- (1.) Heard Sri P.N.Ojha and Sri Vishnu Shanker Gupta, learned counsel, holding brief of Sri Ashok Khare, learned senior counsel for the appellant and Sri J.N. Maurya, learned Standing Counsel for the respondents no. 1 to 3. Perused the records. Challenge in this intra-court appeal is to the judgement & order dated 1st October, 2004, whereby the learned single Judge, while dismissing the writ petition, has held that against the substantive vacancy, which had occurred in the institution in question, Committee of Management had no authority to appoint the writ-petitioner.
(2.) The case of appellant, in brief, is that in Patel Memorial Inter College, Atraulia, Azamgarh, which is a recognized and aided educational institution, a substantive vacancy of Assistant Teacher in L.T. Grade occurred on 1st July, 1993 due to retirement of one Sarju Prasad Srivastava on 30th June, 1993. The vacancy is said to be notified to the U.P. Secondary Education Services Commission, Allahabad on 20th May, 1993 and advertised by the Committee of Management on 3rd September, 1993 in a newspaper "Ranturya". The Committee of Management selected and appointed the petitioner on 25th September, 1993 on adhoc basis, who joined the post on 1st October, 1993. After his joining the Committee of Management, sent all relevant papers on 5th October, 1993 to the DIOS for his approval. However, when, after repeated reminders, approval to the selection and appointment of the petitioner was not accorded by the DIOS, he preferred aforesaid writ petition no. 37628 of 2003, which was dismissed vide order impugned dated 1st October, 2004 giving rise to this special appeal.
(3.) Learned counsel for the appellant contends that learned single Judge has failed to consider the provisions of Section 16 (E) read with Regulation 9(1) & (2) under chapter II of the Intermediate Education Act, 1921. He also placed reliance upon Full Bench decision of this Court dated 22.07.2015 rendered in Special appeal (Defective) no. 215 of 2015, Santosh Kumar Singh vs. State of U.P. & others as well as Division Bench decision in the case of Ashika Prasad Shukla vs. District Inspector of Schools, 1998 3 UPLBEC 1722 in support of his case. Per contra, Sri J.N.Maurya, learned Standing Counsel contended that neither the provisions of law nor the case laws relied upon by the learned counsel for the appellants are applicable to the facts of this case. He submits that as per the statutory provisions of law applicable to the substantive vacancies at the relevant time, the Committee of Management was divested of power, authority or jurisdiction to select and appoint the petitioner against a substantive vacancy, therefore, there is no illegality or infirmity in the view taken by the learned single Judge, hence, this special appeal is liable to be dismissed. Having heard learned counsel for the parties and upon perusal of records, the moot question which arises for determination by the Court is as to whether the adhoc appointment of the appellant made by the Committee of Management in a substantive vacancy occurred on 1st July, 1993, is legal and valid or not ?;