Allahabad High Court
Firangi Prasad vs State Of U.P. & Others on 11 November, 2010
Author: F.I. Rebello
Bench: Ferdino I. Rebello, A.P. Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR CJ's Court Special Appeal No.[1007] of 2010 Firangi Prasad Vs. State of U.P. & Others *** Hon'ble Ferdino I. Rebello, CJ.
Hon'ble A.P. Sahi, J.
Heard Sri Vivek Prasad Mathur, learned counsel for the appellant and the learned Standing Counsel for respondents 1 to 4. Respondent no.5 is the District Inspector of Schools, Basti, functioning as Prabandh Sanchalak of the Institution, who is already arrayed as respondent no.3.
2. This special appeal relates to the dispute of a claim by the appellant for his regularization under the provisions of Section 33-C of the U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as 'the Act, 1982').
3. The admitted facts are that the appellant was appointed in a selection held by the District Inspector of Schools on 05.01.1993. Under the relevant provisions, it was the District Inspector of Schools, who was empowered to get the selection held for appointment of the teacher on ad hoc basis. There is also no dispute that the appellant was appointed against a substantive vacancy on ad hoc basis in terms of the relevant provisions and his selection and appointment was duly notified to respondent no.5-Management, vide order dated 18.1.1993.
4. The Management was called upon to allow the appellant to join as teacher on ad hoc basis within ten days and the appellant was also to accordingly join the Institution. It is to be noted that the said appointment was on ad hoc basis to continue till a candidate regularly selected joined the post.
5. The appellant appears to have approached the Management along with order dated 18.01.1993, but the Management refused to perform the said ministerial act of issuing the letter of appointment and did not allow the appellant to join in the Institution, about which complaints were made by the appellant through representations dated 16.02.1993, 18.02.1993, 23.02.1993 and several other repeated representations up to 13.08.1993. The Management ultimately on 25.08.1993 issued a letter of appointment allowing the appellant to join on 26.08.1993, whereafter he has been continuously functioning in the Institution.
6. The order of appointment has also been brought on record, which demonstrates that the same was being issued pursuant to the selection order dated 18.01.1993 and the oral discussion in the meeting held with the District Inspector of Schools.
7. The Act, 1982 was amended w.e.f. 20.04.1998 by introducing certain amendments including the provisions of Section 33-C, which is quoted herein below:-
"33-C. Regularisation of certain more appointments.-- (1) Any teacher who--
(a) (i) was appointed by promotion or by direct recruitment on or after May 14, 1991 but not later than August 6, 1993 on ad hoc basis against substantive vacancy in accordance with section 18, in the Lecturer grade or the Trained Graduate grade;
(ii) was appointed by promotion on or after July 31, 1988 but not later than August 6, 1993 on ad hoc basis against a substantive vacancy in the post of a Principal or Head Master in accordance with Section 18;
(b) possesses the qualification prescribed under, or is exempted from such qualification in accordance with, the provisions of the Intermediate Education Act, 1921;
(c) has been continuously serving the Institution from the date of such appointment up to the date of the commencement of the Uttar Pradesh Secondary Education Services Commission (Amendment) Act, 1998;
(d) has been found suitable for appointment in a substantive capacity by a Selection Committee constituted under sub-section (2);
shall be given substantive appointment by the Management.
(2) (a) For each region, there shall be a Selection Committee comprising,-
(i) Regional Joint Director of Education of that region, who shall be the Chairman;
(ii) Regional Deputy Director of Education (Secondary) who shall be member;
(iii) Regional Assistant Director of Education (Basic) who shall be a member.
In addition to above members, the District Inspector of Schools of the concerned district shall be co-opted as member while considering the cases for regularisation of that district.
(b) The Procedure of selection for substantive appointment under sub-section (1) shall be such as may be prescribed.
(3) (a) The names of the teachers shall be recommended for substantive appointment in order of seniority as determined from the date of their appointment.
(b) If two or more such teachers are appointed on the same date, the teacher who is elder in age shall be recommended first.
(4) Every teacher appointed in a substantive capacity under sub-section (1) shall be deemed to be on probation from the date of such substantive appointment.
(5) A teacher who is not found suitable under sub-section (1) and a teacher who is not eligible to get a substantive appointment under that sub-section shall cease to hold the appointment on such date as the State Government may by order specify.
(6) Nothing in this Section shall be construed to entitle any teacher to substantive appointment, if on the date of commencement of the Ordinance referred to in clause (c) of sub-section (1) such vacancy had already been filled or selection for such vacancy has already been made in accordance with this Act."
8. By virtue of the said amendment, all ad hoc appointees either by way of promotion or direct recruitment against a substantive vacancy, not appointed later than 06.08.1993, were entitled to be regularised and placed on probation. The aforesaid provision as noted above was introduced w.e.f. 20.04.1998 and it further provides that in order to obtain the benefit of regularisation, the concerned teacher should have been appointed prior to 06.08.1993 and should have been continuing upto the date of introduction of the said provision in the year 1998.
9. Claiming benefit under the aforesaid provision, the appellant made representations for regularisation before the competent authority and having failed to get any benefit, filed the writ petition, which has given rise to the present appeal.
10. The respondent-State appears to have filed a counter affidavit in the writ petition disputing the claim of the appellant on the ground that the appellant came to be appointed only on 25.08.1993, which is 19 days after the cut-off date mentioned in Section 33-C of the Act, 1982 and, therefore, the appellant was not entitled to the benefit of the said provision.
11. Counter affidavit filed on behalf of the State did not dispute the allegation contained in the writ petition that the appellant had been denied the letter of appointment by the Management in spite of repeated representations after his selection and the order of the District Inspector of Schools dated 18.01.1993. A supplementary affidavit has been filed by the appellant bringing on record certain facts to dispute the correctness of the facts, which have been made basis by the learned Single Judge to refuse the mandamus as prayed for.
12. The learned Single Judge after having assessed the claim of the appellant held that in view of the fact that the appellant had been appointed after 06.08.1993, is not entitled to claim any such regularisation, but allowed the appellant to approach the State Government for representing his case and the State Government was called upon to pass a reasoned and speaking order accordingly.
13. Mr. Mathur, learned counsel for the appellant submits that the appellant had been appointed on 18.01.1993 and that the finding recorded by the learned Single Judge, that the District Inspector of Schools himself had stayed the order of selection on 05.02.1993, which continued till 05.11.1993, is absolutely erroneous inasmuch as there was neither any such order, nor any such continuance in relation to the appellant. He submits that the stay order dated 05.02.1993 was in relation to some other teacher, namely Km. Jyoti Daniel in the same Institution, which has got nothing to do with the appointment and selection of the appellant. This aspect of the matter was sought to be clarified from the learned Standing Counsel, who has produced the instructions and Sri Dwivedi, learned Standing Counsel states, on the basis of such instructions, that there was no such order dated 05.02.1993 in relation to the appellant.
14. Having considered the aforesaid submissions, it is, therefore, clear that the learned Single Judge proceeded to decline the mandamus as prayed for on a clear erroneous assumption of fact. The order in favour of the appellant dated 18.01.1993 was neither stayed nor rescinded. This is also corroborated by a perusal of the counter affidavit that was filed before the learned Single Judge where also the State did not dispute the aforesaid position. Accordingly, the finding recorded by the learned Single Judge on the strength of such facts cannot be sustained.
15. The second contention needs to be examined in the light of the facts that have emerged from the record, namely that the appellant for no fault on his part was kept out of the Institution by the inaction of the Management in spite of the District Inspector of Schools having despatched the selection order on 18.01.1993. From the facts on record, it is evident that the Manager of the Institution had to perform the ministerial act of issuing a letter of appointment to the appellant in terms of the selection order dated 18.01.1993. The Management admittedly complied with it after much persuasion on 25.08.1993, for which the appellant is nowhere at fault. On the contrary, the appellant had been continuously approaching the Management time and again expressing his willingness to join the Institution.
16. In these circumstances, teachers like the appellant fall within an altogether different class of candidates, who have been wrongfully prevented by the inaction of the Management in joining the Institution. The Management has to perform only a ministerial act and by its inaction, it cannot defeat the legitimate claim of a teacher like appellant.
17. The direction contained in the order dated 18.01.1993 was categorical to allow the appellant to join within ten days, which admittedly was scuttled by the Manager for reasons best known to him.
18. The Manager is obliged to issue a letter of appointment under the direction of the District Inspector of Schools, who is the competent authority under the Rules. Any unwarranted defiance and in the absence of any infirmity in the selection of the appellant, such inaction of the Management cannot be of any disadvantage to the appellant or to any such teacher belonging to this class.
19. The respondents cannot by their inaction, therefore, deprive a candidate of his or her legitimate right to claim continuance in service. It is, therefore, clear that there was a deliberate delay on the part of the Management in issuing the letter of appointment in the present case and accordingly, the right of the appellant to claim continuance under the selection order dated 18.01.1993 cannot be denied. The appellant will, therefore, be entitled to the benefits flowing out of the order dated 18.01.1993 and in such a situation, the letter of appointment will relate back prior to the cut-off date i.e. 06.08.1993.
20. This, in our opinion, would be the correct interpretation of law in relation to the candidates who have been wrongfully prevented from receiving their letters of appointment for no fault of theirs.
21. Having concluded so, we, therefore, hold that the appellant was entitled for the benefit of regularisation in the circumstances narrated above and accordingly, the conclusion drawn by the learned Single Judge to refuse the mandamus cannot be sustained.
22. In view of that, the judgement and order of the learned Single Judge dated 02.04.2010 is set aside. The writ petition as well as the appeal are allowed. Respondent no.2-Regional Joint Director of Education, Basti, shall proceed to consider the claim of regularisation of the appellant in the light of the observations made hereinabove and issue appropriate orders, not later than six weeks from the date of presentation of a certified copy of this order before him, if the appellant is otherwise eligible and qualified.
23. No order as to costs.
Dt/-11.11.2010 RKK/-
(F.I. Rebello, CJ) (A.P. Sahi, J) Special Appeal No.[1007] of 2010 Firangi Prasad Vs. State of U.P. & Others *** Hon'ble Ferdino I. Rebello, CJ.
Hon'ble A.P. Sahi, J.
Order on Delay Condonation Application:
This is an application for condoning the delay in filing the appeal.
Considering the cause shown in the affidavit filed in support of the delay condonation application, the delay in filing the appeal is condoned. Application stands allowed. Office to register the appeal.
Dt/-11.11.2010 RKK/-
(F.I. Rebello, CJ) (A.P. Sahi, J) Hon'ble Ferdino I. Rebello, CJ.
Hon'ble A.P. Sahi, J.
Allowed.
For orders, see order of date passed on separate sheets.
Dt/-11.11.2010 RKK/-(Spl.A.[1007]/10) (F.I. Rebello, CJ) (A.P. Sahi, J)