Allahabad High Court
Rajesh Kumar Sharma vs State Of U.P. & Others on 5 January, 2010
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
Court No. - 18
CIVIL MISC. WRIT PETITION NO. 71277 of 2009
Rajesh Kumar Sharma
Vs.
State Of U.P. And Others
Hon'ble Sudhir Agarwal,J.
The petitioner has sought a writ of mandamus commanding the respondent to consider him for regular appointment on the post of Lecturer (Civics) under Section 33-F of the U.P. Act No.5 of 1982.
From the record it appears that due to retirement of one Sri Ram Prasad Varshney, Principal of Rastriya Inter College, Surir, Mathura on 30th June, 1991 the substantive vacancy occurred where against one Sri Ratan Kumar Sharma the senior most lecturer was appointed on officiating basis to work as Principal causing a short term vacancy on the post of Lecturer (Civics) in the College. It is said that the Committee of Management appointed the petitioner in the aforesaid vacancy by letter of appointment dated 24th June, 1992 after holding interview on 12th June, 1992. The petitioner has continued to work thereafter and the said appointment of the petitioner was also approved by the District Inspector of Schools by letter dated 23rd July, 1992. The vacancy, on which the petitioner was working, became substantive on 1st July, 2000 due to retirement of Sri Ratan Kumar Sharma and thereafter the petitioner has sought the benefit of Section 33-F of U.P. Secondary Education Service Selection Board Act, 1982.
There are two obstacles before the petitioner, first is that as per his own averments and the document placed on record it is evident that the procedure laid down in the U.P. Secondary Education Services Commission (Removal of Difficulties) Second Order, 1981 (in short ''Second Order'), for making adhoc appointment in a short term vacancy was not followed in 1992. The procedure laid down in para 2 of the Second order reads as under:
"2. Procedure for filling up short-term vacancies.-(1) If short- term vacancy in the post of a teacher, caused by grant of leave to 2 him or on account of his suspension duly approved by the District Inspector of Schools or otherwise, shall be filled by the management of the institution, by promotion of the permanent seniormost teacher of the institution, in the next lower grade. The Management shall immediately inform the District Inspector of Schools of such promotion along with the particulars of the teacher so promoted.
(2) Where any vacancy referred to in Clause (1) cannot be filled by promotion, due to non-availability of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualifications, it shall be filled by direct recruitment in the manner laid down in Clause (3).
(3) (i) The management shall intimate the vacancies to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution, requiring the candidates to apply to the Manager of the, institution along with the particulars given in Appendix 'B' to this order. The selection shall be made on the basis of quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, issued with Notification No. Ma-1993/XV-7-1 (79)-1981, dated July 31, 1981, hereinafter to be referred to as the First Removal of Difficulties Order, 1981. The compilation of quality point marks shall be done under the personal supervision of the head of institution.
(ii) The names and particulars of the candidate selected and also of other candidates and the quality point marks allotted to them shall be forwarded by the Manager to the District Inspector of Schools for his prior approval.
(iii) The District Inspector of Schools shall communicate his, decision within seven days of the date of particulars by him failing which the Inspector will be deemed to have given his approval.
(iv) On receipt of the approval of the District Inspector of Schools or as the case may be, on his failure, to communicate his decision within Seven days of the receipt of papers by him from the Manager, the management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager.
Explanation- For the purpose of this paragraph-
(i) the expression "senior most teacher" means the teacher having longest continuous service in the institution in the Lecturer's grade or the Trained Graduate Grade (L.T.) grade or Trained under graduate (C.T.) grade or J.T.C. Grade, as the case may be;
(ii) in relation to institution imparting instructions to women, the expression 'District Inspector of Schools' shall mean the Regional Inspectress of Girls' Schools;
(iii) short term vacancy which is not substantive and is of a limited duration."3
There is nothing on record to show that the above procedure prescribed in para 2 of the Second Order was followed in the case of the petitioner before making his appointment on ad hoc basis in the alleged short term vacancy on 24th June, 1992. The appointment having not been made in accordance with the procedure laid down in Second Order renders the appointment illegal and void ab initio conferring no right upon the incumbent concerned either to hold the post or to claim salary from the State Exchequer. The Apex Court in Prabhat Kumar Sharma and others Vs. State of U.P. & others AIR 1996 SC 2638 has said that the procedure laid down in the Removal of Difficulties order is mandatory and non compliance thereof makes appointment void ab initio. The incumbent therefore has no right to hold the post or claim salary.
In any case the petitioner cannot claim the benefit of Section 33-F, inasmuch as, after the vacancy became substantive on 1st July, 2000, he had no right to hold the post thereafter in view of the law laid down by a Division Bench of this Court (in which I was also a Member) in Surendra Kumar Srivastava Vs. State of U.P. and others, 2007(1) ESC 118 (All) (DB), and, para 16 and 17 thereof are reproduced as under:
"16. The question as to whether a teacher appointed on short term basis pursuant to the provisions of Second Order has a right to continue if subsequently the vacancy becomes substantive, specifically came up for consideration before a Full Bench in Smt. Pramila Mishra Vs. Deputy Director of Education, 1997 (2) ESC 1284 (All)(FB) and on page 1291 the Court held that "from the provisions of the Acts, Rules, Regulations and Removal of Difficulties Orders discussed above, it is manifest that a clear distinction has been maintained between substantive vacancy and short term vacancy of the post of a teacher.
The authority to make the appointment, the procedure to be followed in making the appointments and the considerations to be made in making the appointment in the two cases are distinct and different from each other. In each case the duration of ad hoc appointment is also laid down under the statutory provisions. In the case of ad hoc appointment in a short term vacancy paragraph 3 of the Second Order specifically lays down that the appointment will come to an 4 end if the short term vacancy otherwise ceases to exist. It follows, therefore, that when a vacancy caused due to grant of leave to or suspension of the permanent incumbent becomes a substantive vacancy on account of his death, resignation or termination or removal from service, the short-term vacancy ceases to exist and a substantive vacancy is created in its place. On a perusal of the relevant provisions of the Acts, Rules, and Removal of Difficulties Orders and giving our anxious consideration to the matter, we do not find any provision which directly or even indirectly vests a right in a person appointed an ad hoc teacher in a short-term vacancy to continue even after the said vacancy has ceased to exist and a substantive vacancy has been created in its place. The contention raised on behalf of the respondents that such an appointee (in short-term vacancy) is entitled to continue in the post (substantive vacancy) till a candidate selected by the Commission/Board joins the post does not get any support from the statutory provisions and, therefore, cannot be accepted. The contention is also not acceptable for the reason that it runs counter to the intendment of the provisions of the Act, Rules and Regulations. We should not be understood to be saying that an ad hoc teacher in a short-term vacancy cannot be appointed in a substantive vacancy. He can be appointed in the substantive vacancy if he is selected in accordance with the procedure and in the manner laid down in the relevant provisions of the Acts, Rules, Regulations and Removal of Difficulties Orders. What we want to stress and which is clear to under section is that he cannot claim as a matter of right that he is entitled to continue in the post till the candidate selected by the Commission/Board joins even if the short term vacancy has ceased and a substantive vacancy in the post of teacher has been created in its place."
(Emphasis added)
17. A careful reading of the law laid down by the Full Bench in Smt. Pramila Mishra (Supra) makes it clear that the Court specifically rejected the contention that a person has a right to continue when a substantive vacancy is created or occurred if he has been appointed as ad hoc teacher in a short term vacancy and held that there is no provision to support this contention. It has also specifically observed that acceptance of such contention would run counter to the specific provisions of the Act and the Rules framed thereunder. Further in the operative part of the judgment, the Full Bench, while discarding the contention that a teacher appointed by the Management on ad hoc basis in a short term vacancy which is subsequently converted into a substantive vacancy can claim a right to continue further held that however he has a right to be considered along 5 with other eligible candidates for ad hoc appointment in the substantive vacancy, if he possess the requisite qualification. The Full Bench also overruled all the judgments taking contrary view as is apparent from the following: "Summing up our conclusions in the light of the discussions in the foregoing paragraphs, we hold that a teacher appointed by the management of the institution on ad hoc basis in a short term vacancy (leave vacancy suspension vacancy), which is subsequently converted into a substantive vacancy in accordance with the provisions of the Act, Rules and Orders, (on death, resignation, dismissal or removal of the permanent incumbent), cannot claim a right to continue. He has, however, a right to be considered along with other eligible candidates for ad hoc appointment in the substantive vacancy if he possesses the requisite qualifications. Consequent upon the view taken by us, as noticed above, we hold that the decisions of this Court like Km. Meena Singh's case (supra) and other cases taking contrary view, are declared to be no longer good law."
In view of the above discussion I find no merit in the writ petition. Dismissed.
Order Date :- 5.1.2010 KA