Vinai Kumar Dubey vs District Inspector of Schools and Another

P.K. Jain, J.—Heard Sri P. N. Tripathi, learned Counsel for the Petitioner and learned Standing Counsel for Respondent No. 1.

Petitioner alleged in his petition that on retirement of one Sri Raghu Nath Prasad Dubey on 30.6.86, permanent vacancy of lecturer occurred in Janta Intermediate College. Barsathi, District Jaunpur. The vacancy was notified by the College Management to the Secondary. Education Service Commission, Allahabad through the District Inspector of Schools, Jaunpur, in July, 1986 but the Commission failed to recommend the name of suitable candidate for appointment. Since the teaching work was suffering and no one was qualified to be promoted, the Committee of Management advertised the post for making direct recruitment u/s 18(1)(b) of the U.P. Secondary Education Services Commission Act. The Petitioner having requisite qualifications and teaching experience applied for appointment to the said post and the Committee of Management by resolution dated 15.8.89 resolved to appoint the Petitioner as lecturer in Psychology. Pursuant to the said resolution, the Manager of Respondent No. 2 issued appointment letter dated 17.9.89 (Annexure 2 to the writ petition). The Petitioner joined his duties in the forenoon of 17.9.89. Necessary information was sent by the Manager to Respondent No. 1 with regard to ad hoc appointment of the Petitioner. The District Inspector of Schools, Respondent No. 1, was under statutory obligation to pay the salary of the Petitioner but for no reasons the Respondent No. 1 is not paying salary to the Petitioner. The Petitioner prays that by issuing a writ in the nature of mandamus, directions may be given to the Respondent No. 1 to pay salary to the Petitioner from 17.9.89 and to continue to pay future salary from month to month.

Respondent No. 1 contested the writ petition mainly on the ground that issuing of letter of appointment and joining of the Petitioner is wholly collusive and not in accordance with rules and there was no legal appointment and, therefore, the Petitioner was not entitled to the relief claimed by him.

Since the parties have exchanged counter and rejoinder-affidavits and the parties'' counsel have been heard at length, the petition is being disposed of finally at the admission stage.

As regards the controversy about the legality of ad hoc appointment of the Petitioner on ad hoc basis, the procedure for ad hoc appointment is provided in the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981. Paragraphs (4) and (5) are relevant in this regard. Sub-para (2) of paragraph 4 provides that "every vacancy in the post of a teacher in Lecturers grade may be filled by promotion by the senior-most teacher of the institution in the trained graduate (L.T.) grade. Recourse to direct recruitment can be had only when there is vacancy by promotion under paragraph 4 of the said order. Paragraph 5 (1) provides that "where any vacancy cannot be filled by promotion under paragraph 4, the same may be filled by direct recruitment in accordance with Clauses (21 to (5)." Clauses (2) to (5) of paragraph 5 provide procedure which is to be followed for ad hoc appointment by direct recruitment. The procedure laid down in these clauses is that the management shall inform the District Inspector of Schools about the details of the vacancy and such Inspector shall invite applications from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh. Every application referred to in Clause (2) shall be addressed to the District Inspector of Schools and shall be accompanied by a crossed postal order worth ten rupees payable to such Inspector and by a self-addressed envelope bearing postal stamp for purposes of registration. The District Inspector of Schools shall cause the best candidates selected on the basis of quality point specified in Appendix. The compilation of quality points may be done on remunerative basis by the retired Gazetted Government servants under the personal supervision of such Inspector. In case more than one teacher of the same subject or category is to be recruited for more than one institution, the names of the selected teachers and names of the institutions shall be arranged in Hindi alphabetical order. The candidate whose name appears on the top of the list shall be allotted to the institution the name whereof appears on the top of the list of the institution. This process shall be repeated till both the lists are exhausted.

Before the Petitioner can be held to be entitled to the salary claimed by him, it shall have to be shown by him that he was appointed after following the procedure mentioned above, specially when the appointment of the Petitioner itself is being challenged by the Respondent No. 1 and the allegation is that the entire record of appointment is fake and collusive. As already pointed out above, the management is required to send details of the vacancy to the Inspector of Schools before any ad hoc appointment by direct recruitment is made. After such information is received by the District inspector of Schools, the applications are to be invited by such Inspector of Schools from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh and every such application shall be addressed to the District Inspector of Schools and shall be accompanied by a crossed postal order worth ten rupees payable to such Inspector. Bate reading of the allegations made in the writ petition as also in the rejoinder-affidavit would show that this mandatory procedure was not followed while making appointment of the Petitioner by direct recruitment. In para 4, it is alleged that the Committee of Management advertised the said post for making direct recruitment whereas in paragraph 5 of the Removal of Difficulties Order, 1981, the advertisement was required to be made by the Inspector of Schools and the applications were also required to be invited by the Inspector of Schools from the local Employment Exchange. The Committee of Management had no authority to advertise the post and invite the applications. The requirement is that advertisement shall be made in at least two newspapers having adequate circulation in Uttar Pradesh.

Neither in the petition nor in the rejoinder-affidavit, this requirement is shown to have been fulfilled. It is no where stated in the petition that advertisement was made in two newspapers having adequate circulation nor the names of any such paper were disclosed in the petition. In the rejoinder- affidavit also, only this much is stated that Respondent No. 2 (the Committee of Management) advertised the said vacancy and regular ad hoc appointment was made by Respondent No. 2. There is no disclosure of the name of papers in which advertisement was made nor the date on which such advertisements were made is disclosed. The applications appear to have been received by the Management in violation of the Clause (3) of paragraph 5 of the Removal of Difficulties Order, 1981 and there is no averment that the application was accompanied by crossed postal order worth ten rupees payable to the District Inspector of Schools.

The procedure for selection provided in Clause (4) of paragraph 5 is also not alleged to have been followed in making selection of the Petitioner. The Respondent No. 1 has emphatically denied in the counter-affidavit the allegations of appointment in accordance with law and following the procedure laid down by the Removal of Difficulties Order, 1981.

The Petitioner has failed to, prima facie, establish that his appointment to the post of lecturer on ad hoc basis was made after following the procedure for selection of ad hoc appointment by direct recruitment. Once it is found that the appointment of the Petitioner was made on ad hoc basis in violation of the procedure provided in paragraph 5 of the Removal of Difficulties Order, the Petitioner cannot be granted relief for payment of salary. In a Full Bench decision, Radha Raizada and Ors. v. Committee of Management, Vidyawati Darbari Girls Inter College and Ors. (1994) 3 UPLBEC 1551, it was observed in para 42 that "when a teacher is appointed on ad hoc basis in accordance with the paragraph 5 of the First Removal of Difficulties Order, there is no further 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 possesses general power under the Payment of Salaries Act to stop payment of salary to such teacher."

Consequently, the writ petition fails and is finally dismissed at the admission stage. The interim stay order dated 19.7.91 is vacated. No order as to costs.