Allahabad High Court
Ashok Kumar Maurya [Objection Filed] vs State Of U.P.Through Secy.Secondery ... on 9 March, 2017
Author: Devendra Kumar Arora
Bench: Devendra Kumar Arora
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No.19 WRIT PETITION NO.1284 (SS) OF 2001 Ashok Kumar Maurya ...Petitioner Versus State of U.P. and others ...Opp. Parties Hon'ble Dr. Devendra Kumar Arora,J.
Heard Sri Ramesh Pandey, learned Counsel for the petitioner and Sri Usman Siddiqui, learned Standing Counsel for opposite parties no.1, 2 and 3.
In the instant writ petition, the petitioner has sought for a direction to the respondents to allow the petitioner to work as Assistant Teacher (L.T. Grade) and pay him salary including arrears of salary till availability of regularly selected candidate from U.P. Secondary Education Services Selection Board, Allahabad.
Brief facts as averred in the writ petition are that Baba Baruwadas Inter College, Paruiya Ashram, Ambedkar Nagar is a non-Government recognized Institution and is governed by the provisions of the U.P. Intermediate Education Act, 1921 and the U.P. Secondary Education Services Selection Board Act, 1982 (in short ''1982 Act') and the Regulations framed thereunder. The salary to the teachers and non-teaching staffs is paid under the provisions of the U.P. High Schools and Intermediate Colleges (Payment of Salaries to Teachers and Other Employees) Act, 1921.
On 7.2.2000, the management of the Institution sent a letter to the U.P. Secondary Service Selection Board (in short referred to as ''the Board') through District Inspector of Schools, Ambedkar Nagar with regard to filling up two vacancies, out of which one vacancy of Assistant Teacher Science (L.T. Grade) had fallen vacant on account of superannuation of one Mr. Vijay Bahadur Tripathi, Assistant Teacher (L.T. Grade) and second vacancy was for Lecturer (Math).
According to the learned Counsel for the petitioner, despite the requisition sent by the Management of the Institution, no prior approval was granted and, therefore, keeping in view the exigency of work, the Management decided to fill-up the vacancies through ad hoc appointment under the provisions of Section-18 of the Act, 1982. Consequently, the aforesaid two vacancies were advertised vide advertisement dated 13.07.2000 and 14.07.2000 and in pursuance of the said advertisement, the petitioner, who possess the degree in M.Sc. (Math) including B.Ed., was appointed on 18.08.2000 as Assistant Teacher (L.T. Grade) Science in the Institution. After the appointment of the petitioner, the Management sent a letter on 09.09.2000 to the District Inspector of Schools for financial concurrence/approval followed by reminder dated 06.12.2000. The District Inspector of Schools, vide letter dated 11.12.2000, has sought certain information from the Management with regard to appointment of the petitioner and the Management provided the information vide letter dated 21.12.2000 along with relevant documents with regard to selection of the petitioner but thereafter no action has been taken by the District Inspector of Schools.
It has also been contended by learned Counsel for the petitioner that the appointment of the petitioner was made against the sanctioned vacant post by the Management of the Institution in exercise of power conferred under Section 18 of the Act, 1982. According to the petitioner, Section 10 of the Payment of Salary Act, 1971 fixes liability on the State Government in respect of salary and since the petitioner has been appointed against sanctioned post, he is entitled for salary from the State Government.
It has been urged on behalf of the petitioner that the Apex Court in the case of Chandigarh Administration Vs. Rajnivali and others [(2000) 2 SCC 52] has hold that payment of salary to the teachers, who are imparting education to the students, is Constitutional obligation of the State. The Apex Court also condemned the practice of exploiting the services of qualified teachers. It has also been brought to the notice of the Court that in identically situated persons when were denied salary approached this Court by filing Writ Petition No.5911 (SS) of 1999 and Writ Petition No.3902 (SS) of 2000 and this Court vide orders dated 18.11.1999 and 28.07.2000 respectively granted relief to the extent that salary be paid till the availability of regularly selected candidate. Therefore, the petitioner is entitled for payment of salary and other service benefits and denial thereof is wholly unjustified and is an infringement of statutory right.
In contrast, learned Standing Counsel appearing for the State has submitted that the post in question was to be filled up through a candidate belonging to SC category to be recommended by the Commission and for which, a requisition was to be sent to the Commission. However, the then Committee of Management had illegally given appointment to the petitioner without any prior intimation to the District Inspector of Schools, Ambedkar Nagar. It is also submitted that besides provisions for making regular appointment, the aforesaid Act, 1982 contains a provision under Section-18, for making ad hoc appointment of teachers against a substantive vacancy, till the availability of suitable candidate from the Commission.
Clarifying the position, it has been submitted that prior to the year, 1992 i.e. before coming into force of the U.P. Secondary Education Services Commission and Selection Board (Amendment) Ordinance, 1992 with effect from 14.07.1992, amending the 1982 Act, the Management of the recognized Intermediate College was empowered to make selection and appointment of ad hoc teachers till the joining of a candidate recommended by the commission, namely, the U.P. Secondary Education Commissioner (as was existing at the relevant time) or on expiry of the period of one month from the date of receipt of an intimation for appointment of a teacher selected by the Commission or 30th day of June following the date of such ad hoc appointment, whichever was earlier, if the Management had notified a vacancy to the Commission in accordance with the provisions of the Act and the Commission had failed to recommend the name of any suitable candidate for being appointed as a teacher, specified in the schedule, within a year, from the date of such notification or the post of such teacher had actually remained vacant for more than two months. Under the unamended Section 18 of the Act, 1982, selection and ad hoc appointment on a substantive vacancy could be made by the Management only when the Management had notified the said vacancy to the Commission for filling up the same by regular candidate and further that no candidate selected by the Commission could be made available within a period of one year from the date of such notification or the post of such teacher actually remained vacant fro two months meaning thereby if none of the eventualities, as mentioned in the then existing Section 18 of the Act, 1982 existed, the Management could not make any ad hoc appointment against the substantive vacancy. The eventualities were that the substantive vacancy had been notified by the Management to the Commission and further that no candidate could be selected by the Commission or the post of such teacher had actually remained vacant for two months. Subsequently, the 1982 Act was amended by the State Government w.e.f. 14.07.1992 initially by promulgating the U.P. Secondary Education Service Commission and Selection Boards (Amendment) Ordinance, 1992 and subsequently by replacing the said ordinance by enactment of the U.P. Secondary Education Services Commission and Selection Boards (Second Amendment) Act, 1992 by which Section 18 of the Principal Act, 1982 was substituted by new Section 18. Under the amended Section-18, the Management had no power/ jurisdiction to make any selection for making an appointment on ad hoc basis against a substantive vacancy. But the powers to make selection for such ad hoc appointment against substantive vacancy, was vested in a Selection Committee, under the Chairmanship of the District Inspector of Schools, vide sub-Section (9) and the Management could make appointment only on the recommendations of the said Selection Committee.
According to the learned Standing Counsel when the appointment of the petitioner is de hors to rules and illegal, he is not entitled for any salary under the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971.
To substantiate his arguments, learned Standing Counsel has placed reliance on the judgment rendered by the Apex Court in the case of State of West Bengal and others Vs. Banibrata Ghosh and others; [(2009) 3 SCC 250] and the judgment of this Court rendered in the case of Devashish Mukherji and another Vs. State of U.P. and others; [(2007) 1 UPLBEC 188].
There is no dispute to the fact that the Institution, namely, Baba Baruwa Das Intermediate College is a recognized aided Institution at Intermediate level. Therefore, it is controlled and governed by the U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder. The provisions of U.P. Secondary Education Services Commission and Selection Boards Act now amended as U.P. Secondary Education Service Selection Commission Act, 1982 (as amended in the year 1995), the Uttar Pradesh Secondary Education Service Commission Rules, 1995 and the U.P. High School and Intermediate Colleges (Payment of salaries of Teachers and Other Employees ) Act, 1971 are also applicable upon the Institution in question. Section 16 of the Act provides for making appointment of a Teacher by the Management only on the recommendations of the Commission. Section 10 and 11 talks about the selection of Teachers and preparation of panel of a candidates selected by the Commission. Section 10 categorically provides that for purposes of making appointment of a teacher, the Management would notify the vacancy to the Commission in such manner and through such Officer or Authority as prescribed. A detailed procedure has been provided in Section 11 for preparation of the Panel selected by the Commission.
It may be added that provisions of U. P. Secondary Education Service Commission and Selection Board Act, 1982, were substituted by U. P. Act No. XXIV of 1992. Section 18 as substituted with effect from 14.7.1992 is quoted below :
"18. Ad hoc teachers.--(1) Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and the post of such teacher has actually remained vacant for more than two months, the management may appoint by direct recruitment or promotion a teacher, on purely ad hoc basis, in the manner hereinafter provided in this section.
(2) A teacher, other than a Principal or Headmaster, who is to be appointed by direct recruitment may be appointed on the recommendation of the Selection Committee referred to in Sub-section (9).
(3) A teacher, other than a Principal or Headmaster who is to be appointed by promotion, may in the manner prescribed be appointed by promoting the senior-most teacher possessing prescribed qualification :
(a) in the trained graduate's grade, as Lecturer, in the case of vacancy in Lecturer's grade.
(b) in the Certificate of Teaching grade, as a teacher in the trained graduate's grade, in the case of vacancy in trained graduate's grade.
(4) A vacancy in the post of a Principal may be filled by promoting the senior most teacher in the Lecturer's grade.
(5) A vacancy in the post of a Head Master may be filled by promoting the senior most teacher in the trained graduate's grade.
(6) For the purpose of making appointments under Sub-sections (2) and (3), the management shall determine the number of vacancies, as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Caste, Scheduled Tribes and other categories in accordance with the rules or orders issued by the State Government in this behalf. If in determining the vacancies it is found that persons belonging to such categories are not holding such number of posts as should have been held by them in accordance with such rules or orders, then the vacancies shall be determined that first and every alternate vacancy shall be reserved for the persons of such categories until the required percentage of posts is held by them.
(7) After determining the number of vacancies as provided in Sub-section (6) management shall within fifteen days from the date of the commencement of the Uttar Pradesh Secondary Education Service Commission and Selection Board (Second Amendment) Act, 1992, intimate the vacancies to be filled by direct recruitment to the District Inspector of Schools. If the management fails to intimate such vacancies within the said period of fifteen days, the District Inspector of Schools may, after verification from such institution or from his own records, determine such vacancies himself.
(8) The District Inspector of Schools shall, on receipt of intimation of vacancies or, as the case may be, after determining the vacancies under Sub-section (7), invite applications, from the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder, for ad hoc appointment to the post of teachers, other than Principal or Head Masters in such manner as may be prescribed.
(9) (a) For each district, there shall be a selection committee for selection of candidates for ad hoc appointment by direct recruitment comprising :
(i) District Inspector of Schools, who shall be the Chairman ;
(ii) Basic Shiksha Adhikari ;
(iii) District Inspectress of Girls Schools and where there is no such Inspectress, the Principal of the Government Girls' Intermediate College and where there are more than one such college, the seniormost Principal of such colleges and where there is no such college, the Principal of the Government Girls' Intermediate College as nominated by the State Government.
(b) The selection committee constituted under Clause (a) shall make selection of the candidates, prepare a list of the selected candidates, allocate them to the institutions and recommend their names to the management for appointment under Sub-section (2).
(c) The criteria and procedure for selection of candidates and the manner of preparation of list of selected candidates and their allocation to the institutions shall be such as may be prescribed.
(10) Every appointment of an ad hoc teacher under Sub-section (1) shall cease to have effect from the date when the candidate recommended by the Commission or the Board joins the post.
(11) The provisions of Section 21D shall mutatis mutandis, apply to the teacher who are to be appointed under the provisions of this section."
From Section 18 as amended with effect from 14.7.1992, it is clear that the management may appoint ad hoc teacher by direct recruitment or promotion in the manner provided in that section. The procedure for direct recruitment on ad hoc basis has been provided in Sub-section (6) to Sub-section (9) of Section 18. Sub-section (6) requires management to intimate the vacancy to be filled by direct recruitment to the District Inspector of Schools. Sub-section (8) provides that the District Inspector of Schools after scrutiny shall invite applications from the persons possessing qualification. Sub-section (9) provides selection committee for each region consisting of District Inspector of Schools, who shall be the Chairman, Basic Shiksha Adhikari and District Inspectress of Girls Schools. Thus, the ad hoc appointment of teachers after 14.7.1992, has to be made in accordance with the provisions prescribed under Section 18 and the management is neither empowered to issue any advertisement or to constitute Selection Committee or to recommend any candidate.
It would be relevant to point out at this juncture that a Full Bench of this Court in Kumari Radha Raizada and etc. etc. v. Committee of Management, Vidyawati Darbari Girls Inter College and Ors. etc., 1994 All LJ 1077, considered the procedure of ad hoc appointment before 14.7.1982 as well as after 14.7.1992. While considering the process of selection by amended Section 18 with effect from 14.7.1992, the Full Bench held in paragraph 46 as under :-
"A perusal of this new section would show that it is substantially the same provision excepting the provision for constitution of Selection Committee for selection of candidate for ad hoc appointment in place of giving quality point marks as contained in the First Removal of Difficulties Order. In fact what was contained in the First. Removal of Difficulties Order has not been brought in the Act, by this amending Act. Thus, the method of ad hoc appointment by promotion of teacher remained the same as it was during the period 14.7.1981 to 13.7.1992. The method of ad hoc appointment of Principal and Head Master in the institution also remains the same as it was in the period 14.7.1981 to 13.7.1992 (first period). Similarly, the provision in respect of appointment against the short-term vacancy also remains the same as it was in 14.7.1981 to 13.7.1992. The only change that has been brought by the new Section 18 is in respect of method of ad hoc appointment by direct recruitment. Under Sub-section (8) of Section 18. the District Inspector of Schools on receipt of intimation of vacancy or as the case may be after determining the vacancy in Sub-section (7) is required to invite application from the person possessing qualification prescribed in the Intermediate Education Act or the regulations framed thereunder for ad hoc appointment to the post of teacher. Under Sub-section (9) of Section 18 a selection committee is to be constituted for a selection of candidate for ad hoc appointment by direct recruitment comprising of District Inspector of Schools as Chairman, Basic Shiksha Adhikari and District Inspectress of Girls Schools. The Selection Committee constituted is further required to make selection of the candidate and prepare a list of selected candidate and allocate them to the institution and recommend their name to the management for appointment. This is in brief the procedure which is required to be undergone where the ad hoc appointment is to be made by the direct recruitment. If the ad hoc appointment by direct recruitment is made under Sub-section (9) of Section 18, no further approval of the District Inspector of Schools for such appointment is required."
It may be pointed out here that Rule 15 of the U.P. Secondary Education Service Commission Rules, 1995 lays down procedure for making ad hoc appointment by direct recruitment under Section-18 of the Act, 1982. According to the said procedure, the Management/ Principal of the Institution has nowhere been authorized or conferred powers to invite applications to make selection for making such appointment. The Deputy Director of Education is required to advertise such vacancy.
In the instant case, the Manager of the Institution got published an advertisement for engagement of Lecturers in Math and Math with Science for interview 30.7.2000. In the advertisement, there was no mention about the nature of appointment. Annexure-5 to the writ petition is the letter of appointment dated 18.8.2000 issued to the petitioner. In the said appointment letter it has been mentioned that after interview by the college selection committee, the petitioner has been selected, which has been affirmed by the management committee. In the last paragraph, it is mentioned in clear words that the salary would be payable only after approval of the District Inspector of School. It is not disputed that financial concurrence was not granted by the DIOS, Ambedkar Nagar.
Furthermore, the respondents had taken a definite stand that the post in question is reserved for the schedule caste candidate, but the then Committee of Management had illegally given appointment to the petitioner without any prior intimation to the District Inspector of Schools, Ambedkarnagar. As stated above, the powers of the management to make selection of the ad hoc appointment against the substantive vacancy have been taken away by amendment of 1982 Act w.e.f. 14.7.1992 read with the provisions of Amended Act of 1995 and rules framed thereunder. Apart from above, the procedure prescribed under the Regulations 10 (Gha) of Chapter-II of Intermediate Education Act, 1921 has also not been observed..
In the backdrop of the aforesaid facts, it can easily be concluded that the appointment of the petitioner being void ab-initio and per se bad in law, he is not entitled for any salary under the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees ) Act,1971. In other words, the vacancy on which petitioner was appointed being substantive vacancy, the management was denuded of its jurisdiction to make any ad hoc appointment on the said post. The ad hoc appointment of the petitioner in contravention of provisions of Section 18 is clearly void and does not give any right to the petitioner to claim payment of salary. Therefore, no direction as sought for the petitioner can be issued and in this situation, the Committee of Management is responsible for making the payment of salary to the petitioner from its own resources.
In view of the above, I find no good ground to exercise jurisdiction under Article 226 of the Constitution and the writ petition lacks merit. Accordingly, the writ petition is dismissed and the interim order dated 15.3.2001 is vacated.
March 9 ,2017 [Justice D.K.Arora]
MH/-