Ashok Bhushan, J.@mdashHeard counsel for the petitioners and the learned standing counsel appearing for the respondents. Counter and rejoinder affidavits have been exchanged and with the consent of the parties, the writ petition is being finally disposed of.
2. By this writ petition, the petitioners have prayed for quashing the order dated 10th June, 2005 passed by District Inspector of Schools (Annexure-9 to the writ petition).
3. Petitioners'' case in the writ petition is that both the petitioners were appointed as ad hoc Assistant Teacher, LT. Grade in Gangapur Inter College, Gangapur, Varanasi on two short term vacancies caused due to promotion of Hira Lal Yadav, LT. Grade teacher and Sri Rajesh Kumar Singh, permanent C.T. Grade teacher. It is claimed that aforesaid two short term vacancies were advertised by the Committee of Management in two newspapers and thereafter the petitioners were selected and appointed on 24th November, 1997. Petitioners claim to have joined on 30th November, 1997. The papers praying for approval of the petitioners'' ad hoc appointment on short term vacancies were forwarded to the District Inspector of Schools. When no decision was taken, a writ petition being Writ Petition No. 53233 of 1999 was filed by the petitioners which was disposed of on 23rd December, 1999 directing the District Inspector of Schools to decide the matter. The District Inspector of Schools by the order dated 26th August, 2000 rejected the representation of the petitioners. The District Inspector of Schools in his order pointed out several reasons for not approving the appointment. The petitioners filed Writ Petition No. 50480 of 2000 challenging the order of District Inspector of Schools. This Court vide its judgment dated 18th February, 2005 allowed the writ petition and quashed the order of District Inspector of Schools. This Court while allowing the writ petition held that all the reasons given by the District Inspector of Schools for rejecting the claim of the petitioners were erroneous. One of the reasons given by the District Inspector of Schools in the order dated 26th August, 2000 was that in accordance with Rule 15 of the Uttar Pradesh Secondary Education Services Commission Rules, 1995 the Committee of Management has no power to make ad hoc appointment and the appointment was to be made by the Regional Deputy Director of Education.
4. This Court vide order dated 18th February, 2005 directed the District Inspector of Schools to pass an order taking into consideration the observations made in the judgment. Subsequent to the order of this Court the District Inspector of Schools passed the order dated 10th June, 2005 rejecting the representation of the petitioner. The order dated 10th June, 2005 has been challenged in this writ petition. The District Inspector of Schools in his order dated 10th June, 2005 has held that the Committee of Management was not empowered to make ad hoc appointment of the petitioners. He held that ad hoc appointment on short term vacancy was required to be made u/s 18 of U.P. Act No. 5 of 1982 as amended by U.P. Act No. 24 of 1992 and it was only the Regional Committee constituted u/s 18 of the U.P. Act No. 5 of 1982, which was empowered to make ad hoc appointment and the Committee of Management had no jurisdiction to make ad hoc appointment. Reference of Rule 15 of U.P. Secondary Education Services Commission Rule, 1995 has also been made for coming to the conclusion that the Committee of Management was not empowered to make ad hoc appointment. The District Inspector of Schools thus has mainly rejected the representation on the ground that Committee of Management had no power to make ad hoc appointment.
5. Learned Counsel for the petitioner, challenging the order passed by District Inspector of Schools, contended that the Committee of Management was fully empowered to make ad hoc appointment and the order of District Inspector of Schools rejecting the representation of the petitioner dated 26th August, 2000 having already quashed by this Hon''ble Court on 18th February, 2005, it was not open for the District Inspector of Schools to again take the ground that the Committee of Management was not empowered to make ad hoc appointment. He further contended that Committee of Management was fully empowered to make ad hoc appointment on short term vacancy in accordance with the U.P. Secondary Education (Removal of Difficulties) (Second) Order, 1981.
6. Learned standing counsel supported the order of District Inspector of Schools and contended that the view taken by the District Inspector of Schools is correct. He further submitted that the short term vacancies arose long back and they might have been converted into substantive vacancies and after conversion the petitioners are neither entitled to continue nor entitled to receive salary after such conversion.
7. I have considered the submissions and perused the record.
8. As noted above, the earlier order of District Inspector of Schools rejecting the representation of the petitioner was set-aside by this Court on 18th February, 2005. In the impugned order now passed by the District Inspector of Schools only one reason has been given that the Committee of Management had no jurisdiction to make ad hoc appointment of the petitioners and the power to make ad hoc appointment was vested only with the Regional Committee constituted u/s 18(8) of U.P. Act No. 5 of 1982.
9. After the enforcement of U.P. Secondary Education (Services Selection Board) Act, 1982 the ad hoc appointment was to be made u/s 18. The U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 and U.P. Secondary Education (Removal of Difficulties) (Second) Order, 1981 were issued in view of the fact that Commission was to take some time in functioning. The present is a case of short term vacancy, hence it is required to be considered whether for short term vacancies the view of the District Inspector of Schools that the Regional Committee constituted u/s 18(8) of U.P. Act No. 5 of 1982 is alone empowered to make ad hoc appointment or the Committee of Management can make ad hoc appointment.
10. The ad hoc appointment of the petitioners on short term vacancies were made in the year 1997, hence the provisions as existing at the relevant time is required to be considered. Section 18 of U.P. Act No. 5 of 1982 as existed at the relevant time is as follows:
[18. Ad hoc Teachers.-(1) Where the Management has notified a vacancy to the [Board] in accordance with Sub-section (1) of Section 10 and the post of a teacher actually remained vacant for more than two months, the Management may appoint by direct recruitment or promotion a teacher on purely ad hoc basis, in the manner hereinafter provided in this section.
(2) A teacher other than a Principal or Headmaster, who is to be appointed by direct recruitment may be appointed on the recommendation of the Selection Committee referred to in Sub-section (8).
(3) A teacher other than a Principal or Headmaster, who is to be appointed by promotion, may in the prescribed manner be appointed by promoting the senior most teacher, possessing prescribed qualifications-
(a) in the trained graduate''s grade, as a lecturer, in the case of a vacancy in the lecturer''s grade;
(b) in the Certificate of Teaching grade, as teacher in the trained graduate''s grade, in the case of a vacancy in the Trained graduate''s grade.
(4) A vacancy in the post of a Principal may be filled by promoting the senior most teacher in the lecturer''s grade.
(5) A vacancy in the post of a Headmaster may be filled by promoting the senior most teacher in the grained graduate''s grade.
(6) For the purposes of making appointments under Sub-sections (2) and (3), the Management shall determine the number of vacancies, as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, The Scheduled Tribes and Other Backward Classes of citizen in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and, as soon as may be thereafter, intimate the vacancies to be filled by direct recruitment to the District Inspector of Schools and if the Management fails to intimate the vacancies and the post of a teacher has actually remained vacant for more than three months, the District Inspector of Schools may, subject to such directions as may be issued by the Director and after verification from such institution or from his own record, determine such vacancies himself.
(7) The District Inspector of Schools shall, on receipt of intimation of vacancies or as the case may be, after determining the vacancies under Sub-section (6), forward the same to the Deputy Director of Education incharge of the Region, who shall invite applications from the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder, for ad hoc appointment to the post of teachers other than Principal or Head Master in such manner as may be prescribed.
(8) (a) For each region there shall be a Selection Committee for selection of candidates for ad hoc appointment by direct recruitment comprising -
(i) Regional Joint Director of Education;
(ii) Regional Deputy Director of Education (Secondary);
(iii) Regional Assistant Director of Education (Basic).
The Regional Joint Director of Education shall be the Chairman.
(b) The Selection Committee constituted under Clause (a) shall make selection of the candidates, prepare a list of the selected candidates, allocate them to the institutions and recommend their names to the management for appointment under Sub-section (2).
(c) The criteria and procedure for selection of candidates and the manner of preparation of list of selected candidates and their allocation to the Institution shall be such as may be prescribed.
(9) Every appointment of an ad hoc teacher under Sub-section (1) shall cease to have effect from the date when the candidate recommended by the (Board) joins the posts.
(10) The provisions of Section 21-D shall mutatis mutandis apply to the teachers who are to be appointed under the provisions of this section.
11. According to Section 18 the Committee of Management was entitled to make ad hoc appointment on substantive vacancies provided it had notified the vacancy to the Board in accordance with Sub-section (1) of Section 10 and the post of a teacher actually remained vacant for more than two months. With effect from 14th July, 1992 Section 18 was amended and the power of the Committee of Management to make ad hoc appointment was taken away and entrusted to the Regional Committee headed by Joint Director of Education. Thus u/s 18 the Committee of Management had no jurisdiction to make ad hoc appointment after 14th July, 1992. However, the ad hoc appointment u/s 18 was to be made only on substantive vacancies which were intimated to the Board. Section 18 never contemplated ad hoc appointment on short term vacancy. Thus the mechanism provided u/s 18 for ad hoc appointment is only with regard to substantive vacancies which have been intimated to the Board. Section 18 can never be resorted to with regard to ad hoc appointment on short term vacancy. For making ad hoc appointment on short term vacancy the provisions of U.P. Secondary Education (Removal of Difficulties) (Second) Order, 1981 were holding the field at the relevant time. The Full Bench of this Court in Km. Radha Raizada v. Committee of Management and Ors. (1994) 3 UPLBEC 1551 has held that difficulties orders were still continuing and ad hoc appointment on short term vacancy was required to be made in accordance with the procedure prescribed in the U.P. Secondary Education (Removal of Difficulties) (Second) Order, 1981. Thus it is clear that the Committee of Management was fully empowered to make ad hoc appointment on short term vacancy at the relevant time and the District Inspector of Schools has committed error in relying on Section 18 of U.P. Act No. 5 of 1982. The appointments of the petitioners were not referable to Section 18 and the provisions of Section 18 have no relevance with regard to ad hoc appointment on short term vacancies. The District Inspector of Schools committed serious error in rejecting the claim of the petitioner on the aforesaid ground moreso when this Court already allowed the writ petition of the petitioners setting aside the earlier order of District Inspector of Schools dated 26th August, 2000 by which the claim of the petitioners was rejected.
12. It will not be out of place to refer to Rule 15 of the U.P. Secondary Education Services Commission Rules, 1995 which has also been relied by the District Inspector of Schools in the impugned order. The ad hoc appointment contemplated under Rule 15 is ad hoc appointment of the teachers in respect of the vacancies to be filled in by direct recruitment u/s 18 of the Act. It is true that the procedure for ad hoc appointment u/s 18 has been prescribed by the aforesaid Rule-15 but the said ad hoc appointment relates to ad hoc appointment u/s 18. The present is not a case of ad hoc appointment u/s 18 but petitioners'' ad hoc appointments were made on short term vacancies in accordance with U.P. Secondary Education (Removal of Difficulties) (Second) Order, 1981, hence reference of Rule 15 by the District Inspector of Schools in the impugned order is misplaced.
13. In view of the aforesaid, the order of District Inspector of Schools impugned in the writ petition cannot be sustained and is hereby quashed. It is held that petitioners'' ad hoc appointment on short term vacancies were fully entitled to be approved and the District Inspector of Schools has committed error in not approving the said ad hoc appointments. Learned standing counsel at this stage has submitted that the short term vacancies, which were continuing since long, might have been converted into substantive and at least from the date the vacancies have been converted, the petitioners are not entitled to continue nor payment of salary. This Court is not expressing any opinion on the aforesaid issue.
14. However, it is observed that District Inspector of Schools shall also look into this aspect of the matter and take a decision as to whether the short term vacancies on which the petitioners have been appointed are still continuing or they have been converted in to substantive vacancies. The District Inspector of Schools shall consider the nature of the aforesaid short term vacancies and pass appropriate order.
15. In the result, the writ petition succeeds and is allowed. The District Inspector of Schools is directed to pass necessary consequential order within a period of four weeks from the date of production of a certified copy of this order.
