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Smt. Nirja Sharma v. State Of U.P. And Others - WRIT - A No. 44024 of 2005  RD-AH 21243 (15 December 2006)
Civil Misc. Writ Petition No. 44024 of 2005
Smt. Nirja Sharma
State of U.P. and others
Hon'ble Pankaj Mithal,J
The short question involved in this writ petition is:-
Whether a short term vacancy of the post of Assistant Teacher L.T. grade at the institution is required to be notified under law to the U.P. Secondary Education Services Selection Board, Allahabad ?
Shree Kedar Nath Saksaria Arya Kanya Inter College Belanganj, Agra is a recognized institution receiving grant in aid from the State Government. In the said institution Smt. Indrawati Gupta, lecturer Hindi, retired on 30.6.1999. Thus, causing a substantive vacancy. On the said vacancy
Smt. Sheela Verma, Assistant Teacher L.T. grade was given adhoc appointment by promotion which was approved by the Regional Deputy Director of Education Agra on 24.1.1995. On account of above ad hoc promotion of Smt. Sheela Verma, a short term vacancy of the post of Assistant Teacher LT grade fell vacant at the institution. The promotion accorded to Smt. Sheela Verma as lecturer was not substantive in nature. It is said that the committee of Management intimated the aforesaid short term vacancy to the DIOS. Thereafter the said short term vacancy of the post of Assistant Teacher L.T. grade was advertised in the two daily newspapers 'Desh Ratan' dated 9.7.1996 and 'Dainik Sainik' dated 11.6.1996. In pursuance to the aforesaid advertisement several candidates applied and 15 candidates appeared for interview before the Selection Committee on 3.8.1996. In the said selection after interview the petitioner was selected and he was given appointment by the Committee of Management on 8.8.1996. The papers relating to the appointment of the petitioner were submitted by the Committee of Management to the Deputy Inspector of Schools for approval on 26.7.1997 but the Regional Deputy Director of education vide order dated 16/19.8.1997 refused to accord the approval. Accordingly, the petitioner filed writ petition No. 403245 of 1998 challenging the above order of disapproval. The said writ petition was disposed of by the High Court vide order dated 5.1.1999 on the ground of alternative remedy of representation/appeal before the Director of Education (Secondary) under the provisions of U.P. Education Service Commission (Removal of Difficulties) (Fourth) Order, 1982. Thereafter the petitioner made an appeal/representation before the Director and the same was rejected on 18.11.1999 on the following four points:-
1.At the time of petitioner's appointment there was a ban in making appointment by the Committee of the Management.
2.The short term vacancy was not properly published in the widely circulated newspapers.
3.The reservation policy was not followed in making the appointment on the short term vacancy.
4.The documents for financial approval were submitted late i.e. after one year of the appointment.
This order of the Director was challenged by the petitioner by filing yet another Writ Petition No.52561/99 Smt. Nirja Sharma Vs. Director of Education (Madhyamik) U.P. Lucknow and others. The said writ petition was allowed vide judgment and order dated 23 March 2004 and the Court held that there was no ban on appointments at the time of the petitioner's appointment, the appointment of the petitioner can not be held to be illegal on the ground that it was not advertised in the widely circulated newspapers as proper advertisement was made in two local newspapers, reservation was not applicable for making any appointment on short term vacancy and that undisputedly the petitioner's appointment was made to the short term vacancy. Therefore the order of the Director dated 18.11.1999 was quashed and the direction was issued to consider the case of the petitioner for grant of approval/financial sanction from the date of his appointment and for payment of salary. This judgment of the High Court is reported in 2004 (2) ESC 1226. Thereafter, the matter was again placed before the DIOS, who has now passed the impugned order dated 17.5.2005 refusing to accord approval/financial sanction to the petitioner's appointment on the solitary ground that the vacancy of the post of Assistant Teacher LT grade had occurred in the year 1995-96 but even then it had not been notified to the Secondary Education Service Selection Board and as such the petitioner had been allowed to continue on the said post unlawfully with the connivance of the Management. This order of the DIOS dated 17.5.2005 has been impugned to the present writ petition with the prayer to grant approval to her appointment dated 8.8.1997.
Heard learned counsel for the parties.
The only point raised and argued by Sri Anil Bhushan, learned counsel for the petitioner is that the impugned order dated 17.5.2005 passed by the Deputy Inspector of Schools is patently erroneous under law as the vacancy on which the petitioner has been appointed is only on a short term vacancy which is not required to be notified to the Board. The Deputy Inspector of Schools has not applied his mind to the nature of the vacancy and has passed the impugned order only the premise that it was unlawful on the part of the Management not to notify the vacancy for such a long time ignoring the fact that short term vacancies are not required to be notified under law.
There is no dispute that the vacancy on which the petitioner was appointed was a short term vacancy which had arisen due to ad hoc promotion of Smt. Sheela Verma as lecturer. The said Smt. Sheela Verma till date has not been given a regular appointment and therefore the vacancy caused due to her promotion continues to remain a short term vacancy. The High court in its earlier judgment dated 23.3.2004 had recorded a specific finding that the petitioner's appointment was on a short term vacancy. The relevant portion of the judgment and order of the High Court is quoted below:-
" I find that undisputedly the petitioner's appointment was made on the short term vacancy, for which proper advertisement was made in two newspapers.............."
Therefore, in view of the above, there remains no controversy about the nature of the vacancy on which the petitioner was appointed. It was certainly a short term vacancy.
The U.P. Secondary Education (Services Selection Boards) Act 1982 provides for the procedure for making appointments of the teachers in institutions recognized under the U.P. Intermediate Education Act 1921. Section 10 of the said Act provides for the procedure for making direct recruitment for which purpose the Management of Institution is required to notify the vacancies to the Board. Section 12 of the Act lays down the procedure for appointment by promotion. Section 16 of the said Act mandates that every appointment of a teacher shall be made by the Management of the Institution only on the recommendation of the Board except for certain appointments provided under sections 12, 18, 21-B, 21-C, 21-D, 33, 33-A, 33-B, 33-C and 33-D. These provisions relate to appointment by promotion, ad hoc appointment, appointment of reserve pool teachers, appointments by transfer, appointment on the default of the Management and appointment by regularization. Section 18 of the Act deals with ad hoc appointments of the teachers. Ad hoc appointments are permissible in two conditions:-
1.Where the management has notified the vacancy to the Board under section 10 of the Act; and
2.Where despite notification of vacancy the post had remained vacant for more than two months and the name of the selected candidate has not been recommended.
In exercise of the powers under section 33 of the aforesaid Act U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 was issued providing for the procedure for making ad hoc appointment under section 18 of the Act, as the Commission and the Selection Boards were not constituted and the establishment was likely to take some time. Subsequently, U.P. Secondary Education Services Commission (Removal of difficulties) (Second Order) 1981 was issued and published in the U.P. Gazette dated 11th September 1987 providing specifically for the procedure for filling up short term vacancies. The said Order in explanation 3 to paragraph 2 describes the short term vacancy as one which is not substantive and is of a limited duration. Paragraph 2 of the Order provides that a short term vacancy of the post of a teacher caused by grant of leave to or on account of suspension or otherwise shall be filled up by promotion by the Management of the Institution and in case it cannot be filled up by promotion, it shall be filled by direct recruitment after the vacancy has been intimated to the D.I.O.S. For the sake of convenience paragraph 2 of the above Order is quoted below:-
"2. Procedure for filling up short-term vacancies:-(1) If 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 selections 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-1993/XV-7-1 (79)-1981, dated July 31,1981, hereinafter to be referred to as the first Removal Difficulties Order, 1981. The compilation of quality point marks shall be done under the personal supervision of the head of institution.
Explanation- For the purpose of this paragraph-
(iii) short term vacancy which is not substantive and is of a limited duration."
A plain reading of the above provisions indicate that a short term vacancy is not a substantive 'vacancy' and is a vacancy of a limited duration which is caused by grant of leave, suspension or otherwise. Therefore, it covers the vacancy of a short duration, which may be caused by ad hoc promotion of a teacher.
The U.P. Secondary Education Services Commission Rules 1983 in section 2(hh) defines vacancy to mean a 'vacancy' arising 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. The said definition does not include within its ambit a vacancy which has arisen due to ad hoc promotion of a teacher. Thus, a short term vacancy arising due to ad hoc promotion is excluded from the purview of the above definition of the 'vacancy'.
The scheme of the aforesaid act and rules does not provide for notifying short term vacancy to the Board. Section 10 only provides for notifying the vacancy which are of substantive nature and are covered by the definition of the vacancy as contained in rule 2(hh) of the Rules.
The Full Bench of this Court in the case of Radha Raijada and others Vs. Committee of Management, Vidhyawati Darbari Girls Inter College and another (1994) 3 UPLBEC 1951 had an occasion to consider and deal with the manner of making appointments of short term vacancies. The Full Bench in paragraph 43 of the aforesaid law reports held that a short term vacancy is not a substantive vacancy. The power to appoint teachers either by promotion or by direct recruitment under the Second Removal of Difficulties Order is open only against the short term vacancy and not against the substantive vacancy. The short term vacancy if can not be filled up by promotion due to non-availability of a teacher in the lower grade having the prescribed minimum qualification, the same may be filled by direct recruitment by intimating the vacancy to the DIOS, and by notifying the same on the notice Board requiring the candidates to apply. The Court while dealing with the provisions of the Second Removal of Difficulties Order held that the requirement of notifying the short term vacancy is not sufficient and therefore it should be advertised at least in two daily newspapers having adequate circulation. There is no whisper in the above full bench decision that a short term vacancy is required to be notified to the Board.
A conjoint reading of the relevant provisions aforesaid and the dictum of law laid down by the Full Bench of the Court relating to the manner of filling up of short term vacancies make it abundantly clear that there is no requirement of law to notify a short term vacancy to the Commission. Therefore, it is not incumbent under law for the Management of any institution to notify the short term vacancy to the Board irrespective of the fact that the said short term vacancy had continued for a long time.
Learned Standing Counsel in this connection placed reliance upon the Division Bench decision of the Court dated 29.10.2004 passed in Special Appeal No. 990 of 2004 Kaptan Singh and others Vs. State of U.P. and another, and has contented that where a short term vacancy had continued for a unreasonably long period, it must be notified to the Board for recommending the name of a selected candidate. In the aforesaid case also the short term vacancy which has come into existence in the year 1995 and continued for a long period was never notified to the Board. The Division Bench solely on the basis of the section 10 of the Act held that the Management of the Institution had deliberately neglected to notify the vacancy to the Board and therefore the inaction on the part of the Management was violative of the statutory provisions. It appears that neither the Second Removal of Difficulties Order nor the Full Bench decision in Radha Raijada's case (Supra) was brought to the notice of the Court otherwise it would have amply demonstrated that the Management was under no obligation to notify the short term vacancy to the Board and as such was not guilty of flouting the mandate of the statutory provisions of the law. It is a settled legal proposition that a thing should be done in the manner prescribed under Law and in no other way. Therefore, as the law nowhere prescribes for notifying the short term vacancy to the Board, no error or mistake was committed by the management in not notifying it irrespective of the long duration of the short term vacancy. No provision has been shown to me which mandates that even a short term vacancy is required to be notified to the Board as other substantive vacancies under Section 10 of the Act.
In view of the above, I find that the short term vacancy of the post of a teacher in a institution recognized under the Intermediate Education Act is not legally required to be notified to the Board under section 10 of the Act and therefore the DIOS, manifestly erred in law in refusing to grant financial approval/sanction to the petitioner's appointment on the ground that the short term vacancy on which the petitioner is working had not been notified to the Board. Therefore, the impugned order dated 17.5.2005 passed by the DIOS is quashed and the respondent No. 4 is directed to consider the grant of financial approval/sanction to the petitioner's appointment in accordance with law and in the light of the judgment aforesaid.
The petition succeeds and is allowed.
Dt. 15 .12.2006
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