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YOGESH MISHRA versus THE C/M MOTI LAL NEHARU INTER COLLEGE

High Court of Judicature at Allahabad

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Yogesh Mishra v. The C/M Moti Lal Neharu Inter College - WRIT - A No. 10317 of 1987 [2007] RD-AH 10229 (25 May 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                      Judgment reserved on 25.4.2007

                                            Judgment delivered on 25.5.2007

Civil Misc. Writ Petition No. 10317 of 1987

Yogesh Mishra        versus   The Committee of Management Sri Moti

                                                      Lal Nehru Inter College Basupur,

                                              District Ghazipur and another.

                                        Connected with:

                         Civil Misc. Writ Petition No. 733 of 1989

Yogesh Mishra          versus    Uttar Pradesh Secondary Education

                                                Services Commission at Allahabad

                                                and others.

                 

Counsel for the petitioner- Sri M.D.Singh Shekhar and

                                             Sri A.S.Rai, Advocates

Counsel for the respondents- Sri Vimlesh Kumar Rai,Advocate

Hon'ble Rakesh Tiwari, J

              Heard counsel for the parties and perused the record.

     The petitioner has filed Writ Petition No. 10317 of 1987 for commanding the respondents to withdraw, rescind or cancel the resolution of the Managing Committee to terminate the services of the petitioner w.e.f. 1.6.87 and not to give effect to the same in any manner and Writ Petition No. 733 of 1989 for quashing the advertisement dated 17.12.1988 (Annexure-3 to the writ petition) published in the columns of Daily Newspaper "Dainik Jagran" and for commanding the respondents not to interfere in the functioning of the petitioner as Hindi teacher in the college.

 The petitioner on his application dated 12.8.2006 was appointed temporarily as adhoc Hindi lecturer on probation for a period of one year in Sri Moti Lal Inter College, Basupur, District Ghbazipur in pay scale of Rs. 650-30-830-3--920-40-1040-40-1080-50-1280 vide Annexure-1 to the writ petition.

The claim of the petitioner is that he is M.A. in Hindi subject and has also passed B.Ed. examination. He was appointed in a clear vacancy against a substantive post, which fell vacant on the retirement of one Sri Jamuna Singh Hindi Lecturer on 30.6.1982 that he has been regularly and continuously doing his teaching job in the College since the date of his appointment without there being any break in service and is entitled to be regularized in service under Section 33-A and his services have illegally been terminated vide order dated 1.6.87.

It is also claimed that there is only one post of Hindi lecturer on which the petitioner has already been directly appointed and is continuously and regularly performing his duties after appointment which was made in accordance with the amended provisions of para 2 of U.P. Secondary Education Service Commission (Removal of Difficulties) Order 1981 and duly approved by respondent no.2 the District Inspector of Schools concerned.

In the mean time, an advertisement dated 17.12.1988 Lecturers in Hindi and English was published by the college in the columns of Daily Newspaper " Dainik Jagran" inviting applications for the post.

Aggrieved, the petitioner has filed this writ petition for quashing the aforesaid advertisement dated 17.12.1988 (Annexure-3 to the writ petition) and further for issuance of a writ of mandamus commanding the respondents not to interfere in any way with the petitioner's appointment and functioning Lecturer as (Hindi) of the college.

The counsel for the petitioner submits that the petitioner has been appointed on a substantive post of Hindi lecturer and has put in more than 6 years regular service, hence he has acquired a status of regular teacher in view of the provisions of Section 33(A) of the U.P. Secondary Education Services Commission and Selection Board Act, 1982.

He further submits that a perusal of the employment advertisement will show that applications were invited among the SC and ST candidates for two posts, i.e. one post of Hindi teacher and another post of English teacher whereas according to the Government Orders there is reservation for appointment on the teacher post to the extent of 18% only in the college. It is stated that the college there are total 8 teachers. Accordingly only 1 SC/ST candidate can be appointed under reserved quota of 18% respondent no.1 has illegally invited applications from SC/ST candidates for both the post of teachers of the college; that since the services of the petitioner stood regularized in view of Section 33(A) of the Act and also the fact that he having already worked regularly and continuously much beyond his probation period became a confirmed teacher quite a long time back, hence the action of respondent no.1 inviting applications for the post by the impugned advertisement is illegal and void and the same is liable to be quashed.

He further submits that though petitioner was appointed in a short term vacancy which converted into substantive vacancy after superannuation of Sri Jamuna Singh; that the termination could not be automatic if the teacher has been permitted to continue in the substantive vacancy so caused, hence his case is liable to be considered for regularization in view of Section 33-B of the U.P. Secondary Education Service Selection Board Act, 1982 and that the petitioner is working and getting salary for the post of Hindi lecturer as such the writ petition is liable to be allowed with costs.

The counsel for the petitioner has relied upon the following decisions in support of his above submissions.

1. 1950-91 (3) A.I.E.C.293, Chandra Bhan Singh Vs. District Inspector of Schools, Bijnor and another;

2. 1991(2) UPLBEC 873, Dr. Birendra Kumar Dixit Vs. Vice Chancellor, Kanpur Univesity and others;

3. 2000(3) E.S.C. 1990 (All), Smt. Shashi Saxena and others Vs. Deputy Director of Education and others; and

4. 1999 (3) E.S.C. 1950 (ALL), Raj Kumar Verma and another Vs. District Inspector of Schools,Saharanpur and others;

5. (1998) 1 UPLBEC 32 Deshraj Singh Vs. District Magistrate, Banda and others.

In Chandra Bhan Singh's case (supra) it has been held that-

    " The petitioner in that case was first appointed in a leave vacancy for a short term. The said vacancy was converted into substantive vacancy because of the death of the original incumbent of the post. The petitioner continued to hold the post. The respondent wanted to terminate the petitioner's services on the ground that the leave vacancy had ceased to exist. He could not be continued on the adhoc basis. A short-term vacancy, if converted into substantive vacancy, will make no difference so far as the right of ad hoc appointee on the said post is concerned. The petitioner of that case was appointed on adhoc basis and permitted to continue till regular selection was made. The post against which the petitioner in that case was appointed in a short-term vacancy later on became permanent with the resignation of the incumbent of the post. The regular appointment was to be made for the said post by the Commission. The adhoc appointee, who had been appointed when the vacancy was short-term, was permitted to continue till the post was filled by a regular selection. In the circumstances, the Court has held that the petitioner's services can not, therefore, be terminated or they can not be treated to have come to an end if the leave vacancy has ceased to exist and the same has become now a substantive vacancy. The petitioner is entitled to continue till the regular selection for the post is made by the Commission in accordance with law."

           In Dr. Birendra Kumar Dixit (supra) the Court has held that the adhoc appointee in a leave vacancy was allowed to work on the new post created, his services could not be terminated till the post is filled up by the Commission on regular basis or till he is removed from service in accordance with law.

In Smt. Shashi Saxena (supra) the petitioner was appointed on short-term vacancy as Assistant Teacher in C.T. Grade. Subsequently another post of Assistant Teacher in L.T. Grade falls vacant due to promotion.  The petitioner claimed ad-hoc appointment to subsequent post. The Court held that the petitioner would not be entitled for ad hoc appointment as Assistant Teacher in L.T. Grade. Ad hoc appointee appointed for short-term vacancy.  Conversion of short-term vacancy into a substantive vacancy. Since the appellant was working on adhoc basis by direct appointment, regularization of service on conversion of short-term vacancy into substantive vacancy held to be not illegal.

In the case of Raj Kumar Verma (supra) a teacher appointed in a short term vacancy would not be entitled to continue as of right when the said vacancy has been converted into a substantive vacancy unless such teacher found to be suitable and eligible and considered by the duly constituted Selection Committee.

In Deshraj Singh's case (supra) it has been held that appointment in leave vacancy of L.T. teacher made after obtaining approval from the DIOS and following prescribed procedure of law can not be cancelled on ground that it was violative of provisions of U.P. Ordinance no. 5 of 1994 or different Government Orders issued on reservation policy. Neither U.P. Ordinance No.5 of 1994 nor Government Orders issued on reservation policy are applicable to appointment on leave vacancy. In that case the order of cancellation was passed without giving opportunity of hearing too, as such, liable to be quashed.

 In the counter affidavit filed by the Committee of Management it is admitted that the petitioner was appointed as adhoc lecturer in the leave vacancy of Sri Jamuna Singh who retired on attaining the age of superannuation on 30.6.1983 after expiry of leave and that a clear vacancy for the post of Hindi lecturer arose thereafter.

  It is urged that the appointment letter dated 18.8.1982 (Annexure-1 to the writ petition) is fabricated one; that the Management had not appointed the petitioner on probation for a period of one year and in fact the petitioner was appointed for the period till expiry of leave of Sri Jamuna Singh after which his services stood terminated. In terms of approval letter of the DIOS,Ghazipur dated 25.10.1982 as he had accorded  approval of  appointment of the petitioner only for the leave vacancy of Jamuna Singh specifically laying down that after leave period of Sri Jamuna Singh was over the approval will automatically to be terminated as no formalities for termination of his services were required under the U.P. Intermediate Education Act. It is stated that the petitioner did not annexe copy of the approval letter. The approval letter is appended with the counter affidavit as Annexure-CA/2. It is as under:-

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It is further stated that the petitioner continued till Sri Jamuna Singh retired from service on 30.6.1983, the services of the petitioner came to an end automatically in terms of the approval letter dated 25.10.82 of the DIOS. However, he was further continued during the session, as studies of the students would be hampered, as there was no Lecturer Hindi in the college. In the mean time, the petitioner filed civil suit no. 326 of 1983 Yogesh Mishra Versus Moti Lal Nehru Inter College, Basupur, District Ghazipur and others on 15.9.1983 in the civil Court for the relief of injunction restraining the defendants from interfering with his working in the institution.  The suit was decreed exparte on 14.2.1984.

It is submitted that since the petitioner was appointed only for the leave vacancy of Sri Jamuna Singh, the permanent lecturer; he was not entitled to the benefits and privileges of the permanent employee but was paid the salaries etc. on account of the decree passed by the civil court in the aforesaid suit; hence he could not enjoy the status of a permanent employee.

The counsel for the respondents has lastly submitted that the petitioner has not come before this Court with clean hands and has concealed the facts by not annexing the copy of the   approval order and not disclosing about pendency of earlier writ petition or about filing of the civil suit and as such he has committed fraud upon this Court for obtaining interim order. It is stated that the writ petition is not only liable to be dismissed with heavy cost but the petitioner is liable to be punished.

In support of his above submissions, the counsel for the respondents has relied upon the following rulings.

1. (2000) 3 UPLBEC, SC-2765, Kiran Gupta and others Vs.  State of U.P. and others;

2. (1997) 2 UPLBEC 1329 (All.F.B.), Smt. Pramila Mishra Vs. Deputy Director of Education, Jhansi Division, Jhansi and others;

3. (2000) 2 UPLBEC-1082, Gyan Prakash Vs. District Inspector of Schools, Azamgarh and others.

In Kiran Gupta's case (supra) and in Smt.  Pramila Mishra (supra) the Court has held that the teachers appointed on adhoc basis in short term vacancy or in leave vacancy cannot claim as of right to continue on the post even after conversion of that vacancy in permanent vacancy.

In Gyan Prakash (supra) the Court has held that the petitioner having been appointed in Heera Lal Smarak Inter College shall be taken to have been absorbed in the said institution. Once he had been absorbed in the said institution, he cannot be absorbed again in another institution. He can only be transferred after he was absorbed in one institution. The letter of the DIOS dated 13.6.95 in fact amounts to order of transfer of Gyan Prakash from Heera Lal Smarak Inter College to Udyog Vidyalaya Inter College, Azamgarh. An ad-hoc appointment made by the Committee of Management itself and not by the DIOS was held not to be in accordance with law. The appointee is not entitled for regularization. Before claiming any regularization the petitioner has to establish that his appointment was made in accordance with para 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981. The Court in the circumstances, has held that the petitioner can not claim regularization of his appointment as his selection was not made by the DIOS as provided in para 5 of the Order.

    Reliance has been placed by the Standing counsel upon paragraph 7 of the decision rendered in Harish Chandra Rai V. District Inspector of Schools, Azamgarh and others-(2004)1 UPLBEC-428 wherein question of legality of ad hoc appointment in short term vacancy was considered. The Court after considering the facts and examining the provisions of Section 33 of Act of 1982 dismissing the appeal held that:  -

"7. Perusal of Paragraph 5, sub-rule (2) indicates that applications have to be invited by the District Inspector of Schools from the local Employment Exchange and also through public advertisement in two daily Newspapers having adequate circulation. In the present case, admittedly the District Inspector of Schools did not invite any application to conduct any selection for ad hoc appointment. The appellant's case, in the writ petition is that the Management issued advertisement-inviting application and management selected the appellant. The appointment of appellant was thus clearly contrary to Paragraph 5 of 1981 Order and the appointment of the appellant cannot be said to be in accordance with Paragraph 2 of 1981 Order. The object of provision of Section33-A is to give regular appointment to certain ad hoc appointments who were appointed prior to a particular date of such commencement. The statutory provision itself contemplated ad hoc appointment in accordance with Para 2 of the 1981 Order. Thus when the appointment of the appellant is contrary to Para 2 of 1981 Order he cannot claim benefit of regularization. The submission of the counsel for the appellant that Section 33-A contemplate regularization of all the ad hoc appointments who were appointed prior to cut off date irrespective of the fact as to whether their appointment was valid or not cannot be accepted. The interpretation sought to be put up by the counsel for the appellant has no merit. The purpose of Section 33-A was not to regularize all ad hoc appointments made prior to particular cut off date as substantive appointment irrespective of the fact as to whether their appointments were valid or not.  Section 33-A never intended to regularize ad hoc appointments which were void or which were not in accordance with law."

      It is stated that regularization envisaged under Section 33-B is to be made on the basis of screening by a Screening Committee. As selection was made by the DIOS as provided in paragraph 5 of the Order, 1981, the petitioner cannot claim regularization as a matter of right. In this regard, reference may be made to paragraph 11 of the decision in Gyan Prakash V. District Inspector of Schools, Azamgarh and others- (2000) 2 UPLBEC-1082 wherein it has been held that the petitioner before claiming any regularization has to establish that his appointment was made in accordance with Para 2 of U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981. The procedure for making ad hoc appointment is given in Para 5 of the said order, hence before claiming any regularization under the provision of Section 33 of the Act of 1982, the petitioner has to establish that his appointment was in accordance with Paragraph 2 and 5 of U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981.  

      In so far as the stand taken by the DIOS in his counter affidavit is concerned, it is admitted that the petitioner was granted approval for working in leave vacancy of Jamuna Singh and that a substantive vacancy arose after his retirement. The Standing counsel submits that no approval for appointment of the petitioner was ever taken on the substantive vacancy. He has invited the attention of the Court to the interim order dated 14.7.87 passed in the writ petition which provides thus:-

"Issue notice.

Till further orders of this Court, the services of the petitioner shall not be deemed to have come to an end. It shall remain open to the opposite parties to proceed in accordance with law."

Rebutting the contentions of the respondents it is vehemently reasserted by the counsel for the petitioner that if the stand taken by the Management and District Inspector of Schools contrary to the order of termination that the petitioner was appointed in a leave vacancy of Jamuna Singh, in that contingency too, it remain admitted that Jamuna Singh had never returned back to join his service. The said leave vacancy converted into substantive vacancy and once the leave vacancy converted into substantive vacancy the service of the ad-hoc appointee like the petitioner appointed before 14th May, 1991 through direct recruitment as Lecturer in a short term vacancy according to para 2 of the Uttar Pradesh Secondary Education Service (Removal of Difficulty) (Second) Order 1981 are entitled for regularization when the vacancy was subsequently converted into substantive vacancy. Admittedly, the petitioner was appointed on 18.8.1982, his service was liable to be regularized under the provisions of Section 33-B of U.P. Secondary Education Service Selection Board Act, 1982.  It is urged that the services of the petitioner were terminated which was challenged before this Court and this Court had granted the interim order and still the petitioner is continuing as a lecturer in the institution and getting salary.

In the background of the aforesaid facts the decisions relied upon by the parties and the provisions of Section 33-A and 33-B of the U.P. Secondary Education Service Selection Board Act, 1982 read with U.P. Secondary Service (Removal of Difficulties Order 1981 in the light of the decisions cited by the parties may be examined.

Sections 33-A and 33-B of the Uttar Pradesh Secondary Education (Services Selection Boards) Act, 1982 are as under:-

    "33-A Regularization of certain appointments- (1) Every teacher directly appointed before the commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Ordinance, 1988 on adhoc basis against a substantive vacancy in accordance with paragraph 2 of the Uttar Pradesh Education Service Commission (Removal of Difficulties) Order, 1981, as amended from time to time, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with, the provisions of the Intermediate Education Act, 1921, shall, with effect from the date of such commencement, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such appointment up to the date of such commencement.

(1-A) Every teacher appointed by promotion, on ad hoc basis against a substantive vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, as amended from time to time, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of the Intermediate Education Act, 1921 shall, with effect from the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards ( Amendment) Act, 1991, be deemed to have been appointed in a substantive capacity  provided such teacher has been continuously serving the institution from the date of such adhoc appointment to the date of such commencement.

(1-B) Every teacher directly appointed after June 12, 1985 and before May 13, 1989 on ad hoc basis against a substantive vacancy in the Certificate of Teaching grade, in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, as amended from time to time, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of the Intermediate Education Act, 1921 shall, with effect from the commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards ( Amendment) Act, 1991, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such ad hoc appointment to the date of such commencement.

(1-C) Every teacher appointed by promotion or by direct recruitment before July 31, 1988 on adhoc basis against a substantive vacancy in accordance with Section 18, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of the Intermediate Education Act, 1921 shall, with effect from the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1991 be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such ad hoc appointment to the date of such commencement.

(2) Every teacher deemed to have been appointed in a substantive capacity under sub-section (1) or (1-A) or (1-B) or (1-C), shall be deemed to be on probation from the date of commencement referred to in sub-section (1) or (1-A) or (1-B) or (1-C) as the case may be.

(3) Nothing in this section shall be construed to entitle any teacher to substantive appointment-

(a) if on the date of ( commencement referred to in sub-section (1) or (1-A) or (1-B) or (1-C) as the case may be ), such post had already been filled or selection for such post had already been made in accordance with this Act' or

(b) if such teacher was related to any member of the Committee of Management or the Principal or Head Master of the institution  concerned.

Explanation- For the purposes of this sub-section a person shall be deemed to be related to another, if-

(i) they are members of a Hindu undivided family; or

(ii) they are husband and wife; or

(iii) the one is related to the other in the manner indicated in the Second Schedule to the Intermediate Education Act, 1921.

         33-B Regularization of certain other appointments-   (1) Any teacher, other than the Principal or Headmaster, who-

        (a) (i) was appointed by promotion or by direct recruitment in the Lecturer grade or Trained Graduate grade on or before May 14, 1991 or in the Certificate of Teaching grade on or before May 13, 1989 against a short term vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission ( Removal of Difficulties) ( Second ) Order, 1981 and such vacancy was subsequently converted into a substantive vacancy; or

(ii) was appointed by direct recruitment on or after July 14, 1981 but not later than June 12, 1985 on ad hoc basis against a substantive vacancy in the Certificate of Teaching grade through advertisement and such appointment was approved by the Inspector; or

(iii) was appointed by promotion or by direct recruitment on or after July 31, 1988 but not later than May 14, 1991 on adhoc basis against a substantive vacancy in accordance with Section 18, ( as it stood before its substitution by the Uttar Pradesh Secondary Education Services Commission and Selection Boards ( Second Amendment) Act, 1992;

(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 Act referred to in sub-clause (iii) of Clause (a);

        (d) is not related to any member of the management or the

       Principal or Head Master of the Institution concerned in the

       manner specified in the explanation to sub-section (3) of

       Section 33-A;

                  (e) has been found suitable for appointment in a substantive

                   capacity by a Selection Committee constituted under sub-

                   section (2), shall be given substantive appointment by the

                   Management .

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

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

(ii) One officer holding a Group ''A' post (specified as such by the State Government from time to time) in any department other than Education Department, to be nominated by the State Government;

(iii) Regional Inspectress of Girls School of that region;

   Provided that the Inspector of the district shall be co-opted as a member while considering the cases for regularization of that district.

(b) The Selection Committee constituted under Clause (a) shall consider the case of every teacher and on being satisfied about his eligibility and suitability in view of the provisions of sub-section (1) shall, subject to the provisions of sub-section (3) recommend his name to the Management for appointment under sub-section (1) in a substantive vacancy.

     (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 Act referred to in sub-clause (iii) of Clause (a) of sub-section (1), such vacancy had already been filled or selection for such vacancy has already been made in accordance with this Act."

The ratio of decisions cited by the counsel for the petitioner is that the teacher like the petitioner who was appointed in a short term vacancy and the vacancy was converted into substantive vacancy, the termination could not be automatic if the teacher has been permitted to continue later on in the substantive vacancy hence his case is liable to be considered for regularization under Section 33-B of the U.P. Secondary Education Service Selection Board Act, 1982.

Per contra, the ratio of decisions in the case relied upon by the respondents is that the services of the petitioner have not been regularized as he is working in view of exparte stay order granted by this Court. He is claiming for deemed regularization of his services under Section 33-A of U.P. Secondary Education Services and Selection Board Act, 1982 which is not possible under law as regularization can be claimed only when the teacher fulfills the following requirements prescribed under Section 33-A.

(i) he must be appointed on adhoc basis against substantive vacancy;

(ii) appointment should be made in accordance with para 2 of the U.P. Secondary Education Service Commission  (Removal of Difficulties ) Order, 1981;

(iii) he must possesses the qualifications prescribed ; and

(iv) continuously serving from the date of appointment.

          After hearing the counsel for the parties and on perusal of records it appears that the civil suit filed by the petitioner had been decided much earlier. The decree was in his favour hence it cannot be said that the petitioner has not come before this Court with clean hands to gain any advantage. The copy of approval order could also have been filed by the Management or the DIOS as such it is wrong to allege that the petitioner has committed fraud upon this Court as he neither he disclosed about pendency of earlier writ petition nor he whispered about his civil suit.

It also appears that the Management for some reasons continued the petitioner in service even after the leave period of Jamuna Singh expired. He retired on 30.6.83 and the petitioner was continued by the Management even thereafter.

The Court in Umesh Chandra Vs. District Inspector of Schools, Jaunpur and others, (1987 UPLBEC-105 while considering the provisions of Section 18 of the U.P. Secondary Education Services Commission and Selection Board Act, 1982 read with Section 33 as introduced by amendment held that-

          "Section 33 relates to power to remove difficulties providing that the State Government may, for the purposes of removing any difficulty, by a notified order, direct that the provisions of the Act shall, during the period specified in the order; have effect subject to adaptations by way of modification, addition or omission as may be deemed necessary or expedient. The power given to the State Government is not uncontrolled or unfettered. Its use is conditional and restricted. The existence of arising of a difficulty is the sine qua non for the exercise of the power. By necessary implication, though not expressly so stated, the difficulty must be such as arises in giving effect to the provisions of the Act and not a difficulty arising allunde or an extraneous difficulty. The extent of exercise of such power is limited to implement or give effect of the Act. The section does not impart finality to the decision of the State Government as the to existence of difficulty nor does it contemplate a change of the scheme and essential provisions of the Act.....................................

         The difficulty in implementing the basic scheme of the Act in the instant case does exist per se as the Commission has necessarily to follow an elaborate procedure which is both the time consuming and cumbersome to finalize the selection of candidates while vacancies in the large number of institutions in the state continue to multiply. And this would be the problem before the Board also in different regions as and when it is constituted. In the larger interest of the students community Government has had to introduce the Removal of Difficulties Orders in the form of stopgap arrangements. Section 18 no doubt makes provision for adhoc appointments but that also entails compulsory waiting for certain period for the recommendation of the Commission which as the experience has shown is rarely available within the specified period, and, hence the necessity to bridge the gap through the medium of the Removal of Difficulties Orders..........

Under the Removal of Difficulties Orders the management is empowered to appoint by promotion or by direct recruitment, a teacher on ad hoc basis in the case of a substantive vacancy caused by death, retirement, resignation or otherwise and such appointment may continue till a candidate recommended by the Commission or the Board, as the case may be, joins the post. In case of a short-term vacancy also meaning thereby,  " a vacancy which is not substantive and is of limited duration" the management may make ad hoc appointment, which may continue till such vacancy ceases to exist. The power conferred on the management to fill in substantive vacancies on ad hoc basis following the norms laid in the Removal of Difficulties Orders is, it will be noticed, in addition or supplemental to the power conferred by Section 18 of the Act. This flows clearly from the purpose, which Section 33 of the Act is designed to subserve to its terms. The Removal of difficulties Orders occupy the field and provide the requisite mechanism for so long as the Act in all its relevant provisions cannot be implemented..................

The management is empowered to act under the Removal of Difficulties Orders even though this be in modification of the provisions made in Section 18 of the Act. And there can be no dispute that it is a little consequence whether in the resolution or the order passed the reference is to Section 18 of the Act or the Removal or Difficulties Orders. ...........................

The provisions contained in Section 18 of the Act or the Removal of Difficulties Orders are essentially transitory in nature; there ought to be measures taken last these stop gap arrangements are perpetuated. For so long as that is not done, the transitory provisions must continue to be observed in their true letter and spirit and the attitude of hiring and firing such teachers on the expiry of June 30 in successive years cannot be sustained................

          Therefore it is directed that till the services of the petitioners are terminated in accordance with law or the candidates recommended by the Commission, or the Board, as the case may be join the post held by the petitioners, the District Inspector of Schools, the Regional Inspectress of Girls Schools concerned shall treat the appointment of the petitioners as continuing as if the same did not automatically cease under clause (a) or clause ( c ) of sub-section (3) of Section 18 of the U.P. Secondary Education Services Commission and Selection Board Act, 1982 and shall ensure also that the salary admissible to the petitioners continues to be paid to them regularly in accordance with the provisions of the U.P. High Schools and Intermediate Colleges   (Payment of Salaries of Teachers and other Employees) Act, 1971."

Similarly in Km. Nishi Bhargava Vs. Deputy Director of Education, Agra Region, Agra and others, (1987 UPLBEC-415) the Court considered the provisions of Section 33-A for the purpose as to when adhoc appointment can be treated in substantive capacity and held that-

          " Section 33-A does not make any ''distinction between ad hoc teachers appointed in 1982 or before constitution of the commission, or after it. The benefit of regularization is available to all those who were appointed under paragraph 2 of Removal of Difficulties Orders as amended from time to time and satisfied the conditions mentioned in the section. It is not dependent on time of appointment.

 Appointments under Removal of Difficulties Orders under Section 18 are made under entirely different circumstances. They do not overlap. The one has nothing to do with other. Section 18 does not operate on its own. The management under this provision is empowered to make ad hoc appointment only if the commission fails to recommend any teacher in a vacancy notified. Vacancy in an institution could be notified under sub-rule (1) of Rule which requires the management to determine and intimate the commission in the proforma the number of vacancies which were existing or were likely to fall vacant in a year. The statement could be sent under sub-rule (2) of Rule 4 by 15th of May. If the vacancy was notified then the Commission under Rule 6 could require Inspector to notify the vacancy. That is either the management or commission has been authorized to notify vacancy. The Inspector of Schools who under the scheme of U.P. Intermediate Education Act is responsible for effective management of the institution has been surprisingly left out. He has been assigned any role in notification of vacancy except as forwarding officer if it is satisfied by Management or notifying officer if the Commission requires him to do so. But no machinery has been devised for commission to acquire informations about existence of vacancy in an institution. In fact to this extent the rule is defective. It should have made a provision that in absence of notification of vacancy by management by 15th September the Inspector of Schools shall notify the vacancy. It may further be added that although the Rule 4(4) required Director to ensure that all vacancies were notified, to Commission by February 28, 1983 but the Commission itself having been constituted, properly, in July 1983 the rule could not operate. The Director, therefore, could not exercise his power. Therefore, neither the rule was amended nor the Government appears to have issued any directive fixing any date for notification of vacancy. In absence of any notification of vacancy Section 18 does not operate. Therefore, the argument that the appointments under orders should be deemed to have been made under Section 18 does not appear to be correct.

The apprehension that it may result in nullifying the method of selection by commission may by justified but the remedy lies in amending the rules in a manner that the objective of selection by commission may become effective. Provision should be made for penalizing the management if it does not notify the vacancy. Further Inspector of Schools should be empowered to take action against the management if they failed to perform their duty. They may also be authorized to notify the vacancy if the management fails to do so. Amendment should also be made rendering all appointments made without notifying vacancy as invalid. And the payment of salary of such appointees should not be the responsibility of the State. But in absence of these there is no option but to hold that appointments under the Orders cannot be taken to be under Section 18."

          In the aforesaid rulings it has been held that if the services of the ad-hoc teacher who has been appointed and in whose respect the approval has been granted by the DIOS shall continue unless his services are terminated in accordance with law after approval of the DIOS, hence the petitioner continued in service as his services were not terminated in accordance with law.

The matter may be looked from another angle also. It is admitted to the parties that the civil suit was filed by the petitioner on 15.8.83 for restraining the respondents not to interfere in his working till regular selection which was decreed exparte on 14.2.84 and that the services of the petitioner were terminated by the Committee of Management on 7.5.87 against which C.M. W.P. No. 10317 of 1987 was filed by him. The High Court by the interim order in the aforesaid writ provided that the services of the petitioner shall not be deemed to have come to an end, but it shall remain open to the opposite parties to proceed in accordance with law.

       Though the respondents advertised the post they did not proceed to terminate the services of the petitioner in accordance with law as was provided in the spirit of the interim order dated 14.7.87 in the aforesaid writ. Rather they had actively contributed in continuance of the petitioner in service on the face of the approval in leave vacancy granted by the DIOS and had also allowed the suit to be decreed exparte.  As it does not appear that the decree was challenged in appeal and became final, therefore, to my mind, the petitioner is deemed to continue in service in law when the substantive vacancy occurred. The petitioner is working as Lecturer Hindi since 1982.

It is the duty of the Management to take all steps filling up the substantive vacancy well before the date of its occurrence as its date of occurrence on superannuation of permanent lecturer is known well in advance.  Since the petitioner has a decree in his favour in suit no.326 of 1983 and the Management has not filed copy of the approval order of the DIOS this matter is disposed of with a direction to the DIOS to decide the dispute regarding validity and legality of termination of services of the petitioner within a period of two months from the date of production of a certified copy of this order in the light of the observations made in the body of this judgment in accordance with law.

For the reasons stated above, the writ petition is disposed of. No order as to costs.      

Dated 25.5.2007

CPP/-

4. (2000) 3 UPLBEC, SC-2765, Kiran Gupta and others Vs.  State of U.P. and others;

5. (1997) 2 UPLBEC 1329 (All.F.B.), Smt. Pramila Mishra Vs. Deputy Director of Education, Jhansi Division, Jhansi and others;

6. (2000) 2 UPLBEC-1082, Gyan Prakash Vs. District Inspector of Schools, Azamgarh and others.

6. 1950-91 (3) A.I.E.C.293, Chandra Bhan Singh Vs. District Inspector of Schools, Bijnor and another;

7. 1991(2) UPLBEC 873, Dr. Birendra Kumar Dixit Vs. Vice Chancellor, Kanpur Univesity and others;

8. 2000(3) E.S.C. 1990 ( All), Smt. Shashi Saxena and others Vs. Deputy Director of Education and others; and

9. 1999 (3) E.S.C. 1950 (ALL), Raj Kumar Verma and another Vs. District Inspector of Schools,Saharanpur and others;

    10. (1998) 1 UPLBEC 32 Deshraj Singh Vs. District             Magistrate, Banda and others.

Teachers who are appointed in short-term vacancy on ad hoc basis or in leave vacancy cannot claim as a matter of right to continue on the post even after conversion of that vacancy into permanent vacancy as has been held by a Full Bench of this Court in Smt. Pramila Mishra V. Dy. Director of Education Jhansi Division, Jhansi and others-(1997)2 UPLBEC-1329.  In paragraphs 16 and 24 of the said decision, it has been held that there is no provision which directly or indirectly vests a right in a person appointed as an ad hoc teacher in a short term vacancy to continue even after the said vacancy has ceased to exist and a substantive vacancy has been created in its place.

     


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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