Hari Shanker Misra vs District Inspector of Schools and Another

D.K. Seth, J.—Petitioner''s appointment on ad hoc basis was not being approved, he filed a representation which was dismissed by an order dated 15.10.1993 passed by the District Inspector of Schools, Allahabad. This order is being challenged in this writ petition.

Shri S. N. Srivastava, learned Counsel for the Petitioner challenges the said order on the ground that since the Petitioner was appointed under the U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (hereinafter called as the ''First Order''), therefore, the first ground that the appointment has been made before the expiry of 60 days from the date of notification to the Commission cannot be sustained. He further submits that at the relevant point of time, namely, on 30.8.1991, Petitioner was appointed under unamended Section 18 of U.P. Secondary Education Services Commission and Selection Boards Act, therefore, the other grounds on which the Petitioner''s case was denied has to be ignored. On these grounds, he claims that the impugned order dated 15.10.1993 (Annexure 5 to the writ petition) should be quashed.

Shri Sabajit Yadav, learned standing counsel, on the other hand, contends that the appointment could not have been made under the provisions of First Order. He further contends that by virtue of Government Order dated 12.7.1978, reservation is provided even if the appointment was made u/s 18 of the Act as claimed by the Petitioner.

After having heard learned Counsel for the parties, it appears that the First Order envisages three contingencies in which such appointment could be made, but by virtue of subsequent amendment, the said contingencies were done away with by the U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter called as the Second Order). "Paragraph 2" of the First Order was replaced by the Second Order that the management of an institution may appoint by promotion or by direct recruitment, a teacher on purely ad hoc basis in accordance with the provisions of this Order in the case of a substantive vacancy caused by death, retirement, resignation, or otherwise. However, the contingencies as provided in paragraph 5 (2) to (5) of the First Order still subsists. But still such appointment can be made in view of paragraph 4 only by promotion. In case it cannot be filled by promotion, the procedure for direct recruitment is to be adopted in terms of paragraph 5 (2) to (5) which cast responsibility on the management to keep the District Inspector of Schools informed about the details of vacancy as soon as possible. Upon such information being received, it is the duty of the District inspector of Schools to invite application from local employment exchange and also through public advertisement in at least two newspapers having adequate circulation in U.P. It is not the case of the Petitioner that paragraph 5 (2) to (5) of the First Order was complied with. On the other hand, as it appears from the fact that the notification was sent to the Commission on 20.7.1991 and the management had appointed the Petitioner on 30.8.1991 and then sent the papers with regard to his appointment to the District Inspector of Schools on 10.9.1991.

In view of sub-para (2) to (5) of paragraph 5, the management did not have the right to dispense with the condition provided in sub-para (2) of Para 5 and the selection has to be done in accordance with the provisions contained in said Para 5 (2) to (5). In the absence of specific averment that the Petitioner was appointed after complying with the provisions contained in sub-paras (2) to (5) of Para 5, it is not possible to treat the appointment is an appointment under the Removal of Difficulties Order as was sought to be contended by Shri Srivastava. On the other hand, Section 18 of the Act requires that such appointment can be made by the management only after expiry of two months after the vacancy is notified to the Commission as is provided u/s 18(1)(b) of the said Act. Admittedly in the present case, the appointment was said to be before expiry of the said period. Therefore, by no stretch of imagination, the appointment has sought to be validly made in compliance of Section 18 of the said Act.

For all these reasons, I do not find any infirmity in the order dated 15.10.1993 impugned in the present writ petition. The writ petition, therefore, fails and is accordingly dismissed. No order as to costs.