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AWADHESH KUMAR SRIVASTAVA versus U.P.SECONDARY EDUCATION SERVICE COMMISSION, ALLAHABAD AND OTHERS

High Court of Judicature at Allahabad

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Awadhesh Kumar Srivastava v. U.P.Secondary Education Service Commission, Allahabad and others - WRIT - A No. 28931 of 1993 [2007] RD-AH 9400 (17 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

Hon'ble Rakesh Tiwari, J

  Heard counsel for the parties and perused the  record.

Briefly, the facts of the case are that one Sri V.K. Singh, teacher in L.T. Grade proceeded on leave w.e.f. 12.12.1988 and a short term vacancy arose in Radhey Lal Inter College, Kachla, district Badaun (for short 'College'). The petitioner was appointed in his place against short term vacancy vide letter of appointment dated 25.10.1990, appended as Annexure 1 to the writ petition, which was approved by the District Inspector of Schools, Badaun (for short 'DIOS')  vide his order dated 15.11.1990.  His term was extended from time to time and approved by the DIOS vide his orders dated 20.6.91 and 18.6.93.  In the meantime, Sri Bijendra Kumar Singh, permanent teacher in L.T. Grade resigned from service w.e.f. 7.5.1993 in terms of Regulation 29 of Chapter III of the Regulations framed under the Intermediate Education Act, 1921 under which 3 month's notice period is envisaged. The Committee of management vide its resolution dated 12.9.1993 accepted the resignation of Sri Brijendra Kumar Singh causing a substantive vacancy in the institution.

The petitioner claims that due to addition of  of Section  33-B in U.P. Secondary Education Service Commission Act, 1982 (hereinafter referred to as 'the Act of 1982') w.e.f. 7.8.93, the Committee of Management of the College resolved to regularize the services of the petitioner and his necessary papers were sent to the DIOS vide its letter dated 7.6.1993 who in turn, forwarded them to the Joint Director of Education  (redesignated as Deputy Director of Education I) for necssary action.  

The DIOS vide his letter dated 2.9.86 also recommended the name of Sri Ram Asrey- respondent no. 6 for appointment as Asstt. Teacher in L.T. Grade in the substantive vacancy caused due to resignation of Sri Brijendra Kumar Singh.

Aggrieved by the aforesaid recommendation, the Committee of Management represented the matter to the Secretary, U.P. Secondary Education Service Commission vide its letter dated 4.9.1996.

The petitioner has invoked the writ jurisdiction by means of instant writ petition praying for quashing of the impugned orders dated 2.9.1996  passed by the DIOS  by which name of respondent no. 6 was recommended for appointment as Asstt. Teacher in L.T. Grade, dated 14.8.1996 by the  Secretary U.P. Secondary Education Services Commissin, Allahabad (for short 'Commission') and for a mandamus commanding the respondents not to interfere in the funcioning of the petitioner as Asstt. Teacher in L.T. Grade; to pay his regular monthly salary and to treat him as a regular Assistant Teacher in L.T. Grade.

At the time of admission, this Court passed following interim order on 10.9.1996 :-

"Hon. S. Rafat Alam, J

...

Looking to the facts and circumstances of the case, in the meanwhile, status quo as existing today, shall be maintained till further orders.

Dated 10.9.96                                                    Sd/- S. Rafat Alam, J"

Sri Ashok Khare, learned Senior Counsel appearing for the petitioner contended that the petitioner was appointed as Assistant Teacher on 25.10.1990 against a short term vacancy which was also approved by the DIOS vide order dated 15.11.1990; that resignation accepted by the Committee of Management became effective w.e.f. 6.8.1993, i.e., the date of expiry of three month's period from 7.5.1993, as a consequence of which the short term vacancy of Assistant Teacher stood converted into substantive vacancy.  He further submits that the U.P. Legislature promulgated U.P. Act No. 1 of 1993 whereby Section 33-B was added to U.P. Secondary Education Service Commission Act, 1982 which was enforced by notification dated 7.8.1993 by the State Government. It is urged that under Section 33-B(1)(a)(1) of the U.P. Act No. 5 of 1982, entitlement of regularization has been conferred upon ad hoc appointees on or before 14.5.1991 against the short term vacancy of Lecturer/L.T. Grade in case the vacancy subsequently stood converted into substantive vacancy.  

It is submitted that in view of the provisions of Section 33-B of the Act of 1982, the petitioner has acquired right to be regularized but instead of regularizing the services of the petitioner, the respondents are considering the case of respondent no. 6 for appointment against the existing post on which the petitioner is working particularly in view of the fact that petitioner fulfills every condition laid down in Section 33-B(1)(a)(1) of U.P. Act No. 5 of 1982.  It is submitted that all the papers pertaining to the petitioner were forwarded by the management to the District Inspector of Schools Badaun for the purposes of regularization.  It is further stated that simultaneously the papers pertaining to one Sri Hardash Babu Pandey, another ad hoc Assistant Teacher in the institution were also forwarded.  The papers so submitted were forwarded by the District Inspector of Schools Badaun to the Joint Director of Education, Bareilly Region, Bareilly for passing orders in accordance with Section 33-B. The aforesaid papers remained pending without any order having been passed with regard to the petitioner either by the District Inspector of Schools or by the Joint Director of Education. The post of Regional Inspectress of Girls Schools was redesignated as Regional Deputy Director of Education (Secondary) vide Government order dated 13.12.1995 and the post of Deputy Director of Education I was redesignated as Joint Director of Education with further clarification that all powers with regard to intermediate colleges was required to be discharged by the   Deputy Director of Education (Secondary).  In view of this, the Joint Director of Education Bareilly Region Bareilly forwarded all the papers pertaining to regularization of the petitioner to the office of  Deputy Director of Education, (Secondary) vide letter dated 2.8.1996.

Iit is lastly submitted that an order has been issued by the District Inspector of Schools, Badaun dated 2.9.1996 recommending the name of Sri Ram Ashrey son of Sri Chet Ram- respondent no. 6 for appointment as Assistant Teacher in L.T. Grade against the post held by the petitioner in pursuance to the recommendations made in this regard by the U.P.Secondary Education Service Commission.  This communication refers to the recommendations made by the Secretary, U.P. Secondary Education Service Commission, Allahabad by means of letter dated 14.8.1996. Despite best efforts, the petitioner could not obtain a copy of the aforesaid letter of the Secretary, U.P. Secondary Education Service Commission dated 14.8.1996. Till date the candidate recommended by the Secondary Education Service Commission and the letter of the District Inspector of Schools Badaun dated 2.9.1996 has neither been appointed in the institution nor he has joined.  It is the petitioner who continued to function as Assistant Teacher in the college for teaching Biology. The Management again sent representation dated 4.9.1996 to the Secretary, U.P. Secondary Education Services Commission, Allahabad pointing out that the petitioner was entitled to be regularized under Section 33-B of the U.P. Act No. 5 of 1982 and in view of this there existed no vacancy in the institution against which the respondent no. 6 could be appointed. However, the Regional Deputy Director of Education and the District Inspector of Schools are insisting upon the management to appoint respondent no. 6 and to permit him tojoin the institution. He submits that there exists imminent threat of petitioer being replaced by the candidate recommended by the U.P. Secondary Education Serices Commission.

It is stated that the impugned orders have been passed in violation of Article 14 of the Constitution; that the respondent no. 6 is a candidate recommended as a Scheduled Caste candidate under the reserved quota; that there are only two posts of Assistant Teachers in L.T. Grade for Biology in the institution; that under the U.P. Act No. 4 of 1994, there eixisted 21% reservation for Scheduled caste candidates; that taking into account the fact that there are only two posts of Assistant Teacher for Biology it is apparent that not even a single post falls under the category of Scheduled Caste quota and that the posts are sanctioned subject-wise, appointment is also required to be made subject-wise and qualifications for appointment are also specified subject-wise, as such, the unit for applying reservation quota has to be the number of posts sanctioned for a particular subject alone.

Despite repeated opportunities, no counter affidavit has been filed. Today, when the case was taken up, Standing counsel and Sri S.K. Srivastava, counsel for respondent no. 1 prayed that the case be decided on the basis of their submissions and they are not in a position to file counter affidavit for certain unavoidable reasons. Accordingly, the case has been heard and is being decided without the aid of any counter affidavit on the basis of applicability of law in the admitted facts of the case.

It has been contended by the counsels for the respondents that the petitioner was appointed against a short term vacancy and his tenure was extended from time to time.; that respondent no. 6 was duly selected candidate and the authorities have committed no illegality or infirmity in considering his case for regularization that  the appointment of the petitioner against short term vacancy was not made after following the procedure prescribed for recruitment of Lecturers and L.T. Grade teachers. The Standing counsel has drawn the attention of the Court to the order dated 2.9.96 and submits that this position is further clear from the impugned order by which the DIOS has directed the Committee of Management of the College to issue letter of appointment to the selected candidate Sri Ram Ashrey. The letter is as under :-

"izs"kd %&

ftyk fo/kky; fujh{kd

      cnk;wW

lsok esa

izcU/kd

jk/ks yky b.Vj dkyst

dNyk (cnk;wW)

i=kad ek0&2@3552&556@96&97 fnukad 2-9-96

fo"k; % m0iz0 ek/;fed f'k{kk lsok vk;ksx fu;ekoyh 1995 ds 12 (5)ds v/khu Lukrd osrudze ds thou foKku ds in ij p;fur vH;FkhZ dks dk;ZHkkj xzg.k djkusa laca/kh visf{kr dk;Zokgh djusa ds laca/k esa A

egksn;]

mijksDr fo"k; ds laca/k esa fuosnu gS fd lfpo m0iz0 ek0 f'k{kk lsok vk;ksx bykgkckn ds i=kad ek0 f'k0 vk0@ p;u@2572&74@96&97 fnukad 14-8-96 Onkjk vkids fo/kky; esa Lukrd osrudze esa tho foKku ds in ij Jh jke vkljs iq-= Jh usrjke ]ek0 ua- &234@6 eks0 [kyhy xoksZ fudV pkSdh vatku 'kkgtgkWiqj dk p;j dj izcU/k ra= dks mijksDr fu;ekoyh ds fu;e 13(1) ds v/khu dk;Zokgh djusa gsrq funsZf'kr fd;k x;k gS A

vr% vki d`i;k vk;ksx Onkjk p;fur vH;FkhZ dks laLFkk Onkjk vf/k;kfpr foKku ds in ij rqjUr fu;qfDr i= fuxZr dj dk;ZHkkj xzg.k djkuk lqfuf'pr djsa rFkk mldh lwpuk vk;ksx rFkk bl dk;kZ; dks rqjUr nsusa dk d"V djsaA izcU/k ra= dk;ZHkkj xzg.k djkrs le; lHkh ewy izek.k i= vo'; ns[k ys A vk;ksx Onkjk fuxZr fu;qfDr i= dk izk#i layXu dj izsf"kr fd;k tk jgk gS !

LayXud % mDror                           Hkonh;

                                  g0 ftyk fo/kky; fujh{kd

                                        cnk;wW"

                                                   (emphasis supplied)

      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 facs 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 regulraize all ad hoc appointments made prior to particular cut off date as substative 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."

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.

In the instant case, the petitioner was never appointed against a substantive vacancy hence he has no vested right to claim regularization particularly in view of the fact that selected candidates by the Commission have joined the posts.

It may be stated that 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 ith Paragraph 2 of U.P. Secondary Education Service Commission (Removal of Difficulties) Order,1981. In paragraph 5 of the said Order,1981, procedure for making ad hoc appointment has been laid down.

Admittedly, 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 pettioner 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 appoitment is given in Para 5 of the said order.

In the case of Smt. Pramila Mishra (supra), Full Bench of this Court has held that short term vacancy should not be filled up by ad hoc appointment by the person working on short term vacancy without following the procedures for filling up the substantive vacancy.

Sri Ram Ashrey- respondent no. 6 was duly selected candidate and his appointment was in accordance with the procedures prescribed in the Recruitment Rules.  As already stated above, the petitioner was appointment for exigency of work against short term vacancy and did not undergo any recruitment process. In view of aforesaid factual position, the petitioner has no right to claim his regularization in preference to a duly selected candidate, namely, Sri Ram Ashrey, respondent no. 6.  

Accordingly, the writ petition is dismissed. No order as to costs.

Dated 17.5.2007

kkb


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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