Allahabad High Court
Julfikar Husain Ansari vs State Of U.P. And Others on 27 November, 2012
Author: Shiva Kirti Singh
Bench: Shiva Kirti Singh, Sanjay Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED Special Appeal No.1829 of 2012 *** Julfikar Husain Ansari Vs. State of U.P. & Ors. Appearance: For the Appellant : Mr. Radha Kant Ojha, Advocate For the Respondents : Mr. Ravi Shankar Prasad, Standing Counsel Hon'ble Shiva Kirti Singh, A.C.J.
Hon'ble Sanjay Misra, J.
(Judgment : By Justice Shiva Kirti Singh, A.C.J.) This intra-court appeal is directed against judgment and order dated 18.09.2012, whereby writ petition bearing no. 47705 of 2012 preferred by the appellant has been dismissed.
There is no dispute on facts which have been correctly noticed by the writ Court which has held that once the appointment of the petitioner-appellant (hereinafter referred to as the 'appellant') is found to be illegally made, then his claim for regularisation could not be accepted. Accordingly, the writ Court refused to interfere with the decision dated 11.07.2012 taken by the Screening Committee constituted under Section 33-B of the U.P. Secondary Education Services Selection Boards Act, 1982 (hereinafter referred to as the 'Act, 1982'). By that decision, the Screening Committee has turned down the claim of the appellant for grant of benefit of regularisation.
The relevant facts lie within a narrow compass. A post of Assistant Teacher in L.T. Grade fell vacant in the Municipal Inter College, Fatehgarh, Farrukhabad on account of retirement of one teacher of the College on 30.06.1990. The College is a recognized institution governed by the provisions of the U.P. Intermediate Education Act, 1921 as well as various Regulations framed thereunder and receives grant-in-aid from the State Government. The vacancy occurring on 30.06.1990 was notified to the Board. According to the appellant, when no selection was made by the Board, the post was advertised on the Notice Board and the appellant was selected and appointed to the post through order dated 23.08.1990 on ad hoc basis till joining of candidate selected by the Board. For the purpose of seeking approval, relevant papers were placed before the District Inspector of Schools on 27.07.1991. When approval was not granted by the District Inspector of Schools and no salary was paid to the appellant, he filed a writ petition being Civil Misc. Writ Petition No. 3152 of 1992, wherein an interim order was passed on 30.01.1992 and on the strength of the interim order, the appellant continued in service and also received salary. However, said writ petition was ultimately dismissed by order dated 01.12.2011. Against the said order, the appellant preferred Special Appeal No. 173 of 2012, which was disposed of by a Division Bench of this Court vide order dated 20.01.2012 whereby the order of the learned Single Judge was modified by directing the Screening Committee to consider the case of the appellant for regularisation as per Section 33-B of the Act, 1982. The Screening Committee rejected the claim of regularisation by decision dated 11.07.2012 and against that, the related writ petition preferred by the appellant has been dismissed by the learned Single Judge by judgment and order impugned in this appeal.
A perusal of order dated 11.07.2012 shows that the Screening Committee, after considering all the relevant facts and materials, came to the conclusion that appointment of the appellant was against law and did not fall within the purview of appointments which could be regularised. The Committee noticed that the appointment of the appellant was made without seeking permission from the departmental authorities and in violation of the procedure laid down in Section 18 of the Act, 1982. The learned Single Judge has also held that substantive vacancies, like one at hand, were required to be filled up in accordance with the procedure prescribed under First Removal of Difficulties Order, 1981 and, admittedly, the said procedure was not adhered to. Since the appointment of the appellant was made de-hors the statutory procedure, the learned Single Judge held the appointment to be a nullity in view of the judgment of a Full Bench of this Court in the case of Radha Raizada & Ors. Vs. Committee of Management, Vidyawati Darbari Girls Inter College & Ors., (1994) 3 UPLBEC 1551, and that regularisation of such appointment would run counter to the law laid down by the Apex Court in the case of Secretary, State of Karnataka & Ors. Vs. Umadevi (3) & Ors., (2006) 4 SCC 1.
On behalf of the appellant, it was strenuously contended that since the judgment in the case of Radha Raizada (supra) amounted to laying down a new law that even ad hoc appointments must be made after due advertisement in two prominent newspapers, the said judgment cannot have a retroactive effect and the appointment of the appellant cannot be held to be illegal only on account of law laid down in that judgment. To buttress the said submission, learned counsel placed reliance upon a Division Bench judgment of this Court in the case of Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad, [1998-LAWS (ALL)-8-116].
No doubt, the decision in the case of Ashika Prasad Shukla (supra) settles the law that ad hoc appointment by direct recruitment in a short-term vacancy made prior to judgment of a learned Single Judge of this Court dated 13.01.1994 in the case of K.N. Dwivedi Vs. District Inspector of Schools, (1994) UPLBEC 461, which stands supported by judgment dated 12.07.1994 in the case of Radha Raizada (supra), would not be invalid merely because the vacancy was not notified in two prominent newspapers. But, at the same time, it was pointed out that only a short-term vacancy was covered by the Second Removal of Difficulties Order and only against such vacancies, the requirement of advertisement in two newspapers arose on account of judicial pronouncements in the case of K.N. Dwivedi and Radha Raizada (supra). In fact, the judgment in Ashika Prasad Shukla (supra) has taken note of another judgment of this Court in the case of Sanjeev Kumar Vs. District Inspector of Schools, Ghaziabad, 1997 All LJ 33 and in course of distinguishing the same, it has been clarified that the case of Sanjeev Kumar of ad hoc appointment by direct recruitment in a substantive vacancy was to be governed by the provisions of the First Removal of Difficulties Order. Clause 5 of First Removal of Difficulties Order itself provides that the Management would, as soon as may be, inform the District Inspector of Schools about the details of the vacancies and thereupon the Inspector is required to invite applications from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh. As per the provisions in the First Removal of Difficulties Order, it is the District Inspector of Schools who would get the best candidate selected on the basis of quality points marks specified in Appendix and forward the names of selected candidates to the concerned institution. The Management has no role except to intimate the vacancy to the District Inspector of Schools in the matter of selection of candidates for direct recruitment in substantive vacancy as per the First Removal of Difficulties Order. Unlike the provisions in the Second Removal of Difficulties Order, 1981 relating to short-term vacancy, there is no provision of deemed approval under the Firs Removal of Difficulties Order.
A careful perusal of the Full Bench judgment in the case of Radha Raizada (supra) also makes it clear that the provision for advertisement in newspapers and selection through the District Inspector of Schools in respect of substantive vacancies and their filling up through ad hoc appointment by direct recruitment already existed in the First Removal of Difficulties Order and the same had to be followed. The Full Bench saved the vires of Second Removal of Difficulties Order only by reading into it the requirement of advertisement in two prominent newspapers and hence only this part was held to be prospective by the Division Bench in the case of Ashika Prasad Shukla (supra).
Since the ad hoc appointment of the appellant through direct recruitment was made against a substantive vacancy and such appointment was required to be made in accordance with the procedure prescribed under the First Removal of Difficulties Order, 1981 which was totally ignored, the writ Court, in our considered view, has rightly held that the appointment of the appellant was a nullity and could not be regularised. No case is made out for treating the judgment in the case of Radha Raizada (supra) prospective in a case of present nature.
For the aforesaid reasons, we find no merit in this appeal. It is, accordingly, dismissed. However, there shall be no order as to costs.
November 27, 2012 AHA (Shiva Kirti Singh, A.C.J.) (Sanjay Misra, J.) Order on Special Appeal Hon'ble Shiva Kirti Singh, A.C.J. Hon'ble Sanjay Misra, J.
Dismissed.
For orders, see order of date passed on separate sheets.
November 27, 2012 AHA