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SUSHIL KUMAR versus D.I.O.S. & OTHERS

High Court of Judicature at Allahabad

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Sushil Kumar v. D.I.O.S. & Others - WRIT - A No. 45921 of 1992 [2004] RD-AH 55 (3 February 2004)

 

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

Court No.23

Civil Misc Writ Petition No. 45921of 1992

Sushil Kumar Vs. DIOS, Saharanpur and others

Hon'ble V.C. Misra, J.

Heard Sri Vikas Budhawar, learned counsel for the petitioner and learned standing counsel for respondent Nos. 1 and 2.

The petitioner has filed this writ petition against his termination order dated 19.11.1992.  The writ petition was admitted and interim order was granted on 7.12.1992 restraining the respondents not to interfere in the working of the petitioner as an ad hoc lecture in the cadre in the institution. Since then the petitioner is working continuously on the said post.

The petitioner was directed to take steps for service to respondent no.3 vide order-dated 2.9.2003.  Steps have been taken on 8.9.2003, as per office report notices have been sent, but no counter affidavit has been filed on behalf of respondent no.3.

The case of the petitioner is that the petitioner was appointed as a lecturer on the leave vacancy of one Sri Pratap Singh Pundir, permanent lecturer in Physics in the college of respondent no.3, who went on leave for one year with effect from 29.5.1991. On this leave vacancy of Shri Pratap Singh Pundir the Committee of Management issued an advertisement on 3.7.1991 to fill up the leave vacancy.  A Selection Committee was duly constituted, and on 12.7.1991 a resolution was passed in pursuance of the recommendation of the selection committee.  The petitioner joined the college on 15.7.1991 in pursuance of his selection and an appointment letter dated 13.7.1991 was issued to him.

On 30.8.1991 the District Inspector of Schools (herein after referred as the DIOS) granted approval to the appointment of the petitioner from the date of taking over charge till 20.5.1992 or the date on which Shri Pundir returned to join.  On 1.11.1991 the petitioner made a representation before the District Inspector of Schools to the effect that approval be granted from 15.7.1991 the date of joining.  The District Inspector of Schools thereupon vide its order dated 22.5.1992  granted approval to the appointment of the petitioner w.e.f. 15.7.1991 the date of joining of services by the petitioner.

 Sri Pratap Singh Pundir vide letter dated 28.11.1992 sought extension of his leave till 28.11.2002.  The Committee of Management allowed the petitioner to continue on the said post.  On 18.7.1992 the Committee of Management again sought the approval from the DIOS to the appointment of the petitioner.  The DIOS approved the appointment of the petitioner vide its order dated 22.7.1992, a copy of which has been filed as Annexure No.10 to the writ petition.

On 22.8.1992 Sri Pratap Singh Pundir resigned from the college, and on 22.9.1992 the manager sent the information of the vacancy to the DIOS.

The petitioner submits that the Committee of Management instead of allowing the petitioner to continue on the said post, illegally sought for the permission of DIOS, Saharanpur vide its letter dated 19.11.1992 for making an ad hoc appointment on the said post since the petitioner was appointed on leave vacancy.  Thereafter, the manager of respondent no.3 vide its letter dated 19.11.1992 as Annexure No. 13 to the writ petition,  terminated the services of the petitioner w.e.f. 28.11.1992 on the ground that the services of the petitioner are no more required. The termination letter issued to the petitioner was illegal in as much as, by the letter of the Committee of Management dated 19.11.1992 an arrangement for a temporary appointment was asked for though there was no such temporary vacancy in the college as the petitioner was already working till a duly selected candidate from the Commission joined. It is also submitted that no opportunity of hearing was given by the respondents to the petitioner before terminating his services.

The learned counsel for the petitioner has further submitted that the petitioner's case is fully covered under the provision of Section 33-F of the U.P. Secondary Education Services Selection Board Act, 1982, since the petitioner was appointed on 15.7.1991 and he is entitled for full benefit accrued to him under the said Section, and more so, the Government Order dated 16.7.1992, referred to in paragraph 7 of the counter affidavit could not be given a retrospective effect.

Section 33-F of the U.P.S.E.S Selection Board Act, 1982 reads as follows:

"Regularization of appointments against short term vacancies:-

(1) Any teacher who -

(a) was appointed by promotion or by direct recruitment in the lecturer's grade or trained graduate grade on or after May 14, 1991 but not later than August 6, 1993 against a short term vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, as amended from time to time, and such vacancy was subsequently converted into a substantive vacancy;

(b) .........................................................

(c) .........................................................

(d) .........................................................

shall be given substantive appointment by the Management."

The learned counsel for the petitioner has also relied upon the case, reported in (1999) 2 UPLBEC 1420, Raj Kumar Verma and others Vs. District Inspector of Schools, Saharanpur and other   in which it has been held that if subsequently vacancy is converted into a permanent vacancy then such appointees are entitled for consideration for regular appointment under Section 33-B - Notwithstanding para 3 of Removal of Difficulties Order, 1981 and hence it has been added as per Section 33-F, subsequently.

Counter affidavit has been filed on behalf of respondent no.1 and in rebuttal to it, petitioner has filed rejoinder affidavit.  In paragraph 7 of the counter affidavit, the respondent no.1 has submitted that, Sri Pratap Kumar Pundir who had thereafter proceeded on long leave had subsequently resigned from his post, and since then the post of lecture is lying vacant in the institution.  Consequently, the services of the petitioner were dispensed with, and as a clear vacancy fell vacant in the institution the appointment was to be made by the DIOS under the Government Order No.3440/ 1572 (6) 92 dated 16.7.92.  That, in any manner the petitioner could not be legally continued on the said post as the leave of Sri Pratap Singh Pundir  had come to an end and  as such fresh appointment had to be made. More so, since the quota of reserved candidatures had not been completed as per reservation policy.

I have looked into the facts in detail and considered the submission made across the Bar. It is well settled law that an ad hoc appointee could not be replaced by an other ad hoc appointee and was entitled to continue on the said post till a regularly selected candidate joined. This court, in several cases and particularly in the case of Committee of Management of Sanatan Dharm Inter College, Daulatpur, Mainpuri Vs. District Inspector of Schools, Mainpuri, reported in (1985) 1 UPLBEC, 496, in the case of Murli Prashad and another Vs. State of U.P. and others, reported in (1986) 1 UPLBEC, 344, in the case of Shiva Chandra Misra Vs. District Inspector of Schools, Allahabad, reported in (1986) 1 UPLBEC, 248 and in   the case of Chandra Bhan Vs The Basic Shiksha Adhikari, Gorakhpur, reported in (1996) 2 UPLBEC, 1374, was pleased to rule that the teacher appointed on ad hoc basis is entitled to continue till some regularly selected candidate is appointed and joins the post in question.

In view of the facts of the case and law applicable to it the writ petition succeeds and is allowed. The impugned order dated 19.12.1992 is hereby quashed. The petitioner shall continue to hold the said post on which he is working, till a duly selected candidate is appointed and he joins the post in question.  

No order as to costs.

Dated: 3.2.2004

*pkc


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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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