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RIYAZ AHMED KHAN versus C/M. MUSLIM HINDUSTANI INTER COLLEGE GHAZIPUR AND OTHERS

High Court of Judicature at Allahabad

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Riyaz Ahmed Khan v. C/M. Muslim Hindustani Inter College Ghazipur And Others - WRIT - A No. 44969 of 2003 [2003] RD-AH 425 (4 November 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No.44969 of  2003

Riyaz Ahmad Khan v. Committee of Management,

Muslim Anglo Hindustani Inter College, Ghazipur

and others

Hon'ble R.K.Agrawal, J.

By means of the present petition filed under Article 226 of the Constitution of India, the petitioner Riyaz Ahmad Khan seeks a writ, order or direction in the nature of certiorary quashing the advertisement dated 21st August 2003 and 22nd August 2003, filed as Annexures 10 and 10-A, and also the order of the Managing Committee dated 7th August 2003, filed as Annexure 7 to the writ petition. He further seeks a writ of mandamus directing the District Inspector of Schools, Ghazipur; Joint Director of Education (Madhyamik), Varanasi Region, Varanasi; Additional Director of Education (Madhyamik), Allahabad; Director of Education (Madhyamik), U.P., Lucknow and the Special Secretary, Education, Government of U.P., Lucknow for passing an order for promoting the petitioner to the post of the Lecturer after setting aside the order of the Committee of Management dated 7th August 2003.

Briefly stated, the facts giving rise to the present petition are as follows :-

In the district of Ghazipur there is a College, known as, Muslim Anglo Hindustani Inter College (hereinafter referred to as "the College"). It has been established sometimes in the year 1937 and has been declared to be a minority institution in June 1997. The petitioner claims to have been appointed as Assistant Teacher L.T.Grade on ad hoc basis on 22nd December 1992. The appointment was made on the post held by one Mohammad Yusuf who was promoted as ad hoc Lecturer. When the approval was not forthcoming from the District Inspector of Schools, Ghazipur, the petitioner approached this Court by filing Civil Misc. Writ Petition No.10278 of 1994 which was disposed of vide judgment and order dated 17th January 1995 directing the District Inspector of Schools to pass a reasoned order after receiving a fresh representation from the petitioner. Pursuant thereto, the District Inspector of Schools vide order dated 16th August 1995 granted approval. He, however, reviewed his order dated 16th August 1995 and cancelled the same vide order dated 17th May 1997. A consequential order was passed by the Manager of the College on 7th July 1997. Both the orders, i.e., 17th May 1997 and 7th July 1997 were challenged by means of Civil Misc. Writ Petition No.21910 of 1997 which was allowed vide judgment and order dated 4th December 1998.  This Court held that the petitioner is entitled to continue on ad hoc basis until the vacancy is converted into a substantive vacancy and is also entitled to get his salary.  Against the judgment and order dated 4th December 1998 aggrieved persons other than the petitioner preferred a Special Appeal No.125 of 2000 which is said to be still pending, in which no interim order has been passed. The petitioner is getting salary. In the meantime, it appears that a post of Lecturer in the College fell vacant. The petitioner claims that it is to be filled up by way of promotion and accordingly he made an application on 9th July 2003. The claim of the petitioner has been rejected by the Committee of Management on the ground that the petitioner is an ad hoc appointee as his appointment has not been regularized and he had not been appointed on a substantive vacancy and on the date of the occurrence of vacancy, he has not completed 5 years. The petitioner has made a representation to the District Inspector of Schools on 16th August 2003, which is said to be still pending. The Committee of Management treating the vacancy in the Lecturer grade as one to be filled up by way of direct recruitment, has advertised it on 21st August 2003 and 22nd August 2003. According to the petitioner, the said vacancy is to be filled up by way of promotion and he being eligible and entitled is liable to be promoted. The action of the Committee of Management in advertising the post of Lecturer for being filled up by way of direct recruitment is under challenge in the present writ petition.

I have heard Sri S.K.Verma, learned Senior Advocate, assisted by Sri Siddharth Verma, and the learned Standing Counsel representing the respondent nos.2 and 3.

The learned counsel for the petitioner submitted that admittedly the College in question is a minority institution and, therefore, the provisions of the U.P.Secondary Education Services and Selection Board Act, 1982 (hereinafter referred to as "the 1982 Act") is not applicable in view of the specific provision made in Section 30 of the 1982 Act. According to him, if the provisions of the 1982 Act are not applicable to the College in question, his appointment in the year 1992 should be treated as one having been made in substantive capacity and, therefore, he is entitled for being promoted on the post of Lecturer in the said College. His further submission is that his appointment cannot be treated under the U.P.Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981. According to him, the concept of ad hocism is by virtue of the provisions of the 1982 Act and the Removal of Difficulties Orders issued by the State Government from time to time is not applicable in the case of a College run by the minority. He relied upon the provisions of Regulation 5 of Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921 (hereinafter referred to as "the 1921 Act) and submitted that 50% of the total number of the sanctioned posts in the Lecturer grade have to be filled up by way of promotion and, therefore, he is entitled for being promoted. According to him, under Section 3(1)(a) of the Regulations framed under the 1921 Act the seniority list has to be prepared for each grade of teachers and it does not exclude the ad hoc appointment. He relied upon the decision of the Hon'ble Supreme Court in the case of Suraj Prakash Gupta and others etc. v. State of Jammu & Kashmir and others, AIR 2000 SC 2386 wherein the Hon'ble Supreme Court held that ad hoc/stop gap services rendered by the promotees beyond six months and without the consent of the Public Service Commission cannot be treated as non est.

He further relied upon the case of C/M St. John Inter College v. Girdhari Singh and others, AIR 2001 SC 1891 where the Hon'ble Supreme Court has held that the Regulations could always be made to maintain educational character and standard of institution and for that purpose to lay down qualifications or conditions of service, to ensure orderly, efficient and sound administration and to prevent mal-administration, to ensure efficiency and discipline of the institution and for several other objectives, which would be for the benefit of the institution and which would not offend the right engrafted under Art.30 which protects the rights of minority to administer its educational institution.

He also relied upon a decision of the Hon'ble Supreme Court in the case of Baleshwar Das and others etc. v. State of U.P. and others, AIR 1981 SC 41 wherein the Hon'ble Supreme Court has held that the temporary appointees whose appointments have received approval of the Public Service Commission and who have run out the two years of probation, must be deemed to be appointed in a substantive capacity and the substantive capacity refers to the capacity in which a person holds the post and not necessarily the nature or character of the post. A person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contradistinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation.

Sri Verma further submitted that an interpretation which serves the purpose of enactment has to be given preference than to the literal interpretation. Relying upon the decision of the Hon'ble Supreme Court in the case of Smt. Parayankandiyal Eravath Kanapravan Kallini Amma and others v. K. Devi and others, JT 1996 (4) SC 656 he urged the Court to invoke the Heydon's Rule for interpretation. According to him, the language in the 1921 Act is ambiguous and a meaning which avoids the mischief and advances the meaning should be adopted.  

He further relied upon a decision of the Hon'ble Supreme Court in the case of Ram Narain v. The State of Uttar Pradesh and others, AIR 1957 Supreme Court 18 wherein the Hon'ble Supreme Court has held that it is not a sound principle of construction to interpret expressions used in one Act with reference to the one used in another Act and the meaning of words and expressions used in an Act must take their colour from the context in which they appear.

In any event, he submitted that as the petitioner has been working as the Assistant Teacher L.T.grade since 22nd December 1992, he ought to have been treated as working on a substantive post and stood regularized. Reliance has been placed upon a Division Bench decision of this Court in the case of Dr. Sangita Srivastava v. University of Allahabad and others,  2002 (3) AWC 2088.

The learned Standing Counsel submitted that the appointment of the petitioner was made under the Removal of Difficulties Order. It was an appointment in a short term vacancy on account of ad hoc promotion of Mohammad Yusuf on the post the lecturer in the College.  The petitioner had not worked in substantive post nor his appointment has been made on a substantive post. Even this Court in Civil Misc. Writ Petition No.21910 of 1997 filed by the petitioner had held that the petitioner is entitled to continue on ad hoc basis until the vacancy is converted into a substantive vacancy. Thus, till such time the vacancy is converted into a substantive vacancy, the appointment of the petitioner was purely on ad hoc basis. He, thus, submitted that an ad hoc appointee is not entitled for promotion and the writ petition is wholly misconceived.

Having heard the learned counsel for the parties, I find that since the College in question is an institution run by the minority, the provisions of the 1982 Act are not applicable. Even though the petitioner was appointed in the year 1992 when the State Government had not granted any certificate recognizing the minority character of the College, which has only been recognised in the year 1997, the nature of the appointment of the petitioner as ad hoc will not change to that of a substantive appointment.  This Court in the writ petition filed by the petitioner, vide judgment and order dated 4th December 1998, had already recorded a finding that the petitioner is entitled to continue on ad hoc basis. Thus, for all practical purposes, the appointment of the petitioner is on ad hoc basis. He has never been appointed in a substantive post.

The question still is as to whether a person who has been appointed on ad hoc basis, can claim promotion or not. Under Regulation 5 of Chapter II of the Regulations framed under the 1921 Act on which reliance has been placed by the learned counsel for the petitioner, 50% of the total number of sanctioned posts in the Lecturer grade has to be filled up by way of promotion. Regulation 6, however, provides that for filling up the post of a Lecturer by way of promotion of teachers working in L.T.grade, they should have a minimum of five years' continuous substantive service to their credit apart from fulfilling other conditions.  However, the petitioner does not possess five years' continuous substantive service to his credit as his appointment is purely on ad hoc basis. Moreover, the seniority is to be determined in terms of Regulation 3(1)(a) and (b) of the Regulations framed under the 1921 Act. It provides that the seniority list shall be prepared separately for each grade of teachers, whether permanent or temporary, on any substantive post and it shall be determined on the basis of their substantive appointment in that grade. Thus, the seniority has to be determined on the basis of substantive appointment. The petitioner, therefore, cannot claim to be the seniormost teacher in L.T. grade as his appointment is purely on ad hoc basis and not a substantive appointment. This Court in the case of Ram Kumar v. District Inspector of Schools, Hardwar and others, (1994) 1 UPLBEC 624, while considering Regulation 6(1) of the Regulations framed under Chapter II of the 1921 Act, has held as follows :-

"22. A reading of all the aforesaid provisions clearly shows that a teacher serving in a lower grade in substantive capacity is only entitled to be promoted on ad hoc basis under the provisions of U.P. Act No.5 of 1982 and the Removal of Difficulties Order issued thereunder. On admitted facts, respondent No.4 was appointed as a C.T.grade teacher on ad hoc basis. He was not entitled to be promoted further on ad hoc basis in the L.T.Grade, as an ad hoc teacher serving in the institution, is not entitled for a further ad hoc promotion under the provisions of the U.P.Act No.5 of 1982, the Removal of Difficulties Order, 1981 and the relevant regulations framed under the U.P. Intermediate Education Act, 1921. The promotion of respondent no.4 was patently in disregard of the aforesaid provisions of law, as such was illegal."

Respectfully following the aforesaid decision, I find that the claim of promotion made by the petitioner is clearly unsustainable.

So far as the principle laid down by the Hon'ble Supreme Court in the case of Ram Narain (supra) is concerned, it may be mentioned here that the provisions of the 1921 Act and the Regulations framed thereunder make it abundantly clear that a person who has been appointed on a substantive vacancy is alone entitled for being considered for promotion. Thus, the meaning of the words and expressions used in the 1982 Act are not required to be imported while interpreting the provisions of the 1921 Act.

Similarly, the decision of the Hon'ble Supreme Court in Smt. Parayankandiyal Eravath Kanapravan Kallini Amma and others (supra) has no application in the present case as the words of Regulation 6(1) of Chapter III of the Regulations framed under the 1921 Act are clear. The Heydon's rule of interpretation is not required to be applied in the present case.

In the case of Baleshwar Das (supra) the Hon'ble Supreme Court has held that the substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature and character of the post and when a person holds the post for an indefinite period, he holds it in a substantive capacity. The principle laid down by the Hon'ble Supreme Court in the aforesaid case would not be applicable in the present case inasmuch as under the 1921 Act and the Regulations framed thereunder, there is a separate procedure for making appointment on a substantive post and on short term basis.   It may be mentioned here that under Section 16-E(11) of the 1921 Act the provisions have been made for making appointment in case of temporary vacancy. In the year 1992, when the petitioner was appointed, the provisions of 1982 Act were applicable to the College in question. At that time, the substantive appointment was to be made by the U.P.Secondary Education Services Commission and Selection Boards Act, 1982 and, therefore, the substantive appointment of the petitioner could not have been made by the Committee of Management. Only ad hoc appointment in a short term vacancy was permitted to be made by the Committee of Management. Even this Court in the petitioner's own writ petition has held the appointment of the petitioner to be on ad hoc basis.

In the case of Suraj Prakash Gupta (supra) the Hon'ble Supreme Court has held that for giving seniority, ad hoc service is to be counted. In paragraph 65 of the judgment, the Hon'ble Supreme Court has held as follows :-

"65. Apart from cases arising from Andhra Pradesh the position appears to be the same as per the cases arising from other States, so far as promotee's ad hoc service is concerned.  In Baleshwar Das v. State of U.P. (1981) 1 SCR 449 : (AIR 1981 SC 41: 1980 Lab IC 1155), it was observed (at p.464 of SCR) : at P.49 of AIR : at P.1063 of Lab IC) that officiating promotees are to be given dates by the Service Commission for counting seniority. In B.S.Yadav v. State of Haryana, (1981)1 SCR 1024 : (AIR 1981 SC 561 : 1981 Lab IC 104), it was held that the promotees have to be confirmed in their quota if found fit and qualified and when vacancies arose in their quotas. In A.Janardhana v. Union of India, (1983) 2 SCR 936 (at p.961) : (AIR 1983 SC 769 at P.781) : 1983 Lab IC 849) it was observed that the seniority of the promotees was to count from the date of occurrence of vacancy in their quota. In G.P.Doval v. Chief Secretary, Government of U.P., (1984) 4 SCCC 329 : (AIR 1984 Supreme Court 1527 : 1984 Lab IC 1304), it was held that subsequent appointment by the Public Service Commission to the temporary appointments will relate back to the initial dates or appointment for purpose of seniority on basis of rule of continuous officiation and the seniority could not be reckoned only from the date of approval or selection by the Commission. In Narender Chadda v. Union of India, (1986) 2 SCC 157 : (AIR 1986 SC 638 : 1986 Lab IC 590), it was held that promotees were first to be regularized from dates of occurrence of vacancies/eligibility. The initial appointment though not according to rules, the said service could not be ignored. In A.N.Pathak v. Secretary to the Government, 1987 Suppl SCC 673 : (AIR 1987 SC 716 : 1987 Lab IC 638), it was held that the promotees had to be inserted at places reserved for them as per quota. In Delhi Water Supply & Sewerage Disposal Committee v. R.K.Kashyap, 1989 Suppl (1) SCC 194 : (AIR 1989 SC 278), it was held that once regularization was made by the PSC/DPC, the said service could not be ignored."

Applying the principle laid down by the Hon'ble Supreme Court in the aforesaid case to the facts of the present case here, the service of the petitioner has not been regularized so far. The Rule relating to seniority and promotion specifically provides for five years' continuous substantive service. Thus, no advantage can be derived by the petitioner from the aforementioned decision.

So far the decision of the Hon'ble Supreme Court in C/M St. John Inter College (supra) is concerned, it may be mentioned here that the Hon'ble Supreme Court has held that the Regulations can be made in consonance with Article 30(1) of the Constitution of India. Regulations 3, 5 and 6 of Chapter III framed under the 1921 Act do not contravene the provisions of Article 30(1) of the Constitution of India as it only lays down the guidelines for determining the seniority and promotion.

In view of the foregoing discussion, I do not find any merits in this petition. It is dismissed in limine.

November 4, 2003

vkp


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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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