Court No. - 33
Case :- WRIT - A No. - 25862 of 2017 Petitioner :- Surya Prakash Mishra Respondent :- State Of U.P. And 5 Ors. Counsel for Petitioner :- Sunil Kumar Singh Counsel for Respondent :- C.S.C.,Vivek Pratap Singh
Hon'ble Ashwani Kumar Mishra,J.
Petitioner was offered ad hoc appointment on the post of Assistant Teacher in J.P. Intermediate College Campierganj, Gorakhpur, which is an institution recognized under the provisions of the U.P. Intermediate Education Act, 1921 and is also receiving aid under Payment of Salaries Act, 1971.
According to the petitioner financial approval to his initial appointment was granted on 23.02.1991 and his services were also regularized on 18.07.1994. A claim for promotion to the post of Lecturer in Civics was put forth by the petitioner on the ground that he possess requisite qualification and a direction was issued in Writ Petition No. 56695 of 2016 to consider petitioner's claim. It is pursuant to this order that the petitioner's claim has been examined by the Regional Promotion Committee and his candidature is rejected by the order impugned dated 17.05.2017. This order records that though petitioner was initially appointed on 08.11.1990 and financial approval was also granted to his appointment but his services are yet to be regularized. It is further observed that there is no document to show that petitioner's services were ever regularized.
The aforesaid order is challenged on the ground that petitioner's services were regularized on 17.02.1994. The order of Inspector in that regard is also annexed at page 74 of the writ petition. This order records that petitioner's services are being regularized in accordance with the Government Order dated 06.04.1991.
A counter affidavit has been filed clearly stating that petitioner has never been regularized and therefore question of his promotion at this stage does not arise. It is also alleged that on the date of occurrence of vacancy on the promotional post, the petitioner was not entitled to be considered for promotion since his services had not been regularized.
A rejoinder affidavit has been filed and with reference to the averment made it is sought to be urged on behalf of the petitioner that benefit of selection grade etc. has already been granted to the petitioner, which fact reveals that petitioner's services were regularized.
I have heard Sri Sunil Kumar Singh for the petitioner and Sri Vivek Pratap Singh for the Committee of Management and perused the original records produced by the State.
Issuance of ad hoc appointment and grant of financial approval to petitioner's initial appointment are not in issue. The only question that falls for determination in this petition is, as to whether petitioner's services have been regularized or not ?
It is admitted that appointment on the post of Assistant Teacher is regulated by the provisions of U.P. Intermediate Education Act, 1921 as also by the provisions of U.P. Secondary Education Service Selection Board Act, 1982 as well as rules framed thereunder. After the introduction of Act of 1982, no appointment can be made except in the manner stipulated in the Act of 1921. Section 32 provides that in the event of any conflict, the provisions of the Act, 1982 shall prevail in the matter of appointment of a teacher. By way of amendment introduced in the Act of 1982, provisions of regularization are incorporated in Section 33-A to 33-G. Section 33-B apparently would govern the exigency arising in the facts of the present case. However, as per Section 33-B an order of regularization can only be passed on the basis of recommendation of a selection committee and not otherwise.
There is nothing on record to show that the petitioner's claim was ever considered for regularization in terms of Section 33-B, inasmuch as neither there is any reference to consideration of petitioner's claim by the Selection Committee chaired by the Regional Deputy Director of Education nor any order has been passed by the competent authority. The document enclosed at page 74 of the writ petition cannot said to be an order of regularization in terms of Section 33-B of the Act. This order has been passed treating the petitioner's claim to be covered under Section 33-A, which is not the case on facts.
The original records, which have been produced before the Court, contains no reference to petitioner's regularization, although benefit of time scale and selection grade etc. have been allowed to the petitioner.
Since the petitioner's appointment has been made after the cut of date specified in Section 33-A, the authorities of the State, therefore, have not erred in observing that petitioner's services were not regularized and, therefore, his claim for promotion cannot be considered. No interference with the order of the Regional Promotion Committee is, thus, warranted.
However, in the facts of the case, it would be appropriate to direct the respondents to accord consideration to the petitioner's claim for regularization in accordance with the provisions contained in the Act of 1982 within a period of three months from the date of presentation of a copy of this order. Based upon such determination, the authorities shall examine petitioner's claim for promotion and the order impugned dated 17.05.1917 shall not stand in the way of petitioner's claim for promotion, after his services are regularised in the manner indicated above. It is also provided that till petitioner's claim is examined in the manner indicated above, no recovery etc. would be made from him. Financial benefits already granted shall not be withdrawn.
Subject to the above observations, this writ petition is consigned to records.
Order Date :- 24.8.2021 Pkb/