Janardan Prasad Gupta vs District Inspector of Schools, Maharajganj and Others

M. Katju, J.—This special appeal has been filed against the impugned judgment of the learned single Judge dated 2.4.2004.

We have heard learned Counsel for the parties and have carefully perused the impugned judgment, and find no infirmity in the same.

The full facts have been given in the judgment of the learned single Judge and hence are not being repeated here.

However, we may state the facts very briefly. The writ Petitioner (Respondent No. 3 in this appeal) was appointed as L.T. grade teacher and was working on that post continuously. The post of Principal in the institution fell vacant on 30.6.1993. Sri. T. N. Rai, seniormost lecturer was promoted as ad hoc Principal, and hence a short-term vacancy of lecturer in Civics occurred. The committee of management passed a resolution promoting the Appellant on ad hoc basis on this short-term vacancy as the writ Petitioner (Respondent No. 3 in this appeal) was not qualified for the post in 1993 (as he completed his M.A. with Political Science only in June, 1996). Sri. T.N. Rai who had been promoted as ad hoc Principal retired on 30.6.1997 and consequently a substantive vacancy on the post of lecturer in Civics occurred. Hence fresh consideration had to be made for appointment on this post in accordance with the relevant rules. The writ Petitioner (Respondent No. 3) was the seniormost qualified teacher available in the L.T. Grade on 30.6.1997, and hence he was entitled to be granted promotion on the post of lecturer in Civics in the institution in question. He made a representation to the committee of management and D.I.O.S., but to no avail. Hence he filed a Writ Petition No. 21071 of 1997 which was disposed of by the judgment dated 20.4.1998. In that judgment this Court directed the D.I.O.S. to decide afresh as to who is entitled to be promoted as lecturer in Civics. The writ Petitioner''s (Respondent No. 3''s) representation dated 30.12.1998 was rejected by the D.I.O.S. on 30.12.1998 on two grounds namely: (1) that the Appellant had already been promoted on the post in question and (2) that the writ Petitioner (Respondent No. 3 in this appeal) did not have the requisite qualification on 1.7.1993 when the short-term vacancy on the post of lecturer arose. Against the order dated 30.12.1998 the Writ Petition No. 1651 of 1999 was filed which has been allowed by the learned single Judge.

In our opinion, the grounds given for rejecting the representation of Respondent No. 3 were irrelevant and arbitrary. As regards the first ground, namely, that the Appellant has been promoted on the post of lecturer, this promotion was only an ad hoc promotion on a short-term vacancy and hence, conferred no right on the Appellant to the post of lecturer.

As regards the second ground, namely, that the writ Petitioner (Respondent No. 3) did not have the requisite qualification on 1.7.1993, we are of the opinion that this is also an arbitrary and irrelevant ground because the qualification had to be possessed on 30.6.1997, when Sri. T.N. Rai retired and a substantive vacancy of lecturer in Civics occurred. It may be mentioned that on 1.7.1993, only a short-term vacancy had occurred and not a substantive vacancy.

The aforesaid is also the reasoning of the learned single Judge, and we entirely agree with the same.

In Pramila Mishra v. Dy. Director of Education 1997 (Supp) AWC 466 (HC-FB) : 1997 (2) UPLBEC 1329, a Full Bench of this Court held that a teacher appointed on a short term vacancy has no right to continue once the short term vacancy gets converted into a substantive vacancy.

Learned Counsel for the Appellant has relied on the judgments of this Court in Raj Kumar Verma v. D.I.O.S. 1993 (3) AWC 2485 and District Inspector of Schools, Kanpur Nagar and another Vs. Diwakar Lal and others, . In our opinion, these decisions have no relevance to the present case. In Raj Kumar Verma''s case (supra), the Appellant had been appointed as a lecturer in a short term vacancy in 1997. In 1993, U.P. Act No. 1 of 1993 inserted Section 33B providing for regularisation of teachers appointed before 14.5.1991 on short term vacancy. The Court held in that case that the Appellant was entitled to be regularised.

In our opinion, the aforesaid decision is distinguished because third party rights had not intervened, as in the present case. In the present case on 30.6.1997, when the short time vacancy came to an end there was no provision for regularisation of a teacher appointed before 14.5.1991. Section 33F was added only on 30.12.2000. In between the right of promotion of the writ Petitioner on the post in question accrued on 1.7.1997.

As regards, the decision in D.I.O.S. v. Divakar Lal (supra), in our opinion, that decision is also distinguishable because in that case also, third party rights had not intervened. Also, the vacancy had been converted into a substantive vacancy in August, 1993, but the D.I.O.S. took no steps to make regular appointment even though several years had passed. In this background, the Court held that the teacher concerned is entitled to continue. In the present case, there was no approval in favour of the Appellant till 21.6.1997, and hence the Appellant could not be treated in law to have been appointed before 21.6.1997. An appointment cannot be approved retrospectively as held by this Court in 1980 UPLBEC 245.

In M. P. Jaiswal v. D.I.O.S. 2000 (40) ALR 305, a Division Bench of this Court, following the Full Bench decision in Radha Raizada v. Committee of Management 1994 (3) UPLBEC 1551, held that for ad hoc promotion, the criterion is seniority subject to rejection of the unfit. The writ Petitioner is admittedly senior to the Appellant in the L.T. grade, and there is no criminal case involving moral turpitude or disciplinary proceeding pending against him. His claim for promotion was only rejected on the ground that he did not have the requisite qualification on 1.7.1993, which was arbitrary.

Appeal is dismissed.