Surendra Vikram Singh Rathore, J.@mdashHeard learned counsel for the parties and perused the record.
By means of instant writ petition, the petitioner has prayed the following reliefs:
(i) issue a writ, order or direction in the nature of ''Certiorari'' thereby quashing the impugned order 4.8.2012, passed by District Inspector of Schools Pratapgarh/opp. party No. 3 (as contained in Annexure 1, to this writ petition.
(ii) issue a writ, order or direction in the nature of ''mandamus'' thereby commanding the opposite parties to ensure the payment of salary of the petitioner as Education Lecturer in Saryu Prasad Intermediate College Kunda, Pratapgarh after issuing order of approval w.e.f. 20.7.2012.
(iii) issue a writ, order or direction in the nature of ''mandamus'' thereby commanding the opposite parties to allow to petitioner to work as Education Lecturer in Saryu Prasad Intermediate College Kunda, Pratapgarh and ensure the payment of prescribed salary as Lecturer of Education month to month as and when it is due.
Brief facts of the instant writ petition are that petitioner was initially appointed on the post of Clerk in Jagdish Narain Inter College, Dhingwas, Pratapgarh. The financial sanction of the salary was not accorded. The petitioner filed Writ Petition No. 2846(S/S) of 2004, before this Court, in which this Court on 26.5.2004 passed the following interim order:
Admit.
Issue notice to opposite party No. 5.
Notice on behalf of opposite parties No. 1 to 4 has been accepted by CSC, who prays for and is granted six weeks'' time to file counter-affidavit.
List thereafter.
The petitioner has alleged that his appointment was made on class-III post after prior approval of the DIOS, Pratapgarh.
In view of the aforesaid facts, opposite parties are directed to pay salary of the petitioner from May, 2004 including arrears of the salary.
2. In compliance of the aforesaid order, the petitioner was getting salary. During the pendency of the aforesaid writ petition, the petitioner was selected as Assistant Teacher in Saryu Prasad Intermediate College, Kunda, Pratapgarh on ad hoc basis, against the post which fell vacant on 1.7.2010. The proposal of his appointment was sent to financial approval before the DIOS and by the impugned order financial sanction was not accorded. It was mentioned in the impugned order that the appointment has been made without recommendation of the Selection Board, which is in-violation of Section 61 of the Intermediate Education Act and is also punishable u/s 22 of the said Act.
3. Learned counsel for the petitioner has placed reliance on the pronouncement of Division Bench of this Court in the case of Day a Shanker Mishra v. District Inspector of Schools and others, 2010 (10) ADJ 829 (DB), decided on 31st March, 2010, wherein Division Bench has approved the view taken in Rakesh Chandra Misra''s case. This Court in the case of
41. Section 18 was again substituted by virtue of Section 3 of the Act 2001 which made a provision, only for making ad hoc appointment on the post of Principal or the Head Master on purely ad hoc basis by promoting senior most teacher in case the Management had intimated the vacancies to the Board in accordance with subsection (1) of Section 18 and the said vacancies actually remained vacant for more than two months.
42. This Act did not make any provision for making any ad hoc appointment on the post of lecturers or teachers other than the Principal or Head-Masters. The Act further made provisions for insertion of Section 33-F.
43. Thus by virtue of amending Act 2001, (U.P. Act No. 5 of 2001), the power to make ad hoc appointments of teachers either by direct appointment or by promotion other than the Principal and Head-Masters of the institution was taken away completely. Neither the Educational authorities not the Committee of Management could make any ad hoc appointment of teacher, thereafter under the Selection Board Act. Under the circumstances, no institution was allowed to have any ad hoc teacher either by direct appointment or by promotion irrespective of the fact as to whether the vacancy has been notified by Commission and there are no selected candidates available for imparting instructions to the students despite the subject being sanctioned and duly approved by the Educational Authorities,
In the case of Daya Shakar Mishra (supra) this Court has finally held in para 36 as under:
In view of the discussions made above, in our considered opinion the management has the power to make Ad hoc appointments on short-term vacancies under the provisions of 1921 Act and the Regulations framed thereunder and the judgment in the case of Rakesh Chandra Misra (supra) lays down the correct law.
Impugned order passed by the DIOS concerned is not in consonance with the decisions of this Court. Learned counsel for the petitioner submits that the matter may be referred to the DIOS for taking fresh decision in the matter of the petitioner within a time frame.
Keeping in view the observation of this Court in the case of Daya Shanker Mishra (supra) and prayer of the petitioner, this writ petition is liable to be allowed and is hereby allowed. The impugned order dated 4.8.2012 passed by DIOS, Pratapgarh is hereby quashed. District Inspector of Schools, Pratapgarh, is hereby directed to take fresh decision in the matter of the petitioner within a period of two months from the date a certified copy of the order is produced before him, keeping in mind the decisions of this Court referred above.
