Heard Shri K.N. Tripathi, learned Senior Advocate assisted by Shri P.K. Jain for the petitioner and learned Standing Counsel for the State respondents.
These are two connected petitions filed by the same petitioner. Writ Petition No. 29060 of 1993 was filed challenging the order dated 06.07.1993 passed by the Manager of the institution terminating his services. Writ Petition No. 1488 of 2006 claiming regularisation under Section 33-C of the U.P. Secondary Education Service Selection Board Act and Rule 17 of 1998 Rules.
Facts as they emerge out from the pleadings of the parties are that a post of Lecturer (Economics) fell vacant in an institution, namely, National Inter College, Bhogaon, District Mainpuri, which is a duly recognised and aided institution on 30th June, 1987 due to superannuation of the incumbent, Lal Bihari Srivastava. The petitioner asserts that the vacancy was requisitioned and since the Commission failed to recommend any candidate, the committee of management decided the fill in the vacancy by direct recruitment on ad hoc basis. Thereafter, an advertisement was published, in pursuance whereof the petitioner applied and appeared for interview and was selected and appointed vide appointment order dated 20.02.1992 (Annexure 2 to the writ petition). The papers pertaining to selection and appointment were duly forwarded to the District Inspector of Schools for approval along with a covering letter dated 02.03.1992. In pursuance to the appointment letter issued by the committee of management, petitioner claims to have joined the post on 21.02.1992 and started functioning. However, when no payment of salary was made, he filed a Writ Petition No. 33184 of 1992 claiming salary. In the said writ petition, time was allowed to the State respondents to file counter affidavit and the matter is still pending. Subsequently, the Manager of the institution passed an order dated 06.07.1993 terminating the services of the petitioner on the ground that District Inspector of Schools has not accorded approval to his appointment. Aggrieved, the petitioner has approached this Court by filing the instant petition.
A counter affidavit has been filed on behalf of District Inspector of Schools, specially stating that the vacancy in question was never requisitioned and the appointment has been made by the Manager during the period when there was a ban imposed on an ad hoc appointment under the Government Order dated 30th July, 1991.
During the pendency of the proceedings, an impleadment application was filed on behalf of one Ratan Lal Gupta and S.P. Verma claiming to be teachers in L.T. Grade in the same institution and asserting their right to ad hoc promotion before any direct recruitment could be made. It has also been stated in the said affidavit that vacancy was never requisitioned. It is further pleaded that proceedings for direct recruitment could only be resorted to in case no suitable candidate is available for such ad hoc promotion.
A learned Single Judge vide judgment and order dated 18.11.2010 dismissed the writ petition mainly on the ground that entire writ petition is completely silent about the availability of qualified teachers for ad hoc promotion on the post in question in the institution. Specially, qua their claim being not considered, inasmuch as appointment by direct recruitment on ad hoc basis can be resorted to only if a qualified teacher is not available in the institution for promotion on the post in question. However, Special Appeal No. 32 of 2011 filed by the petitioner was allowed by a Division Bench on the ground that a counter affidavit to the impleadment application has been filed by the petitioner and the averments made therein, have not been taken into account by the learned Single Judge, as such, it would be appropriate to remand the matter back for deciding the matter afresh.
Shri Kripa Shanker Singh through whom, the impleadment application has been filed has made a statement that he has no instruction in the matter. The record of the writ petition also reveals that though a counter affidavit to the impleadment application was filed, but the said application was never allowed and the persons making the application, have not been impleaded in the writ petition.
Petitioner claims that he was appointed on 20.02.1992 by the committee of management after following the procedure prescribed by law.
Section 18 of the U.P. Secondary Education Services Commission Act, 1982 (as it then stood) empowered the management of an institution to make an ad hoc appointment on a substantive vacancy by direct recruitment.
The pre-condition prescribed for exercise of the power was that management has notified the said vacancy to the Commission in accordance with the provisions of the Act and the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher within one year from the date of such notification of the post or the post has actually remained vacant for more than two months.
The procedure as contained in First Removal of Difficulties Order is that the management shall as soon as may inform the District Inspector of Schools about the details of vacancy and the District Inspector of Schools shall invite applications from the local employment exchange and also through public advertisement in at least two news papers having adequate circulation in Uttar Pradesh.
Sub paragraph (3) of Paragraph 5 further provides that every such application shall be addressed to the District Inspector of Schools. Sub paragraph (4) provides that District Inspector of Schools shall cause the best candidate selected on the basis of quality point specified in Appendix. The compliation of quality points could be done by the retired Government Gazetted Officers in the personal supervision of the Inspector.
Paragraph 6 of the First Removal of Difficulties Order further provides for appointment of such teacher under paragraph 5, who shall possess essential qualification as laid down in Appendix A referred to in Regulation 1 of Chapter II of the Regulations made in the Intermediate Education Act.
A Full Bench of this Court in the case of Radha Raizada & Ors. Vs. Committee of Management, Vidyawati Darbari Girls Inter College & Ors., [(1994) 3 UPLBEC 1551], in paragraph 42, has observed as under.
"In view of these provisions, the ad hoc appointment of a teacher by direct recruitment can be resorted to only when the condition precedent for exercise of such powers as stated in paragraph 18 of the Act are present and only in the manner provided for in paragraph 5 of the Removal of Difficulties Order."
The first and foremost condition for exercise of powers by the management for making ad hoc appointment is that vacancy must be notified to the Commission and Commission must have failed to recommend the name of any suitable candidate or the post of teacher has actually remained vacant for two months. Though in the counter affidavit filed on behalf of District Inspector of Schools, the fact that the committee has notified the vacancy, has been vehemently denied.
But, in the rejoinder affidavit, the petitioner has filed a covering letter addressed to the District Inspector of Schools along with which requisition were sent to his office for being forwarded to the Commission.
Apart from above, none of the procedure to be followed prescribed by the First Removal of Difficulties Order appears to have been adhered.
Clause 5 of the First Removal of Difficulties Order reads as under.
"5. Ad hoc appointment by direct recruitment.- (1) Where any vacancy cannot be filled by promotion under paragraph 4, the same may be filled by direct recruitment in accordance with clauses (2) to (5).
(2) The management shall, as soon as may be, 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.
(3) Every application referred to in clause (2) shall be addressed to the District Inspector of Schools and shall be accompanied-
(a) by a crossed postal order worth ten rupees payable to such Inspector;
(b) by a self-addressed envelope bearing postal stamp for purposes of registration.
(4) The District Inspector of Schools shall cause the best candidates selected on the basis of quality points 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.
(5) If 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 institution 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.
Explanation.- In relation to an institution imparting instruction to women the expression 'District Inspector of Schools' shall mean the 'Regional Inspector of Girls' Schools'."
A perusal of the aforesaid provision goes to show that the applications are to be invited by the District Inspector of Schools from the Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation. There is nothing on record, except for a vague allegation in paragraph 4 of the writ petition that vacancies were advertised in newspapers and applications were invited.
There is no disclosure about the details of the newspapers, wherein the vacancy was published. The date of which such publication was made and who issued the advertisement and only vague allegations have been made for suggesting that ad hoc appointment has been made after publication of the vacancy. Non-disclosure of the name of the newspapers to demonstrate that it was having adequate circulation as well as the date cannot confirm to the requirement prescribed by clause 5 of the First Removal of Difficulties Order.
The pleadings also do not contain any detail with regard to the fact that the petitioner was the best candidate amongst all having secured highest quality point marks which led to his selection and appointment.
A bare reading of the averments goes to show that if the selection proceedings were undertaken by the management without following the procedure prescribed by Clause 5 which clearly provides that the selection is to be made on the basis of quality point marks obtained by the candidate specified in the Appendix and the compilation is to be done by retired Gazetted Government servant under the personal supervision of District Inspector of Schools, it cannot be said to be valid selection.
From the aforesaid facts and discussions, it is clear that the petitioner has failed to establish that his appointment was made after following the procedure prescribed by the First Removal of Difficulties Order. Any appointment made without following the procedure prescribed by First Removal of Difficulties Order is void ab initio and would not confer any right upon the incumbent either to hold the post or to claim salary as held by the Hon'ble Apex Court in the case of Prabhat Kumar Sharma & Ors. Vs. State of U.P. & Ors., AIR 1996 SC 2638 and Shesh Mani Shukla Vs. D.I.O.S., Deoria & Ors., JT 2009 (10) SC 309. Since the appointment of the petitioner is de hors the procedure laid down in Section 18 read with First Removal of Difficulties Order, he cannot be held to be validly appointed, conferring any right upon him to hold the post and in such view of the matter, the impugned order does not call for any interference. Writ Petition No. 29069 of 1993, accordingly, fails and stands dismissed. Since the appointment of the petitioner has been held to be illegal and invalid, he is not entitled to claim regularisation and, as such, Writ Petition No. 1488 of 2006 also stands dismissed.
July 5th ,2012 VKS