Allahabad High Court
Rajendra Prasad Yadav vs State Of U.P. And Others on 2 January, 2018
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 28 Case :- WRIT - A No. - 23412 of 1989 Petitioner :- Rajendra Prasad Yadav Respondent :- State Of U.P. And Others Counsel for Petitioner :- S.P. Singh,Adarsh Bhushan,Anil Bhushan,R.K. Tewari,S.K. Tewari Counsel for Respondent :- S.C.,Ravi Pratap Hon'ble Siddharth,J.
Heard Sri Anil Bhushan, learned Counsel for the petitioner and learned Standing Counsel for the respondents.
The petitioner has filed the above noted writ petition, praying for quashing of the order dated 11.05.1989, passed by respondent no.2, District Inspector of Schools, Jaunpur, whereby he has refused to grant approval to the adhoc appointment of the petitioner on the post of C.T. Grade Teacher. The petitioner has also prayed for quashing of the Regulation 20, under Chapter II of the Intermediate Education Act, by declaring it ultra vires of the Constitution. By way of amendment, further prayer of quashing of impugned order dated 13.04.2013, passed by respondent no.2 has also been added, whereby the payment of salary to the petitioner has been turned down and a direction for consideration of the case of the petitioner for regularization under amended Section-33 of U.P. Secondary Education Services Selection Board Act, 1982 has also been prayed.
Brief facts of the case of the petitioner are that four permanent vacancies arose in Bahudhandhi Uchchattar Madhyamik Vidhyalaya, Sonehita District Jaunpur, recognized Institution under the U.P. Intermediate Act, 1921. The aforesaid Institution is also governed by the provisions of U.P. High School and Intermediate College payment of salary to Teachers and Other Employees Act, 1971. These vacancies arose prior to 1975, which was to be filled by the management. Instead of making temporary appointments, the management intimated the District Inspector of Schools, Jaunpur to make appointments through direct recruitment in accordance with the provisions contained in Chapter III Regulation-10 of the U.P. Intermediate Education Act. Due to careless approach of the office of the District Inspector of Schools the procedure of direct recruitment could not be done within time although the management sent several reminders from time to time, the consequences of this action resulted in existing vacancies being carried upto the promulgation of entirely new procedure enunciated in U.P. Secondary Education Services Commission Act, 1981.
On 07.04.1980 a stop order was issued by the State Government stopping the appointments either in accordance with the provisions of Chapter-III of U.P. Intermediate Education Act or any adhoc appointment by the Committee of Management. This stop order was challenged by means of several writ petitions before this Hon'ble Court but this Hon'ble Court upheld the validity of the stop order. The stop order was issued by the Government as the Government was intending to constitute a Commission and Selection Board for the purposes of appointment of teachers in Secondary Schools. Later on to remove the difficulties other Removal of Difficulties Orders were passed on July, 31, 1981, September 11,1981, January 30, 1982, August 14, 1982 known as Removal of Difficulties Orders 1st, 2nd, 3rd, 4th Orders respectively. The Removal of Difficulties first order entitled the Committee of Management to appoint adhoc teachers against the permanent substantive vacancies.
The Secondary Education Services Commission Act, 1981 was enforced retrospectively since July 14, 1981 although the Act was published in U.P. Gazette in February 26, 1982. For C.T. Grade Teachers the Commission did not constitute any selection Board and the management became fully entitled to appoint adhoc teachers in C.T. Grade against the permanent existing vacancies as per Section 18 of the Secondary Education Services Commission Act. Initially under the first Removal of Difficulties Order, it was provided that the direct recruitment would be made only by the District Inspector of Schools and the management had only right to intimate the existing vacancies, hence the Committee of Management intimated the District Inspector of Schools about the existing vacancies in the Institution. The District Inspector of Schools did not appoint any adhoc teachers under the various Removal of Difficulties Orders, issued under Secondary Education Services Commission Act, 1981. Finally the view has been settled by this High Court that as the Selection Board has not been constituted for the appointment of the C.T. Grade Teachers, the Committee of Management is entitled to appoint C.T. Grade Teachers and in such a situation even the approval of the District Inspector of Schools is not necessary.
The Committee of Management issued an advertisement on 20.11.1988 calling applications for adhoc recruitment on the post of Assistant Teacher C.T. Grade.
The petitioner, who was qualified for appointment on the post of Assistant Teacher C.T. Grade, applied for the same and in the meeting of the Committee of Management dated 04.01.1989, he was selected for adhoc appointment in the Institution. An appointment letter dated 04.01.1989 was issued to the petitioner. The Manager of the Committee of Management sent all the relevant papers with regard to the petitioner's appointment to the District Inspector of Schools, Jaunpur for purposes of payment of salary. The District Inspector of Schools, Jaunpur vide his order dated 11.05.1989 has rejected the proposal of ad hoc appointment of the petitioner.
The District Inspector of Schools has rejected the proposal only on the ground that the post on which the petitioner was appointed stood surrendered in view of the Chapter II, Regulation 20 of the U.P. Intermediate Education Act, 1921, which. is quoted below, "20. Where the Committee of Management has failed to advertise any sanctioned post which has fallen vacant in accordance with the regulations contained in this Chapter within a period of three months from the date of occurrence of any vacancy, such post shall be deemed to have been surrendered and shall not be filled up unless its creation is sanctioned afresh by the Director"
The respondent no.2, D.I.O.S., Jaunpur has filed his Counter Affidavit stating, inter alia, that Regulation-20 mandates that where the Committee of Management has failed to advertise any sanctioned post, which has fallen vacant in accordance with the Regulation-20 contained in Chapter-II of the Intermediate Education Act, 1921 within a period of 3 months from the date of occurrence of any vacancy, such posts shall be deemed to have been surrendered and shall not filled unless its creation is sanctioned afresh by the Director. Therefore, the post of Assistant Teachers in the Institution stood surrendered after expiry of 3 months from 22.07.1972 by operation of law and there is no provision under the U.P. Secondary Education Services Selection Board Act, 1982 nor any rules framed there under for automatic revival of any surrendered post.
The learned Counsel for the petitioner has relied upon the Judgment in the case of Yogendra Nath Singh Vs. D.I.O.S. Jaunpur and another, (1991) 1 UPLBEC 484, wherein it has been held in paragraph no.8, "8. Another objection is that this vacancy lapsed within the meaning of Regulation 20 of Chapter II of the Regulations framed under the UP. Intermediate Education Act, 1921, Regulation 20 states that where the Committee of Management has failed to advertise any sanctioned post, which has fallen vacant, in accordance with the Regulations within a period of three months from the date of occurrence of the vacancy, such posts shall be deemed to have been surrendered and shall not be filed up, unless its creation is sanctioned afresh by the Director. No sanction having been obtained from the Director, the respondent no.1 stated in the impugned order that the post would be deemed to have been surrendered. This was the position before the Act, 1982, became operative. But after the enforcement of the Act, 1982, every vacancy has to be filled in only by the Commission and ad hoc appointment can be made bythe Management Committee only in the circumstances as contained in Section 18(1)(b). Petitioner's appointment can not be impugned on that ground."
The aforesaid Judgment was followed in the case of Sudarshan Prasad Sharma Vs. State of U.P. & others, 1997 AWC (Supp.) 698 and in the case of Mumtax Ahmed Vs. Deputy Director of Education, Allahabad and others, 1999 3 AWC 2667 (DB). Therefore, it is clear that the provisions of Regulation-20, Chapter-II of the Intermediate Education Act, 1921, have become redundant after the enforcement of U.P. Secondary Education Services Selection Commission Act, 1982 and the Committee of Management has been stripped of its power to make substantive appointment. The power to make such appointments is vested in Commission constituted under the provisions of the Act of 1982. The Management, however, has authority to make adhoc appointments in certain circumstances and after observing the procedure prescribed under the law, till regularly selected candidates by the Commission joins. Therefore, the objection of the respondent no.2 that the vacancy in the Institution was not filled within a period of 3 months by advertisement and therefore the post stood surrendered can not be justified. Therefore, the D.I.O.S. was not justified in passing the impugned order dated 11.05.1989, refusing to approve the appointment of the petitioner on the ground that the post stood surrendered as per Regulation-20 of Chapter-II of the Intermediate Education Act, 1921 or the order dated 13.04.2013 on the ground that there was no vacant post available for appointment of the petitioner on the ground that the post held by him stood surrendered, as per the Regulation aforesaid.
In view of the above factual and legal position the impugned orders dated 11.05.1989 and 13.04.2013 passed by the respondent no.2 are hereby quashed. Since the Counsel for the petitioner has not pressed his prayer regarding quashing of Regulation-20, Under Chapter-II of the Intermediate Education Act, 1921, therefore, it is not being considered. In view of the fact that the petitioner claims himself to be still working, it is directed that his regularization in service shall be considered, as per Section-33-G(1) of the U.P. Secondary Education Selection Board Act, 1982.
The writ petition is allowed to the extent stated above. There shall be no order as to costs.
Order Date :- 02.01.2018 Ruchi Agrahari