Writ Petition No. (SS) 1075 of 2006 v. State of Uttaranchal & Ors.

namely, Intermediate College, Srikhet, District Almora; or in the alternative with effect from 23.12.1990, when 2 the said Institution was provincialised by the State Government. III. Issue a writ, order or direction in the nature of Mandamus commanding the respondents to pay salary of the post of L.T. grade teacher to the petitioner w.e.f. 23-12-1990, the date of provincialisation of Institution till 12-09-1991, for discharging his duties as a teacher of L.T. grade in the provincialised institution, namely, Govt. Intermediate College, Srikhet, Almora, pursuant to the condition 5 of the Govt. order dated 30- 11-1990. IV. Issue any other order or direction which this Hon(cid:146)ble Court may deem fit and proper in the facts and circumstances of the case. V. Award the cost of petition to petitioner.(cid:148)

3. Subsequently by an amendment following prayer was also made : (cid:147)(III-A). Issue a writ, order or direction in the nature of Certiorari, quashing the order dated 06-07- 1992, contained in Annexure C.A.-1 to the Counter Affidavit.(cid:148)

4. The case of the petitioner is that he was appointed as an Assistant Teacher L.T. grade on ad hoc basis in a grant in aid school, namely, Intermediate College Srikhet, Almora vide appointment order dated 24.8.1990 which was effective from

8.8.1990. This appointment of the petitioner was approved by the District Inspector of Schools of the concerned District vide order dated 23.8.1990. Consequently the erstwhile State of Uttar Pradesh vide order dated 30.11.1990 took a decision to provincialise eight institutions including the institute where the petitioner was appointed as an Assistant Teacher 3 L.T. grade on ad hoc basis. These eight institutions were actually taken over by the Government on 23.12.1990 vide order dated 30.11.1990. The case of the petitioner is that while he continued to discharge his duties as an Assistant Teacher L.T. grade in ad hoc capacity in the said school, he was not given any salary between 23.12.1990 to 12.9.1991. Meanwhile the petitioner took a fresh appointment in another school as C.T. grade teacher with effect from 13.9.1991 in the Government Higher Secondary School. Pursuant to that appointment, the petitioner continues teach and subsequently he was promoted as an Assistant Teacher L.T. grade and at the time of filing the present writ petition he was working as an Assistant Teacher L.T. grade.

5. The main prayer of the petitioner in this writ petition is that he should be treated as Assistant Teacher L.T. grade from the back date i.e. w.e.f. 8.8.1990 when he joined the services in a grant-in-aid school, namely, Intermediate College, Srikhet, District Almora though on ad hoc basis which was subsequently taken over by the Government.

6. The State Government in its counter affidavit has contested every claim made by the petitioner and has challenged the very order by which the petitioner was initially appointed and has also challenged the entire procedure under which the petitioner gained appointment in the grant- in-aid school in ad hoc capacity on the post of Assistant Teacher L.T. grade. The reasons are as follows :- According the State, the same management committee of the school, where the petitioner was appointed in an ad hoc capacity, had recommended the appointment of the petitioner in the year 1990 had even a year prior to it i.e. 4 on 24.6.1989 had passed a resolution recommending the provincialisation of the said institute. This resolution of the management committee was sent to the Government on

26.8.1989. In other words, much before the Committee of Management of the said school had taken a decision to appoint the petitioner on ad hoc basis, it had already taken a decision and had sent its proposal to the Government regarding provincialisation of the institute. The respondents in their counter affidavit, has annexed a letter dated

6.7.1992 of the then Director of Education, Uttar Pradesh, Allahabad which has been addressed to the Deputy Director of Education, Kumaon Division. In this letter, which is Annexure CA-1 to the counter affidavit, the entire facts of the case have been stated. This is the letter which is heavily relied upon by the State to rebut the argument of the petitioner. Inter alia, it has been alleged by the State that in the earlier resolution of the Committee of Management, the Committee had resolved that from the date of sending the resolution i.e. 24.6.1989 the Government provincialisation no fresh appointment shall be made by the Committee of Management and the Committee of Management refrain from making any appointment. Therefore, the recommendation of the petitioner for the appointment to the post of Assistant Teacher L.T. grade though in ad hoc capacity was in violation of its own resolution sent to the Government. Therefore, this Court is of a considered view that once the wheel had been set to motion regarding provincialisation of the institute vide resolution dated 24.6.1989, the Committee of Management should have refrained from making any appointment on the post whether ad hoc or permanent. It clearly shows a mala fide on the part of this Committee of Management which, on the one hand, recommends the provincialisation of the school and 5 undertakes not to make any appointment and, on the other hand, recommends the name of the petitioner appointment to the post of Assistant Teacher L.T. grade.

8. Apart from this perversity, there is another fact which the petitioner has failed to establish before this Court which is the law laid down by the High Court of Judicature at Allahabad in Kumari Radha Raizada and others, 1994 (2) ESC 345 (FB) that even in the short term vacancies for ad hoc appointment, the vacancy has to be clearly advertised so that all the eligible candidates must response to that vacancy. Nothing has been shown by the petitioner that he applied to the post in response to the advertisement issued the Committee of Management. Therefore, appointment of the petitioner as Assistant Teacher L.T. grade on ad hoc capacity in Intermediate College, Srikhet, District Almora which subsequently became provincialised cannot be said to be fair or done within due process of law. No benefit therefore can be given to the petitioner.

9. The writ petition is therefore liable to be dismissed and is hereby dismissed.

10. No order as to costs. (Sudhanshu Dhulia, J.)

4.8.2012 Avneet