R.A. Sharma, J. - (1.) THE management of Amrit Intermediate College, Ruhana Mills, Muzaffarnagar (here -in -after referred to as the college) by an advertisement dated 16 -7 -1982 invited applications for short term appointment of a lecturer in English. The Petitioner applied in pursuance of the aforesaid advertisement and was selected by the management for the aforesaid post. The management of the College sought approval of the District Inspector of Schools, Muzaffarnagar (here -in -after referred to as the D.I.O.S.) for the said appointment and the D.I.O.S by his letter dated 30 -7 -1982 granted approval for short term appointment of the Petitioner as lecturer in English on ad hoc basis subject to the conditions that if the candidate selected by the U.P. Secondary Education Service Commission/Board joins the post or regular incumbent of the post is reverted to the college in pursuance of the order of the Court, the appointment of the Petitioner will come to an end automatically. The manager of the college accordingly issued a letter of appointment to the Petitioner for short term appointment as English lecturer on ad hoc basis subject to the same conditions, which were imposed by the D.I.O Section in pursuance of the appointment. the Petitioner started working in the college as English lecturer. The D.I.O.S. by his order dated 4 -7 -1985 directed the manager of the college to appoint in the college two reserve pool teachers, namely, Rakesh Kumar Mittal and Sri Subhash Babu Tyagi as lecturers in English and Physics respectively. It is "against this order, so far as it relates to the appointment of Sri Rakesh Kumar Mittal as English lecturer, that the Petitioner has filed this writ petition for its quashing. A further prayer for writ of mandamus directing the Respondents to treat him as having been appointed in a substantive capacity under Section 33 -A of the U.P. Secondary Education Services Commission and Selection Boards Act, 1982 (here -in -after referred to as the Act), has also been made.
(2.) LEARNED Counsel for the Petitioner has challenged the impugned order on the ground that the ad hoc appointment of the Petitioner having been regularised under Section 33 -A of the Act in 1985 itself, there was no vacancy in the college for appointment of a reserve pool teacher as English lecturer under Section 21 -B of the Act. Learned Counsel for the Respondents and the learned Standing Counsel have disputed the aforesaid submissions. Section 33 -A of the Act provides for regularisation of the services of directly appointed teachers appointed on ad hoc basis against substantive vacancy in accordance with paragraph 2 of the U.P. Secondary Education Service Commission (Removal of Difficulties Order), 1981 (here -in after referred to as the Removal of Difficulties Order, 1981) as amended from time to time. So far as it is relevant is reproduced below: 33 -A. Regularisation of certain appointments. (1) Every teacher directly appointed, before the commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Ordinance, 1985, on ad hoc basis against a substantive vacancy in accordance with Paragraph 2 of the Uttar Pradesh Secondary Education Service Commission (Removal of Difficulties Order, 1981. as amended from time to time, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of the Intermediate Education Act, 1921, shall, with effect from the date of such commencement, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such appointment up to the date of such commencement. Section 33 -A provides for regularisation of the appointment of those ad hoc teachers, who were appointed directly against a substantive vacancy in accordance with paragraph 2 of the Removal of Difficulties Order, 1981. Ad hoc appointment under paragraph 2 of the Removal of Difficulties Order, 1981 is required to be made by the D.I.O.S. on the basis of quality points in accordance with paragraph 5 of the said order. Under paragraph 5 of the applications for ad hoc appointment by direct recruitment are required to be invited by the D.I.O.S. and the candidates are to be selected on the basis of the quality points under his personal supervision. Services of only those teachers, who have been selected by the D.I.O.S. in accordance with Paragraph 5 of the Removal of Difficulties Order, 1981 against the substantive vacancy and appointed under Paragraph 2 of the said Order are liable to be regularised. The admitted position in the present case is that it was the management, which invited the applications and selected the Petitioner as English lecturer for the college. After having selected the Petitioner, the management sought approval from the D I O.S., who granted the necessary approval for appointing the Petitioner against the short term vacancy. The appointment letter was accordingly issued by the management of the college to the Petitioner appointing him as a short term lecturer on ad hoc basis according to the conditions specified by the D.I.O.S. in his order. It is thus, apparent that the Petitioner was neither appointed against a substantive vacancy nor was he selected and appointed under Paragraph 2 of the Removal of Difficulties Order, 1981 The Petitioner was in fact selected and appointed under U.P. Secondary Education Services Commission (Removal of Difficulties)(Second) Order, 1981. which provides for appointment against short term vacancy. Petitioner not having been appointed under Paragraph 2 of the Removal of Difficulties Order, 1981 against a substantive vacancy is not entitled to be regularised under Section 33 -A of the Act.
(3.) LEARNED Counsel for the Petitioner however, argued that Petitioner's appointment was against a vacancy which arose due to the transfer of English lecturer of the college to another college and the vacancy was as such a substantive vacancy against which the Petitioner was appointed. The fact that the Petitioner was appointed against a vacancy of Sri Ram Swarup Singhal, who was transferred to another institution is not disputed but it is admitted that a teacher of the institution to which Sri Ram Swarup Singhal was transferred has filed a suit challenging the order of transfer of Sri Ram Swarup Singhal, on account of which the vacancy which arose due to the transfer of Sri Ram Swarup Singhal was treated as short term vacancy and the applications were invited for short term vacancy and the appointment of the Petitioner was made as a short term lecturer by the management. The further submission is that the management of the college was not justified to appoint the Petitioner as a short term lecturer because the suit and the appeal filed against the decree passed in the suit had already been disposed of before the appointment of the Petitioner. Be that as it may, the fact remains that applications were invited for a short term vacancy and the Petitioner was selected and appointed by the management of the college as a short term lecturer. In case the Petitioner felt aggrieved by the management's action of appointing him as a short term lecturer, it was open to him not to accept it or to accept it under protest and challenge it before the appropriate forum at that time. Having once accepted the appointment as a short term lecturer it is not open to the Petitioner now to say that his appointment ought to have been made against substantive vacancy under Removal of Difficulties Order, 1981. His appointment cannot be said to be an ad hoc appointment under Paragraph 2 of the Removal of Difficulties Order, 1981 against a substantive vacancy. Petitioner as such, is not entitled to take advantage of the provision of Section 33 -A of the Act.;