Krishna Kumar Phulera vs State of Uttaranchal and others

Rajesh Tandon, J.—Heard Sri S.N. Babulkar, Sr. Advocate assisted by Sri Anil Bisht & Tumul Nainwal, Advocate for the Appellant, Sri U.P.S. Negi, learned Additional Advocate General for the Respondents No. 1,2 and 3, Mr. Ashish Joshi, Advocate for the Respondent No. 5 and none for the Respondents No. 4 and 6.

Present special appeal has been filed against the judgment dated 20th August, 2004 passed by the learned Single Judge by which the writ petition filed by Krishna Kumar Phulera being Writ Petition No. 2583 of 2001 has been dismissed on the ground that his appointment was not in accordance with provision of Section 18 of the Uttar Pradesh Secondary Education Service Commission and Selection Board Act, 1982 (Act No. 5 of 1982).

The Petitioner No. 1/appellant in the Writ Petition No. 2583 of 2001 (SS) has claimed the following reliefs:

(i) to issue a writ, order or direction in the nature of mandamus commanding the Respondents not to interfere in the working of the Petitioners as teachers in the Institution in pursuance of the illegal advertisement dated 28-6-95, and selection made by Commission.

(ii) to issue a writ, order or direction in the nature of mandamus directing the Respondents not to interfere in the working of the Petitioners if new incumbents come and join the Institution and regularize the services of the Petitioners.

(iii) to issue a writ, order or direction in the nature of mandamus commanding the Respondents not to terminate the services of the Petitioners as the Petitioners have already put in more than five years continuous service in clear and substantive vacancies.

(iv) to issue any other writ, order or direction as this Hon''ble Court may deem fit and proper, in the facts and circumstances of the case.

(v) to award costs of the petition to the Petitioners.

(vi) to issue a writ, rule or direction in the nature of mandamus commanding & directing to the Respondents to regularize the services of the Petitioners on the post of Assistant Teacher and to pay their salary including arrears of salary with effect from the date of their appointment i.e. 16-7-1991 and 29-6-1993 respectively with future benefits and keep on paying their salaries month by month.

(vii) issue a writ, rule, order or direction in the nature of Certiorari calling for the records and quashing the impugned order dated 08-10-2003 (Annexure No. 9).

According to the case of the Petitioner on 16th July, 1991, he was appointed as a teacher in LT Grade in English Subject as will appear from the appointment letter. The appointment letter shows as under:

According to the Petitioner, he joined the Institution on 19th July, 1991 as a teacher and he is being paid the salary from the fund of the Teacher/Guardian Association since the date of his joining.

A counter affidavit was filed in the said writ petition by the Standing Counsel and it was denied that the appointment of the Petitioner was in accordance with Section 18 of the Uttar Pradesh Secondary Education Service Commission and Selection Board Act, 1982 (hereinafter referred to as the ''Act'').

A supplementary counter affidavit has also been filed by the Standing Counsel. In paragraph 8 of the Supplementary Counter Affidavit, it has been stated that the appointment of the Petitioner was against the provisions of Section 18(1) of the Act and the Committee of Management has no right to appoint the Petitioner as a Teacher in LT Grade without complying the provisions of Section 18 of the Act.

The State has contested the claim of the Petitioner on the ground that no regularization can be claimed on the basis of the said appointment and the Commission has already appointed a regular Assistant Teacher in LT Grade and the appointment of the Petitioner, therefore, has not been approved by the District Inspector of Schools and no benefit can be extended to the Petitioner under the provisions of Section 33-C of the U.P. Secondary Education (Service Selection Board) Act, 1982 as amended by U.P. Secondary Education Services Commission (Amendment) Act, 1998.

In paragraph 5 of the rejoinder affidavit, it has been stated that the Petitioner is working as a Teacher in the Institution and the temporary arrangement was made by the manager. In paragraph 7 of the rejoinder affidavit, it has been stated that the advertisement was published by the Commission after a gap of a long period and the Petitioner should not be deprived from getting his appointment in the Institution on regular basis.

After exchange of the pleadings, the learned Single Judge, so far as the case of the Petitioner is concerned, recorded a finding that the Petitioner No. 1 of the Writ Petition No. 2583 of 2001 was appointed even prior to the vacancy notified as required u/s 18 of the Act and therefore, the appointment being not in accordance with Section 18 of the Act, no relief can be granted to the Petitioner.

As will appear from the facts of the present case that the Petitioner was appointed on 16th July, 1991, whereas the vacancy was notified by the Management in August, 1991 and admittedly, the appointment was made prior to the notification of the vacancy. In the light of the aforesaid fact, the writ petition so far as the Petitioner is concerned, was dismissed observing that it does not fulfil the conditions mentioned u/s 33-C of the U.P. Secondary Education (Service Selection Board) Act, 1982 as amended by U.P. Secondary Education Services Commission (Amendment) Act, 1998, which reads as under:

33-C. Regulation of certain more appointments.- (1) Any teacher who:

(a) (i) was appointed by promotion or by direct recruitment on or after May 14, 1991 but not later than August 16, 1993 on ad hoc basis against substantive vacancy in accordance with Section 18, in the Lecturer grade or Trained Graduate grade;

(ii) was appointed by promotion on or after July 31, 1988 but not later than August 6, 1993 on ad hoc basis against a substantive vacancy in the post of a Principal or Headmaster in accordance with Section 18

(b) Possesses the qualifications prescribed" under, or is exempted from such qualifications in accordance with, the provisions of the Intermediate Education Act, 1921;

(c) has been continuously serving the institution from the date of such an appointment up to the date of the commencement of the Uttar Pradesh Secondary Education Services Commission (Amendment) Act, 1998

(d) has been found suitable for appointment in a substantive capacity by a Selection Committee consulted under Sub-section (2)

shall be given substantive appointment by the Management.

According to the Petitioner, he was appointed on 16th July, 1991 i.e. after May 19, 1991, but not later than 16th August, 1993 on ad hoc basis and therefore, he is entitled for the benefit of Section 33-C of the Act.

Section 33-C (a) (1) provides that the appointment should be in accordance with Section 18, which reads as under:

Ad hoc Teachers - (1) Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and

(a) The Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher specified in the Schedule within one year from the date of such notification; or

(b) The post of such teacher has actually remained vacant for more than two months, then the management may appoint, by direct recruitment or promotion a teacher on purely ad hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the Regulations made thereunder.

(2) The provisions of Sub-section (1)

shall also apply to the appointment of a teacher (other than a teacher specified in the Schedule) on ad hoc basis with the substitution of the expression ''Board'' for the expression "Commission".

(3) Every appointment of an ad hoc teacher under Sub-section (1) or Sub-section (2) shall cease to have effect from the earliest of the following dates, namely-

(a) when the candidate recommended by the Commission or the Board, as the case may be, joins the post

(b) when the period of one month referred to in Sub-section (4) of Section 11 expires

(c) thirtieth day of June following the date of such ad hoc appointment

As will appear from the aforesaid Section 18 that there are following conditions in order to invoke the provisions of Section 18 of the Act.

(a) Management Committee has notified the vacancy to the Commission

(b) Commission has failed to recommend the name of any suitable candidate with in one year

(c) The post of such teacher has actually remained vacant for more than two months.

As will appear from the aforesaid that the notification of the vacancy is sine qua non before the appointment of ad-hoc teacher u/s 33-C of the Act read with Section 18 of the Act.

In the present case, the Appellant was appointed on 16th July, 1991 and the vacancy was notified in August, 1991 and as such Section 18 (1) of the Act with regard to notification of the vacancy having not been complied with, the Appellant is not entitled for any relief.

The matter came up for consideration before the Full Bench of Allahabad High Court in Radha Raizada and Ors. v. Committee of Management Vidyawati Darbari Girls Inter College and Ors. [(1994) 3 UPLBEC1551], where question No. (c) was framed to the following effect:

Question No. (c)

What would be the Criteria and procedure for ad hoc appointment of a teacher or Principal either under Removal of Difficulties Order or under Order 18 of the U.P. Act No. 5 of 1982.

Relevant paragraphs 41 and 42 of the aforesaid judgment are quoted below:

It has already been noticed that Section 18 of the Principal Act provides for power to appoint a teacher purely on ad hoc basis either by promotion or by direct recruitment against the substantive vacancy in the institution when the condition precedent for exercise of powers exist namely that the Management has notified the said vacancy to the Commission in accordance with the provisions of the Act and the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher within one year from the date of such notification of the post of such teacher has actually remained vacant for more than two months

In view of these provisions the ad hoc appointment of a teacher by direct recruitment can be resorted to only when the condition precedent for exercise of such powers as stated in paragraph 18 of the Act are present and only in the manner provided for in paragraph 5 of the Removal of Difficulties Order. This view of mine finds support in a number of decisions namely, Rang Bahadur Singh and Ors. v. District Inspector of Schools Saharanpur, 1991 (2) UPLBEC 1079 and Lalta Prasad Yadav and Ors. v. State of U.P., 1988 UPLBEC 345. When a teacher is appointed on ad hoc basis is in accordance with the paragraph 5 of the First Removal of Difficulties Order there is further no requirement of approval or prior approval of the District Inspector of Schools for such appointment. However, it goes without saying that if a management without following the procedure indicated above makes an ad hoc appointment the District Inspector of Schools possess general power under the Payment of Salaries Act to stop payment of salary to such teacher

The aforesaid judgment came up for consideration before the Apex Court in Prabhat Kumar Sharma and others Vs. State of U.P. and others, . The Apex Court has confirmed the judgment of the Full Bench in Radha Raizada v. Committee of Management (supra) and has held as under:

These principles are unexceptionable. However, the question is whether they get attracted to the facts of this case. It is seen that when intimation was given by the college to the Commission for allotment of the teachers, the Act envisaged that within one year the recommendation would be made by the Commission for appointment; but within two months from the date of the intimation if the allotment of the selected candidates is not made to obviate the difficulty of the Management in imparting education to the students, Section 18 gives power to the Management to make ad hoc appointments. Section 16 is mandatory. Any appointment in violation thereof is void. As seen prior to the Amendment Act of 1982 the First 1981 Order envisages recruitment as per the procedure prescribed in para 5 there of. It is an inbuilt procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the Management to any posts in an aided institution. It is obvious that when the salary is paid by the State to the government-aided private educational institutions, public interest demands that the teachers'' selection must be in accordance with the procedure prescribed under the Act read with the First 1981 Order. Therefore, the Order is a permanent one but not transient as contended for. The Full Bench of the High Court has elaborately considered the effect of the Order and for cogent and valid reasons it has held that the Order will supplement the power to select and appoint ad hoc teachers as per the procedure prescribed u/s 18 of the Act. The view taken by the Division Bench following the Full Bench decision, therefore, cannot be faulted with. Accordingly, we find no merit in the special leave petition.

The Appellant has referred the judgments of All Manipur Regular Posts Vacancies Substitute Teachers'' Association Vs. State of Manipur,

and Sri Rabinarayan Mohapartra Vs. State of Orissa and others, . These decisions are not applicable in the present case inasmuch as the appointment of the Petitioner was de-hors to Section 18(1) of the U.P. Secondary Education (Service Selection Board) Act, 1982 and as such there is no occasion to regularize the appointment of the Petitioner.

Since Section 18 of the Act has not been followed while making the ad hoc appointment, the appointment, therefore, cannot be given effect to for purposes of regularization as contained u/s 33-C of the U.P. Secondary Education (Service Selection Board) Act, 1982 as amended by U.P. Secondary Education Services Commission (Amendment) Act, 1998.

In view of the aforesaid, we find no merit in the appeal and the same is dismissed. No order as to costs.