Court No. - 58
Case :- WRIT - A No. - 26756 of 2018 Petitioner :- Tushar Kant Shukla Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Om Prakash Chaurasia Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Petitioner claims to have been appointed by the Committee of Management of the Institution concerned exercising its power under Section 16- E(11) of the U.P. Intermediate Education Act, 1921.
The vacancy on which petitioner has been appointed is a substantive vacancy, which is required to be filled by the Board as per the provision contained in U.P. Secondary Education Services Selection Board Act, 1982.
The power of Committee of Management under Section 16-E(11) of the Act, which has been relied upon for making the appointment, would only be available for filling up of unforeseen vacancies and not a substantive vacancy. Section 16-E(11) of the 1921 Act, reads as under:
"Section 16-E(11). Notwithstanding anything contained in the foregoing sub-sections, appointments in the case of a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or [by death, termination or otherwise] of an incumbent occurring during an educational session, may be made by direct recruitment or promotion without reference to the Selection Committee in such manner and subject to such conditions as may be prescribed :
[Provided that no appointment made under this sub-section shall, in any case, continue beyond the end of the educational session during which such appointment was made.]"
Under the provision of the Act, 1982, once a substantive vacancy occurs and it has been intimated to the Board, the only way in which it can be filled is by making direct appointment on the post by the Board and all other appointment stands forbidden by virtue of Section 16, particularly Sub-Section (2) thereof of the Act 1982. Section 16 of the 1982 Act is reproduced below:
"Section 16. Appointments to be made only on the recommendations of the Board. - (1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the regulations made thereunder but subject to the provisions of] [Sections 12, 18, 21-B, 21-C, 21-D, 21-E, 21-F, 33, 33-A, 33-B, 33-C, 33-D and 33-F], every appointment of a teacher shall on or after the date of the commencement of the Uttar Pradesh Secondary Education Services Selection Board (Amendment) Act, 2001 be made by the Management only on the recommendation of the Board :
Provided that in respect of retrenched employees, the provisions of Section 16-EE of the Intermediate Education Act, 1921, shall mutatis mutandis apply :
Provided further that the appointment of a teacher by transfer from one Institution to another may be made in accordance with the regulations made under clause (c) of sub-section (2) of Section 16-G of the Intermediate Education i Act, 1921 :
[Provided also that the dependent of a teacher or other employee of an Institution dying-in-harness who possess the qualifications prescribed under the Intermediate Education Act, 1921 may be appointed as teacher in Trained Graduate's Grade in accordance with the regulations made under sub-section (4) of Section 9 of the said Act.] (2) Any appointment made in contravention of the provisions of sub-section (1) shall be void."
From the statutory scheme, it is clear that a substantive vacancy cannot be filled by the Committee of Management exercising powers under Section 16-E(11) of the Act, 1921. The view taken by the District Inspector of Schools, therefore, does not suffer from any infirmity, which may require any interference.
With the aforesaid observation, the writ petition is dismissed.
Order Date :- 19.12.2018 Ranjeet Sahu