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Pradeep Kumar Shukla v. D.I.O.S. And Others. - WRIT - A No. 9921 of 1994 [2005] RD-AH 4704 (24 October 2005)


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                                          Court No.28

Civil Misc. Writ Petition No.  9921  of 1994

Pradeep Kumar Shukla


District Inspector of Schools and another

Hon.Sanjay Misra.J.

Heard Sri I.R.Singh, learned counsel for the petitioner and Sri R.S.Parihar, learned standing counsel appearing on behalf of respondents.

The petitioner has challenged the order dated 27.11.1993  (Annexure-10 to the writ petition ) whereby the approval sought for adhoc appointment by the Committee of Management from the District Inspector of Schools has been refused on the ground of a government order dated 24.6.1993. The said government order has been  filed as Annexure-11 to the writ petition.  A perusal of which indicates that by virtue of the amendment in the U.P.Secondary Education Services Selection Board Act 1982 by amending Act No. 24 of 1992, section 18 was substituted and therefore, it has been stated as a clarification in this government order that the provisions of new section would be applicable.  Interpreting the said government order, the District Inspector of Schools has passed the impugned order dated 27.11.1993.

It is the contention of the petitioner that a vacancy arose on the post of Lecturer grade in Geography due to retirement of the previous incumbent one Sri Chandra Bhan Singh  LT grade teacher in Geography being senior most  was promoted on adhoc basis to the post of lecturer Geography subject to the confirmation by the Commission  or till regularly selected candidate joins on the said post of lecturer. Upon the said promotion, the post of LT grade which was held by the said Sri Chandra Bhan Singh became a short term vacancy. It is contended by the petitioner that after advertisement  and permission, the Committee of Management proceeded to make appointment of the petitioner on adhoc basis on the short term vacancy of  LT grade teacher. It is contended that when the respondent no.1 was required to make payment of salary to the petitioner, the impugned order has been passed without giving any opportunity to the petitioner and as such he has approached this Court by means of present writ petition.

A counter affidavit has been filed wherein circular has been justified and it has been stated that the appointment of the petitioner was not within the scope of the management in as much as due to promotion of the previous incumbent , it had become a substantive vacancy and therefore, it could only be filled up by the Commission.

When the present writ petition was filed and the  interim order dated 17.3.1994 had been passed staying the operation of the impugned order dated 27.11.1993 and according to the petitioner, he is being paid his salary and he is working on the post on adhoc basis since then.

Section 18 of the Principal Act did not provide for adhoc appointment against a short term vacancy. It only provided for adhoc appointment either by promotion or by direct recruitment only against a substantive vacancy which has been notified to the Commission. Under the provisions of the Second Removal of Difficulties Order, the procedure for filling short term vacancies was provided, such short term vacancy, being caused on account of a teacher going on leave or his suspension. This adhoc appointment against a short term vacancy is not an appointment under Section 18 of the Act. The issue has since been finally decided by a Full Bench of this Court in the case of Radha Raizada Versus Committee of Management 1994 (3) UPLBEC 1551, and it has been held that the procedure for filling up short term vacancies which are not in substantive capacity remains the same as prior to amendment of 1992.

Learned counsel for the petitioner has placed reliance upon a decision of this Court in the case of Mukesh Kumar Versus State of U.P. and others reported in 1996 (2) UPLBEC 783 and has contended that management has power to fill up short term vacancies and there is no requirement of prior permission/approval from the District Inspector of Schools  or any other authority for filling up such vacancies in non-substantive capacity. He has referred to paragraph 6 of the judgment which is quoted here under:-

"Reliance is being placed upon the judgment of this Court in the case of Krishna Nand Dwivedi Vs. District Inspector of Schools ,Ghazipur and others 1994 (1) ESC 385, where the Court has observed as under :-

The appointees on short term vacancy on adhoc basis, stand on the same footing on which an adhoc appointee on substantive vacancy stands. If the adhoc appointees are to continue for years, the Teachers appointed in the short term vacancies caused by the vacancy of Teachers promoted on adhoc basis  are also likely to continue for years. Thus in the name of short term vacancy, under the provisions of Second Removal of Difficulties Order issued under the Act No.5 of 1982, the vacancy is also likely to continue for years.

Consequently the adhoc appointees on short term vacancies are also likely to continue for years under the Scheme of the Act.  There is no difference in the two appointments one as adhoc appointees on substantive vacancy and the other an adhoc appointees in a short term vacancy except that in first case the vacancy is to be notified to the Commission and in Second case, the vacancy is not to be notified. There is hardly any justification for adopting two different stands for advertising the vacancy of aforesaid two posts."

Learned counsel for the petitioner has contended that the respondent no.1 has passed the impugned order merely on the basis of circular dated 24.6.1993 and has not  considered the fact that the petitioner's appointment was in accordance with procedure prescribed and he was entitled to be paid his salary as per conditions of adhoc appointment contained in his appointment letter.

Learned counsel for the petitioner has further contended that the vacancy has  to be notified to the Board only when a vacancy  has arisen as a result of death, retirement, resignation, termination, dismissal, creation of new post or appointment /promotion of the incumbent to any higher post in a substantive capacity. He has further placed reliance upon the definition of the word ''vacancy' as given in Rule 2 (hh) of the U.P.Secondary Education Service Commission Rules 1983 and contends that the vacancy on the post of lecturer in Geography was notified by the management to the Commission and therefore, the said vacancy was a substantive vacancy whereupon Sri Chandra Bhan Singh had been given adhoc promotion, as such he submits that the vacancy created on the post of LT grade was not a post to be filled up by regular appointment by the Commission until the short term vacancy of the post of LT grade became a substantive vacancy either after  confirmation of the adhoc promotee to the post of Lecturer or by a regular appointment by the Commission on the post of Lecturer which would make the  post of LT grade a substantive vacancy.

Learned standing  counsel has disputed the appointment of the petitioner on other grounds  such as the procedure adopted  and competency  of the Management to make the said appointment in the absence of the appointment having been made by selection Committee as contemplated under section 18 of the Act. It is stated that new section 18 requires adhoc appointment to be made by the Selection Committee.

Having considered the submissions of learned counsels for the parties it is found that the procedure for filling short term vacancies which are not in substantive capacity and the same as it was prior to the Amendment of 1992. In the present case the respondents have disputed the very method of adhoc appointment of the petitioner.

In view of the facts of the case as aforesaid, the impugned order dated 27.11.1993 as contained in Annexure-10 to the writ petition cannot be sustained .It is accordingly quashed. However, it is directed that the respondent no.1 will examine the case of the petitioner on the issue of procedure required to be followed for such adhoc appointment in view of the law laid down  by this Court in the case of  Radha Raizada Vs. committee of Management 1994 (3) UPLBEC 1551 . Upon filing of a certified copy of this order before the respondent no.1 by the petitioner within a period of one month from today, the respondent no.1 will take a decision preferably within a period of three months thereafter and will also take into consideration any subsequent development with respect to initiation of proceedings for filling up of the vacancy by the Commission from the date of filing of the writ petition up-to-date.

This writ petition stands disposed of as above.   No order is passed as to costs.

Dt. 24.10.2005



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