Sanjai Kumar Rai vs D.I.O.S. Azamgarh And Another
2023 Latest Caselaw 20827 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:158616
 
Court No. - 10
 

 
Case :- WRIT - A No. - 960 of 2001
 

 
Petitioner :- Sanjai Kumar Rai
 
Respondent :- D.I.O.S. Azamgarh And Another
 
Counsel for Petitioner :- O.P. Sharma,Hritudhwaj Pratap Sahi,N.C. Tripathi,Vijay Kumar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Kshitij Shailendra,J.

In Ref: Civil Misc. Impleadment Application No. 353556 of 2016

1. This application has been filed taking aid of Section 33 (G) of U.P. Secondary Education Service Selection Boards Act, 1982 and impleadment of Joint Director of Education Azamgarh Region Azamgarh has been sought.

2. Considering the nature of the proceedings and 22 years of pendency of this writ petition, and insertion of the aforesaid provision by way of statutory Amendment in 2016, the impleadment application, being based upon subsequent developments, is allowed.

3. Necessary impleadment be carried out by the petitioner's counsel during the course of the day.

Writ Petition

1. Heard learned counsel for the petitioner and learned standing counsel for the State respondents and perused the record.

2. A post of Lecturer in the department of History fell vacant on 01.04.1998 on account of retirement of one Lecturer working thereon. As a consequence of such vacancy, one Shri Sita Ram Srivastava, who was the senior most L.T. Grade Teacher, was promoted to the post of Lecturer and because of this, a short term vacancy arose on the post of Assistant Teacher L.T. Grade.

3. It is contented that in consonance with the provisions of U.P. Secondary Education Services Commission (Removal of Difficulties) Second Order, 1981, the management published the advertisement in two newspapers namely Leader and Amar Ujala pursuant whereto interview was held in 1999 and the Committee of Management passed a resolution for appointment of the petitioner on the said short term vacancy. The petitioner was issued an appointment letter dated 22.01.1999 and he joined the institution next day.

4. It is further contended that the papers were forwarded to the District Inspector of Schools for the purposes of according financial approval to the appointment of the petitioner. The District Inspector of Schools, by the order impugned dated 27.11.2000, has disapproved the appointment on the ground that as per the U.P. Secondary Education Services Commission Rules, 1995, the management has no power to make appointments on substantive and short term vacancies.

5. The submission of learned counsel for the petitioner is that as per Rule 2 (d) of Rules, 1995, the vacancy means a vacancy in a substantive capacity arising out of situations enumerated in the said rule and, therefore, the said rules having no application in the petitioner's case, have been wrongly applied so as to dislodge his appointment. With regard to power of the Committee of Management to fill up short term vacancies, reliance has been placed upon the aforesaid U.P. Secondary Education Services Commission (Removal of Difficulties) Second Order, 1981, particularly, Rule 2 of the same which empowers the Committee of Management to fill up short term vacancies.

6. Learned counsel for the petitioner has placed reliance upon the full bench decision of this court in the case of Radha Raizada and Ors. Vs. Committee of Management, Vidyawati Darbari Girls Inter College and Ors. 1994 (3) UPLBEC 1551 in which the Full Bench of this Court has elaborately discussed the applicability of the aforesaid Order of 1981 and has held that the procedure for filling up short term vacancy is provided under the said Order and insofar as the provision for notifying the vacancy on the notice board of the institution, it has been held that the management is bound to publish the short term vacancies in daily newspapers, otherwise it would be violative of Article 16 of the Constitution of India.

7. Further, reliance has been placed upon a judgment of this Court in Mukhesh Kumar Vs. State of U.P. and Ors. 1996 1 AWC 556 All in which the aforesaid decision of Radha Raizada (Supra) has been relied on. It is therefore, argued that the petitioner's appointment could not be disapproved.

8. Per contra, learned Standing Counsel has vehemently opposed the writ petition and, by referring to the counter affidavit, it has been argued that Rule 15 of the 1995 Rules empowers the Director of Education to fill up vacant posts and, admittedly, the said process having not been followed, the District Inspector of Schools was right in disapproving the appointment. It has further been argued that there was a ban on appointments as per the Government order dated 30.07.1991 and, for this reason also, the appointment of the petitioner is invalid

9. Having heard the counsel for the parties, I find that no ground of any ban against appointment has been taken in the order impugned and, therefore, additional stand taken in the counter affidavit is hit by judgment of the Supreme Court in the case of Mohinder Singh Gill and Anr. Vs. Chief Election Commissioner AIR 1978 Supreme Court 851.

10. Even otherwise this Court in case of Ramesh Mohan Pandey Vs. District Inspector of Schools 1995 (3) SCT 771 (Allahabad) has dealt with effect of ban imposed by the State Government and has clarified that by the said ban, ad hoc appointments were not permissible only in between 29.06.1991 and 26.09.1991. Admittedly, the petitioner was appointed after eight years from the lifting of the ban and, therefore, the alleged ban could not have any adverse effect on the appointment of the petitioner.

11. The limited question that remains to be considered is, as to whether short term vacancy could be filled up by management and was rightly filled up.

12. In view of the legal position settled by the Full Bench in the case of Radha Raizada (Supra), no further deliberation is required on the issue and the Court is satisfied that the management was not only competent to fill up the said short term vacancy by appointing the petitioner on the said post, but also followed the procedure explained by the Full Bench i.e., publication of advertisement and holding of selection procedure in accordance with law.

13. In view of above, the Court is of the view that the District Inspector of Schools wrongly invoked U.P. Secondary Education Services Commission Rules, 1995 which have no application in the facts and circumstances of the case.

14. This Court had passed an interim order on 10.01.2001 permitting the petitioner to work until further orders. Admittedly, the petitioner is still working in the institution and is receiving his salary. This Court by a separate order passed on the impleadment application today, has permitted the impleadment of Joint Director of Education concerned.

15. Learned counsel for the petitioner has referred to Section 33 (G) of U.P. Secondary Education Service Selection Boards Act, 1982 which is a provision for regularization for certain appointments against short term vacancies.

16. In view of the above, writ petition is succeeds and is allowed. The impugned order dated 27.11.2000 is quashed.

17. In view of the fact that petitioner's appointment has been held in accordance with law in the aforesaid discussion, the petitioner's case for regularization in terms of Section 33 (G) has to be analyzed at the end of the Joint Director of Education concerned.

18. Accordingly, a writ of mandamus is issued to the Joint Director of Education, Azamgarh Region, Azamgarh to consider the petitioner's case for regularization in terms of Section 33 (G) of U.P. Secondary Education Service Selection Boards Act, 1982 in accordance with law within a period of three months from the date a certified copy of the order is produced before him.

Order Date :- 7.8.2023

Vipasha