JUDGMENT Arun Tandon, J.
1. In pursuance to the Orders of this Court, records of Writ Petition filed by Swami Prasad Misra and another being Writ Petition No. 742(S/S) of 1992 and Writ Petition No. 1684 (S/S) of 2005, before Lucknow Bench of this Court have been produced today by the Standing Counsel.
2. Petitioner is directed to implead Sri Swami Prasad Misra as respondent No. 7 during the course of the day.
3. Petitioner, Sri Yogesh Kumar Gaur has been selected for the post of L.T. Grade Teacher (Social Science) by the U.P. Secondary Education Service Selection Board, Allahabad and has been empanelled against the vacancy available in Raj Karan Vaidic Pathshala Inter College, Faizabad. The selection so affected in favour of the petitioner has been objected to under the impugned letter of the District Inspector of Schools, Faizabad dated 15.02.2005 on a finding that there is no vacancy available in the institution against which the petitioner can be offered appointment as one Sri Swami Prasad Misra has been appointed and is being paid salary in terms of interim order of the Lucknow Bench of this Court passed in Writ Petition No. 742 of 1992.
4. On 23.08.2006, the District Inspector of Schools, Faizabad, who was present in the Court informed that the vacancy has been exhausted with the regularization of Swami Prasad Misra, who has since been regularized under the Order of Joint Director of Education, Faizabad. To similar effect are the contents of the counter affidavit dated 03.08.2006 filed by District Inspector of Schools, Faizabad in the present Writ Petition.
5. On 01.09.2006 an other affidavit was filed by the District Inspector of Schools, Faizabad dated 03.08.2006 wherein a copy of an order passed by the Regional Joint Director of Education, Faizabad regularizing the appointment of Sri Swami Prasad Misra as L.T. Grade Teacher in the institution dated 14.02.2006 was enclosed as Annexure 7.
6. Since the said order of regularization was based on another order of the Lucknow Bench dated 03.03.2006 passed in Writ Petition No. 1684(S/S) of 2005, this Court required the Joint Director of Education to remain present before this Court with records of both the Writ Petitions filed by Swami Prasad Misra before the Lucknow Bench (referred to above).
7. Today the Joint Director of Education is present before the Court with records of both the Writ Petitions. I have gone through the records of both the Writ Petitions. It would be relevant to reproduce paragraphs 5, 6, 7, 8, 9 and 10 of the said Writ Petition No. 742 (S/S) of 1992, which read as follows:
5. That in the vacancy created in the L.T. Grade due to adhoc promotion of the above referred Sr. Krishna Kumar Mishra as Lecturer in English, One Sri Ram Achal Yadav, the senior most Assistant Teacher in the existing C.T. Grade was promoted to L.T. Grade in the above vacancy.
6. That all the aforesaid appointments by promotion have been made by the above Management under the provision contained in Section 18 of the Commission Act, 1982, read with the provision contained in the U.P. Secondary Education Service Commission (Removal of Difficulties Order), 1981 and the procedure prescribed therein was duly conformed.
7. That all the above referred ad hoc promotions were duly communicated to the District Inspector of Schools, Faizabad.
8. That in the ad-hoc vacancy created in the L.T. Grade (corresponding to the previous C.T. Grade) due to the ad-hoc promotion of Sri Ram Achal Yadav, referred to above, which was also remained vacant for more than two months after notification of the above vacancy to the Commission through the District Inspector of Schools, the Management of the Institution decided to fill the above vacancy by direct recruitment after inviting applications. The procedure prescribed in Section 18 of the Commission Act and that contained in the U.P. Secondary Education Service Commission (Removal of Difficulties) (2nd) Order, 1981 was duly followed.
9. That accordingly the management of the above institution intimated the above vacancy to the District Inspector of Schools and also notified the same on the notice board of the institution requiring the candidates to apply to the Manager of the Institution alongwith the particulars as per appendix "B" to the above order. The selection was made on the basis of quality point marks according the the above referred Removal of Difficulties Order and the compilation of quality point marks was done under the personal supervision of the Head of the above institution. The names and the particulars of candidates selected and also of other candidates and the quality point marks allotted to them were forwarded by the Manager of the institution to the District Inspector of Schools for his prior approval.
10. That in the above referred selection made by the Management Swami Prasad Misra, Petitioner No. 1 was selected as Assistant Teacher in L.T. Grade in ad hoc vacancy caused due to promotion of Sri Achal Yadav named above as he was found to be the best candidate among all the candidates who applied for the above post.
8. From the aforesaid, it is apparent that Swami Prasad Misra himself admitted (a) one Sri Krishna Kumar Misra was promoted on the post of Lecturer (English) against the vacancy caused due to death of Vishwa Prakash Srivastava on 08.10.1990. Sri Krishna Kumar Srivastava was working as L.T. Grade Teacher in the institution; (b) On the vacancy so caused in the L.T. Grade,, one Sri Ram Achal Yadav who was the seniormost Assistant Teacher in C.T. Grade was promoted on ad hoc basis as L. T. Grade Teacher (c) Both the said appointments were made under Section 18 of the Commissions Act and were duly communicated to the District Inspector of Schools, Faizabad. (d) The resultant vacancy caused in C.T. Grade, which according to Sri Swami Prasad Misra stood converted into L.T. Grade because of C.T. Grade being declared as dying cadre, was advertised for direct recruitment by the Committee of Management and after following the procedure, Swami Prasad Misra was appointed by Direct Recruitment as L.T. Grade Teacher against the short-term vacancy caused due to promotion of Sri Ram Achal Yadav from C.T. Grade to L.T. Grade.
9. In the said Writ Petition, a counter affidavit has been filed by the then District Inspectress of Schools, Faizabad, Km. Jayanti Srivastava and in paragraph 13, it is stated that the post Lecturer (English) was itself surplus, therefore, proceedings for promotion on the post of Lecturer (English) was beyond jurisdiction.
10. In Paragraph 14, 15 the contents of paragraph 5 to 10 of the Writ Petition were replied. For ready reference paragraph 13, 14, 15 of the affidavit filed by the State Respondents/District Inspector of Schools, Faizabad are quoted hereinbelow:
13. That the contents of para 3 to 7 it is stated that the post of English Lecturer having been found to be a surplus post all the proceedings of promotion from L. T. Grade to Lecturer Grade from C.T. Grade to L.T. Grade is illegal and beyond jurisdiction.
14. That the contents of para 8 are not admitted and are emphatically denied. It is submitted that in view of the averments made hereinabove the promotion of the last incumbant being illegal the question for any result last vacancy and its notification to the Commission does not arise. It is further submitted that the short term vacancy occurring in C.T. Grade will not be deemed to be vacancy in L.T. Grade. It is also pertinent to mention here that a short term vacancy does not require an notification into the Commission and it may be filled up according to the provision of Removal of Difficulties (Second) Order 1981.
15. That in reply to the contents of paras 9 and 10 it is submitted that as in view of the averments there is no vacancy available for the ad hoc appointment of the petitioner the proceeding of selection and appointment of the petitioner No. 1 is illegal and beyond jurisdiction.
11. Contrary to the facts, which are on record in the pending Writ Petition filed before the Lucknow Bench of this Court and contrary to the case pleaded by Sri Swami Prashad Misra himself in the said Writ Petition, the Regional Joint Director of Education namely Sri Satish Kumar Srivastava has passed an order dated 14.02.2006 regularizing the appointment of Sri Swami Prashad Misra as L.T. Grade Teacher in alleged exercise of power under Section 33(f) of U.P. Secondary Education Service Selection Board, 1982. Section 33(f) reads as follows:
33-F Regularisation of appointments against short term vacancies.-
(1) Any teacher who,-
(a) was appointed by promotion or by direct recruitment in the lecturer's grade or trained graduate grade on or after May 14, 1991 but not later than August 6, 1993 against a short term vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, as amended from time to time, and such vacancy was subsequently converted into a substantive vacancy;
(b) possesses the qualification prescribed under, or is exempted from such qualifications in accordance with, the provisions of the Intermediate Education Act, 1921;
(c) has been continuously serving the institution from the date of such appointment up to the date of the commencement of the Uttar Pradesh Secondary Education Services Selection Board (Amendment) Act, 2001;
(d) has been found suitable for appointment in a substantive capacity by the Selection Committee referred to in Clause (a) of Sub-section (2) of Section 33-C in accordance with the procedure prescribed under Clause (b) of the said subsection;
shall be given substantive appointment by the Management.
(2)(a) The names of the teachers shall be recommended for substantive appointment in order of seniority as determined from the date of their appointment.
(b) If two or more such teachers are appointed on the same date the teacher who is elder in age shall be recommended first.
(3) Every teacher appointed in a substantive capacity under Sub-section (1) shall be deemed to be on probation from the date of such substantive appointment.
(4) A teacher who is not found suitable under Sub-section (1) and a teacher who is not eligible to get a substantive appointment under that subsection shall cease to hold the appointment on such date as the State Government may by order specify.
(5) Nothing in this section shall be construed to entitle any teacher to substantive appointment, if on the date of the commencement of the ordinance referred to in Clause (c) of Sub-section (1) such vacancy had already been filled or selection for such vacancy has already been made in accordance with this Act.]
12. In the last paragraph of the first page of the Order of Regional Joint Director of Education dated 14.02.2006, it is recorded as follows:
Sarv Sri Krishna Kumar Misra evam Subhash Chandra Singh ki pravakta ke pad parr prastavit padonatiyon tatha inke sthan par alpkalik riktiyon me in kramshay Sarv Sri Swami Prasad Misra evam Ram Krishna Singh ki S. A. L. T. ke padh par ki gayee tadharth niyuktiyon ka anumodan/vetaan bhugtan sehmati Zila Vidylay Nirikshak, Faizabad dwara nahin di gayee, jiske falswarup Sarv Sri Swami Prasad Misra evam Ram Krishna Sign ne apni niyukti evam vetan adi ke bhugtan ke sambandh mein ek yachika sankhya 742/1992/es-es yojit kar diva. Es yachika mein manniya Ucch Nyayyala ne....
13. From the aforesaid, it is apparently clear that the statements so made by the Joint Director of Education, Faizabad is patently false inasmuch as Sri Swami Prashad Misra was never appointed against the vacancy caused due to grant of promotion to Krishna Kumar Misra. As a matter of fact, against the said vacancy Sri Son Lal Yadav, who was working as C.T. Grade Teacher in the institution was granted ad hoc promotion. It is further incorrect on the part of the Joint Director of Education to record that Swami Prashad Misra became entitled for regularization against the resultant vacancy of L.T. Grade which was caused due to promotion of Sri Krishna Kumar Misra under Section 33(f), as the vacancy stood converted into a substantive vacancy which regular appointment of Sri K.K. Misra.
14. As a matter of fact, right of regularization under Section 33(f) could have been claimed by Ram Achal Yadav only inasmuch as he was the person appointed on ad hoc basis as L.T. Grade Teacher against the short term vacancy which was caused due to ad hoc promotion granted in favour of Sri Krishna Kumar Misra initially. In case, the appointment of Sri Krishna Kumar Misra had been regularized as Lecturer (English), the resultant vacancy in L.T. Grade stood converted into a substantive vacancy against which Sri Ram Achal Yadav alone was working and his claim alone could have been considered for regularization under Section 33(f).
15. It is also surprising that despite noticing the pendency of Writ Petition filed by Swami Prasad Misra, the Joint Director of Education has not made any attempt to examine the facts and has not insisted upon Sri S.P. Misra to get the Writ Petition finalized first before his regularization can be considered. Lastly, it may also be recorded the counter affidavit filed on behalf of the department in said petition records that the promotion of K.K. Misra as Lecturer (English) and resultant appointments including that of S. P. Misra were without jurisdiction as no post was available in addition thereto, with regards to Sri S. P. Misra, it is further stated that his appointment in L.T. Grade is unwarranted as short term vacancy if any in C.T. Grade is not converted into L.T. grade.
16. In view of the aforesaid, this Court has no hesitation to record that the Regional Joint Director of Education has acted in a most arbitrary manner while directing regularization of Sri S. P. Misra. He has not looked into the records available in the office of R.I.G.S. nor the records of Writ Petitions filed by Sri Swami Prasad Misra and facts stated therein have been noticed. There has been a flagrant violation of the Statutory Rules by an officer of the cadre of Joint Director of Education which brings the entire process of selection under the U.P. Secondary Education Service Selection Board Act, 1982 to a naught. Such officers should be dealt with firmly and therefore, it is, directed that the records of present Writ Petition, Writ Petitions filed before the Lucknow Bench by Sri Swami Prasad Misra as well as the order passed today be transmitted by the Standing counsel to the Secretary, U.P. Secondary Education U.P.,. Lucknow for appropriate departmental proceedings being initiated against the officer concerned as well as for ensuring the wrong committed under the order dated 14.02.2006 being rectified.
17. Liberty is granted to respondent No. 6 to file an affidavit before this Court and if so advised to justify the order dated 14.02.2006. The Regional Joint Director of Education, who is present before this Court may communicate the order passed today to respondent No. 6, Sri Swami Prasad Misra.
18. The records must be transmitted to the Secretary, (Secondary) Education U.P., Lucknow by 03.11.06 along with the order passed today. The Secretary shall initiate the proceedings and bring the same to logical end preferably within four weeks thereafter. Secretary may afford opportunity of hearing to S. P. Misra also. The final decision taken in the matter must be reported back to the Court by 11.12.2006.
19. This Court is satisfied that the order of regularization of Sri Swami Prasad Mishra being illegal cannot be permitted to be the basis for obstructing the appointment of a regularly selected candidate recommended by the Selection Board.
20. It is, therefore, directed that the operation of the order dated 14.02.2006 shall not in any way effect the appointment of the petitioner in the institution. The District Inspector of Schools, Faizabad is directed to take all appropriate action for joining of the petitioner within one week from today.
21. List on 11.12.2006.