Allahabad High Court
Mukesh Kumar Sharma vs District Inspector Of Schools, Aligarh ... on 31 August, 2000
Equivalent citations: 2000(4)AWC2929, (2000)3UPLBEC2332
JUDGMENT S.R. Singh, J.
1. Petitioner herein seeks issuance of writ of mandamus commanding the opposite parties to pay him salary admissible to the post of L.T. grade teacher w.e.f. 27.3.2000. Relief of mandamus against the respondent No. 1 is also sought commanding him to decide the petitioner's representation regarding payment of salary admissible to the post of L.T. grade teacher with effect from the date the petitioner joined his duties.
2. Petitioner claims to have been appointed in a short term vacancy advertised by the Committee of Management. Patel Smarak Inter College. Jagtari, Aligarh. In Dainik "Aaj" on 8.3.2000 and in "Rashtriya Sahara" on 10.3.2000. It is alleged in the writ petition that one Karanpal Singh. Lecturer [Economics) retired from service on 30.6.1998. Resulted vacancy on the post of Lecturer (Economics) was filled by giving ad-hoc promotion to one Prem Raj Sharma. Assistant Teacher in L.T. grade. Ad-hoc promotion of Shrl Prem Raj Sharma is satd to have been approved by the District Inspector of Schools on 7.12.1999. The vacancy resulting on account of ad-hoc promotion of Shrl Prem Raj Sharma was advertised as aforestated and the petitioner was selected for appointment. The appointment letter dated 26.3.2000 is said to have been issued in favour of the petitioner pursuant to which he joined his duties in the institution. It is also alleged that papers relating to ad-hoc appointment of the petitioner were submitted to the District Inspector of Schools. Aligarh, on 27.3.2000 for financial approval. But the District Inspector of Schools communicated no decision despite repeated representations whereupon the petitioner was left with no option but to approach this Court.
3. I have heard Sri S. N. Srivastava, learned counsel appearing for the petitioner and perused the writ -petition. Ad-hoc vacancies in the post of teacher caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise used to be filled in accordance with the provisions of the U. P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order. 1981 which has since been rescinded w.e.f. 25.1.1999 by virtue of Section 33E of U. P. Secondary Education Service Selection Boards Act. 1982. Concededly. therefore, the provisions of the U. P. Secondary Education Service Commission (Removal of Difficulties) Order. 1981. was not available for being resorted to at the time when the petitioner was appointed. Sri S. N. Srivastava, however, submits that notwithstanding the recession of the U. P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981. w.e.f. 25.1.1999. ad-hoc appointment in short term vacancies could still be made by the Committee of Management under Regulation 9 of Chapter 11 of the Regulations made under the U. P. Intermediate Education Act, 1921, which not being inconsistent to the provisions the U. P. Secondary Education Service Selection Boards Act. 1982, can be resorted to by virtue of Section 32 thereof.
4. It cannot be gainsaid that the provisions of the U. P. Intermediate Education Act. 1921 and the Regulations made therein in so far as they are not Inconsistent with the provisions of U. P. Secondary Education Service Selection Boards Act, 1982, or the rules made thereunder continue to be in force by virtue of Section 32 of the latter Act. for the purposes of selection, appointment, promotion, dismissal, removal, termination, reduction in rank of a teacher. Let us therefore, examine whether appointment of the petitioner can be Justified with the aid of Regulation 9 of Chapter II of the Regulations made under the U. P. Intermediate Education Act. 1921. reliance on which has been placed by Sri S. N. Srivastava during the course of arguments. Regulation 9 reads as under:
"9. (1) Where a vacancy in the post of teacher is caused by grant of leave to him for a period exceeding six months or where a teacher is placed under suspension which has been approved in writing by the Inspector under sub-section (7) of Section 16G and the period of such suspension is likely to exceed six months from the date of such approval, the vacancy may, subject to the provisions of these regulations, be filled temporarily by direct recruitment or promotion, as the case may be.
(2) Where any vacancy is of the nature referred to in clause [ 1) or is caused as a result of promotion under Regulation 2 and the period of such vacancy exceeds thirty days but docs not exceed six months, it may be filled by the Committee of Management by promotion of a duly qualified permanent teacher of the institution in the next lower grade on the basis of seniority.
(3) if any vacancy under clause (2) cannot be filled due to the non-availability of any teacher of the institution in the next lower grade, possessing the prescribed minimum qualifications for the post, it may be filled on ad hoc basis by the Committee of Management by the direct appointment for a period not exceeding six months in aggregate.
(4) All vacancies filled under clause (2) or clause (3) shall be reported to the Inspector in the proforma prescribed in Appendix 'B' within a week of being filled up."
5. A conspectus of Regulation 9 extracted above would show that recourse to the said provision can be taken where a vacancy on the post of a teacher is caused by grant of leave to him for a period exceeding six months or where a teacher is placed under suspension which has been approved in writing by the Inspector under sub-section (5) of Section 16 and the period of such suspension is likely to exceed six months from the date of such approval. Vacancy occurring due to the reason of ad-hoc promotion is not contemplated by clause (1) of Regulation 9. Clause (2). however, enables the management to fill any vacancy which is of the nature referred to in clause (1) or which is "caused as a result of promotion under Regulation 2 and the period of such vacancy exceeds 30 days but not exceed six months". Clause (1) of Regulation 2 provides that the Head of the Institution shall except as provided in clause (2) be filled by direct recruitment after reference to the Selection Committee constituted under sub-section (1) of Section 16F or, as the case may be. under subsection (1) of Section 16FF, Proviso to Regulation 2 of Chapter II of the Regulations visualises that in case of any institution not being an Institution referred to in Section 16FF, a temporary vacancy caused by the grant of leave to an Incumbent for a period not exceeding six months or by death, retirement or suspension of an incumbent occurring during an education session on the post of Head of Institution shall be filled by promotion of the seniormost qualified teacher, if any, of the highest grade in the institution. Clause (2) visualises for promotion to the post of Head of the Institution upon its upgradation to the level of High School, level of an intermediate college. Thus, there is nothing in Regulation 2 of Chapter II to the Regulations which may suggest or indicate that a vacancy occurring in L.T. grade due to ad-hoc promotion of a teacher to lecturer grade under the provisions of the U. P. Secondary Education Service Selection Boards Act, 1982 and the Rules made thereunder can be filled under the Regulations aforestated.
6. The petitioner's appointment, therefore, cannot be justified under the provisions of Regulation 9 of Chapter II of the Regulations made under U, P. Intermediate Education Act, 1921. Petitioner's appointment, in my opinion, is illegal and void in view of sub-section (2) of Section 16 of the U. P. Services Selection Boards Act, 1982 and ft will be an exercise in futility to direct the District Inspector of Schools to consider and decide the representation filed by the petitioner. The petitioner is not entitled to issue of writ of mandamus commanding the State authorities to pay him salary under the provisions of the U. P. High School and Intermediate College (Payment of Salaries of Teachers and other Employees) Act. 1971. In support of his case, learned counsel for the petitioner placed reliance on Radhey Shyam Dubey v. District Inspector of Schools, Deoria and others. 1987 UPLBEC 553 and Brijesh Chandra Vadao v. District Inspector of Schools, Etawah and others, (1990) 2 UPLBEC 1215. In my opinion, the aforesaid cases have no application to the facts of the present case.
7. In the circumstances, the writ petition is dismissed, however, without prejudice to the right, if any, of the petitioner to approach the civil court against the Committee of Management for such relief as may be available to him under the law on the basis of appointment given by the Committee of Management de hors the provisions of the Act and the Rules.