Arun Kumar Gupta vs The State of U.P. and Others

Sunil Hali, J.—On account of short term vacancy which became available on account of promotion of Mr. v. D. Pandey to the post of Lecturer, Petitioner came to be appointed on ad-hoc basis as Assistant Teacher. This was proceeded by an advertisement notice issued by the Management calling the eligible candidates. After interview, selection process was concluded in the appointment of the Petitioner as Assistant Teacher on ad-hoc basis and the Committee of Management issued an appointment letter to the Petitioner appointing him on 28.9.1993. Thereafter, Petitioner joined on the post and started working w.e.f. 1.10.1993. The Committee of Management forwarded relevant papers regarding selection of the Petitioner for seeking financial approval. Approval was accorded by the Deputy Inspector of Schools regarding appointment of the Petitioner on 31.1.1995 despite that salary was not released to the Petitioner. Repeated reminders were made by the Petitioner in this behalf.

Having failed to obtain any response from the Respondent No. 2 (DIOS) Petitioner filed a writ petition before this Court being Civil Misc Writ Petition No. 16050 of 1997, in which an interim order was passed directing the Respondents to make payment of salary to the Petitioner. The said writ petition came to be finally disposed of on 21.4.2005 directing the Respondents to take decision in the matter after satisfying as to whether the approval has been accorded by the Respondent No. 2 in pursuance to the direction of this Court. But without taking into account the direction of this Court and the facts submitted by the Petitioner, impugned order has been passed on 19.12.2006. This order is subject matter of challenge before this Court.

The stand of the Respondents as reflected in the impugned order is (a) that there was ban in making appointment; (b) that the Selection Committee was not competent to make appointment for short term; (c) that the appointment was not approved by the DIOS and (d) that the appointment was made before the approval was accorded.

In respect of the first contention raised, it is stated that this question has been dealt with by a co-ordinate bench of this Court in Writ Petition No. 6015 (S/S) of 1994 (Ram Samhar v. DIOS, Sultanpur and Anr.) decided on February 6, 1997. This Court while dealing with question has made the following observation:

Insofar as the other reason given by the District Inspector of Schools for not granting approval due to the ban imposed by the State Government through G.O. dated 24.06.1993 and for that reasons the adhoc appointment made after imposition of ban cannot be approved, would also not survive, in view of the fact that the statutory provisions of Section 18 of the U.P. Secondary Education Services Commission Act, 1982 cannot be nullified or made ineffective by a Government order. The statutory provisions of the Act have provided for making adhoc appointment under certain contingency and this cannot be undone by issuing a Government order so as to make the statutory provisions redundant or ineffective.

Thus, the ban imposed having been held to be without any authority of law could not adversely affect the selection and appointment of the Petitioner. Import of the judgment, clearly reveals that the ban has been imposed on making fresh appointment, however, in view of statutory provisions u/s 18 of the Act 1982 power to make ad-hoc appointment cannot be brought within the ambit of such ban. Such appointments are intended to overcome a particular situation or emergency and by applying the ban on the said, appointment would render Section 18 of the Act 1982 in effective and in-operational.

In respect to the second contention, it has been held by a Division Bench of this Court in Civil Misc Writ Petition No. 20843 of 2002 (Daya Shaker Mishra v. DIOS and others) decided on 31.3.2010 that for short term vacancies, management shall have all the powers to make selection and appointment.

In respect to the third and forth contention, even if it is taken that prior approval before the appointment was necessary, the Petitioner would still be entitled to salary from the date of approval. The Petitioners claim could not be rejected on the ground that appointment letter was issued prior to approval.

Once the Respondents have approved the appointment they cannot turn around that such an approval was not in accordance with law. Law of acquiscence would operate in the present case.

In the result, the writ petition is allowed. The impugned order dated 10.11.2006 passed by the Respondent No. 2 is hereby set aside. Respondents are directed to release the salary of the Petitioner from the date he has been appointed on the post till he continues to work on the said post. No. order as to costs.