Shambhu Saran Srivastava vs District Inspector of Schools and Others

S.K. Phaujdar, J.—Heard Sri B. K. Srivastava for the Petitioner and learned Additional Chief Standing Counsel for Respondents 1 and 2.

The Petitioner challenges an order of the D.I.O.S. dated 20.9.1996 (Annexure 22 to the petition). By this order, the D.I.O.S., had rejected the representation of the Petitioner claiming salary for his appointment against the post of assistant teacher in the L. T. Grade since 1.7.92. The basic objection of the D.I.O.S. was the Management had no authority to make such appointment. The vacancy against which the Petitioner was appointed occurred on 30.6.92. Information thereof was duly intimated in April, 1992. The appointment was admittedly made on 1.7.1992. It is now stated that the D.I.O.S. had wrongly opined that the Management had no jurisdiction to make the appointment. It was stated that the law that stood before 14.7.1992 did empower the Management to make an appointment. According to the learned Counsel, this law stood enacted in Section 18 of the U.P. Secondary Education Board Act, 1982 (U.P. Act No. 5 of 1982). This section speaks of appointment of ad hoc teachers by the Management under two contingencies only, that is, (1) such appointment could be made after the Commission had failed to recommend the name of any suitable candidate for being appointed as a teacher within one year from the date of such notification, and (2) such appointment may also be made if the post of such teacher has actually remained vacant for more than two months. The notification was made in April, 1992 and the required period of one year has not elapsed. The first contingency is clearly not applicable to the present set of facts.

So far the second contingency is concerned, the learned Counsel submitted that the period of 2 months spoken herein must be counted from the date of notification. I may not agree, as the words used are plain, "this power of ad hoc appointment by the Management could be exercised if the post of such teacher actually lay vacant for more than two months". It cannot be counted from the date of notification as such a notification could be made in anticipation of the vacancy as well. Section 18, therefore, did not give any authority on the Management to make an ad hoc appointment as neither of the two contingencies were present in the case at our hand. The only other clause under which the appointment on ad hoc basis could be made is paragraph 5 of the First Removal of Difficulties Order, 1981. Even under this paragraph, it is the duty of the Management only to inform the D.I.O.S. about the details of the vacancies and the rest is to be done by the D.I.O.S. only. It is the D.I.O.S. only who would invite applications from the Local Employment Exchange, make public Advertisement in two Local Newspapers and select the best candidate. Only when such selection is made by the D.I.O.S., an appointment is to follow. In the present case, the appointment proceeded at the end of the Management only.

Under the above circumstances, I find no fault with the impugned order of the D.I.O.S. when he says that the Management had lacked the authority to make appointment against a substantive vacancy.

In the result, the writ petition falls and is dismissed. There shall be no orders as to costs.