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D.I.O.S. v. Naresh Chandra - SPECIAL APPEAL No. 331 of 1992 [2006] RD-AH 6013 (20 March 2006)


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Court No.32

Special Appeal No.331 of 1992

District Inspector of Schools vs. Naresh Chandra

Hon'ble S. Rafat Alam, J.

Hon'ble Sudhir Agarwal, J.

This appeal, under the Rules of the Court, is preferred against the order of the Hon'ble Single Judge dated 18.6.1992 allowing the respondent's writ petition.

We have heard learned counsel for the appellants. None appears on behalf of the respondent although names of Shri S.C. Budhwar, Dr. R.G. Padia, Shri Prakash Padia and Shri P.K. Jain, Advocates are shown in the cause list.

It appears that the respondent filed writ petition no.20969 of 1992 challenging the order of the District Inspector of Schools, Ghaziabad dated  20.5.1992 whereby his ad hoc appointment, as lecturer in Chemistry, was cancelled by the District Inspector of Schools.  The Hon'ble Single Judge, having heard learned counsel for the parties, allowed the writ petition on two grounds.  Firstly, that the reservation on caste basis for the post of lecturer in Science should not be made and secondly, that the appointment of the respondent before the expiry of sixty days, as provided under Section 18 of the U.P. Secondary Education Service Commission Act, is mere irregularity and will not vitiate the appointment.

Thus, the short points, which requires to be considered in this appeal, is, whether the reservation policy cannot be applied in respect of appointment of Science teacher in Intermediate College and as to whether the requirement under Section 18 of the Act enabling the committee of management to make ad hoc appointment only after the expiry of sixty days, from the date the vacancy is notified, is mandatory and its non-compliance would not vitiate the appointment and can be cured by lapse of time.  

We are of the view that both the points are no more res integra and are squarely covered by the pronouncement of Hon'ble Apex Court as well as of this Court.  

We propose to consider the later question first.  In the case of Prabhat Kumar Sharma & others vs. State of U.P. & others, JT 1996 (6) SC 579, the question was about the validity of appointment under Section 18, which provides that after notifying the vacancy to the Commission, the appointment on ad hoc basis can be made, if within a period of two months of the intimation, a selected candidate is not allotted to the Management.  The question, if the appointment is made before the period of two months, what would be its effect, was considered by the Apex court in paras 7 and 11 of the judgment and it held as under: -

"Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees." (para 7)

"It is seen that when intimation was given by the college to the Commission for allotment of the teachers, the Act envisaged that within one year the recommendation would be made by the Commission for appointment; but within two months from the date of the intimation if the allotment of the selected candidates is not made to obviate the difficulty of the Management in imparting education to the students, Section 18 gives power to the Management to make ad hoc appointments.  Section 16 is mandatory, any appointment in violation thereof is void." (para 11)

Similar is the view taken by this Court in Dr. R.K. Pandey vs. Sukh Ram Pal Singh Sahravat, 1995 (1) ESC 74 and in para 7 this Court has held as under: -

"As the appointment of Dr. Raman Kumar Pandey was made before two months from the date of vacancy could expire, it was wholly illegal, having been made in contravention of Section 18 of the Act" (para 7)

Again a Division Bench in the case of Anilesh Pratap Singh vs. State of U.P., 2003 (5) ALR 674  has held in para 15 of the judgment as under: -

"Applying the principles laid down in the aforementioned cases we are of the considered opinion that the provisions of Section 18 of the 1982 Act is mandatory and unless and until the period of two months expires from the date of notifying the vacancy to the Commission, the Committee of Management does not get any power to fill up the vacancy on ad hoc basis." (para 15)

Same view has been taken recently by another Division Bench in Special Appeal No.32 of 2006, Lalta Prasad Goswami vs. State of U.P. and others  decided on 12.1.2006.

Thus, when the law requires some thing to be done in a particular manner no other way is permissible and any action not in accordance with such procedure would be void and illegal.  The provision of statute and the rigor of statutory procedure cannot be diluted by holding the same to be mere irregularity, since it would be very difficult in such case to restrict or define the extent of such irregularity.  For illustration, in one case, the management, who has made appointment after 58 days instead of 60 days may claim it to be a mere irregularity and in another matter the management after making appointment even within a week instead of waiting for 60 days may claim the similar protection.  Such interpretation would result in making the period prescribed under Section 18 to be ununiform, illusory and virtually redundant.  A statutory provision cannot be read in a manner, which will bring redundancy to any part of the statutory provision.  In this view of the matter, we are clearly of the view that any infraction of the procedure prescribed under Section 18 of the Act would vitiate the appointment being void and illegal and such deviation cannot be said to be a mere irregularity.

The question as to whether the provisions pertaining to reservation in service may be excluded in respect to certain civil post came up for consideration before a Constitution Bench of the Hon'ble Apex Court in the case of Indra Sawhney vs. Union of India, AIR 1993 SC 477 wherein the Hon'ble Apex Court held as under: -

"While on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, along counts.  In such situations, it may not be advisable to provide for reservations.  For example, technical posts in research and development organizations/departments/institutions, in specialities and super-specialities in medicine, engineering and other such courses in physical science and mathematics, in defence services and in the establishments connected therewith.  Similarly, in the case of posts at the higher echelons e.g., Professors (in Education), Pilots in Indian Airlines and Air India, Scientists and Technicians in nuclear and space application, provision for reservation would not be advisable."

........................................ we are of the opinion that in certain services and in respect of certain posts, application of the rule of reservation may not be advisable for the reason indicated hereinbefore.  Some of them are : (1) Defense Services including all technical posts therein but excluding civil posts. (2) All technical posts in establishments engaged in Research and Development including those connected with atomic energy and space and establishments engaged in production of defense equipment. (3) Teaching posts of Professors - and above, if any. (4) Posts in super-specialities in medicine, engineering and other scientific and technical subjects. (5) Posts of pilots (and co-pilots) in Indian Airlines and Air India.  The list given above is merely illustrative and not exhaustive.  It is for the Government of India to consider and specify the service and posts to which the Rule of reservation shall not apply but on that account the implementation of the impugned Office Memorandum dated 13th August, 1990 cannot be stayed or withheld.

We may point out that the services/posts enumerated above, on account of their nature and duties attached, are such as call for highest level of intelligence, skill and excellence.  Some of them are second level and third level posts in the ascending order.  Hence they form a category apart.  Reservation therein may not be consistent with "efficiency of administration" contemplated by Article 335." (para 112)

Article 16 of the Constitution by itself does not provide any exclusion of any civil post from reservation but since the reservation has to be applied maintaining efficiency in civil service the Hon'ble Apex Court has held that there are certain service and position where on account of the nature of duties attached to such service or position or the level, in the hierarchy, the concept of reservation needs to be excluded and the appointment should be confined on the basis of merit.  However, the Hon'ble Apex Court has expressed its opinion that the reservation of such post and position is not advisable and it has left it to the Government to consider and specify the services and posts to which the rule of reservation should not apply but so long as it is not done, the provision pertaining to reservation cannot be held to be bad only for the reason that they include in its ambit all services and posts without exception.  Admittedly, there is no provision excluding reservation on the post of Lecturer in Science in Intermediate Colleges.  

Even otherwise, the post of lecturer in Science in High School or Intermediate Colleges cannot be said to be such, which requires highest level of intelligence, skill and excellence.  The said post also cannot be said to require specialized or super-specialized knowledge or precision.  The illustration, mentioned in Indra Sawhney (supra) with respect to teaching post, shows that the Hon'ble Apex Court referred to the teaching post of Professor and above and not to all teaching posts.  It is well known that the post of Professor is found at the University level education and not at the level of High School and Intermediate Education.  In our view, therefore, the Hon'ble Single Judge is not right in observing that there cannot be any reservation on the post of Science teacher in Intermediate College and the said view, cannot be approved.

In view of the discussions made above, we are of the view that the Hon'ble Single Judge fell in error while holding that the post of Science teacher in Intermediate College cannot be filled by applying reservation policy and that the appointment made by the Committee of Management on ad hoc basis before the expiry of sixty days is mere irregularity and the same is cured by lapse of time.  The above view taken by the Hon'ble Single Judge cannot be sustained in view of exposition of law discussed above.  We are, therefore, constraint to set aside the order of the Hon'ble Single Judge.

The special appeal succeeds and is accordingly allowed.  The judgment under appeal is hereby set aside.  Consequently, the writ petition is dismissed.




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