Over 2 lakh Indian cases. Search powered by Google!

Case Details

RAJ KUMAR GAUR versus D.I.O.S.& ANOTHER

High Court of Judicature at Allahabad

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


Raj Kumar Gaur v. D.I.O.S.& Another - WRIT - A No. 25828 of 2000 [2006] RD-AH 16807 (25 September 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. 25828 of  2000

Raj Kumar Gaur Vs. District Inspector of Schools, Bulandshahr and others

~~~~~

Hon'ble Dilip Gupta, J.

This petition has been filed for quashing the order dated 2.5.2000 passed by the District Inspector of Schools, Bulandshahr and for a direction upon the respondents not to interfere with the working of the petitioner as an Assistant Teacher in the Irrigation Intermediate College Calcutti, Narora, Bulandshahr (hereinafter referred to as the 'College').

It is the contention of the petitioner that after the senior most teacher in the LT grade was promoted on ad hoc basis as a Headmaster of the High School on 1.9.1993, a short term vacancy on the post of Assistant Teacher in the LT grade fell vacant. The Committee of Management resolved on 2.6.1998 to fill up this vacancy. The post was then advertised in two news-papers and a number of candidates including the petitioner submitted the applications. The Selection Committee recommended the name of the petitioner against the aforesaid short term vacancy and, thereafter,  the petitioner was appointed on 16.7.1998 and ever since then he has been regularly teaching in the College. He further submitted that the papers regarding his appointment were then forwarded to the  District Inspector of Schools, Bulandshahr on 16.7.1998 and the Principal also sent a communication dated 27.6.1998 to the  District Inspector of Schools, Bulandshahr. In response to the aforesaid communication of the Principal, the  District Inspector of Schools, Bulandshahr sent a letter dated 17.9.1998 pointing out that the Committee of Management did not have the power to make such an ad hoc appointment.  The petitioner then filed Writ Petition No. 3062 of 2000 in this Court contending that as the District Inspector of Schools, Bulandshahr had not passed any order,he was not being paid salary. This Court disposed of the petition by means of the judgment and order dated 25.1.2000 with a direction to the District Inspector of Schools, Bulandshahr  to decide the representation dated 27.9.1999 filed by the petitioner in accordance with law. The District Inspector of Schools, Bulandshahr  rejected the representation filed by the petitioner by the order dated 2.5.2000 which has been impugned in the present petition.

A counter affidavit has been filed on behalf of the  District Inspector of Schools, Bulandshahr and also on behalf of the Committee of Management. The Committee of Management, in its counter affidavit,  has stated that the papers relating to the approval of the appointment of the petitioner were never sent by the Committee of Management to the office of the District Inspector of Schools; that after it had made the selection, the joining of the petitioner was subject to the financial approval of the  District Inspector of Schools, Bulandshahr and upon receipt of the letter from the  District Inspector of Schools, Bulandshahr, the Committee of Management cancelled the entire selection process by the order dated 30.10.1998; that since the  District Inspector of Schools, Bulandshahr had sent the communication dated 18.9.1998, the papers relating to the selection of the petitioner were not sent to the  District Inspector of Schools, Bulandshahr and that subsequently the Uttar Pradesh Secondary Services Selection Board had also recommended the name of one Ashok Kumar Rathore after the short term vacancy was converted into a substantive vacancy and he also joined the College.

A perusal of the order dated 5.2.2000 passed by the  District Inspector of Schools, Bulandshahr indicates that upon receipt of the judgment and order dated 25.1.2000 passed by this Court,  the  District Inspector of Schools, Bulandshahr sent a communication dated 24.2.2000 to the petitioner as well as the Manager and Principal of the College to submit their written versions and they were also given an opportunity of personal hearing on 3.3.2000. The petitioner submitted his written version pointing out that the short term vacancy had been advertised in the two news-papers and he also appeared before the Selection Committee and thereafter he was issued an appointment order on the basis of which he started working in the College from 16.7.1998. He was, however,  asked to sign on a separate Register since he could be permitted to sign on the regular Register only after the  District Inspector of Schools, Bulandshahr gave approval to his appointment. The Principal and the Manager also appeared before the  District Inspector of Schools, Bulandshahr and pointed out that eight applications had been received pursuant to the advertisement issued out of which only two candidates appeared before the Selection Committee and thereafter the communication dated 27.6.1998  was sent by the Principal of the College to the  District Inspector of Schools, Bulandshahr and after receipt of the letter dated 17.9.1998 from the  District Inspector of Schools, Bulandshahr, the selection process was cancelled by the order dated 30.10.1998 and the appointment order in favour of the petitioner was, therefore, not issued. It is on a consideration of the aforesaid facts that the  District Inspector of Schools, Bulandshahr noticed that the selection of the petitioner had been cancelled by the Committee of Management on 30.10.1998 and as the management had never submitted the papers relating to the appointment of the petitioner, the question of grant of any approval did not arise.

Learned counsel for the petitioner vehemently urged that the recital in the order dated 2.5.2000 of the  District Inspector of Schools, Bulandshahr that the Committee of Management did not have any power to make ad hoc appointment against the short term vacancies,  was incorrect inasmuch as ad hoc appointments against the short term vacancies could be made under 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').

Learned Standing Counsel appearing for the respondents pointed out that though the Second Removal of Difficulties Order does provide for making ad hoc appointments against the short term vacancies but the procedure prescribed under clause 2 of the aforesaid Order had not been followed and even otherwise the Committee of Management had cancelled the selection process also and,  therefore, no relief can be granted to the petitioner.

In order to appreciate the contentions of the learned counsel for the parties, it would be necessary to refer to the relevant provision of the Second Removal of Difficulties Order. Clause 2 is quoted below:-

"2. Procedure for filling up short-term vacancies.-(1) A short-term vacancy in the post of a teacher caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise, shall be filled by the management of the Institution, by promotion of the permanent  senior most teacher of the institution, in the next lower grade. The management shall immediately inform the District Inspector of Schools of such promotion along with the particulars of the teacher so promoted.

(2) Where any vacancy referred to in clause (1) cannot be filled by promotion, due to non-availability of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualifications, it shall be filled by direct recruitment in the manner laid down in clause (3).

(3) (i) The management shall intimate the vacancies to the District Inspector of Schools and shall also immediately notify the same on the notice-board of the institution, requiring the candidates to apply to the Manager of the institution along with the particulars given in Appendix "B" to this order. The selection shall be made on the basis of quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, issued with notification No. Ma-4993/XV-7-1(79)-1981, dated July 31, 1981, hereinafter to be referred to as the First Removal of Difficulties Order, 1981. The compilation of quality point marks shall be done under the personal supervision of the Head of Institution.

(ii) The names and particulars of the candidate selected and also of other candidates and the quality point marks allotted to them shall be forwarded by the Manager to the District Inspector of Schools for his prior approval.

(iii) The District Inspector of Schools shall communicate his decision within seven days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval.

(iv) On receipt of the approval of the District Inspector of Schools or, as the case may be, on his failure, to communicate his decision within seven days of the receipt of papers by him from the Manager, the management  shall appoint the selected candidate and an order of appointment shall be issued under  the signature of the Manager."

In view of the aforesaid, it is clear that the objection raised by the District Inspector of Schools, Bulandshahr in his order dated 2.5.2000 that the Committee of Management did not have the power to make ad hoc appointment against short term vacancy is not correct. It has, however still to be examined, as has been contended by the learned Standing Counsel, whether the appointment of the petitioner against a short term vacancy was made in accordance with the procedure prescribed under the Second Removal of Difficulties Order. A perusal of the aforesaid Order clearly indicates that the Committee of Management has to fill up the short term vacancy by promotion of the permanent senior most teacher of the College working in the next lower grade and it is only when such appointment cannot be filled up by promotion due to non-availability of the teacher that it has to be filled up by direct recruitment. There is nothing on the record to indicate that a decision had been taken by the Committee of Management to make appointments by direct recruitment since there was no teacher available for promotion. This apart,  the management was also required to intimate the vacancies to the District Inspector of Schools, Bulandshahr and thereafter cause advertisement and the selection was to be made on the basis of quality point marks. The names and particulars of the candidates selected and also of other candidates and the quality point marks allotted to them were required to be forwarded by the Manager to the District Inspector of Schools, Bulandshahr for his prior approval and on receipt of the approval of the District Inspector of Schools, Bulandshahr,  the management could appoint the selected candidate and issue an appointment order.

The pleadings as contained in the writ petition are absolutely vague and it is only by way of a supplementary rejoinder affidavit that the petitioner has brought on record the communication dated 16.7.1998 sent by the Manager of the College to the District Inspector of Schools, Bulandshahr. The District Inspector of Schools, Bulandshahr in the order dated 5.2.2000 has clearly denied the receipt of such papers. It was,  therefore,  obligatory on the part of the petitioner to have filed these documents along with the writ petition but these documents were filed only in the year 2006 along with the supplementary rejoinder affidavit though the writ petition had been filed in the year 2000. Be that as it may, the petitioner could have been appointed only after the prior approval of the District Inspector of Schools, Bulandshahr. In the instant case admittedly the District Inspector of Schools, Bulandshahr had not granted any prior approval to his appointment. His appointment, therefore, is in clear violation of Order 2(3)(ii) of the Second Removal of Difficulties Order. It is  void ab initio and does not confer any right upon the petitioner.

In this connection, reference may be made to the Full Bench decision of this Court in Km. Radha Raizada and others Vs. Committee of Management, Vidyawati Darbari Girls Inter College and others reported in (1994) 3 UPLBEC,  1551.The Full Bench clearly held that if the contingency arises for ad hoc appointment by direct recruitment, the procedure provided for under the Removal of Difficulties Order has to be followed and if the management makes an ad hoc appointment without following the procedure laid down, the District Inspector of Schools would be justified in stopping the payment of salary of such a teacher. It has further been held that if the procedure is not followed, the appointment is void and cannot confer any right upon him.

The Supreme Court also had an occasion to examine the validity of the ad hoc appointments which were not made in accordance with the procedure provided for under Removal of Difficulties Order in the case of Prabhat Kumar Sharma and others Vs. State of U.P. and others reported in (1996) 10, SCC 62. It was held that any ad hoc appointment not made in accordance with Removal of Difficulties Order is an illegal appointment and is void and confers no right on the appointee. It would be useful to reproduce a passage from the judgment made in the context of paragraph 5 of the First Removal of Difficulties Order and it is as follows:-

"It is an inbuilt procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the management to any post in an aided institution. It is obvious that when the salary is paid by the State to the Government aided private educational institutions, public interest demands that the teachers' selection must be in accordance with the procedure prescribed under the Act read with the First 1981,Order".

The same principles would apply to an ad hoc appointment made under the Second Removal of Difficulties Order. Thus, since the appointment of the petitioner had been made in violation of the provisions of the Second Removal of Difficulties Order,  it is void and does not confer any right upon him.

This apart, the Committee of Management has clearly come out with the case that in view of the communication dated 18.9.1998 sent by the District Inspector of Schools, Bulandshahr it cancelled the appointment by means of the order dated 30.10.1998. Thus also,  the petitioner is not entitled to any relief. It must also be pointed out that the petitioner has not challenged the  order dated 30.10.2000 even though it was referred to in the order dated 2.5.2000 of the District Inspector of Schools, Bulandshahr and was also annexed along with the counter affidavit filed by the Committee of Management. The Committee of Management in its counter affidavit has also stated that the Selection Board had also recommended the name of Ashok Kumar Rathore against the substantive vacancy in the LT grade and he had joined the College. No relief can, therefore, be granted to the petitioner.

There is,  therefore, no merit in this petition. It is, accordingly, dismissed.

Dt/- 25.9.2006

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

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.