of the institution for whom the institution itself has been created and huge amount is being spent by the State Government by way of salary of teaching and non teaching staff of the Institution.

15. The judgment of the Full Bench in the case of Santosh Kumar Singh (supra) has not been violated by the respondent No.4, while passing the impugned order dated 8.5.2018. The Full Bench in the case of Santosh Kumar Singh (supra) has not prohibited the State Government from constituting a pool of retired teachers to facilitate Committee of Management to select from amongst the pool, the teachers to fill up temporary vacancy under Section 16-E(11) of the Act 1921. The impugned order does not violate the law laid down by a learned Single Judge of this Court in the case of Sushil Kumar Yadav (supra) and Shishir Kumar (supra).

16. By the impugned order dated 8.5.2018, the respondent No.4 has not accorded approval to the appointment of the petitioner inasmuch as the appointment was made by the Committee of Management in breach of the Government Order dated 26.10.2017, and that too without any cogent reasons.

17. Under the circumstances, I do not find any manifest error of law in the impugned order dated 8.5.2018. Consequently, the writ petition fails and is hereby dismissed.

Order Date :- 17.7.2018/vkg