Priya And Another vs State Of U.P. And 2 Others
2021 Latest Caselaw 3634 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 32
 

 
Case :- WRIT - A No. - 2998 of 2021
 

 
Petitioner :- Priya And Another
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- R. K. Singh Kaosik
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ajit Kumar,J.

Heard Sri R.K. Singh Kaosik, learned counsel for the petitioners and learned Standing Counsel for the State-respondents.

By means of this petition under Article 226 of the Constitution of India, the petitioner prays for a direction to District Inspector of Schools to grant financial approval to the appointment of the petitioners on the post of Lecturer Hindi and Biology respectively in the institution of respondent no.3.

The petitioner before this Court claims to have been duly selected and appointed by the Committee of Management in exercise of power under Section 16(E)11 of the Intermediate Education Act, 1921 (hereinafter referred to as 'the Act of 1921'), pursuant to the advertisement published in the two newspapers of the region, namely, "Swatantra Rajvart" and "Tejas Today" dated 21.12.2018. The vacancies though were advertised without mentioning its nature but were claimed to be only short term vacancies. After the appointment was offered to the petitioners vide orders dated 29.1.2019 they reported their joining in the institution on 31.1.2019. The Manager of the institution forwarded the papers to the District Inspector of Schools on 2.2.2019 for its necessary approval. It is claimed that though the petitioners have been working in the institution but the matter of financial approval was pending with the District Inspector of Schools.

Here it is pertinent to mention that earlier a Division Bench of this Court in the case of Daya Shankar Mishra vs. District Inspector of Schools reported in 2010 ADJ 829, has held that the Committee of Management had the power to make ad hoc appointments on the vacant positions in a recognized institution against sanctioned posts to meet the academic requirement in the institution. The said judgment came to be affirmed by the Full Bench in the case of Santosh Kumar Singh vs. State of U.P. reported in 2015 (7) ADJ 179. However, the matter went upto the Supreme Court and then finally came to be concluded vide detailed order dated 26.8.2020 passed in Civil Appeal No.8300 of 2016, Sanjay Singh and others vs. State of U.P. and others. Supreme Court considered the arguments advanced before it and in order to do complete justice, so that mess created in the education system for sheer adhocism is cleared off, passed a detailed order exercising power under Article 142 of the Constitution of India in following terms:

"1. The present dispute is a reflection of the mess in the education system where starting from the primary level to the highest level adhocism seems to prevail in the appointment of teachers and lecturers in turn having consequences for the students who need to benefit from the best education process. That has not been so.

2. It is in the aforesaid circumstances that the impugned judg- ment (Writ Petition No.655 of 2014 Abhishek Tripathi vs. State of U.P. through Secy.Secondary Education, Lko. & Ors. decided on 17th December, 2015) has been rendered to bring an end to the adhocism which was prevailing. The impugned judgment recognizes the mess which is created to which all are contributory but ultimately deemed it proper to decline relief.

3. We have been hearing this matter from time to time to find the solution. We may say at the inception that we are not in disagreement with what has been set out in the impugned judgment but then this Court has the benefit of Article 142 of the Constitution of India to do complete justice between the parties and we are taking recourse to this to deal with the mess which is before us i.e. a complete adhocism in the working of the education system whereby TGTs and lecturers have been working for years and decades without a regularization. We do find that everyone is to blame for this scenario as what was an adhoc arrangement never fructified in the proper regularization or by holding examination in which recruitment could take place. If the recruitments did take place, that was periodic in terms of examination held after long period of time.

4. We have heard learned counsel for the parties at length earlier and even today to find a solution to the problem. Our attention has also been drawn to the last additional affidavit filed by the State of Uttar Pradesh and what emerges is that the State proposes to hold a competitive examination for recruitment of 15000 TGTs and lecturers both (if there are more existing vacancies reported as per rules, the Commission should take care to advertise even for those vacancies). Insofar as the parties before us are concerned, whether as appellants/petitioners or as interventionist, on verification it was found that there are 659 persons before this Court and out of them information regarding 112 persons could not be traced out in absence of details. The details are available only for 547 adhoc teachers (in view of appellants disputing, this is subject to further verification) being 84 lecturers and 463 TGT grade teachers as set out in paragraph 11 of this affidavit.

5. We did debate the issue whether a separate examination should be held for such persons or whether they should participate in the prospective examination process. Normally the difficulty arises on account of the age bar but i.e. undisputedly not a factor in the present case as everybody will be permitted to appear. At times separate examinations have been held in different situations but in the present case we are not concerned with persons who are working at a trade and have been away from the academics since the very nature of job of teaching envisages a continued academic pursuit and improving your skills in teaching.

6. A concern has been expressed by learned counsel for the appellants and applicants that there may be persons who may have rendered long period of service as adhoc and if they really participate in the examination and are even successful, they may not get benefit of the past service, specially retirement benefits, as some of them may be near the age of retirement than the fresh candidates.

7. It is in the conspectus of all the aforesaid circumstances that we consider appropriate to issue the following directions in exercise of power under Article 142 of the Constitution of India:

(a) All the petitioners/appellants and applicants before us and for that matter all persons eligible under the advertisement will be permitted to appear for one single examination.

(b) Such of the persons who are successful, would have to go through a process of interview insofar as the post of lecturers is concerned, as we are informed that the post of TGTs the interviews have been dispensed with.

(c) We are inclined to give some weightage to the persons who have worked as TGT and lecturers depending on the period of service rendered. It is respondent No.3-Commission which will have to tweak this aspect and work out giving some weightage to both TGT and lecturers depending on the period of service rendered. In the case of TGTs, such weightage will have to form a part of the total marks while in case of the lecturers such weightage can be given in the process of interview.

(d) The advertisement to be issued should contain the terms of these directions issued by us today.

(e) We make it clear that the decision as aforesaid will be final of the Commission and no further litigation will be entertained in respect thereof.

(f) Insofar as the verification of past service is concerned, the concerned teachers/lecturers would give the particulars and details to the Commission

for obtaining such weightage and that aspect will be verified by the Commission in consultation with the State Government as we are told that it is the State Government which would have the wherewithal to do the needful. Needless to say that aspect will also be final without any further litigation being entertained in that behalf.

(g) In view of the weightage given, for the same the examination process can be completed.

(h) The other aspect is that apart from the weightage, the period which has been verified as having been spent in teaching as adhoc, would be counted for purposes of retiral benefits of the TGTs and Lecturers.

8. On having considered and on having issued the aforesaid directions, we also feel it is necessary to direct that we are not faced with such a situation in future. We would thus like to direct the State and the Commission to lay down a schedule for periodically holding examinations so that it creates employment opportunities and also the students are benefitted. We would require the Commission to not only take into consideration the existing but also future vacancies reported as per rules for purposes of holding such examinations in future. This should be strictly followed. The learned Advocate General states that this aspect is being taken care of."

(Emphasis added)

Having issued the aforesaid directions, the Court took judicial notice of the fact that there were teachers who were not being paid salary though they were working and so vide paragraph nos.9, 10 and 11 observed thus:

"9. In view of the petitioners/appellants in their own case having made the ground on the basis of Section 16-E(sub-section 11) of the Intermediate Education Act, 1971 that where teachers have been working for period against substantive vacancies temporarily, there is a provision to give benefits to them, we consider appropriate that the benefits of past service would be rendered only to such of the persons who have been appointed temporarily in accordance with the provisions of this Section. We expect the State to be fair in this matter in recognizing the various nature of vacancies which may have arisen.

10. We have also considered the prayer made in IA No.48618 of 2020 in SLP(Civil)Nos.19561-19562 of 2019. We have heard learned counsel for the parties on this aspect and have taken cognizance of the fact that there may be teachers/lecturers who are working and not paid for almost two years. The second concern is that till this examination process is completed, a prayer is made on behalf of the petitioners/appellants and the applicants that they should be permitted to continue.

11. On having examined the issue, we feel it will be appropriate to direct that the teachers/lecturers who are employed at present the TGTs and lecturers would continue to be so employed till the aforesaid process is completed and to the extent the financial benefits are given by the State Government to the institutions, against appointments made in compliance with Section 16-E (sub- section 11) of the Act, the same will also be given to provide succour to the TGT/lecturers."

(Emphasis added)

Having gone through the aforesaid judgment and the directions contained therein, it clearly bornes out that the Court has not only expressed concern regarding future of the teachers who have been working on a temporary/ad hoc basis but were held to be entitled to weightage for their working considering their age etc. It is quite obvious that if the teachers have been working and because of the pendency of the litigation, financial approval was not granted then the teachers are not to be blamed and reason was either inaction on the part of the concerned authorities or because of the litigation and in such circumstances, therefore, the teachers like petitioner cannot be made to suffer any further.

Learned counsel for the petitioner has also brought to the notice of the Court certain directions issued by this Court in certain other identical matters.

In view of the above, therefore, this writ petition is disposed of with a direction to the District Inspector of Schools to consider the matter of according financial approval to the petitioner's appointment so that if they have been duly selected and appointed and are working, they may not get placed in a disadvantageous position inspite of the verdict of the Supreme Court in the case of Sanjay Singh and others (supra). The appropriate decision shall be taken by the competent authority namely, District Inspector of Schools within a period of four weeks from the date of production of copy of this order.

I must add here that financial approval shall not be rejected on any technical plea without discussing the same with the Committee of Management of the institution so that the very object with which directions have been issued by the Supreme Court does not get defeated.

Order Date :- 16.3.2021

Deepika