Allahabad High Court
Baleshwar Singh Lecturer In P.B. Inter ... vs State Of U.P. Thru Prin.Secy.Madhyamik ... on 17 March, 2023
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 18 Case :- WRIT - A No. - 8319 of 2018 Petitioner :- Baleshwar Singh Lecturer In P.B. Inter College Pratapgarh Respondent :- State Of U.P. Thru Prin.Secy.Madhyamik Edu.Civil Sectt.And Ors Counsel for Petitioner :- Indu Prakash Singh,Birendra Kumar Yadav,Mohammad Shahan,Satendra Jaiswal,Subhash Singh,Vikram Jeet Singh Rathore Counsel for Respondent :- C.S.C. Hon'ble Alok Mathur,J.
1. Heard Sri Birendra Kumar Yadav, learned counsel for petitioner as well as learned Standing Counsel for respondents.
2. By means of present writ petition, the petitioner has assailed the order dated 18.09.2017 passed by the Joint Director Education, Allabahad Mandal, Allahabad whereby his case for regularization has been rejected.
3. It has been submitted by learned counsel for petitioner that the post of Lecturer of Sanskrit was fallen vacant in P.B. Inter College, Pratapgarh, District Pratapgarh on 30.06.1991 due to retirement of the erstwhile Lecturer and accordingly a requisition was sent to the Uttar Pradesh Secondary Education Service Commission for filling up the post. It was further proposed that till regular appointment is made on the said post adhoc appointment on the said post was proposed. It is further stated that Management resorted to advertise the vacancy which was to be filled by direct recruitment and after completing all formalities appointed the petitioner on the post of Lecturer (Sanskrit) on ad hoc basis on 01.07.1991 in pursuance to which he joined on the said post on the same day. The papers with regard to appointment of the petitioner was sent by the Committee of Management to the DIOS for the purpose of grant of financial approval.
4. It is stated that despite several reminders, the District Inspector of Schools did not accord his approval but the petitioner continued to work on the said post. It is in the aforesaid circumstances, that the approval was not granted, the petitioner has approached this Court by filing Writ Petition No. 18387 of 1992 (Baleshwar Singh Vs. Dy. Director of Education, Allahabad). The said writ petition was dismissed by this Court by means of judgment dated 17.03.2010. While dismissing the writ petition, this Court had recorded following findings:-
"Admittedly, in the facts of this case, the vacancy was notified on the notice board of the institution only, therefore, on the said ground also the appointment claimed by the petitioner in nonest. This Court further finds that in the appointment letter issued to the petitioner, it has been mentioned that he has been selected on the basis of the interview. While in the letter forwarded by the Principal of the Institution for the purpose of financial approval, to the District Inspector of Schools, it has been stated that the vacancy was advertised in the newspaper and that the candidate has been selected on the basis of quality point marks. Both are self contradictory. The District Inspector of Schools returned the appears sent by the Committee of Management for financial approval of the appointment of the petitioner vide his letter dated 22.08.1981 on the ground that a ban has been impose don ad hoc appointment by the State Government Government. the ban so imposed has been approved under the judgment of the Division Bench of the High Court in the case of Durgash Kumar Vs. State of U.P. and others reported in 1995 (Volume 3) Local Body and Education cases page 1387, wherein the judgemnt of Hon'ble Single Judge in teh case of Kumari Prabhabati dikshit Vs. U.P. Madhyamic Siksha Sewa Ayog Alld. reported in 1992 (Volume 1) UPLB page 582 holding that ban is not application on ad hoc appointments under Section 18 has been overruled. this Court finds that the order orf the D.I.O.S. to refuse financial approval qua appointment of petitioner is in accordance with law. For the reasons recorded above, this Court holds that the writ petition lacks merit and is accordingly dismissed."
5. The petitioner being aggrieved by the order of the single Bench of this court, dismissing the writ petition had preferred a special appeal being special Appeal No. 605 of 2010 (Baleshwar Singh Vs. Dy. Director of Education, Allahabad) which was disposed of by the following order:-
"Having heard the learned counsel for the appellant, we find that during the pendency of the writ petition an interim order was passed directing the authority to pay salary to the petitioner. On that basis, the writ petitioner continue to receive salary till the dismissal of the writ petition. the learned counsel for the appellants submits that the appellant is still working in the institution and therefore is entitled to be given the benefit of regulartization. Having considered this aspect of the matter, we are of the opinion that the petitioner having worked for all these hears under an interim order of the Court and in view of the fact that the writ petitioner is still working, we are of the opinion that the claim of regularization under Section 33 (B) of the Act of 1982 can be considered by the Selection Committee duly constituted under the said previsions of the said. In view of the aforesaid, we dispose of the appeal directing the appellant/writ petitioner to move an appropriate application before the authority concerned for regularization of his service under Section 33 (B) of the Act of 1982. If such an application is filed, the authority concerned will examined the matter and pass appropriate orders within three months form the date of production of a certified copy of this order."
6. It is in pursuance of the directions issued by the Division Bench of this Court on 17.03.2010, the Joint Direction of Education, Allahabad Mandal Allahabad has rejected the claim of the petitioner for regularisation by means of impugned order dated 18.09.2017.
7. Learned counsel for petitioner has submitted that the respondent was directed to consider the regularisation of the petitioner strictly in accordance with the provision of Section 33 (C) of Uttar Pradesh Secondary (Service Selection Board) Act, 1982. For the sake of convenience, Section 33(C) is reproduced as under:-
"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 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 Headmaster in accordance with Section 18;
(b) possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with, the provisions of the Intermediate Education Act, 1921;
(c) has been continuously serving the Institution for 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 a Chairman
(ii) regional Deputy Director of Education (Secondary) who shall be a 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 form 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 form 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 910 such vacancy had already been filed or selection for such vacancy has already been made in accordance with this Act."
8. A perusal of Section 33(C) would indicate that for being regularised a person should have been appointed by promotion or direct recruitment on or after 14.05.1991 does not later than 06.08.1993 on adhoc basis against a substantial vacancy, and also as per clause (D) he should have been found suitable for appointment on substantial capacity by a Selection Committee constituted under Sub-Section 2.
9. At the very outset, it is noticed that the issue pertaining to the selection of the petitioner was duly considered by the Single Bench of this Court in Writ Petition No. 18387/1992. The learned Single Judge had recorded a finding that the appointment of the petitioner was illegal and arbitrary inasmuch as there was a ban imposed on ad hoc appointment by the State Government and also that the said ban was approved by the Division Bench in the case of Durgesh Kumari Vs. State of U.P. and Others reported in 1995 3) Local Body and Education cases page 1387.
10. Though the said finding was assailed before the Division bench but it is noticed that the Division Bench had also noticed the fact that the appointment of the petitioner has already been held to be illegal by the Single Bench in light of the ban imposed by the State Government and did not interfere that the findings recorded by the learned Single Judge. Only on account of the fact that the petitioner has worked for a suitable length of time, the Division Bench directed the competent authority to consider the aspect of regularisation in accordance with Section 33 (C) of the Act of 1982. By means of the impugned order, the competent authority has held that the appointment of the petitioner was illegal inasmuch as the Committee of Management was to have followed the provisions of Section 18 of the Uttar Pradesh Madhyamik Shiksha Service Selection Board Act and should have duly advertised the the vacancy but according to the vacancy, no date was indicated from which it should be established that there was indeed any publication of the said advertisement prior to the appointment.
11. It has further been recorded that the post on which the petitioner was appointed was reserved for scheduled caste while the same was filled up by the petitioner who belongs to general category and hence was of the view that the provisions of the Reservation Act had not been followed and consequently the appointment of the petitioner was against the rules.
12. In light of the above, considering the fact that learned Single Judge of this Court has held that the appointment of the petitioner to be illegal and arbitrary. The said finding not having been reversed by the Division Bench and consequently rejection of the case of the petitioner for regularisation by the Joint Director of Education, Allahabad on the ground of appoint of the petitioner was illegal, no interference is required by this Court.
13. The writ petition is devoid of merits and is accordingly dismissed.
(Alok Mathur, J.) Order Date :- 17.3.2023/Ravi/