- (1.) SUDHIR Agarwal, J. Heard Sri Krishna Kumar Gupta, holding brief of Sri V. K. Singh, for the petitioner, the learned Standing Counsel for the respondents and perused the record.
(2.) THIS writ petition is directed against the order dated 16-4-2004 passed by the District Inspector of School directing the management to take steps for regular selection of the candidate, in accordance with Rule 14 of U. P. Secondary Education Services Commission (Procedure and Conduct of Business) First Regulations, 1995. He also held selection of the petitioner as Assistant Teacher being illegal since there was no vacancy on 27-10-1998. The facts as disclosed in the writ petition are that a substantive vacancy of Lecturer (Hindi) occurred in Janta Inter College, Ambari, District Azamgarh (hereinafter referred to as the 'college') due to retirement of one Sri Heeraman Maurya on 30-6-1998. Consequently the management promoted one Lal Behari Chauhan who was working in L. T. Grade vide resolution dated 5-7-1998. In the resultant short-term vacancy in L. T. Grade, the management vide its resolution dated 20-9-1998, decided to make appointment on ad hoc basis. Pursuant thereto, an advertisement was published in Newspapers on 30- 9-1998. The petitioner applied and interview was held on 27-10-1998. Thereafter the petitioner was selected and appointment letter was issued on 29-10-1998 and he joined in October, 1998 itself. Thereafter the papers of his selection alongwith covering letter dated 7-11-1998 sent to District Inspector of Schools (hereinafter referred to as the 'd. I. O. S. '), but he did not pass any order. In the meantime promotion of Lal Behari Chauhan on the post of Lecturer (Hindi) was considered for regularization and vide order dated 10-3-2000, the Joint Director of Education regularized Sri Lal Behari Chauhan on the post of Lecturer (Hindi ). The short-term vacancy in L. T. grade thus became substantive. The D. I. O. S. thereafter passed the impugned order dated 16-4-2004, whereagainst the present writ petition has been filed. From the facts stated above it appears that after promotion of Sri Lal Behari Chauhan on the post of Lecturer (Hindi) on 5-7-1998, vacancy occurred on the post of Assistant teacher in L. T. grade immediately thereafter. It also appears from the record that vacancy of Lecturer (Hindi) was liable to be filled in by promotion and hence Sri Lal Behari Chauhan was promoted on the said post. The said promotion was approved as substantive appointment by the Joint Director of Education vide order dated 10-3-2000. The learned Standing Counsel, therefore, in my view is right in submitting that after promotion of Sri Lal Behari Chauhan on the post of Lecturer (Hindi), the resultant vacancy on the post of Assistant teacher was not a short-term vacancy but a substantive vacancy since Sri Chauhan was promoted against a vacancy which was to be filled up by promotion itself. In this view of the matter it cannot be said that there was a short-term vacancy which could have been filled in by the management under the provision of the U. P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as 'second Order' ). Thus, ex facie, appointment if any made by the management under Second Order i. e. the appointment of the petitioner on the post of Assistant teacher in L. T. grade is illegal. On 29-10-1998, the management did not possess any such power under the statute to make such appointment since Second Order could not have been resorted to and under Section 18 read with U. P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as the 'first Order') the management had no such power.
(3.) HOWEVER, even if it is considered that promotion of Sri Lal Behari Chauhan on the post of Lecturer (Hindi) resulted in a short-term vacancy which could have been filled in by the management in accordance with the procedure prescribed under the Second Order, in my view, in appointing the petitioner, the procedure under para 2 of Second Order has not been followed and hence it does not confer any right upon the petitioner either to hold the post or to claim salary and the order of the DIOS declining to pay salary from the State Exchequer cannot be said to be erroneous. Where a short-term vacancy is to be filled in on ad hoc vacancy, the procedure prescribed under para 2 of the Second Order has to be observed. It is reproduced as under : "2. Procedure for filling up short-term vacancies.- (1) If short-term vacancy in the post of a teacher caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise, shall be filled by the Management of the Institution by promotion of the permanent senior-most teacher of the institution, in the next lower grade. The Management shall immediately inform the District Inspector of Schools of such promotion alongwith the particulars of the teacher so promoted. (2) Where any vacancy referred to in Clause (1) cannot be filled by promotion, due to non-availability of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualifications, it shall be filled by direct recruitment in the manner laid down in Clause (3 ). (3) (i) The management shall intimate the vacancies to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution, requiring the candidates to apply to the Manager of the Institution alongwith the particulars given in Appendix "b" to this Order. The selection shall be made on the basis of quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, issued with Notification No. Ma-1993/xv-7 (79)-1981, dated July 31, 1981, hereinafter to be referred to as the First Removal of Difficulties Order, 1981. The compilation of quality point marks shall be done under the personal supervision of the Head of Institution. (ii) The names and particulars of the candidate selected and also of other candidates and the quality point marks allotted to them shall be forwarded by the Manager to the District Inspector of Schools for his prior approval. (iii) The District Inspector of Schools shall communicate his decision within seven days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval. (iv) On receipt of the approval of the District Inspector of Schools or, as the case may be, on his failure, to communicate his decision within seven days of the receipt of papers by him from the Manager, the Management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager. Explanation.- For the purpose of this Paragraph - (i) the expression "senior-most teacher" means the teacher having longest continuous service in the institution in the Lecturer's grade or the Trained graduate (L. T.) grade or Trained under-graduate (C. T.) grade or J. T. C. or B. T. C. grade as the case may be; (ii) in relation to institution imparting instructions to women, the expression 'district Inspector of Schools' shall mean the Regional Inspectress of Girls' Schools; (iii) short-term vacancy which is not substantive and is of a limited duration. ";