Sudarshan Prasad Sharma vs State of U.P. and Others

O.P. Garg, J.—By means of this writ petition, under Article 226 of the Constitution of India, the Petitioner has prayed for that the Respondents be directed to pay arrears of salary with effect from 8.7.1988 upto date and further that they should continue to pay future salary regularly on month to month basis. It is also prayed that Respondent No. 2, District Inspector of Schools, be commanded to accord approval to the appointment of the Petitioner.

Counter and rejoinder-affidavits have been exchanged. Heard Sri M. D. Singh Shekhar, learned Counsel for the Petitioner as well as the learned standing counsel.

The Petitioner was a duly appointed Assistant Teacher in C. T. grade in Krishak Intermediate College, Malloodeeh, district Deoria. An advertisement to fill up the post of lecturer (Sanskrit) in the aforesaid institution was made. The Petitioner applied for the said post. He appeared before the interview board and ultimately after his selection, the Committee of Management passed a resolution on 23.6.1988 to appoint the Petitioner as lecturer in Sanskrit. The appointment letter was issued to the Petitioner on 25.6.1988 with She direction to join the post on 8.7.1988. The Petitioner joined as lecturer Sanskrit on the said date and since then, it is alleged, he has been continuously discharging his duties as a lecturer in Sanskrit as would be apparent from the certificate, Annexure-4 to the writ petition, issued by the Principal of the college. The Management of the institution sent the relevant required papers on 27.7.1988 to the District Inspector of Schools, Deoria for according his approval to the ad hoc appointment of the Petitioner. The District Inspector of Schools made a number of queries which were duly replied by the Management of the institution. Inspite of several reminders, the District Inspector of Schools (For short the D.I.O.S.) has failed to accord approval to the appointment of the Petitioner as a lecturer in Sanskrit.

Counter-affidavit has been filed on behalf of Respondent Nos. 1 and 2 in which it has been asserted that by order dated 25.7.1989 the then D.I.O.S. had informed the Management/Principal of the college that approval cannot be accorded because the post has lapsed and further action in the matter would be taken only when the post is revived. It was further asserted in the counter-affidavit that the Regional Deputy Director of Education, Gorakhpur Region, Gorakhpur by letter dated 10.11.1980 had sanctioned four posts of lecturers out of which two posts were to be filled-up by direct recruitment while the remaining two were to be filled-up by promotion. It was further asserted that the two posts of lecturers by direct recruitment were required to be filled in by the Committee of Management after selection within three months from the date of occurrence of the vacancy as provided under Regulation 20, Chapter II of the Regulation framed under the Intermediate Education Act, 1921 and since the posts were not filled within a period of three months, they stood automatically lapsed.

It is an indubitable fact that the post of lecturer in Sanskrit was in existence in the Krishak Intermediate College. This post was sanctioned in the year 1980 but remained unfilled. The Petitioner was appointed on this post by direct recruitment on ad hoc basis on 25.6.1986. The D.I.O.S. has not raised any objection about the manner and procedure adopted in making selection and appointment of the Petitioner on ad hoc basis. The only ground on which the approval to the appointment of the Petitioner has been withheld is that the post which was created in the year 1980 had lapsed as no steps were taken to fill in the same within the period prescribed.

The only ground for not according the financial approval to the appointment of the Petitioner is to be tested with reference to the provisions of Regulation 20 of Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921. This Regulation states that where the Committee of Management has failed to advertise any sanctioned post, which has fallen vacant, in accordance with the Regulation within a period of three months from the date of occurrence of the vacancy, such posts shall be deemed to have been surrendered and shall not be filled-up, unless its creation is sanctioned afresh by the Director. The learned Counsel for the Petitioner urged that the provisions of Regulation 20 would come into play only when a post has "fallen vacant" on account of death, retirement or resignation of the incumbent who was occupying that particular post and that it would not apply to a case of a newly created post. In substance, the submission of the learned Counsel was that in a case where the new post is created in an institution it can be filled up initially at any time as it would "fall vacant" only alter an incumbent has ceased to occupy it. The submission of the learned Counsel is not without force. Provisions of Regulation 20 would be attracted only when a post has fallen vacant and not otherwise.

There is yet another aspect of the matter. The provisions of Regulation 20 have become redundant on the enforcement of the U.P. Secondary Education Services Commission and Selection Boards Act, 1982 (For short the Act, 1982) as the Committee of Management has been stripped of its power to make substantive appointment. The power to make such appointments is vested in the Commission constituted under the provisions of the Act of 1982. The Management, however, has the authority to make ad hoc appointments in certain circumstances and after observing the procedure prescribed under the law, till a regularly selected candidate by the Commission joins. The conclusion that the provisions of Regulation 20 have become superfluous is fortified by the decision of this Court in Yogendra Nath Singh v. D.I.O.S., Jaunpur and Ors. (1991) 1 UPLBEC 484, in which it was observed:

Another objection is that this vacancy lapsed within the meaning of Regulation 20 of Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921. Regulation 20 states that where the Committee of Management has failed to advertise any sanctioned post, which has fallen vacant, in accordance with the Regulations within a period of three months from the date of occurrence of the vacancy, such posts shall be deemed to have been surrendered and shall not be filled up, unless its creation is sanctioned afresh by the Director. No sanction having been obtained from the Director, the Respondent No. 1 stated in the impugned order that the post would be deemed to have been surrendered. This was the position before the Act, 1982, became operative. But after the enforcement of the Act, 1982, every vacancy has to be filled in only by the Commission and ad hoc appointment can be made by the Management Committee only in the circumstances as contained in Section 18(1) (b). Petitioner''s appointment cannot be impugned on that ground.

In another case Mahendra Prasad Mishra v. D.I.O.S., Allahabad and Ors. (1994) 1 UPLBEC 446, also the similar view was taken.

The power of appointment has been vested in the Commission and till an appointment against the substantive vacancy is made after selection by the Commission, the Management has the power to make ad hoc appointment. Therefore, the mere fact, that the vacancy in the instant case has not been filled-in within a period of 3 months by advertising it, is not sufficient to conclude that the post stood surrendered For the reasons discussed above, the D.I.O.S. was not justified to refuse to accord approval to the appointment of the Petitioner only on the ground that the post has lapsed.

In the result, the petition succeeds and is allowed. The Respondents are hereby directed to treat the Petitioner as having been validly appointed on ad hoc basis against the post of lecturer in Sanskrit with effect from 8.7.1988. The Petitioner shall be paid the entire arrears of salary right from the date of his joining, i.e., with effect from 8.7.1988 upto date if he had actually worked throughout, within a period of two months from the date a certified copy of this order is produced before the Respondents. He shall be paid current salary regularly. It may be made clear that the ad hoc appointment of the Petitioner shall last till another teacher alter regular selection by the Commission joins the post.

AIR