Allahabad High Court
Mumtax Ahmad vs Deputy Director Of Education, ... on 6 August, 1999
Equivalent citations: 1999(3)AWC2667, (2000)1UPLBEC735
Author: U.S. Tripathi
Bench: U.S. Tripathi
JUDGMENT S.R. Singh, J.
1. The question that arises for determination in this Special Appeal directed against the judgment of a learned single Judge is : Whether a post falling within 50% promotion quota as visualised by Regulation 5 of Chapter II of the regulations made under the U. P. Intermediate Education Act. 1921 (in short 'the Act') would automatically lapse and be deemed to have been surrendered under Regulation 20 of Chapter II if no eligible and qualified candidate is available for promotion and the Committee of Management ultimately decides, after ninety days of the occurrence of vacancy, to fill up the post by direct recruitment?
2. The facts giving rise to this appeal may be stated briefly as thus : Majidla Islamia Inter College, Allahabad, is a minority Institution. Appointment of teachers in the institution is governed by the provision of Section 16FF of the Act.
A vacancy in the post of Lecturer Commerce occurred in the institution on 30.6.1990 on retirement of permanent incumbent Mohd. Ahmad. The post was covered by 50% quota reserved for being filled in by promotion as visualised by Regulation, 5 of Chapter II of the Regulations framed under the Act. The Committee of Management passed a resolution on 7.10.1990 for promotion of Salam Ullah, a permanent Assistant Teacher in L.T. grade to the post of Lecturer in commerce and sent the papers to the District Inspector of Schools for approval. The District Inspector of Schools declined to grant approval on the ground that Salam Ullah did not have the requisite experience of five years teaching as Assistant Teacher in L.T. grade on the relevant date. i.e.. 30.6-1990. Thereupon the Committee of Management passed another resolution dated 27.6.1993 cancelling its earlier resolution dated 7.10.1990 by which it had granted promotion to Salam Ullah and subsequently on 8.8.1993, the Committee of. Management decided to fill the vacancy by direct recruitment. The vacancy was then advertised. The Selection Committee recommended the name of the petitioner for appointment to the post in question. Papers were sent to the District Inspector of Schools for approval. Appointment order was issued in favour of the petitioner on 12.8.1993. The petitioner Joined his duties on 28.10.1993 and has been functioning in the institution ever since then. The District Inspector of Schools. however, passed an order dated 16.9.1993 disapproving the appointment of the petitioner on grounds : firstly, that the Committee of Management had already sent a proposal for promotion of Salam Ullah on the said post and the said proposal was still pending ; and secondly, the post would be deemed to have lapsed in view of the Regulation 20 of Chapter II of the regulations made under the Act and, therefore, could not be filled in sans a fresh order of creation by the Director. On the matter being taken to the Deputy Director of Education in appeal, the order passed by the District Inspector of Schools came to be affirmed by the Regional Deputy Director of Education vide order dated 6.4.1994.
3. We have heard learned counsel for the parties. A perusal of the order passed by the Deputy Director of Education would indicate that the reasoning given by the Deputy Director of Education is just a mechanical reproduction of the reasoning given by the District Inspector of Schools. The appeal under Section 16FF (5) is not an empty formality. The Deputy Director of Education ought to have addressed himself to relevant issues while deciding the appeal. There is no denial that resolution dated 7.10.1990 granting promotion to Salam Ullah was cancelled by a subsequent resolution dated 27.6.1993 in view of the objections raised by the District Inspector of Schools that Salam Ullah did not have the requisite teaching experience of five years as Assistant Teacher in L.T. grade on the date of occurrence of vacancy. But the authorities have failed to notice this aspect of the matter. The first reason given by the concerned authorities rejecting the proposal of appointment of the petitioner cannot, therefore, be accepted.
4. It is not disputed that Regulation 20 is of no relevance in relation to the institution covered by the U. P. Secondary Education Service Selection Boards Act, 1982 and in Yogendra Nath Singh v. District Inspector of Schools, Jaunpur and another, (1991) 1 UPLBEC 484, a learned single Judge has held so. We agree with the view taken in Yogendra Nath Singh (supra). The institution herein, however, does not come within the purview of the U. P. Secondary Education Service Selection Board Act. 1982 and therefore. Regulation 20 may be pressed into service provided it is otherwise applicable. Regulation 20 reads as under :
"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 the 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."
5. The consequences stipulated in Regulation 20 are to ensue on the failure of the Committee of Management to advertise the post in accordance with the regulations within a period of three months from the date of occurrence of the vacancy. The question of advertisement of a vacancy reserved to be filled in by promotion under Regulation 5 of Chapter II of the Regulations does not arise Inasmuch as advertisement is necessary only where the vacancy is to be filled in by direct recruitment. In other words. Regulation 20 will have no application where the post falls within 50% quota reserved for appointment by promotion under Regulation 5 of Chapter II of the Regulations. The learned single Judge in our opinion fell into error in holding that Regulation 20 of Chapter II would be attracted since the post could not be filled up by promotion as there was no qualified candidate available and it "became a post required to be filled up by direct recruitment". The reasoning is in fact fallacious. We have no manner of doubt that Regulation 20 in terms will not apply to a post which is required to be filled in by promotion under Regulation 5 of Chapter II of the Regulations. Assuming that Regulation 20 will be attracted even in relation to a post falling within the promotion quota which cannot be filled in by promotion due to nonavailability of a qualified and eligible teacher, we are of the view the post would not be deemed to have been surrendered until expiration of period of 90 days from the date the Committee of Management decides to fill in the vacancy by direct recruitment. There is no finding that the advertisement was made beyond the period of three months from the date the Committee of Management decided to fill in the vacancy by direct recruitment, in such view of the matter, the view taken by the learned single Judge cannot be sustained and we are of the considered view that the orders impugned in the writ petition are liable to be quashed.
6. The question then arises as to what relief is the appellant entitled. It is true that prior approval of the District Inspector of Schools was necessary for a valid appointment as provided in Section 16FF (3) but Section 16FF (4) of the Act visualises that "the District Inspector of Schools shall not withhold approval for the selection made under this Section where the person selected possesses the minimum qualification prescribed and is otherwise eligible". In view of the said provision, we are of the considered view that but for the erroneous view taken by the authorities leading to disapproval, the appointment of the petitioner-appellant would have been approved by the District Inspector of Schools. In the circumstances, therefore, the appointment of the appellant would become effective from the date on which approval is granted by the District Inspector of Schools as held by a Division Bench of this Court in Lalit Mohan Mishra v. District Inspector of Schools, 1979 All LJ 1025 para 11 at p. 1027.
7. Accordingly, the appeal succeeds and is allowed. The judgment of the learned single Judge is set aside. The orders impugned in the writ petition are quashed. The matter is remitted to the District Inspector of Schools for taking appropriate decision in accordance with law and in the light of the observations made in this judgment within two months.