JUDGMENT Ashok Bhushan, J.
1. Heard counsel for the petitioner and the learned standing counsel. With the consent of counsel for the parties, the writ petition is being finally decided.
2. By this writ petition the petitioner has prayed for quashing the order dated 7.9.1990 passed by the District Inspector of Schools refusing to approve the ad hoc appointment of the petitioner as C.T. Grade teacher. A mandamus has also been sought directing the respondent to pay salary and other allowances to the petitioner.
3. Brief facts necessary for deciding the writ petition are:-
Chacha Nehru Higher Secondary School Majhawan, Kanpur City Kanpur is a recognized aided institution. One Krishan pal Singh who was working as Assistant Teacher C.T. Grade, died on 23.11.1988. After his death the information of vacancy was communicated to the District Inspector of Schools and thereafter the Committee of Management made ad hoc appointment of the petitioner vide appointment order dated 27.1.1989 and the papers were forwarded to the District Inspector of Schools for approval of the ad hoc appointment of the petitioner. The District Inspector of Schools did not pass any order. A writ petition was filed by the petitioner in this Court being writ petition No. 17595 of 1990. This Court vide its order dated 30.7.1990 directed the District Inspector of Schools to take decision on the claim of the petitioner. The District Inspector of Schools by the impugned order dated 7.9.1990 did not approve the ad hoc appointment of the petitioner as Assistant Teacher C.T. Grade . Two reasons have been given by the District Inspector of Schools while refusing to approve the appointment of the petitioner. The first reason given by the District Inspector of Schools is that the power of ad hoc appointment is not with the Committee of Management and the same is vested only with the District Inspector of Schools; hence the appointment of the petitioner cannot be approved. The second reason given by the District Inspector of Schools is that by the Government order dated 11.8.1989 the C. T. Grade has been declared as dying cadre hence the petitioner's appointment as Assistant Teacher in C.T. Grade cannot be approved.
4. Learned Counsel for the petitioner challenging the order contended that the Committee of Management was fully empowered to make ad hoc appointment after the post remained vacant for more than two months. He submits that under the similar circumstances the writ petition No. 17595 of 1990 Ajay Prakash Mishra v. District Inspector of Schools and Ors. of another ad hoc Assistant Teacher C.T. Grade of the same institution was allowed by this Court vide judgment dated 10.12.1991. The learned Counsel for the petitioner has also placed reliance on another judgment of the Division Bench in Special Appeal No. 108 of 1994 Ambarish Kuamr Tiwari v. Committee of Management and Anr. decided on 1.11.1999. Learned Counsel for the petitioner further submitted that in pursuance of the interim order dated 28.10.1991 the petitioner has been allowed to continue as ad hoc Assistant Teacher C.T. Grade and has been paid his monthly salary regularly. It has further been submitted that although the petitioner has been paid salary as C.T. Grade teacher but his fixation in L.T. Grade has not yet been made although he having completed more than ten years as C.T. Grade teacher hence the petitioner is entitled to L. T. Grade. Learned Counsel for the petitioner further contended that in accordance with the provisions of the U.P. Secondary Education Service Selection Board Act, 1982 the petitioner has become entitled to be considered for regular appointment.
5. Learned standing counsel has supported the order passed by the District Inspector of Schools.
6. I have considered the submissions of counsel for the parties and perused the record.
7. The substantive vacancy arose due to death of Krishan Pal Singh as Assistant Teacher C.T. Grade on 23.11.1988. The appointment of the petitioner has been made on 27.1.1989 i.e. after the post having remain vacant for more than two months. The first reason given by the District Inspector of Schools is that the Committee of Management is not empowered to make ad hoc appointment and it was only the District Inspector of Schools who could have make appointment on ad hoc basis. Under the U.P. Secondary Education Service Selection Board Act, 1982 as it existed in 1989 the Committee of Management was empowered to make ad hoc appointment under Section 18. Section 18 as prior to amendment by UP. Act No. 24 of 1992 empowered the Committee of Management to make ad hoc appointment on substantive vacancy. A Division Bench of this Court in 1988 UPLBEC 223 Ravindra Singh Niranjan v. District Inspector of Schools, Jhansi and Anr. has taken the view that the power of making ad hoc appointment can be resorted to by the Committee of Management of C.T. Grade also if the post remain vacant for more than two months and the vacancy has been communicated to
8. District Inspector of Schools. Following was laid down by Division Bench:
7. Section 18 Sub-section (1) read with Sub-section (2) makes it clear that where the management has notified a vacancy to the Board in accordance with the provisions of the Act and the Board fails to recommend the name of any suitable candidate for being appointed as a teacher I;other than teachers specified to the Schedule on ad hoc basis within one year or the post of a teacher has actually remained vacant for more then two months, then the management has been given power to make appointment on ad hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the Regulations made thereunder.
8. It is not disputed that the Board has not yet been constituted Consequently where the District Inspector of Schools does not make any ad hoc appointment as required by the Order, then if the words " District Inspector of Schools" is not read for the word "Board" in Sub-section (1) of Section 18, there would be no power left for appointment of an ad hoc teacher in the case of teachers other than teachers specified in the Schedule, namely, as in the present case, the appointment of a teacher in the C. T. Grade . In our opinion, Section 18, Section 33 and the order have to be harmoniously construed in order to serve the purpose of the Act. Since the Board has not yet been constituted, the word 'Board' in sub-clause (1) has to be read as District Inspector of Schools in view of the order passed under Section 33 of the Act till the Board is not constituted. Section 18 of the Act would be applicable in the case of an appointment of a teacher in the C.T. Grade where the District Inspector of Schools does not make an appointment under the order referred to above.
9. In view of above pronouncement of the Division Bench of this Court there was no lack of power in the Committee of Management to make ad hoc appointment on a C.T. Grade post.
10. The second reason given by the District Inspector of Schools in the impugned order is that the C.T. Grade having been declared as dying cadre by the Government order dated 11.8.1989, the ad hoc appointment of the petitioner cannot be made on C. T. Grade post. The said reason is wholly erroneous. The C.T. Grade vacancy arose on 23.11.1988 and the ad hoc appointment of the petitioner was made on 27.1.1989 i.e. much prior to the issuance of the Government order dated 11.8.1989. The said Government order dated 11.8.1989 has therefore, no relevance in the present case since the appointment of the petitioner was made prior to the issuance of said Government order.
11. The judgment relied by the learned Counsel for the petitioner in Ajay Prakash Misra 's case fully support the petitioner's case. In the said case also the argument was raised before the Court that the C.T. Grade having been declared as dying cadre no appointment can be made. This Court repelling the said submission observed as follows:
...The observation of the District Inspector of Schools that C. T. Grade was a dying cadre and no permission could be given for appointment of C.T. Grade is misconceived. The appointment was made in 1987 and the Government order referred by the District Inspector of Schools in the impugned order is of 1989, as such it can not be said that at the time appointment of the petitioner was made C.T. grade was a dying cadre. The reasons recorded by the District Inspector of Schools is misconceived.
12. It is further relevant to note that in Ajay Prakash Misra's case the appointment of Ajai Prakash Misra was also made in C.T. Grade and this Court allowed the writ petition filed by Ajai Prakash Misra. The above judgment fully support the case of the petitioner.
13. One more factor which has weighed with me in deciding this writ petition is that on the post of C.T. Grade the petitioner has been working and getting salary on the strength of the interim order dated 25.10.1991 and more than sixteen years have elapsed from passing of the interim order and the petitioner is continuing as ad hoc Assistant Teacher in C.T. Grade on the said post for more than sixteen years. The post has not yet been filled up and has been occupied by the petitioner during this period. The provisions of U.P. Secondary Education Service Selection Board Act, 1982 has been amended from time to time making provision for considering the case of the ad hoc teachers who fulfill the conditions as laid down in the provisions for consideration of regular appointment.
14. In view of for going discussions the order of the District Inspector of Schools dated 7.9.1990 cannot be sustained and is hereby quashed. The writ petition is allowed. With regard to the claim of the petitioner for grant of L.T. Grade it is open for the petitioner to make representation to the District Inspector of Schools for sanction of L. T. Grade which may be considered and decided in accordance with law. With regard to case of the petitioner for regularisation under the provisions of U.P. Act 5 of 1982 it is open for the petitioner to approach the competent authority authorized to pass necessary order who shall consider the claim of the petitioner for regularisation in accordance with U.P. Act 5 of 1982 and take appropriate decision.
15. With the aforesaid direction the writ petition is allowed.