S.R.Singh, J. - (1.) SARVODAYA Kisan Intermediate College, Gorakhpur (hereinafter referred to as 'College') is a recognised and aided Intermediate College the affairs of which are being managed by a Committee of Management constituted in accordance with the Scheme of Administration as approved under Section 16 -A of the U.P. Intermediate Education Act (hereinafter referred to in short as 'Act'). With the promulgation of U.P. Secondary Education Services Commission and Selection Boards Ordinance, 1981 followed by the U.P. Act No. 8 of 1982 the appointment of teachers in the College stands governed by the provisions contained in the said Act which visualised constitution of Selection Board for appointment of teachers in C.T. Grade and constitution of a Commission for appointment of the scheduled teachers, namely teachers in L.T. Grade, Lecturer and Principal. Admittedly, the Selection Board contemplated by the Act, never came into being whereas the Commission for purpose of selection of the scheduled teachers was constituted and the same is functioning. Upon the occurrence of a substantive vacancy in C.T. grade, the Committee of Management of the College, as is borne out from the facts on record, advertised the post on its notice board and invited applications for selection and appointment as such on ad hoc basis. The petitioner was selected for appointment on ad hoc basis, by the Committee of Management and the papers were forwarded to the District Inspector of Schools for approval. On receipt of papers, the District Inspector of Schools accorded approval vide letter dated 6 -10 -1981, but subsequently, he recalled approval accorded to the selection of the petitioner by means of the order dated 22 -10 -1981. Aggrieved by the said order recalling approval, the Management Committee took up the matter with the Deputy Director of Education under Clause (7) of U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981. The appeal was allowed by the Deputy Director, Education, 7th Region, Gorakhpur vide order dated 23 -8 -1982 and the order passed by the District Inspector of Schools dated 22 -10 -1981, was set aside. In substance, the petitioner's ad hoc appointment as approved by the District Inspector of Schools by letter dated 6 -10 -1981, was upheld and affirmed by the Deputy Director of Education. This appointment was not strictly in conformity with the provisions of U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 in that the procedure contemplated by Clause (5), of the said Removal of Difficulties Order was not followed and the selection of the petitioner was not made by the District Inspector of Schools but it was made by the Committee of Management itself, nevertheless, the ad hoc appointment was referable to no provision of law except the provisions contained in U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 and the ad hoc appointment of the petitioner shall be deemed to be an appointment under Clause 5 of the said Removal of Difficulties Order.
(2.) LEARNED Counsel for the respondent pressed before me a Division Bench authority of this Court reported in Brijesh Chand Yadav v. D.I.O.S., UPLBEC 1990 (2), p. 1215 and contended on that basis that since the appointment of the petitioner was not made by the District Inspector of Schools under Clause 5 of the Removal of Difficulties Order, 1981 which visualises selection on the basis of equality point marks it would not be deemed to be an appointment under the pro visions of U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 for purposes of Section 33 -A of U.P. Act No. 8 of 1982, which provides for regularisation of ad hoc appointment made directly before the commencement of U.P. Secondary Education Services Commission and Selection Boards (Amendment) Ordinance, 1985 against a substantive vacancy in accordance with paragraph 2 of U.P. Secondary Education Services 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, with cited from the date of commencement, namely, 12 -6 -1985. In the case of Brijesh Chand Yadav (supra), the Division Bench of this Court held, on the facts of that case, that the vacancy in that case was advertised by the District Inspector of Schools in newspaper on 27 -8 -1983 for purposes of making ad hoc appointment in accordance with the provisions of the aforesaid Removal of Difficulties Order, but the Committee of Management had already passed a resolution for the appointment of Brijesh Chand Yadav vide resolution dated 2 -7 -1983 and the appointment as a result of the said resolution was also approved by the District. Inspector of Schools. Approval purports to have been given under Regulation 9(3) of Chapter II of the Regulations made under U.P. Intermediate Education Act which obviously was not attracted for applicability of the said provision stands excluded after the enforcement of U.P. Secondary Education Services Commission and Selection Board Act, 1982 in view of Sections 15 and 32 of the said Act read with the provisions of the U.P. Secondary Education Services -Commission (Removal of Difficulties) Order, 1981. The attention of the Bench was not invited towards Sections 16 and 32. The decision therein is per incurium. Further the Division Bench was not concerned with a case where ad hoc appointment was approved by the District Inspector of Schools and affirmed by the Regional Director of Education in appeal under paragraph 7 of the said Removal of Difficulties Order, 1982. In the above perspective, the law laid down by the Division Bench, would not operate as binding precedent. The contention of the learned counsel for the respondent on this question has, therefore, no merit.
(3.) THE next question for consideration prescribed before me is whether the petitioner was entitled to be regularised with effect from 12th June, 1985, by virtue of Section 33 -A of U.P. Act No. 8 of 1982 As held above, the petitioner was appointed prior to the said date on ad hoc basis and his appointment was approved by the District Inspector of Schools in 1981 and the approval was upheld by the Regional Deputy Director of Education as stated hereinbefore. The appointment of the petitioner, though not strictly in conformity of paragraph 5 of the Removal of Difficulties Order 1981, would be deemed to be an appointment under the said provision for purposes of Section 33 -A of the Act qua the order passed by the Deputy Director of Education referred to hereinbefore. Thus, I am of the considered view that the petitioner would, therefore, be entitled to the benefits of Section 33 -A of U.P. Act. No. 8 of 1982 and his services in C.T. grade would be deemed to have been regularised in substantive capacity with effect from 12th June 1985;