- (1.) R. B. Misra, J. Heard Sri V. K. Singh, learned Counsel for the petitioner as well as Sri M. C. Chaturvedi, Addl. Chief Standing Counsel along with Sri S. S. Sharma and Enakshi Sharma learned Standing Counsel.
(2.) IN this writ petition prayer has been made to quash the order dated 32-4-1997 (Annexure-14 to the writ petition) passed by the Deputy Director of Education (Madhyamik), V Region, Varanasi and further prayer has been made for commanding the respondents to make payment of salary to the petitioner regularly along with arrears. The case was heard by this Court several times and on 19-10-2001 this Court has passed order which reads as below: "smt. Sudha Chaturvedi has appeared in person. Sri Rajni Kant Tiwari, learned Standing Counsel, is also present for respondent Nos. 1 and 2. No one has appeared for Committee of Management. This Court had granted time to learned Standing Counsel to file a counter affidavit vide its order dated 8th May, 1997 but no counter affidavit has been filed so far. The Management has filed a counter affidavit which supports the claim of the petitioner. This Court has also passed an order on 6-12-1999 directing the District INspector of Schools to reconsider the grant of approval. The petitioner has filed a supplementary counter affidavit today annexing copy of the order dated 2-11-2000 passed by the District INspector of Schools rejecting the representation of the petitioner. Petitioner has filed this writ petition challenging the order passed by the Deputy Director of Education dated 23rd April, 1997. Petitioner had claimed her appointment as ad-hoc Assistant Teacher L. T. grade in short term vacancy which arose due to promotion of Smt. Veena Mishra on the post of Principal. The Deputy Director of Education by impugned order has refused to pay salary to the petitioner only on the ground that there was ban on appointment at the time when the petitioner was appointed. Petitioner has claimed her appointment on short-term vacancy on 15-2-1996. On 15-2-1996 there was no ban on ad-hoc appointment on short-term vacancy. IN the order passed by Deputy Director of Education which is impugned in the writ petition, it is said that petitioner joined and is working. This Court in Mukesh Kumar v. State of U. P. and others, 1996 AWC 556, has already held that procedure for appointment on short-term vacancy was the same which was there earlier to 14th July, 1992. IN view of the above, operation of the order dated 23rd April, 1997 of the Deputy Director of Education (Annexure-14 to the writ petition) is stayed and the respondents are directed to pay current salary to the petitioner as ad-hoc Assistant Teacher in Adarsh Kanya INtermediate College, Sikhar, Mirzapur. Learned Standing Counsel prays for and is allowed a month's further time to file a counter affidavit. List thereafter. " The order dated 23-4-1997 was passed by the Deputy Director of Education on the representation of the petitioner for payment of salary. According to the petitioner her appointment was made against the vacancy which had occurred on account of promotion of senior most teacher to the post of Head Master on ad-hoc basis in Adarsh Kanya Intermediate College, Sikhar, Mirzapur and the Deputy Director by its order dated 23-4-1997 by observing factual aspect of the petitioner has declined to sanction of appointment and salary on the ground that the ban was imposed at the time of making appointment whereas on this specific point the ban was communicated by G. O. No. 3136/15/7/1 (220)/91 dated 30th July, 1991 enclosed as Annexure C. A. 3. However it has been submitted on behalf of the petitioner that this ban was only till 26-9-1991 whereas the petitioner was appointed against short-term vacancy on 15- 2-1996 and has joined the service on 16-2-1996, according to her since then she has continuously being in service as Assistant Teacher L. T. grade in the said college and is not being paid salary despite the direction. This Court in 2002 (2) LBESR 253 (All) ; (2002) 2 UPLBEC 1597, Vinod Kumar Srivastava v. District Inspector of Schools Jalaun and others, have observed that the vacancy created on the post of the teacher by virtue of the promotion of that teacher to the post of ad-hoc Principal is treated to be short-term vacancy and appointment of the writ petitioner on that vacant post, after due publication of its advertisement in two newspapers and selection by Selection Committee was illegal and the papers sent to the D. I. O. S. for financial approval, if rejected after 7 days shall not effect the writ petitioner's entitlement to pay and continuance on the post appointed. This Court in Vinod Kumar Srivastava's case has observed as below: " (5) For this purpose the petitioner has placed reliance on [ (1999) 2 UPLBEC 1621], [ (1998) 1 UPLBEC 276] 1998 (2) LBESR 138 (All) (Shri Niwas Singh v. District Inspector of Schools, Ghazipur and others ). The para 2 of Shri Niwas Singh (supra) it was observed: " (2) The version of the petitioner is that Shri Satyendradeo Singh was permanent Principal of the Institution. He retired on 30th June, 1991. On his retirement one Sri Daya Shankar Singh the senior most lecturer was promoted as ad hoc Principal by the Committee of Management. On account of promotion of Sri Daya Shanker Singh a vacancy arose in the Institution on the past of Lecturer. Sri Digvijay Singh was promoted to the post of Lecturer from the post of L. T. grade teacher. On his promotion the vacancy to the post of Assistant Teacher in L. T. grade fall vacant. As the promotion order had not been confirmed, there was a short term vacancy. " In para 7 of Shri Niwash Singh (supra) it was held: " (7) The procedure for making ad hoc appointment on short terms vacancy has been given in U. P. Secondary Education Services Commission (Removal of Difficulties Order) (Second), 1981. The power has been given to the Committee of Management to make short terms appointment on the basis of the procedure prescribed therein. It does not require that any permission of the District Inspector of Schools is to be obtained before any selection for appointment is to be make. Para 2 (3) only provides that the Management shall intimate the vacancy to the District Inspector of Schools and after making the selection in the manner prescribed therein, the names of the selected candidates shall be forwarded to the District Inspector of Schools and on such communication, the District Inspector of Schools hall communicate his decision in respect of approval of selection within seven days of the date of receipt of papers by him failing which the Inspector will be deemed to have given his approval". (6) In the order dated 13-12-2001 of this Court passed in writ petition (Bhuvnesh Kumar Tyagi v. District Inspector of Schools and others), it was observed as below: "on account of retirement of one Lecturer in the College, said vacancy was filled in by ad-hoc promotion and thus short-terms vacancy arose in the college in LT grade. As the aforesaid vacancy in LT grade was filled up on short term basis, the Manager requested the DIOS to fill up the same. As no action was taken by the DIOS, the management appears to have advertised the post in question in two daily news papers namely `pioneer' and `aaj'. The extracts of the advertisement published in the news-papers are Annexures 1 and 2 to the writ petition. The petitioner claims to have been duly selected in respect to which an appointment letter was issued on 20-2-1999. In the light of the appointment letter so issued, the petitioner joined his duties on 22-2-1999. When the papers sent by the management to the DIOS on 22-3-1999, and no orders were passed, reminders were also given on 24-3-1999 and 6-4-1999 for issuing necessary order according financial approval. Thereafter, by order impugned in this petition i. e. 30-4- 1999, it has been communicated that as no permission has been obtained for making appointment on the post in question, grant of approval/financial sanction is not possible. It is this order of the DIOS which made the petitioner aggrieved to come this Court. " "as the petitioner was duly selected in pursuance of the advertisement for short term vacancy and in view of the fact that even after seven days, no disapproval was communicated and as such the was entitled to continue on his post and to receive salary. " (7) In reference to 1996 (3) ESC 151 (SC), J. A. Inter College, Khurja v. State of U. P. and others, and (1994) 3 UPLBEC 1551 (FB), Radha Raizada v. Committee of Management Vidhyawati Darsari Girls Inter College, and in reference to Chatur Singh v. Regional Deputy Director of Education, Agra, (Writ Petition No. 37497 of 1996 decided on 3-12-1996 (Alld) it was held in (1999) 2 UPLBEC 1621, Smt. Pratima Chauhan and another v. Regional Deputy Director of Education (Madhyamik, Agra and others, as under: " (c) Service Ad-hoc appointment on post of teacher for filling short term vacancy-made after advertising that post only in one news-paper. Will not invalidate appointment. It is only a technical irregularity. Such appointee can be allowed to continue till regularly selected available from commission is available for appointment However, such ad-hoc appointee will have no right to claim regularisation. " (8) I have heard learned Counsel for the parties and perused the records. I find in the facts and circumstances, the cases referred by the learned Counsel of the petitioner are protecting the cause of the petitioner the vacancy created by the appointment of senior teacher of the institution as ad-hoc principal shall be termed as short term vacancy and advertisement to the appointment of assistant teacher in L. T. grade to be appointed on the short term vacancy was duly published in two news papers, the selection committee was duly constituted and petitioner was appointed to the post in question on 5-10-1997 and the relevant papers in respect of financial approval was sent to (DIOS) who had rejected financial approval on 15-10-1997 by letter dated 17-10-1997 i. e. after seven days and since the manager of the institution has power to make appointment in the institution on such vacancy/post, therefore, the DIOS was under obligation to give approval to the appointment made on the short term vacancy and in the present facts and circumstances, the petitioner was entitled to continue on the post in question and is entitled to receive the salary, therefore, the order dated 17-10-1997 (Annexure 7) is set aside in view of the above observations and the respondents are directed to pay salary as assistant teacher in II Grade in month to month as and when its false due". Counter affidavit and rejoinder affidavit have been exchanged. I have gone to the contents of the counter affidavit and rejoinder affidavit and heard learned Counsel for the parties. I find that the petitioner's appointment was made against the short-term vacancy after advertising the said post in two newspapers published and widely circulated and after duly selected by the Selection Committee the petitioner was appointed on 16-2-1992 and till date no regular selection has been made by the Uttar Pradesh Secondary Services Selection Board/commission and Smt. Veena Mishra who was appointed earlier as a ad hoc Principal is still continuing. The Deputy Director of Education, V Region, Varanasi on 23-4-1997 has not controverted the factual aspect and the validity of the appointment of the petitioner in the short-term vacancy but for lack of permission due to ban the authority wrongly declined to give a financial approval which was accordingly reiterated by the Deputy Inspector of School on 2-11-2000. In this respect the petitioner has placed reliance on 1995 (1) ESC 511 (Alld.) ; 1995 (1) LBESR 432 (All), Ramesh Mohan Pandey and others v. The District Inspector of Schools, Deoria and others which reads as below: "the ban was, however, lifted on certain conditions by G. O. dated 26th September, 1991. In para 5 of the said G. O. it was clarified that all the selection, appointment made prior to 26-9-1991, during the period the ban was imposed, shall be treated as cancelled. This further refers to Government Order dated 29-5-1991 whereby selection and appointments were stayed. The ad hoc appointments were being made under the provisions of Section 18 of U. P. Secondary Education Service Commission and Selection Board Act, 1982. Section 18 was deleted by U. P. Secondary Education Service Commission and Selection Board (Second Amendment) Act, 1982. The amendment came into force with effect from 14th July, 1992. The powers to make all appointments were conferred on the District Selection Committee as provided under U. P. Secondary Education Service Commission (First Amendment) Rules, 1992. It is clear from the discussions made above that the ad hoc appointments for the period between 29-6- 1991 to 26-9-1991 remained banned. The appointment for the period after 14th July, 1992 was to be made in accordance with the provisions of U. P. Secondary Education Service Commission (First Amendment) Rules, 1992. In between the period of 26-9-1991 to 13-7-1992 there does not appear to be any ban for making ad hoc appointments in accordance with the provisions of Section 18 of U. P. Act No. 5 of 1982. The powers of the Government to issue a Radiogram and orders imposing ban on appointments have been upheld by their Lordships of the Supreme Court in Dr. Ramji Dwivedi v. State of U. P. and others, 1983 UPLBEC 426, and it was held that under sub-section (4) of Section 9 the State Government enjoys power to make, modity or rescind any Regulation and with this power it can issue radiogram or orders banning appointments. "
(3.) IN view of the above observations the order dated 23-4-1997 (Annexure-14) is set aside. The petitioner's appointment was made and she is continuously working as a Assistant Teacher L. T. grade in the said college. She has to be paid salary as payable to her by the month of March, 2003 and the arrears of the salary from the date of her appointment i. e. 16-2-1996 has to be paid to the petitioner within six months from the date of production of the copy of this order to the Deputy INspector of Schools. However it is expected that the U. P. Secondary Education Services Selection Board has to expedite the appointment of the Principal of the said college. No order as to cost Writ Petition is allowed. .;