S.C.Verma - (1.) THE dispute in this petition under Article 226 of the Constitution lies in a narrow compass.
(2.) THE Institution, National Inter College, Pindra, Varanasi is a duly recognised Institution under the provisions of the U. P. Intermediate Education Act and the provisions of U. P. Act No. 24 of 1971 are also applicable. THE vacancy on the post of Lecturer in Hindi was created on 30-6-1988 on the retirement of one Sri S N. Chaubey Necessary intimation in this regard was sent to the District Inspector of Schools, as required under the provisions of the U P. Secondary Education Services Commission and Selection Boards Act, 1982 as also Rules framed thereunder. THE petitioner who was functioning as L. T. grade teacher being the senior most was duly qualified to be promoted on ad hoc basis in vacancy of Lecturer in Hindi THE Committee of Management by Resolution dated 5-9-1988 resolved to give ad hoc promotion to the petitioner being the Senior most Assistant Teacher in L. T. grade possessing requisite qualification THE petitioner took charge of the post of Lecturer with effect from 6-9-1988. Necessary papers for approval of petitioner's appointment was also sent by the Institution to the District Inspector of Schools. THE petitioner was not paid his salary as ad hoc Lecturer in Hindi in spite of several reminders both by the management and by the petitioner. Hence the present petition for necessary direction to the respondents to pay the salary of the petitioner with effect from the date of appointment A counter affidavit has been filed on behalf of the District Inspector of Schools, Varanasi and the stand taken by the respondent appears to be that as the petitioner was not appointed substantively in L. T. grade, the promotion was not in accordance with the provisions of Regulation 6 (5) Chapter II providing for promotion of 40% seats reserved to be filled by promotion. It has further been objected that the candidate did not possess five years, minimum continuous substantive service to his credit in L. T. grade on the date of occurrence of vacancy. I have heard the learned counsel for the petitioner and the learned Standing Counsel. In my opinion, the stand taken by the respondents to deny the petitioner his salary is not in accordance with law. The present appointment was made in accordance with the provisions of Section 18 (1) (b) of the U. P. Secondary Education Services Commission and Selection Boards Act read with the U. P Secondary Education Services Commission (removal of Difficulties) Order. 1981 The present ad hoc appointment has been made till a regularly selected candidate is made available by the Service Commission According to the Removal of Difficulties Order, every vacancy for ad hoc appointment of Teacher in Lecturer grade is required to be filled by promotion of the Senior most teacher of the Institution in the Trained Graduates (L. T) Grade. It has further been provided that the candidate sought to be appointed by promotion must fulfil the essential qualification laid down in Regulation 1 of Chapter II of the Regulations made under the Intermediate Education Act. It is made clear that the present appointment being an ad hoe appointment by promotion, the requirements of Regulation 6 of Chapter II need not be complied with and the respondents were not correct in treating the present appointment as regular appointment by promotion for which the requirements are contained in Regulation 6. For the present appointment with which we are concerned, even if the conditions required for regular appointment by promotion under the provisions of the U. P. Secondary Education Services Commission and Selection Boards Act and the Rules framed thereunder are to be considered, the only requirement is that the teacher must possess the minimum qualifications and has put in at least five years continuous service as teacher on the date of occurrence of vacancy. In my opinion, if under Rule 9 of the U. P. Secondary Education Services Commission Rules where the procedure for appointment by promotion has been provided, there is no requirement of five years' continuous substantive service as Teacher, in L. T Grade, I see no reason why in the case of ad hoc appointment, this condition as contained in Regulation 6 of Chapter II of the Intermediate Education Act could be prescribed.
(3.) IN the present case, there is no dispute that on the date of occurrence of vacancy, the petitioner possessed the minimum qualifications as also he has put in five years' continuous service as Teacher in L. T. grade. The respondent can not treat the petitioner's appointment as illegal merely because he has not put in five years' continuous substantive service in L. T. grade for ad hoc promotion to Lecturer's Grade. Thus, for ad hoc appointment under Section 18 (1) (b) of the U. P. Secondary Education Services Commission and Selection , Boards Act, neither U. P. Secondary Education Services Commission Rules have laid down any such condition nor in the Removal of Difficulties Order, there is any requirement. The learned Standing Counsel, however, pointed out that under paragraph 6 sub-clause (c) of the Removal of Difficulties Order, it has been laid down that appointment by promotion under para 4 can be made only of candidate who has served the Institution in substantive capacity from before the date of commencement of this order. On a reading of sub-clause (c) of paragraph 6 of the Removal of Difficulties Order, this argument is liable to be repelled. Sub-clause (c) provides : "(C) The candidate sought to be appointed by promotion under paragraph 4 must have been serving the institution in substantive capacity from before the date of commencement of this Order.";