Chhotey Lal Gupta vs State of U.P.& Ors.

R.K. Agrawal, J.—The petitioner, Chhotey Lal Gupta has approached this Court under Article 226 of the Constitution by filing the present petition seeking a writ, order or direction in the nature of certiorari quashing the notice No. Maa. Shi. Aa./193/1991dated 1941991 notifying Sri Badri Prasad Sandilya, respondent No. 3 and others as selected Head Masters of Uchchattar Madhyamik Vidyalaya, Bansi, Lalitpur. He further seeks a writ order or direction in the nature of mandamus directing the opposite parties not to interfere in the working of the petitioner as Head Master of the aforesaid institution.

Briefly stated the facts giving rise to the present petition are that the petitioner has done his M.A. in Hindi and Political Science and has also done B.Ed, course and was appointed on 1581967 as Assistant Teacher in L.T. Grade in Uchchatter Madhyamik Vidyalaya, Bansi, Lalitpur. A vacancy of Head Master in the said Vidyalaya occurred on 3061988 on account of the retirement of the permanent Head Master. The petitioner was appointed as Head Master on 2961998 by the Authorised Controller. He took charge on 171988 and continued functioning as Head Master of the Vidyalaya. The Authorised Controller had sent a requisition for selection of Head Master in the Vidyalaya to the U.P. Secondary Education Service Commission on 2271988 in accordance with the provisions of U.P. Secondary Education Service Selection Board Act, 1982. The commission interviewed the candidates on 531991 and declared the result on 1941991. The Respondent No. 5 was placed at serial No. 1 in the list of selected candidates. The necessary information about the selection of Respondent No. 5 was received in the office of the District Inspector of Schools on 2941991.

Heard Dr. R.S. Dwivedi, learned Senior Counsel assisted by Sri V.S. Dwivedi on behalf of the petitioner, Sri Nripendra Mishra, learned counsel for Respondent No. 5 and the learned standing counsel representing the respondents.

The Governor of U.P. promulgated on Ordinance No. 28 of 1991 on 641991, whereby subsection [1A], [IB], [1C] and [2] in Section 33A were inserted. It provided for regularisation of services of certain ad hoc teachers. The petitioner claims regularisation of his services as Head Master of the Vidyalaya under subsection [1A] so inserted by U.P. Ordinance No. 28 of 1991, which has subsequently been replaced by the U.P. Secondary Education Services Commission and Selection Board [Amendment] Act, 1991 [U.P. Act No. 26 of 1991] w.e.f. 641991. Section 33A[1A] reads as follows:

"[1A] Every teacher appointed by promotion, on ad hoc basis against a substantive vacancy in accordance with paragraph2 of the U.P. Secondary Education Services Commission [Removal of Difficulties] Order, 1981, as amended from time to time, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of the Intermediate Education Act, 1921 shall, with effect from the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards [Amendment] Act, 1991, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such ad hoc appointment to the date of such commencement."

The submission of the petitioner is that since he had been appointed byway of promotion on ad hoc basis against the substantive vacancy on the post of Head Master in the Vidyalaya in accordance with Paragraph2 of the U.P. Secondary Education Services Commission [Removal of Difficulties] Order, 1981 [hereinafter referred to as the 1st Removal of Difficulties Order] and had continuously served the institution from the date of the appointment i.e. 171988 till 641991 i.e. the date of commencement of U.P. Secondary Education Services Commission and Selection Board [Amendment] Act, 1991, he stood regularised and therefore, the respondent No. 5 cannot be appointed in the Vidyalaya. He further submitted that subsection [3] of Section 33A, which provides fqr exception for regularisation of services under subsection [1A] is not at all attracted in the present institution, inasmuch as the post of Head Master in the Vidyalaya had not already been filled up nor the selection for the said post had been made till 641991, as the result of the selection was declared by the Commission only on 1941991.

It is not disputed by the Commission that the result was declared on 1941991. Thus, no selection has been made on the post of Head Master in the Vidyalaya till 641991 and subsection [3] of Section 33A would not be attracted in the present case. Since the petitioner fulfils all the requirements of subsection [1A] of Section 33A, he would be deemed to have been regularised 641991 i.e., on the commencement of U.P. Secondary Education Services Commission and Selection Boards [Amendment] Act, 1991, which came into force on 641991],

In view of the foregoing discussion the writ petition succeeds and is allowed. The selection of the respondent No. 4 on the post of Head Master in Uchchattar Madhyamik Vidyalaya, Bansi Lalitpur, is set aside. The Commission is directed to adjust the respondent No. 5 in some other institution in accordance with law where the post maybe available.