1. Heard learned counsel for the petitioner, learned Standing Counsel and perused the record.
2. The present writ petition has been preferred for quashing of the impugned order dated 5.6.2006 passed by respondent no.3, D.I.O.S., Azamgarh (annexure 10 to this writ petition) rejecting the claim of the petitioner for payment of salary for Assistant Teacher (P.T.).
3. The brief facts of the present case are that after retirement of Assistant Teacher (P.T.) in Sri Mathura Inter College, Naharpur, District Azamgarh the meeting of committee of management took place on 5.7.2000 and the vacancy was communicated through D.I.O.S. with request to grant permission for temporary appointment. The requisition was sent by the committee of management for selection of Assistant Teacher (P.T.). Since there was no other Assistant Teacher (P.T.) was available hence the permission was sought by the committee of management for Ad-hoc appointment. The D.I.O.S. by letter/order dated 17.9.2000 granted permission for Ad-hoc appointment on the post of Assistant Teacher (P.T.) till the selection of Assistant Teacher (P.T.) by the U.P. Secondary Education Selection Board. Thereafter, committee of management invited applications for post of Assistant Teacher (P.T.). The advertisement was published in 'Dainik Jagran' and 'Aaj' daily news paper on 11.1.2001 and 22.1.2001. The qualification of the petitioner was B.Ed and D.P.Ed. hence he also applied. Subsequently, he appeared before the selection committee on 28.2.2001 and he was selected and his case was considered by the committee of management on 28.2.2001. Since petitioner was found suitable hence resolution was passed in his favour. The petitioner joined the institution on 30.3.2001. Regarding appointment of petitioner letter was sent for financial approval on 1.9.2001, which was received in the office of D.I.O.S. The certain clarification was sought by the D.I.O.S. on 17.1.2001 regarding which reply was submitted by the Manager/Principal on 28.1.2001. However, even after that no action was taken to grant financial approval for payment of salary. Therefore, writ petition no.21044 of 2002 was filed before this Court. After exchange of counter and rejoinder affidavits, the petition was finally disposed off on 24.10.2005 with the direction to consider the representation of the petitioner by respondent no.3, D.I.O.S., Azamgarh. Thereafter by impugned order dated 5.6.2006 the representation was rejected by the respondent no.3 hence the present writ petition has been filed.
4. Learned counsel for the petitioner submitted that the appointment of the petitioner was after requisition was sent by the committee of management and after communication of the vacancy and approval of the D.I.O.S., Azamgarh. Hence petitioner was entitled for payment of salary. However, D.I.O.S. merely on the ground that selection was to be made by the board refused to grant financial approval for payment of salary. He further submitted that the petition was filed by one Satish Kumar Srivastava, who was also appointed as lecturer in the institution and after direction of the High Court the approval has been granted and he is getting salary.
5. Considered the submission of counsel for the parties. The vacancy occurred in the present case after retirement of the Assistant Teacher (P.T.) on 30.7.2000. According to committee of management the requisition was sent to the selection board through D.I.O.S. Since no P.T. teacher was available hence in the interest of students the permission was sought from the D.I.O.S. for temporary/ad-hoc appointment of Assistant Teacher (P.T.) and the permission was granted by the D.I.O.S. on 17.9.2000 for temporary/ad-hoc appointment for the period till the selected candidate by the U.P. Secondary Education Selection Board joins the institution. If the petitioner was appointed after approval under section 18 of the Act 5 of 1982 then petitioner was entitled for payment of salary. By the impugned order D.I.O.S. has not recorded any finding whether there was any requisition sent in the present case to the selection board after retirement of Assistant Teacher on 30.7.2000 and whether the requisition was sent and approval was given for appointment under section 18 of the Act 1982 only for the period till the candidate is selected for the post by selection board. Claim for payment of salary was rejected merely on the ground that the committee of management has no power for appointment. Whether the vacancy was notified by the committee of management and D.I.O.S. to the Selection Board and appointment was made in accordance with rules 1998, since there was no recommendation of the name of Assistant Teacher by selection committee. Whether approval was sought by the management and was granted by the D.I.O.S. before appointment. If the approval was sought appointment was in accordance with rules then the petitioner is entitled for salary. The D.I.O.S. is required to consider these aspects and to pass reasoned order considering the claim of the petitioner for payment of salary.
6. After enactment of Act No.5 of 1982, the U.P. Secondary Eduction (Services Selection Board) Act, 1982 the appointment can be made by the committee of management only on the recommendation of the selection board. As per information in other cases in which vacancies of the teachers were alleged to have been notified under section 10 of the Act No.5 of 1982 no selection has taken place for several years in some cases for about more than 8-10 years. In the present case itself substantive vacancy occurred on 30.7.2000. As per information no candidate has been selected by the selection board on the substantive vacancy even after ten years when vacancy occurred and was notified. Hence it appears that either in most of the cases there were no requisition and communication regarding the vacancy to the selection board or there is a callous and indifferent attitude of the selection board for selection of the teachers for their appointment on substantive vacancy. In view of the provision under Section 10 of Act No.5 of 1982 the management shall determine the number of vacancies existing or likely to fall vacant during the year of recruitment and notify the vacancies to the board in such manner and through such officers or authority as may be prescribed. The provisions are made in Rule 11 of Selection Board Rules, 1998.
7. The Rule 11 of U.P. Secondary Education Services Selection Board, Rules 1998 is reproduced hereinbelow:-
"11. Determination and notification of vacancies:- (1) For the purpose of direct recruitment to the post of teacher, the Management shall determine the number of vacancies in accordance with sub-section (1) of Section 10 and notify the vacancies through the Inspector, in the Board in the manner hereinafter provided.
(2) (a) The statement of vacancies for each category of post to be filled in by direct recruitment including the vacancies that are likely to arise due to retirement on the last day of the year of recruitment shall be sent in quadruplicate, in the proforma given in Appendix 'A' by the Management to the Inspector by July 15 of the year of recruitment and the Inspector shall, after verification from the record of his office, prepare consolidated statement of vacancies of the district subject-wise in respect of the vacancies of lecturer grade, and group-wise in respect of the vacancies of trained graduates grade. The consolidated statement so prepared shall, along with the copies of statement received from the Management, be sent by the Inspector to the Board by July 31, with a copy thereof to the Joint Director:
Provided that if the State Government is satisfied that it is expedient so to do, it may, by order in writing, fix other dates for notification of vacancies to the Board in respect of any particular year of recruitment:
Provided further that in respect of the vacancies existing on the date of the commencement of these rules as well as the vacancies that are likely to arise on June 30, 1998, the Management shall, unless some other dates are fixed under the preceeding proviso, send the statement of vacancies by July 20, 1998 to the Inspector and the Inspector shall send the consolidated statement in accordance with this sub-rule to the Board by July 25, 1998.
(b) With regard to the post of Principal or Headmaster, the Management shall also forward the names of two seniormost teachers, alongwith copies of their service records (including character rolls) and such other records or particulars as the Board may require from time to time.
(3) If, after the vacancies have been notified under sub-rule (2), any vacancy in the post of a teacher occurs, the Management shall, within fifteen days of its occurrence, notify to the Inspector in accordance with the said sub-rule and the Inspector shall within the ten days of its receipt by him send it to the Board.
(4) Where, for any year of recruitment, the Management does not notify the vacancies by the date specified in sub-rule (2) or fails to notify them in accordance with the said sub-rule, the Inspector shall on the basis of the record of his office, determine the vacancies in such institution in accordance with sub-section (1) of Section 10 and notify them to the Board in the manner and by the date referred to in the said sub-rule. The vacancies notified to the Board under this sub-rule shall be deemed to be notified by the Management of such institution.
8. As per provision of Rule 11 the committee of management shall send the statement of vacancies for each category of post for direct recruitment, including the vacancies which are likely to arise due to retirement on the last day of the year of recruitment i.e. June 30 to D.I.O.S. by July, 15 of the year of recruitment and by July, 31, the D.I.O.S. Shall sent the statement to the Board, with a copy to the Joint Director. If the committee of management fails to notify the vacancies by the date specified in sub rule (2) i.e. by July, 15 of the year of recruitment then D.I.O.S. Shall, on the basis of record of his office determine the vacancies, in such institution, in accordance with section 10 (1) and notify them to board in the manner and by the date referred to in the said Rule. The vacancies notified to the board by the D.I.O.S. will be deemed to be notified by the management of such institution.
9. The meaning of word 'notify' means the official information. Committee of management and D.I.O.S. are required to notify the vacancy to the selection board under section 10 of Act No.5 of 1982 and Rule 11 of Selection Board Rules 1998. The meaning of 'to notify the vacancy' to the selection board is that the requisition/recommendation should reach in the office of the selection board through D.I.O.S. However, if there is no selection of the teacher/principal, as the case may be, for a period of two months and the substantive post of Principal/Head Master or Teacher as the case may be remains vacant for more than two months, then the management has been empowered to fill such vacancy on purely ad-hoc basis under section 18 of Act No.5 of 1982 read with Rule 16 of Selection Board Rules 1998. It appears that to appoint the teachers of their choice either without notifying the vacancy the appointments are being made or the requisition is only formal and the same is being kept in the office of the D.I.O.S. or if it is communicated to the office of 'Selection Board' then there is indifferent and callous attitude of the selection board, in selection of the teachers, for which requisition was send by the committee of management. Hence if there is no selection for such a long period then the same is totally against the intention of the legislature and against the provision of Act No.5 of 1982 to the effect that the appointment of the teacher shall be made by the management, only on the recommendation of the selection board, on substantive vacancy. Hence the D.I.O.S. after getting the requisition from the committee of management of the institution concerned, should ensure that the requisition for selection of the Principal/Head Master or teacher, reaches in the office of the selection board and the D.I.O.S. should be responsible to ensure the communication and for delay and lack of communication for a long period. The person concerned of the selection board should also be made responsible and answerable for the considerable delay in selection of the Principal/Head Master/Teachers, after the vacancies were notified and requisition was received in the office of the Selection board. Even earlier, observation was made and direction was issued by this Court while considering the matter regarding selection of Teachers on substantive vacancy, but it appears that no effective steps has been taken to fill up the vacancies of Principals and Teachers. Due to delay in selection and appointment of Teachers the quality of education is bound to be affected. Hence the Secretary, Secondary Education U.P. is required to consider the matter, to take affective steps, to make certain provisions and to issue Government Order to ensure that the requisition for the selection of teachers must reach within reasonable time in the office of selection board and persons concerned should not only be held responsible and answerable for the delay for communication of vacancy and the delay in selection but there should be effective provisions for suitable action and disciplinary proceedings to ensure selection and appointment of Teachers and Principals within time and without unreasonable delay.
10. As far as present matter is concerned, in view of aforesaid discussion, the D.I.O.S., Azamgarh, respondent no.3 is directed to decide the representation of the petitioner, afresh in the light of observation, in accordance with law, by a reasoned order, preferably within two months after furnishing the certified copy of this order.
11. Accordingly, present writ petition is hereby allowed. No order as to cost.
12. Let a copy of this order be supplied to Mr. K. K. Chand, learned Standing Counsel for follow up action and communication to the Secretary (Secondary Education), U.P., Lucknow and U.P. Secondary Education Selection Board, Allahabad.
Order Date :- 9.10.2012//Pramod