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GIRIJA SHANKER TIWARI versus JOINT DIRECTOR OF ED.,MIRZAPUR AND OTHERS

High Court of Judicature at Allahabad

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Girija Shanker Tiwari v. Joint Director Of Ed.,Mirzapur And Others - WRIT - A No. 21151 of 1998 [2006] RD-AH 14141 (23 August 2006)

 

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. 26

Civil Misc. Writ Petition No. 21151 of 1998

Girija Shanker Tiwari Vs. Joint Director of Education and others

~~~~~

Hon. Dilip Gupta, J.

A vacancy to the post of Principal in the Ganesh Prasad Inter College, Barwa, district Sant Ravidas Nagar (hereinafter referred to as the ''College') arose on the retirement of the regular Principal of the College. Sukh Ram, who was working as the Lecturer in English, was made the officiating Principal of the College. This brought into existence a short-term vacancy of Lecturer in English. In the writ petition, the petitioner has not stated that the aforesaid short-term vacancy subsequently stood converted into a substantive vacancy on account of the retirement of Sukh Ram but from a perusal of Annexure ''4' to the writ petition, which is a letter sent by the petitioner to the District Inspector of Schools, it transpires that Sukh Ram retired on 30.6.1994.

The petitioner has sought the quashing of the order dated 19/20-5-1998 sent by the Joint Director of Education, Mirzapur Region, Mirzapur to the District Inspector of Schools, Sant Ravidas Nagar for appointment of Ram Briksha, respondent No.4 as ad hoc Lecturer in English in the College. A further direction has been sought for promoting the petitioner on ad hoc basis as Lecturer.

The controversy, as pointed out above, has to be examined by treating the vacancy as a short-term vacancy and in the alternative as a substantive vacancy.

In the event it was a short-term vacancy, then it was to be filled up in accordance with the provisions of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as the ''Second Removal of Difficulties Order'). Clause 2 of the said Order provides that the short-term vacancy has to be filled up by the management of the College, by promotion of the permanent senior most teacher of the College in the next lower grade and only where such vacancy cannot be filled up by promotion, that it can be filled up by direct recruitment. Thus in respect of a short-term vacancy the appointment was not required to be made under Section 18 of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the ''Act').

However, if the vacancy is treated as a substantive vacancy, then in that event it could be filled up on ad hoc basis under Section 18 of the Act. This stipulates that the Management had notified the substantive vacancy to the Commission in accordance with the provisions of Section 10(1) of the Act and the post of the Teacher had remained vacant for more than two months. The procedure for filling up the ad hoc vacancy is provided under the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as the ''First Removal of Difficulties Order'). Clause 5 of the aforesaid Order clearly provides that it is only where the vacancy cannot be filled by promotion that it can be filled up by direct recruitment. Thus even under Section 18 of the Act, it is necessary that the vacancy should have been filled up by promotion and only when no Teacher was available to be promoted that it could be filled up by direct recruitment.

Learned counsel for the petitioner urged that in the present case the petitioner had been repeatedly representing to the District Inspector of Schools that the vacancy should be filled up by promotion as the petitioner possessed all the required qualifications and even the District Inspector of Schools had been writing to the Committee of Management to take necessary steps for promotion but the College for ulterior motives, did not fill up the post by promotion. He, therefore, contended that the communication dated 19/20-5-1998 sent by the Joint Director of Education to the District Inspector of Schools for appointment of Ram Briksha, who has been arrayed as respondent No.4 in the present petition, by direct recruitment under the provisions of Section 18 of the Act, cannot be sustained.

Sri B.P. Singh, learned counsel appearing for Ram Briksha urged that the petitioner does not have any locus standi to challenge the aforesaid order since he is not a senior most Teacher in the LT grade. He further urged that once the decision had been taken to fill up the short-term vacancy by direct recruitment, then it is not open to the petitioner to challenge that decision particularly when he had not applied against the aforesaid post.

I have carefully considered the submissions advanced by the learned counsel for the parties.

It has been found that irrespective of the fact whether the vacancy was a short-term vacancy or a substantive vacancy, it was obligatory on the part of the College to have first taken steps to appoint the ad-hoc Lecturer by promotion and it is only when no Teacher in the LT grade was available to be promoted to the post of Lecturer that the ad-hoc appointment could have been made by direct recruitment. The respondents have not placed on record any decision taken by the College or the educational authorities that the post could not have been filled up by promotion, as no Teacher was available to be promoted. In such a situation, the vacancy to the post of Lecturer could not have been filled up on ad hoc basis by direct recruitment. The order dated 19/20-5-1998, which seeks to appoint Ram Briksha as ad-hoc Lecturer by direct recruitment, therefore, cannot be sustained.

The contention of the learned counsel for the respondents that the petitioner does not have any locus standi to challenge the impugned order, cannot also be accepted as the petitioner was a candidate seeking promotion on ad hoc basis to the post of Lecturer. The other contention that the petitioner cannot challenge the communication sent by the Joint Director of Education, as he had not applied, cannot also be accepted as the petitioner had throughout been claiming promotion as a Lecturer on ad hoc basis.

The writ petition, therefore, succeeds and is allowed. The communication dated 19/20-5-1998 sent by the Joint Director of Education to the District Inspector of Schools for appointment of Ram Briksha as ad-hoc Lecturer by direct recruitment is quashed.

Dt/- 23.8.2006

Sharma


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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