High Court
Case Details
Neutral Citation No. - 2023:AHC:99065 Court No. - 34 Case :- WRIT - A No. - 5717 of 2023 Petitioner :- Rajesh Kumar Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Adarsh Bhushan,Abhay Singh Tomar,Ajay Kumar Patel Counsel for Respondent :- C.S.C. Hon'ble Ajit Kumar,J. Heard Sri Adarsh Bhushan, learned counsel for the petitioner and learned Standing Counsel for the State respondents and no notice has been served upon respondent no. 4, the Committee of Management in the present case. Learned counsel for the petitioner states that there is no Committee of Management functioning at the moment in the institution and it is Authorized Controller who is working. Be that as it may, since the nature of the order is being passed today, it is not necessary to issue notice to respondent no. 4. At this
Legal Reasoning
stage as learned counsel for the petitioner submits that Authorized Controller is not disputing his claim. The grievance raised by the petitioner is that the order passed by the Regional level Committee is in the teeth of the order of this Court dated 09.12.2015, in which the Court had very elaborately dealt with the aspect regarding competence of the Committee of Management to make ad hoc appointments in respect of short term vacancies taking recourse to the Regulation 9 of Chapter III of the Intermediate Education Act, 1921. He submits that the controversy regarding competence of the Committee of Management in holding selection and appointment in respect of short term vacancy after Removal of Difficulties Order came to be repealed w.e.f. 25th January, 1999, as division bench has already held so in the case of Daya Shankar v. District Inspector of Schools and others which is still a good law, the Regional Level Committee was required to look into this legal aspect involved in the matter instead of just referring to the submissions advanced by respective parties. It is argued that Committee just believed the report of District Inspector of Schools filed before it according to which after repeal of Removal of Difficulties Order, no ad hoc appointment can be made against short term vacancy. Learned Standing Counsel has sought to justify the order for the reasons assigned therein, however submits that the opportunity may be given to the Regional Level Committee to deal with the matter in the light of the relevant law and take decision afresh. Having heard learned counsel for the respective parties and their arguments raised across the bar, I find the Regional Level Committee proceeded to examine an issue as to “whether Committee of Management has the requisite power to make an ad hoc appointment against short term vacancy taking recourse to the Regulation 9 of Chapter III of the Intermediate Education Act, despite clear mandate contained under regulations 9 and 10 of chapter II of the Intermedite education Act, 1921. This legal aspect has been dealt with elaborately in the judgment of this Court (supra). It is worth referring relevant part of the judgment which is reproduced hereunder: “We may note here with emphasis that Section 32 of the 1982 Act uses the words selection, appointment and promotion of a teacher. The words selection, appointment and promotion will include substantive as well as short term vacancies. Further we have to see whether there is any inconsistency or not in the provisions of the two Acts and the Rules and Regulations framed thereunder. We have already held above that the power of the Board to make selections is only with regard to appointments against substantive vacancies. There is no provision under the 1982 Act for making selection for appointments against short term vacancies. Under the 1921 Act, the procedure for selection of teachers and head of the institutions is laid down in section 16-E thereof. Power of the management to fill up short term vacancy having occurred on account of leave extending for more than six months or on suspension is specifically provided in sub section 11 of Section 16-E of the 1921 Act. 2 of 7 Further Chapter-II of the Regulations framed under the 1921 Act deals with the appointments of heads of the institutions and teachers. It refers to Sections 16-E, 16-F and 16-FF of the 1921 Act. Regulation 9 of the said Chapter confers the power on the management to fill up the short term vacancies arising out of leave exceeding period of six months and suspension of a teacher having been approved. The management thus was vested with the power under the 1921 Act and the Regulations framed thereunder to fill up short term vacancy. Further as there is no provision under the 1982 Act or the Rules and Regulations framed thereunder with regard to filling up of short term vacancies, it can be safely concluded that there is no question of any inconsistency in the two Acts or the Rules and Regulations framed thereunder for filling up short term vacancies. Thus taking aid of Section 32 of the 1982 Act the definition of vacancy given in 1998 Rules and the provisions contained in Section 16-E(11) of the 1921 Act and Chapter-II of the Regulations framed under the 1921 Act, the management of an institution is vested with the power to fill up short term vacancies. A Full Bench of this Court in the year 1994 in the case of Radha Raizada (supra) while dealing with the various provisions contained in the 1982 Act and the 1921 Act, had laid down that no ad hoc appointment could be made by the management against the substantive vacancy in view of the provisions contained in Sections 16 and 18 of the 1982 Act. It, however, further held that only short term vacancies could be filled up by the management after following the due procedure prescribed in the Second Removal of Difficulties Order, which had not been rescinded till then. After its rescission in 1999 the power to fill up short term vacancy of a teacher can be derived by the management from section 16-E(11) of the 1921 Act and regulation 9 of the Chapter II of the Regulations framed under the 1921 Act. We have also dealt with the practical aspect of the matter that in order to maintain not only the discipline but also the standard of education and commitment enforced under the Constitution, regular teaching is essential. For enforcing the same, in the given circumstances and under emerging situations, the short term vacancies need to be given urgent attention. If short term vacancies are not filled up in time, the teaching would intensely suffer. Apparently for this reason the Legislature knowing fully well that selections will be made by the Board, not for individual cases, but at State level would result into long durations, left the selection for short term vacancies outside the purview of the Board. The learned Single Judge in the case of Rakesh Chandra Misra (supra) while concluding had also dealt with the issue that the State Government must take urgent steps for meeting the exigencies of filling up all the vacancies which are unforeseen and also for the vacancies which are likely to occur in near future including regular substantive vacancies by providing a mechanism for making ad hoc appointments against such vacancies either by direct recruitment or by promotion till the duly selected candidate is made available by the Board. The learned Single Judge was referring to substantive vacancies 3 of 7 lying vacant for long durations and the management having been denuded of its powers for making the ad hoc appointments on substantive vacancies after the amendment of Section 18 of the 1982 Act, practical difficulties were arising in carrying out the primary goal of imparting quality education. These observations of the learned Single Judge in the case of Rakesh Chandra Misra (supra) were approved and reiterated by the learned Single Judge while making the reference order. Thus both the learned Single Judges have felt that there should be some provision for filling up the substantive vacancies by making ad hoc appointments. We are also of the considered view that vacancies whether substantive or short term, should be filled up at the earliest to maintain our Constitutional goal of imparting quality secondary education. However, as long as the statutes create a bar, the management cannot be conferred with any power to make ad hoc appointment against substantive vacancy. We have although taken the same view as in the case of Rakesh Chandra Misra (supra) but for different reasons. Therefore, the judgment in the case of Rakesh Chandra Misra (supra) cannot be said to have laid down any incorrect law.” Judgement of Rakesh Chandra Misra was held to be no more good in law. It is thus above observations that were taken into consideration while remanding the matter of the petitioner by this Court in its order passed in Writ A No. 16908 of 2000. In the circumstances, I am of the considered view that there was no room open for the Regional Level Committee to question the competence of the Committee of Management to make appointment upon a vacancy which had arisen on account of Assistant Teacher LT Grade being promoted as officiating principal of the institution. The only aspect that was to be looked into by the Regional level Committee was as to whether petitioner was possessed with prescribed qualification and whether formalities regarding selection and appointment of the petitioner had been followed as per procedure laid down under Regulations 9 and 10 or not. The relevant portion of the order of this Court by which Regional Level Committee was directed to decide the matter is also relevant to be reproduced hereunder so as to understand and appreciate the view of this Court: The question as to whether any appointment could be made by the Committee of Management once the Second Removal of Difficulties Order stood rescinded w.e.f. 25th of January, 1999, is no longer res- integra, inasmuch as a Division Bench of this Court, upon a reference in 4 of 7 Daya Shanker Mishra vs District Inspector of Schools and others 2011(1) ESC 221 (All) (DB) has been pleased to hold as under in para- 36:- "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. Both the questions are thus answered in the affirmative. Let the records of the writ petition be placed before the appropriate Court." In view of the observations made above, in my considered opinion, the Management had power to make adhoc appointments on a short term vacancy, under the provisions of the Act of 1921. In view of the authoritative pronouncement made on the issue by the Division Bench, the objection of the State that after the Removal of Difficulties Order was rescinded, the Management had no jurisdiction to fill up a short term vacancy cannot be sustained. Petitioner in Para-3 to 5 of the writ petition has asserted about the creation of a short term vacancy. This averment has not been specifically denied in para-4 of the counter affidavit. It has only been stated that the appointment was irregular and the salary paid has been recovered. Learned Standing Counsel has produced record, which contains a letter addressed by the Secretary of the State to the District Magistrate, Jaunpur dated 19th of January, 2000 for recovery of the amount. However, this order has not been served upon the petitioner nor has been passed after any opportunity of hearing to the petitioner and no reasons have been assigned for the appointment of the petitioner to be not in accordance with law. Since, this order of the State Government is merely available in the record of the respondents, and has not been served upon the petitioner, as such, it cannot be relied upon by the respondents to non-suit the petitioner. Even in the records produced by the learned Standing Counsel there is no reference of any enquiry or any reasons to non-suit the petitioner.
Decision
So far as the averments with regard to creation of short term vacancy is concerned, no material has been brought on record disputing petitioner's contention. Petitioner's appointment has otherwise been made after the post was advertised in two prominent Hindi newspapers, "Aaj" and "Dainik Jagran". The selection committee has also been constituted and relying upon the quality points marks awarded as per the regulations, the petitioner claims to have been appointed. These averments have not been specifically denied. In such circumstances, the respondents are not justified in refusing payment of salary to the petitioner on the basis of averments made in the counter affidavit. The writ petition, consequently, is disposed of with a direction upon the District Inspector of Schools, respondent No. 1, to transmit the papers relating to petitioner's appointment within a period of four weeks from the date of presentation of certified copy of this order to the Regional Level Committee, which shall examine the claim of petitioner, strictly in 5 of 7 accordance with law, within a period of three months from the date of presentation of certified copy of this order. (emphasis added) From the above aspect if the order impugned is judged, I find that the Regional Level Committee has thus referred to the submissions of the parties and the report of the District Inspector of Schools but in the finding part of it, it failed to discuss as to why and under what circumstances, it was not bound by the judgment of the division bench of this Court discussed in the order of a Coordinate bench of this Court. The manner and method in which repeal of the Removal Difficulties Order has been discussed and no reference has been made to the judgment and Regulations 9 and 10 of Chapter II of the Intermediate Education Act, 1921, the arbitrariness in discharge of its duty by the Committee is apparent on the face of record . No where in the entire order it has come to be mentioned as to whether petitioner’s appointment was bad for certain irregularities. Since question of competence of Committee of Management to make appointments on ad hoc basis against short term vacancy is no more res integra, that aspect could not have been gone into by the Regional Level Committee and the order impugned to that extent is per se bad. However, there still remains a matter to be considered as to whether relevant procedure prescribed for under Regulations 9 and 10 in the matter of selection and appointment of the petitioner was followed or not . In view of above, order dated 18th January, 2023 is hereby quashed. The matter is remitted to the Regional Level Committee only to the extent to examine the procedural aspect in the matter of selection and appointment of the petitioner. Appropriate decision shall be taken by the authority within next two months from the date of production of certified copy of this order. The Regional Level Committee will require not only to afford reasonable opportunity to the petitioner but also to the Authorized Controller and shall examine the records and give the reasons in the order to be passed by it . 6 of 7 With the aforesaid observations, this writ petition stands disposed of. Order Date :- 8.5.2023 Sanjeev Digitally signed by :- SANJEEV RANJAN High Court of Judicature at Allahabad 7 of 7