P.C. Verma, J.@mdashI have heard the learned Counsel for the Petitioner Sri CD. Bahuguna and the learned Counsel for the Respondent No. 4 Sri K.N. Joshi and also the Chief Standing Counsel for the Respondents No. 2 and 3. However, despite notice to the Respondent No. 1 vide order dated 20-4-93, the Respondent No. 1 has neither appeared before this Court through counsel, nor filed any counter affidavit.
2. The brief facts of the case are that the Petitioner was appointed as Assistant Teacher in Jyoli Madyamik Vidyalaya (hereinafter referred to as College), Almora on 01-07-1973 on B.T.C. grade and was confirmed subsequently on the said post. On 11-11-1978 he was promoted as C.T. Grade Teacher. The C.T. Grade was declared dying cadre w.e.f. 11-08-1989. The College was a recognized Institution and was upgraded as Intermediate College in the year 1988. The Institution was receiving grant on the date of vacancy of the posts of lecturer in the Institution. Four posts of lecturers in Hindi, Political Science, Geography and English subjects were created in the Jyoli Intermediate College, Almora on 05-07-1990 as a result of upgradation of the Institution. Two posts of Lecturer in Political Science and Geography were filled up by promoting the senior most Assistant Teachers of the L.T. Grade u/s 18 of the U.P. Secondary Education Service Commission and Selection Board Act, 1982 read with the provisions of First Removal of Difficulties Order, 1981 and two other posts were proposed to be filled up by direct recruitment on ad hoc basis by the Committee of Management under the aforesaid provision. The vacancy of the post of lecturer in Hindi was created on 05-07-90 and was notified by the Committee of Management and the same was forwarded to the Secondary Education Service Commission by the Deputy Director of Education vide its letter No. 1483-85/90-91 dated 24-04-1990. The Manager of the Institution advertised the post of Hindi lecturer and then interview was held on 27-07-1990 and thereafter on 25-08-1990 one Sri Rajendra Singh Bani, the Respondent No. 4 was selected for the post of Hindi lecturer. The Petitioner submitted several representations to the departmental authorities against the appointment of Respondent No. 4 stating that the post of Hindi lecturer was not capable of being filled in by direct recruitment and the Petitioner being the senior most person available in L.T. Grade in the Institution was entitled to be promoted as Hindi lecturer. Petitioner also filed a writ petition before the Allahabad High Court which was finally disposed of on 28-02-1992 with a direction that the Petitioner will file fresh representation before the District Inspector of Schools, Almora and the Deputy Director of Education, Kumaon, Nainital and the said authorities will decide the representation in accordance with law. The Petitioner on 28-04-1992 submitted representation before the aforesaid authorities. The District Inspector of Schools, Almora (hereinafter referred to as D.I.O.S. Almora) by its order dated 08-06-1992 disposed of the representation of the Petitioner rejecting his claim for promotion. The Deputy Director of Education, Kumaon, Nainital also rejected the claim of the Petitioner for promotion by the order dated 05-02-1993. These two orders are under challenge in the present petition as Annexures No. 8 and 10.
3. Two questions emerge to be determined in the writ petition are:
(1) Whether Petitioner is entitled to the promotion on the post of Hindi Lecturer ?
(2) Whether appointment of Respondent No. 4 is valid in the eyes of law ?
4. The relevant provisions of law for proper adjudication of the matter are being reproduced below. Section 18 of the Uttar Pradesh Secondary Education Services Commission and Selection Board Act, 1982 reads as under:
18. Ad hoc Teachers.- (1) Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and-
(a) the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher specified in the Schedule within one year from the date of such notification; or
(b) the post of such teacher has actually remained vacant for more than two months, then, the management may appoint, by direct recruitment or promotion, a teacher on purely ad hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder.
(2) The provisions of Sub-section (1) shall also apply to the appointment of a teacher (other than a teacher specified in the Schedule) on ad hoc basis with the substitution of the expression ''Board'' for the expression "Commission".
(3) Every appointment of an ad hoc teacher under Sub-section (1) or Sub-section (2) shall cease to have effect from the earliest of the following dates, namely-
(a) When the candidate recommended by the Commission or the Board, as the case may be, joins the post;
(b) when the period of one month referred to in Sub-section (4) of Section 11 expires;
(c) thirtieth day of June following the date of such ad hoc appointment.
5. The learned Counsel for the Petitioner firstly submitted that the finding of the D.I.O.S. is totally wrong and illegal in holding that the Petitioner was not an L.T. Grade teacher on the date of vacancy of the post of Hindi Lecturer in the Institution as the Petitioner was appointed as an Assistant Teacher in the College on 01-07-1973 in B.T.C. Grade and was promoted as C.T. Grade teacher on 11-11-1978. By the G.O. dated 11-08-1989 C.T. Grade was declared as dying cadre and it was decided not to create any post of C.T. Grade in the recognized and aided Institutions in future. By the another G.O. dated 19-10-1989, it was further provided that any teacher of C.T. Grade who is trained graduate will be given L.T. Grade, on completion of 10 years satisfactory service in the Institution. The Government of U.P. issued an another G.O. dated 2-12-1989 and thereby substituted completion of 10 years satisfactory service by 5 years completed service in C.T. Grade. The word "satisfactory" was omitted in the G.O. dated 2-12-1989, meaning thereby any teacher who completed 5 years service in C.T. Grade became automatically entitled for L.T. Grade post and its pay scale immediately after completion of 5 years service in C.T. Grade. It is also submitted that in view of the settled position of law, the Petitioner automatically became L.T. Grade teacher by operation of law on 11-11-1983 i.e. on completion of 5 years service in C.T. Grade and, therefore, the finding of the D.I.O.S. Almora to the effect that the Petitioner was not an L.T. Grade teacher on the date of vacancy in the institution is wrong and illegal and the Petitioner should be treated to be in an L.T. Grade teacher on the date of vacancy of the post of lecturer in the Institution. The Petitioner has relied upon a decision in the case of Santosh Kumar Singh v. District Inspector of Schools, Meerut and Ors. reported in 1996 (2) UPLBEC 1166 in this regard. The relevant portion of the judgment is reproduced hereunder:
The Petitioner was appointed as C.T. grade teacher on 1-12-1984 in Gandhi Smarak Dev Nagri Inter College, Parikshitgarh, District Meerut and he was confirmed on that post on 1-9-1986. On 3-6-1989 the government issued a government order directing that those C.T. grade teachers who had completed five years shall be promoted on L.T. Grade.
In the counter-affidavit filed on behalf of the District Inspector of Schools it is stated in para 6 that only those C.T. grade teachers who have completed five years will be promoted as L.T. grade teacher who are found to be suitable. In my opinion this is a wrong interpretation of the government order dated 3-6-1989. The C.T. grade is now a dying cadre and those who have completed 5 years in C.T. grade automatically become L.T. grade teachers, and there is no question of considering their suitability. Since the Petitioner was appointed as C.T. grade teacher on 1-12-84 he completed five years on the post on 1-12-1989 he is entitled to be promoted on L.T. grade respectively from 1-12-1989.
6. In view of the above cited decision the learned Counsel for the Petitioner has force in his submission.
7. The learned Counsel for the Petitioner submits that the Petitioner''s claim was rejected secondly on the ground that the qualification of the Petitioner as M.A. in Hindi was not entered in his service book and as such he was not qualified for holding the post of lecturer in Hindi in the Institution. It has been submitted on behalf of the Petitioner that he had passed M.A. in Hindi in the year 1979. A copy of certificate of M.A. has been annexed as Annexure No. 12 to the writ petition. It has also been submitted that in the year 1981 while the competent authority was moved for recognition of the Institution as an Intermediate college a copy of staff statement was also annexed therewith in which against his name his qualification was mentioned as M.A. Hindi and B.T.C. In the year 1991 the Petitioner was sent on examination duty in the Board Examination alongwith one another. The academic qualification mentioned by the Principal of the Institution in the letter dated 24-03-1991 is shown as M.A., B.T.C. as is evident from Annexure S.R.A.I to the supplementary rejoinder affidavit dated 05-05-1996. From the aforesaid clinching evidence, it is absolutely clear that the Principal and the Manager both, were fully aware about the educational qualification of the Petitioner as M.A., B.T.C. and it was a sheer pretext on the part of the Respondent authorities to say or suggest that the Petitioner was not qualified for holding the post of lecturer as he was not post graduate. If the qualification of the Petitioner was not entered in the service book of the Petitioner by the Principal or the Manager of the Institution, it is the fault of the Principal and the Manager of the Institution and the Petitioner cannot be made to suffer for that. In para 9 of the counter affidavit the averments made by the Petitioner in para 12, 13, and 14 of the writ petition have not been controverted by the D.I.O.S. Respondent No. 2 and instead it has been stated that the averments of paras 12, 13 and 14 of the-writ petition need no comments. In view of the above averments the learned Counsel for the Petitioner has also force in the second submission.
8. The learned Counsel for the Petitioner thirdly submitted that the findings of the D.I.O.S. is not sustainable in the eyes of law in holding that there were total four posts of lecturers out of which two posts of lecturers had already been earmarked to be filled in by direct recruitment. In Charu Chandra Tiwari v. District Inspector of Schools Peoria and Ors. reported in 1990 (1) UPLBEC 160, approved and affirmed by the Full Bench decision in Kumari Radha Raizada v. Committee of Management, Vidvawati Darbari Girls Inter College reported in 1994 A.L.J. 1077 the Court observed in paras 6 & 38 of the judgment as under:
6. The rapid changes in the society in post independent era in India, brought more responsibility on State to meet the need and aspiration of people which are legitimately expected from a welfare State which resulted in multifarious activities by the State. This brought tremendous pressure on legislature to enact numerous laws. Seeing the pressure on legislature''s time, the technical character of modern law, need for flexibility and the amount of time which is being consumed in amending laws, the legislature thought fit and expedient only to concentrate on essential leaving the details to be worked out by the executive by making such adaptation whether by way of modification, addition or omission. Of course without doing any violence to the essential feature and purposes of the Statute. This course was adopted by the legislature in order to implement the Statute more effectively and without waiting for amending process in the legislature which often took lot of time.
38. Paragraph 5 of the First Removal of Difficulties Order provides that where any vacancy cannot be filled by promotion under paragraph 4 of the Order, same may be filled by direct recruitment. Thus, it is mandatory on the part of the Management to first fill up the vacancy by promotion on the basis of seniority alone. This method has to be resorted to as the teachers are available in the institution and any other method of recruitment may cause disturbance in teaching of the institution which may affect the career of students. Another reason why the vacancy has to be filled by ad hoc appointment by promotion is that it is a short term appointment in the sense that shortly a duly selected teacher would be available for appointment against the said vacancy. So long the posts can be filed under paragraph 4 of the Order by promotion, it is not open to the Management to take resort to the power to appoint ad hoc teacher by direct recruitment under paragraph 5 of the First Removal of Difficulties Order. In Charu Chandra Tiwari v. District Inspector of Schools (1990) 1 UPLBEC 160 : 1990 Lab IC 129 it was held that the Management has to fill the vacancy by ad hoc promotion of a senior most teacher of the same institution qualified for such appointment and ad hoc appointment through direct recruitment is permissible only in case no such teacher in the institution is available. This according to me lays down the correct view of law. I am therefore, of the view that the existing substantive vacancy which has been notified to the Commission and the condition provided u/s 18 of the Act is present, the vacancy has to be filled up firstly by promotion from amongst senior most of teacher in the next lower grade.
9. There is no doubt as to the settled legal position that direct recruitment is to be resorted to only if the post cannot be filled by promotion and, thus, there is force in the third submission also of the learned Counsel for the Petitioner.
10. However, in the writ petition in paras 4 and 5 as also in the rejoinder affidavit to the counter affidavit of Respondent No. 2 D.I.O.S. in para 3 the Petitioner himself has stated that he participated in the selection process, which was initiated by the committee of management. Instead of participating in the selection through direct recruitment, the Petitioner should have challenged that selection. It is settled proposition of law when a candidate participates in a selection and found to be unfit, it is not open for him to challenge the said selection (See
11. So far as appointment of the Respondent No. 4 is concerned the method of direct recruitment should not have been resorted to as the direct recruitment is to be made only if the post cannot be filled in through promotion (See Charu Chandra Tiwari and Radha Raizada (supra). Assuming that the post was to be filled in through direct recruitment u/s 18 of the Act in that event also the procedure prescribed in the Removal of Difficulties Order and Intermediate Education Act and Regulations framed thereunder had to be followed.
12. The appointment of Respondent No. 4 is not in accordance with Section 18 read with Removal of Difficulties Order First and Second, as a conjoint reading of the relevant provisions makes it clear that the process for making an ad hoc appointment has to be initiated by the D.I.O.S. In the present case the Committee of Management took this responsibility upon itself and issued advertisement. Moreover, the advertisement for appointment was issued in a local news paper, which is evident from the counter affidavit filed by the Respondents (Para-3 Clause (b) and para 4) while the news paper should have statewide circulation. The relevant portion of the 1981 Order providing for circulation in the Uttar Pradesh of the news paper is reproduced below:
(2) The management shall as soon as may be, inform the District Inspector of Schools about the details of the vacancy and such Inspector shall invite applications from the local Employment Exchange and also through public advertisement in atleast two newspapers having adequate circulation in Uttar Pradesh.
13. A reading of Section 18(3) also makes it clear that an ad hoc appointment is to last for a definite period. Whether in making ad hoc appointment through direct recruitment the other requirements of law have been adhered to or not is also not clear. In view of the above, the appointment of Respondent No. 4 on ad hoc basis is no appointment in the eyes of law. The second question is answered in the negative.
14. It is clear from material available on record that the appointment of Respondent No. 4 was approved by the D.I.O.S. and Respondent No. 4 has continuously been working since 25-08-1990, It is difficult to understand under what circumstances the Respondent No. 4 has been allowed to continue to work after coming to an end the definite period for which he should have been allowed to continue. It will be also open for the Secretary Madyamik to take appropriate action in accordance with law against the Committee of Management, Respondent No. 1 for making appointment of Respondent No. 4 contrary to the provisions of law.
15. Even assuming that Petitioner was not entitled for promotion to the post of lecturer Hindi but it is also pertinent to note that if he would have challenged the selection process which was made through direct recruitment against the settled proposition of law, the position would have been different and he would have become entitled for promotion to the post of Lecturer Hindi. Therefore, in view of the peculiar facts and circumstances of the case it is directed that the Petitioner be considered for promotion on the post of lecturer Hindi within a period of two months from the date of production of a certified copy of the order but he shall not be entitled to any arrears of salary for the said post before his consideration and selection on the post of Lecturer Hindi.
16. The writ petition is allowed in terms of what has been stated above. However, there shall be no order as to costs.
