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SHOBH NATH SINGH versus STATE OF U.P. AND ORS.

High Court of Judicature at Allahabad

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Shobh Nath Singh v. State Of U.P. And Ors. - SPECIAL APPEAL No. 387 of 2001 [2002] RD-AH 49 (13 November 2002)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

[Reserved]

Special Appeal No. 387 of 2001

Shobh Nath Singh Vs. State of U.P. and others.

_____________

Hon. S.K. Sen, C.J.

Hon. R.K.Agrawal, J.

[Delivered by R.K. Agrawal, J.]

The present Special Appeal has been filed against the judgment and order dated 13.7.2000 passed by the learned Single Judge, whereby the writ petition filed by the appellant-writ petitioner has been dismissed.

Briefly stated the facts giving rise to the present Appeal are that a post of lecturer in English in Indira Gandhi Intermediate College, Jamah, Mauaima, district Allahabad, (hereinafter referred to as the Institution) was sanctioned on 11.12.1981 by the State Government. One Shri R.P. Ojha was appointed as an ad hoc lecturer under the provisions of Second Removal of Difficulties Order, 1981. The Committee of Management of the Institution intimated the vacancy to the U.P. Secondary Education Services Commission (hereinafter referred to as the Commission) as provided under Section 18 of the U.P. Secondary Education Services Selection Boards Act, 1982(hereinafter referred to as the Act). The Commission advertised the post in question in the newspapers on 11.8.1984. R.P. Ojha, who was working as ad-hoc lecturer in English, went on leave on 3.1.1985. Subsequently, he also resigned on 1.12.1985. His resignation was accepted by the Committee of Management on 1.1.1986. The Committee of Management, put a notice on 10.11.1985 on the notice board for filling up the vacancy which had occurred due to leave  taken  by R.P. Ojha, and on 1.12.1985, the Committee of Management, resolved to appoint the appellant writ-petitioner. The appellant-writ petitioner was given appointment on ad hoc basis on 2.12.1985. The District Inspector of Schools, vide order dated 17.2.1985, approved the appointment of the appellant-writ petitioner.

It appears, that the Commission, selected one Shri G.P. Mishra, respondent no.4, on the post of lecturer in English vide notification dated 7.7.1989. When Shri G.P. Mishra, was not being given appointment by the Committee of Management despite instructions given by the District Inspector of Schools, he approached this Court by filing Civil Misc. Writ Petition No. 2695 of 1990 seeking direction to the Committee of Management to issue appointment letter for the post of lecturer in English. This Court issued an interim mandamus on 17.2.1990 to the Committee of Management, either to issue appointment letter to Shri G.P. Mishra or to show cause. Pursuant thereto, the Committee of Management issued appointment letter dated 30.1.1992 to Shri G.P. Mishra, who joined the Institution on 7.2.1992.

The appellant writ petitioner was claiming regularisation on the ground that he was entitled for regularisation under Section 33-A (1-C) of the Act, as amended in the year 1991. He filed Civil Misc. Writ Petition No. 7988 of 1992 before this Court. He also prayed for an interim order and application for such interim order was rejected. However, the District Inspector of Schools, on the representation made by the appellant-writ petitioner, regularised his services vide order dated 19.2.1992 which order was subsequently cancelled on 26.3.1992. The order-dated 26.3.1992 was challenged by the appellant-writ petitioner before this Court by filing Civil Misc. Writ Petition no. 17534 of 1992. The said writ petition has been dismissed by the learned Single Judge vide judgment and order dated 13.7.2000, which order is impugned in the present Special Appeal.  

We have heard Shri Shailendra learned counsel for the appellant-writ petitioner, Shri H.N. Pandey learned counsel for the respondent no.4 and Shri Sabhajit Yadav learned Standing Counsel appearing for the State-respondents.

The learned counsel for the appellant-writ petitioner submitted that in view of Section 33-A(1) of the Act, the service of Shri R.P. Ojha stood regularised on 12.6.1985 since he was appointed on ad hoc post in substantive vacancy and, therefore, the Commission could not have proceeded for selection of regular lecturer in English for the Institution. Thus, the selection of the respondent no.4 is wholly illegal and contrary to law. He further submitted that the District Inspector of Schools vide order dated 19.2.1992 had regularised the services of the petitioner which order was subsequently cancelled on 26.3.1992 without giving any show cause notice or opportunity of hearing to the petitioner and, therefore, the said order having been passed in gross violation of principle of natural justice, equity and fair play, cannot be sustained and ought to have been set-aside. According to him, the services of the appellant-writ petitioner had rightly been regularised under Section 33-A (1-C) of the Act and, therefore, on merit also, the order-dated 26.3.1992 is liable to quashed.

It may be mentioned here that when regular selection was being made, the appellant writ petitioner had approached this Court by filing Civil Misc. Writ Petition No. 12180 of 1986. The writ petition was disposed of vide judgment and order dated 16.12.1986 with the observations that the appellant-writ petitioner would continue till the regularly selected candidates joins the post in question.

The learned counsel for the appellant-writ petitioner further submitted that at the time when the petition was appointed in a short-term vacancy, there was no requirement under law to advertise the vacancy in two news-papers and, thus, his appointment could not be invalidated on the ground that the vacancy was only notified on the notice board and not advertised in two newspapers as held by the Full Bench of  this Court in the case of Radha Raizada and others vs. Committee of Management, Vidyawati Darbari Girls Inter College and others (1994)3 UPLBEC 1551. He relied upon the decision of the Division Bench of this court in the case of Ashika Prasad Shukla Vs. The District inspector of Schools, Allahabad and another (1998) 3 E.S.C.2006 (All.) wherein it has been held that the decision of Full Bench of this Court  in the case of Radha Raizada would not apply to the appointments made prior to the said decision as it has only prospective operation. He further submitted that even though the petitioner was appointed against leave vacancy, but after the resignation of Shri R.P. Ojha was accepted, it was converted into substantive vacancy and since the petitioner continued to work on the said post, in view of the order passed by this Court in Civil Misc. Writ Petition No. 12180 of 1986 decided on 16.12.1986(filed by the appellant-writ petitioner) he would be deemed to be working on ad hoc post against substantive vacancy and entitled for regularisation of his service. He submitted that the decision of the Full Bench of this Court in the case of Smt. Pramila Mishra Vs. Deputy Director of Education, Jhansi Division, Jhansi and others  (1997) 2 UPLBEC 1329, would not be applicable. He also relied upon the Division Bench decision of this Court in the case of Raj Kumar Verma and another Vs. District Inspector of Schools, Saharanpur and others 1999 (3) E.S.C.1950 (All.). He further submitted that in any event, the District Inspector of Schools having once passed an order of regularisation cannot cancel the same as he has no power to review. In support of this submission, he relied upon the decision of Hon. Supreme Court in the case of Dr. (Smt.) Kuntesh Gupta Vs. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and others reported in (1987) 4 S.C.C. 525.

Shri H.N. Pandey, learned counsel for the respondent no.4, submitted that Shri R.P. Ojha who was appointed as ad hoc lecturer in English in the Institution went on leave without pay w.e.f. 3.1.1985 and he resigned. The Commission had advertised the post on 11.8.1984 pursuant to the requisition sent by the Institution. The appellant-writ petitioner was appointed on ad hoc basis against short-term vacancy/leave vacancy of Shri R.P. Ojha, the ad hoc lecturer. The appellant writ- petitioner's appointment was made not through any advertisement in the newspaper. The respondent no.4 was selected by the Commission vide notification dated 7.7.1989 and he had been given appointment only on 30.1.1992 pursuant to the interim mandamus issued by this Court. Since then, he is working and also getting his salary and he had joined the post of lecturer in English after resignation from his regular service from postal department. He further submitted that when the appellant writ petitioner had approached this court in the year 1986 by filing Civil Misc. Writ Petition No. 12180 of 1986, this Court had disposed of the writ petition with the observation that he would continue till regular selection is made. Thus, it is not open to the appellant-writ petitioner to question the selection of the respondent no.4 as his continuance on the post was only till regular selection is made which has been made in the present case. Thus, he has no right to continue. He further submitted that the appellant-writ petitioner does not fulfil the conditions mentioned in Section 33-A (1-C) of the Act, as he was not appointed against substantive vacancy. He shall continue only against leave vacancy or short-term vacancy. Further the regular selection has already been made by the Commission and, therefore, in view of sub-section 3 of Section 33-A, regularisation of the appellant-writ petitioner should not have been made at all. Since the regularisation was done illegally without there being available any post of lecturer in English in the Institution, the District Inspector of Schools was justified in cancelling the same. He relied upon a decision in the case of Jagdish Singh Kushwaha Vs. U.P. Secondary Education Services Commission and others 1993 HVD (Alld.) Vol. IV 21 wherein this Court has held that for claiming regularisation under Section 33-A (1-C) of the Act, the following five conditions have to be fulfilled and if any one of the five conditions mentioned is not fulfilled, such teacher cannot be regularised. These five conditions are as follows:

1. The ad hoc appointment should be prior to July, 1988,

2. The appointment should be against a substantive vacancy,

3. The appointment should be in accordance with section 18 of the Act,

4. The candidate should either possess qualifications prescribed under the Intermediate Education Act 1921 or he should have been exempted from the requirement or possessing the said qualifications; and

5. The candidate should have been continuously serving the institution from the date of ad hoc appointment till the commencement of U.P. Act No. 26 of 1991(6.4.1991)."

Having heard the learned counsel for the parties, we find that the following facts are not in dispute:

The appellant writ petitioner was appointed on 2.12.1985 when Shri R.P. Ojha, the then ad hoc lecturer in English in the Institution, was on leave without pay. He submitted his resignation on 1.12.1985, which was accepted on 1.1.1986. The appellant writ petitioner had earlier approached this Court by filing Civil Misc. Writ Petition No. 12180 of 1986 which was disposed of with the direction that he would continue till the regularly selected candidates comes.  His continuance on the post was on account of order passed by this Court. The post of lecturer in English was also advertised by the Commission on 11.1.1984 and respondent no.4 was selected vide notification dated 7.2.1989 by the Commission.

Since the appellant-writ petitioner has not challenged the selection of the respondent no.4 we are not called upon to decide the validity of his selection. The only question for consideration is as to whether the appellant-writ petitioner should have been regularised under Section 33-A(1-C) of the Act or not ? Further, whether the District Inspector of Schools, was justified in cancelling the earlier order of regularisation of the appellant-writ petitioner or not?

It is not in dispute that the appellant writ petitioner was appointed in leave vacancy. It was not a substantive vacancy. The Full Bench of this Court in the case of Smt. Pramila Mishra  (supra) has held that a teacher appointed by the management of the institution on ad hoc basis in a short term vacancy (leave vacancy/suspension vacancy) which is subsequently converted into a substantive vacancy in accordance with the provisions of the Act, Rules and Orders (on death, resignation, dismissal or removal of the permanent incumbent), cannot claim a right to continue. He has, however, a right to be considered alongwith other eligible candidates for ad hoc appointment in the substantive vacancy if he possesses the requisite qualification. In this view of the matter, the petitioner could not have continued after 1.1.1986 on the post of lecturer in English when the post, on which he was appointed on short term vacancy was converted into substantive vacancy. His continuance was on account of action of the Committee of Management and under the order passed by this Court. His appointment was also not made under Section 18 of the Act which provides for notifying the vacancy by the Management to the Commission and the Commission had failed to recommend any suitable candidates for being appointed as teacher within one year from the date of such notification or the post of such teacher has actually remained vacant for more than two months only then the Management was given right to appoint an ad hoc teacher.

In the present case, the substantive vacancy arose on 1.1.1986 when according to the own saying of the appellant writ petitioner, resignation of Shri R.P. Ojha was accepted by the Committee of management whereas the appellant writ petitioner was appointed on 2.12.1985. Thus his appointment cannot be said to be under Section 18 of the Act. Moreover, as held by this Court in the case of Jagdish Singh Kushwaha (supra), the conditions no. 2 and 3 are not fulfilled. Thus, the appellant-writ petitioner is not entitled for regularisation.  The order of regularisation having been passed by the District Inspector of Schools without taking into consideration the relevant law has rightly been cancelled. Moreover in earlier writ petition filed by the appellant-writ petitioner in the year 1986 he was directed to continue till the regular selection was made. The respondent no.4 having been regularly selected the continuance of the appellant would cease from the date of his joining.

The principles laid down in the case of Raj Kumar Verma (supra) relied upon the learned counsel for the appellant-writ petitioner   is not applicable in the present case in as much as in the aforesaid case, this court has held that a teacher appointed in a short term vacancy on or before the date specified in sub-clause (a)(i) of sub-section (1) of Section 33-B if not found suitable and eligible to get substantive appointment would cease to hold the post on such date as the State Government may by order specify and not by the date the short term vacancy came to be converted into the substantive vacancy. Since in the present case, the appointment of appellant-writ petitioner has not been found to be in accordance with Section 18 of the Act, he is not entitled for regularisation.  

Since we have held that the appellant writ petitioner was not entitled for regularisation, the order passed by the District Inspector of Schools on 26.3.1992 where by he has cancelled his earlier order of regularisation dated 19.2.1992, setting right the legal position, call for no interference in exercise of powers under Article 226 of the Constitution of India even where neither any notice to show cause nor any opportunity of hearing was afforded as in the present case the appellant-writ petitioner has been afforded adequate opportunity of hearing by this Court to prove his case for regularisation.  

So far as the contention that the services of Shri R.P. Ojha who was appointed on ad hoc basis against a substantive vacancy of lecturer in English in the Institution stood regularised on 12.6.1985 and the post being not vacant and not open for selection by the Commission is concerned, we find that Shri R.P. Ojha had proceeded on leave without pay since 3.1.1985 and did not join thereafter. He did not claim any regularisation, which required scrutiny under Section 33-A (3) of the Act. Thus, the post was rightly filled up by the Commission.

In view of the foregoing discussions, we do not find any merit in the Special Appeal and it is dismissed.

However, there shall be no order as to costs.

DT: 13.11.2002

Iss/-


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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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