Allahabad High Court

Baleshwar Singh vs State Of U.P. Thru. Addl. Chief ... on 21 April, 2023

Bench: Devendra Kumar Upadhyaya, Om Prakash Shukla




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Court No. - 1
 

 
Case :- SPECIAL APPEAL No. - 162 of 2023
 

 
Appellant :- Baleshwar Singh
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Secondary Education Govt. Of U.P. Lko. And Others
 
Counsel for Appellant :- Shobhit Mohan Shukla,Manoj Kumar Chaurasiya,Vatsala Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Om Prakash Shukla,J.

1. Heard learned counsel for the appellant and Shri V. P. Nag, learned State Counsel representing the respondents.

2. This intra-court appeal under Chapter VIII Rule 5 of the Rules of the Court questions the order dated 17.03.2023 passed by learned Single Judge, whereby Writ -A No.8319 of 2018 filed by the appellant-petitioner has been dismissed and the order under challenge therein i.e. the order dated 18.09.2017 rejecting the claim of the appellant-petitioner for regularizing his services on the post of Lecturer in Sanskrit in the Institution in question has been upheld.

3. P.V. Inter College, Pratapgarh, District Pratapgarh is a privately managed recognized government aided Intermediate Institution, affairs of which are governed by various statutory provisions such as U.P. Intermediate Education Act, 1921, the Regulations framed thereunder and Uttar Pradesh Secondary Education Services Commission and Selection Board Act, 1982.

4. The post of Lecturer in Sanskrit in the Institution fell vacant on 30.06.1991 on retirement of the regular incumbent working thereon, Shri Ram Yash Pandey. The Committee of Management accordingly sent a requisition on 02.05.1991 to the Secondary Education Services Commission [hereinafter referred to as 'the Commission'] for filing of the post in question by way of Direct Recruitment in terms of the provisions of the Commission Act, 1982. In the meantime, it appears that the Committee of Management undertook some exercise for filling of the post in question on adhoc basis and accordingly issued an order of appointment which has been annexed at page 35 of the Special Appeal whereby the appellant-petitioner is said to have been appointed and he was required to submit his joining within ten days or on 01.07.1991. The said appointment order is undated. The appellant-petitioner started working in ad hoc capacity on the post in question, however, he was not paid his salary and accordingly he instituted Writ Petition No.18387 of 1992 before this Court wherein an interim order was passed on 25.05.1992 and in compliance of the said interim order, the appellant-petitioner was paid salary from the State exchequer. The said Writ Petition No.18387 of 1992 was however finally dismissed by this Court vide order dated 17.03.2010.

5. The appellant-petitioner filed Special Appeal bearing No.605 of 2010 challenging the order darted 17.03.2010 passed by learned Single. The said Special Appeal was disposed of with a direction to the appellant-petitioner to move appropriate application before the authority concerned for regularizing his services under Section 33-C of the Commission Act, 1982. The Division Bench by disposing of the said Special Appeal vide order dated 13.01.2017 also directed that in case any such application is moved, the authority concerned shall examine the matter and pass appropriate orders. It is pursuant to the said order dated 13.01.2017 passed by the Division Bench in Special Appeal No.605 of 2010 that the matter of regularization of services of the appellant-petitioner was considered by the Selection Committee which took a decision on 18.09.2017 rejecting the claim of the appellant-petitioner for regularizing his services on the post of Lecturer in Sanskrit in the Institution.

6. The appellant-petitioner, feeling aggrieved by the said decision of the Committee dated 18.09.2017, instituted the proceedings of Writ - A No.8319 of 2018 which has been dismissed by learned Single Judge vide order dated 17.03.2023 which is under challenge before us in this Special Appeal.

7. Various arguments have been made by learned counsel for the appellant-petitioner to impress upon the Court that learned Single Judge while dismissing the writ petition filed by the appellant-petitioner has not examined the matter in its correct perspective and has completely ignored the long continuance of the appellant-petitioner on the post in question which itself was sufficient to treat him to be a regular Lecturer in the Institution concerned. He has further argued that the learned Single Judge has not examined the reasons given by the Selection Committee in its decision dated 18.09.2017 for rejecting the claim of regularization of services of the appellant-petitioner. He further submitted that at the time when the appointment of the appellant-petitioner was made, the requirement for making adhoc appointment was that such appointment should be made after two months from the date the post is requisitioned to the Commission for being filled in by way of Direct Recruitment. He has also argued that considering the long continuance of the appellant-petitioner on the post in question since 1991 till 2010, in view of the law laid down by Hon'ble Supreme Court in the case of B.P. Achala Anand versus S. Appi Reddy and another, reported in (2005) 3 SCC 313, since this case presents before the Court peculiar fact-situation, hence in the facts of the case, it is warranted that the Court may direct that the appointment of the appellant-petitioner be treated to be regular or in the alternative the Selection Committee may be directed to reconsider the entire issue relating to his claim for regularization of the services. He has also relied upon a judgment dated 09.10.2010 rendered by this Court in Civil Misc. Writ Petition No.60164 of 2010, Committee of Management, Sarvodaya Post Graduate College versus State of U.P. and others which relies upon the judgment in the case of B.P. Achala Anand (supra).

8. Learned counsel for the appellant-petitioner has also relied upon a Division Bench judgment of this Court in case of Ashika Prasadh Shukla versus District Inspector of Schools, Allahabad and others (Special Appeal No.948 of 1995, decided on 18.08.1998 which is in respect of the appointment made under the provisions of U.P. Secondary Education Services Commission (Removal of Difficulties) Second Order, 1981 which applies in case of filling up of the short term vacancies arising in an Institution. On the aforesaid counts, it has been prayed that the Special Appeal be allowed.

9. On the other hand, learned State Counsel has opposed the prayers made in the Special Appeal and has submitted that the reasons given by the Selection Committee in its decision dated 18.09.2017 are germane to the provisions relating to regularization of services of an ad hoc employee under Section 33-C of the Commission Act, 1982 and there is nothing on record that while making the ad hoc appointment of the appellant-petitioner, the procedure as prescribed was followed and accordingly the Special Appeal is liable to be dismissed at its threshold.

10. We have considered the rival submissions made by learned counsel representing the respective parties and have also perused the records available before us on this Special Appeal.

11. Section 33-C of the Commission Act, 1982 which was inserted with effect from 20.04.1998 provides that a teacher appointed by Direct Recruitment or by Promotion on or after 14.05.1991 but not later than 06.08.1993 on ad hoc basis against substantive vacancy in accordance with Section 18 of the said Act and possesses the qualifications prescribed and has been continuously serving an Institution from the date of such appointment up to the date of commencement of the U.P. Secondary Education Services Commission (Amendment) Act, 1998 and he is found suitable for appointment in a substantive capacity by the Selection Committee to be constituted in terms of the provisions contained in Sub-section (2), shall be given substantive appointment by the Management of the Institution.

"Section 33-C of the Commission Act, 1982 is quoted herein under:

[33C. Regularisation of certain more appointments. - (1) Any teacher who, -

(a)(i) was appointed by promotion or by direct recruitment on or after May 14, 1991 but not later than August 6, 1993 on ad hoc basis against substantive vacancy in accordance with section 18, in the Lecturer grade or the Trained Graduate grade;

(ii) was appointed by promotion on or after July 31, 1988 but not later than August 6, 1993 on ad hoc basis against a substantive vacancy in the post of a Principal or Head Master in accordance with Section 18;

(b) possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with, the provisions of the Intermediate Education Act, 1921;

(c) has been continuously serving the Institution from the date of such appointment up to the date of the commencement of the Uttar Pradesh Secondary Education Services Commission (Amendment) Act, 1998;

(d) has been found suitable for appointment in a substantive capacity by a Selection Committee constituted under sub-section (2); shall begiven substantive appointment by the Management.

(2) (a) For each region, there shall be a Selection Committee comprising, -

(i) Regional Joint Director of Education of that region, who shall be the Chairman;

(ii) Regional Deputy Director of Education (Secondary) who shall be member;

(iii) Regional Assistant Director of Education (Basic) who shall be a member.

In addition to above members, the District Inspector of Schools of the concerned district shall be co-opted as member while considering the cases for regularisation of that district.

(b) The Procedure of selection for substantive appointment under sub-section (2) shall be such as may be prescribed.

(3) (a) The names of the teachers shall be recommended for substantive appointment in order of seniority as determined from the date of their appointment.

(b) If two or more such teachers are appointed on the same date, the teacher who is elder in age shall be recommended first.

(4) Every teacher appointed in a substantive capacity under sub-section (1) shall be deemed to be on probation from the date of such substantive appointment.

(5) A teacher who is not found suitable under sub-section (1) and a teacher who is not eligible to get a substantive appointment under that sub-section shall cease to hold the appointment on such date as the State Government may by order specify.

(6) Nothing in this Section shall be construed to entitle any teacher to substantive appointment, if on the date of commencement of the Ordinance referred to in clause (c) of sub-section (1) such vacancy had already been filled or selection for such vacancy has already been made in accordance with this Act.]"

12. Thus, what we find is that if a teacher is appointed on ad hoc basis within the cut off period as given in Section 33-C (a)(i) of the Commission Act and in accordance with Section 18 of the Act and possesses the qualification and continues to serve the Institution on the date of amending Act, 1988 and he is found suitable, his services are liable to be regularized or he is to be given substantive appointment. Thus the condition precedent for consideration of a claim for regularization of services or claim of being given substantive appointment under Section 33-C is that the initial ad hoc appointment should have been made in terms of the provisions contained in Section 18 of the Commission Act, 1982.

13. Section 18 of the Commission Act, 1982 as it existed on the relevant date i.e. on the date the alleged ad hoc appointment of the appellant-petitioner is said to have been made, is as under:

"18 (1) Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and-

(a) the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher specified in the Schedule within one year from the date of such notification; or

(b) the post of such teacher has actually remained vacant for more than two months then, the management may appoint, by direct recruitment or promotion, a teacher on purely ad hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder.

(2) The provisions of sub-section (1) shall also apply to the appointment of a teacher (other than a teacher specified in the Schedule) on ad hoc basis with the substitution of the expression 'Board' for the expression "Commission".

(3) Every appointment of an ad hoc teacher under sub-section (1) or sub-section (2) shall cease to have effect from the earliest of the following dates, namely-

(a) when the candidate recommended by the Commission or the Board, as the case may be, joins the post:

(b) when the period of one month referred to in sub-section (4) of section 11 expires;

14. According to the aforequoted Section 18, in case a vacancy has been notified to the Commission and the Commission fails to recommend the name of any suitable candidate for appointment within one year from the date of such requisition/notification on the post of such teacher remains vacant for more than two months then the Management is empowered to make appointment by Direct Recruitment or Promotion purely on ad hoc basis from amongst the persons possessing the qualifications prescribed under the Intermediate Education Act or Regulations made thereunder. Such ad hoc appointment, in terms of sub-Section 3 of Section 18, as it then exited, was to cease to have effect when the candidate recommended by the Commission joined the post or when the period of one month as prescribed under Section 11(4) expired or on 30th June following the date of such ad hoc appointment. The procedure for making ad hoc appointment which could be invoked at the relevant point of time can be found in the U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981. As per Clause 2 of the said Removal of Difficulties Order, 1981, Management of the Institution was, at the relevant point of time, empowered to make appointment both by way of Promotion and by way of Direct Recruitment purely on ad hoc basis in case a substantive vacancy existed on the date of commencement of the said Removal of Difficulties Order i.e. on 31.07.1981.

15. Clause 5 prescribed the procedure for ad hoc appointment by way of Direct Recruitment which is quoted hereunder:

"5. Ad hoc appointment by direct recruitment. (1) Where any vacancy cannot be filled by promotion under Paragraph 4, the same may be filled by direct recruitment in accordance with Clauses (2) to (5).

(2) The Management shall as soon as may be, inform the District Inspector of Schools about the details of the vacancy and such Inspector shall invite applications from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh.

(3) Every application referred to in Clause (2) shall, be address to the District Inspector of Schools and shall be accompanied -

(a) by a crossed postal order worth ten rupees payable to such Inspector;

(b) by a self-addressed envelope bearing postal stamp for purposes of registration.

(4) The District Inspector of Schools shall cause the best candidates selected on the basis of quality point specified in Appendix. The compilation of quality points may be done on remunerative basis by the retired Gazetted Government servants under the personal supervision of such Inspector.

(5) If more than one teacher of the same subject or category is to be recruited for more than one institution, the names of the selected teachers and names of the institutions shall be arranged in Hindi alphabetical order. The candidate whose name appears on the top of the list shall be allotted to the institution the name whereof appears on the top of the list of the institution. This process shall be repeated till both the lists are exhausted.

Explanation- In relation to an institution imparting instruction to women the expression 'District Inspector of Schools' shall mean the 'Regional Inspector of Girl's Schools."

16. According to aforequoted provisions contained in Clause 5, the Management was required to inform the District Inspector of Schools, the details of the vacancies and thereafter the District Inspector of Schools was to invite applications from local employment exchange and also through public advertisement at least in two newspapers having adequate circulation in State of Uttar Pradesh. The Selection was to be made on the basis of assessment of quality points of all the candidates who participated in the selection and thereafter a select list was to be prepared and the candidate whose name appeared on the top of the said select list was to be appointed. Thus the requirement for making ad hoc appointed in terms of Clause 5 of the Removal of Difficulties Order, 1981 was that first of all the Management had to submit information to the District Inspector of Schools about the details of the vacancies and thereafter applications were to be invited by the District Inspector of Schools from the local employment exchange and also by public advertisement in at least two newspapers having adequate circulation in the State.

17. When we examine the facts of this case in the light of the afore-referred statutory provisions what we find is that the alleged advertisement in this case for making appointment was not published in any newspapers; rather it was affixed only on the notice board. There is nothing on record before us which could belie the fact of the advertisement having not been published in two newspapers having wide circulation in the State of Uttar Pradesh in terms of the requirement of Clause 5 of the Removal of Difficulties Order, 1981.

18. We may also refer to the reasons given by the Selection Committee not acceding to the claim of regularization of services of the appellant-petitioner. The Committee has clearly returned a finding that the advertisement for appointment to the post in question was not made in two daily newspapers. It also gives another reason which is that the Management had affixed the advertisement on the Notice Board according to which the post of Lecturer in Sanskrit was reserved for being filled in from amongst reserved category candidates. Giving the aforesaid two reasons, the Selection Committee rejected the claim of the appellant-petitioner for regularizing his services.

19. As already observed above, it is not in dispute that the alleged appointment of the appellant-petitioner on 01.07.1991 was made without appropriately advertising the vacancy. In our considered opinion, requirement of adequate publication of any vacancy for being filled in has a rationale. This rationale flows from fundamental right enshrined under Article 16 of the Constitution of India which clearly mandates that in the matter of public employment, everyone will have equal opportunity to participate. In case, the advertisement before making any selection or appointment is not made appropriately and adequately, that too, in terms of the requirement of statutory prescription, in our considered opinion, such a process adopted for any selection or appointment will clearly be hit by Article 16 of the Constitution of India. This reason in itself, in our opinion, is sufficient to deny the claim put forth by the appellant-petitioner for regularizing his services on the post in question. Even if we do not go into the question as to whether the vacancy against which the appointment of the appellant-petitioner was made on ad hoc basis initially on 01.07.1991 was reserved for Reserved Category Candidates of Scheduled Caste Category, the reason that the vacancy before being filled in was not properly advertised as per the requirement of Clause 5 of Removal of Difficulties Order, 1981, itself is sufficient for denying the claim of the respondent-petitioner.

20. In view of the aforesaid, we have no hesitation to hold that the initial appointment of the appellant-petitioner dated 01.07.1991 was not made as per the requirement of Section 18 of the Board Act, 1982 and accordingly no right can be said to have been conferred upon him for either continuance on the post in question or his regularization in service.

21. At this juncture, learned counsel representing the appellant lays emphasis on the judgment of Division Bench of this Court in the case of Ashika Prasadh Shukla (supra). We may note that the said judgment was in relation to an appointment made under the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Second Order, 1981, whereas ad hoc appointment in this case is said to have been made under the provisions of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981. Even otherwise, if there is a statutory requirement of wide circulation of advertisement for appointment or selection to fill up a vacancy, non-compliance of the same, as observed above, will clearly be hit by Article 16 of the Constitution of India.

22. In the light of the above, when we peruse the order passed by learned Single Judge whereby the writ petition filed by the appellant-petitioner has been dismissed, we do not find ourselves persuaded by learned counsel for the appellant-petitioner to take any view other than the one taken by learned Single Judge.