Court No. - 28
Case :- WRIT - A No. - 43542 of 2000 Petitioner :- Matloob Khan Respondent :- District Inspector Of School & Others Counsel for Petitioner :- Vinod Kumar Singh Counsel for Respondent :- C.S.C.
Hon'ble Siddharth,J.
The petitioner has filed this writ petition praying for quashing of the order dated 9.8.2000 passed by the District Inspector of Schools, Varanasi whereby he has refused to grant approval to the appointment of the petitioner on the post of Assistant Teacher, L.T. Grade.
Brief facts of the petition are that a short term vacancy on the post of Assistant Teacher, L.T. Grade arose in Kisan Inter College, Mirjamurad, Varanasi, an aided and recognized institution. The vacancy occurred on account of adhoc promotion of Shri Shiv Raj Mishra on the post of lecturer in English. The appointment of the petitioner was done in accordance with the Second Removal of Difficulties Order 1981 by the Committee of Management and the papers were forwarded to the District Inspector of Schools, Varanasi on 2.4.1997, when the petitioner started working on the post of Assistant Teacher from 9.7.1996.
The approval of the appointment of the petitioner has been turned down on four grounds:-
1. Prior approval was not taken from the District Inspector of Schools for making appointment of the petitioner on the post of Assistant Teacher, L.T. Grade;
2. On the date of his appointment on 9.7.1996 the post was not vacant since the adhoc promotion granted to Shri Shiv Raj Mishra was not approved till that date and therefore, the post whereon the petitioner was appointed was not vacant;
3. There was no mention of the subject wherein the appointment of the petitioner was made by the Committee of Management;
4. The Management has no authority to fill up short term vacancies as the power vested in the Divisional Deputy Director of Education.
Learned counsel for the petitioner has relied upon the judgment in the case of Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad and another (1998) 3 UPLBEC 17 wherein in paragraph 16 it has been stated that the advertisement can be issued under the signature of the Manager. In this paragraph words "prior approval" have been considered to me only approval having been communicated to the District Inspector of Schools within seven days of the receipt of papers or where the approval is deemed to have been accorded as visualised under Clause 3(iii) of paragraph 2 of the Second Removal of Difficulties Order. It has further been held that any appointment made prior to approval or deemed approval would become effective from the date of approval or deemed approval.
In reply to the second and third objection, learned counsel for the petitioner has relied upon the judgment in the case of Smt. Satyawati Singh Gautam Vs. State of U.P. and others in Civil Misc. Writ Petition No.25560 of 1998 wherein this Court has held that if the appointment has been made under the Second Removal of Difficulties Order against the short term vacancy, prior approval or prior permission is not necessary. It has further been held that it is not necessary to state the subject while promoting the petitioner under the Second Removal of Difficulties Order, since the vacancy occurring on account of promotion of a teacher, who was teaching Hindi is not necessary to be filled by the teacher teaching Hindi only. It is not subject wise.
The petitioner has further submitted that the post of Assistant Teacher in L.T. Grade is not sanctioned subject wise. It is for the Committee of Management to decide which subject is required to be taught in the school in the interest of institution. The petitioner has placed reliance on the judgments of this Court in the case of B.P. Tripathi Vs. State of U.P., 1985 UPLBEC 669 and Pati Ram Pal Vs. District Inspector of Schools, (1993) 1 UPLBEC 319.
Regarding objection No.4 learned counsel for the petitioner has argued that under the Second Removal of Difficulties Order 1981 there was provision of making adhoc appointment on short term vacancies and there was no other provision and therefore, the findings of D.I.O.S. that the power vested in the Divisional Deputy Director of Education is not correct in view of the fact that at the relevant time the provisions of Second Removal of Difficulties Order 1981 were in force.
In view of above discussions, impugned order dated 9.8.2000 passed by the District Inspector of Schools, Varanasi is, hereby, quashed.
The petitioner claims himself to be working in terms of the interim order dated 16.10.2000 and he has brought on record an experience certificate dated 9.2.2018 received from the Principal of the Institution stating that he is working. The petitioner claims benefit of Section 33-G of the U.P. Act No.5 of 1982.
The writ petition is finally disposed of directing the District Inspector of Schools, Varanasi and the Committee of Management concerned to forward the papers of the petitioner to the Joint Director of Education concerned for consideration of regularization of services of the petitioner in accordance with Section 33-G of U.P. Act No.5 of 1982 within six weeks from the date of presentation of a certified copy of this order before the District Inspector of Schools, Varanasi and the Committee of Management of the Institution. The Joint Director of Education shall take decision on the representation of the petitioner within four weeks thereafter.
Order Date :- 28.3.2018 T. Sinha