- (1.) HEARD Counsel for the appellant.
(2.) THIS is an appeal against a judgment and order dated 7-3-2006 of Hon'ble D. P. Singh, J. dismissing the writ petition filed by the appellant. The writ petition was filed by the appellant praying for a writ of mandamus commanding the respondents to accord financial approval to the appointment of the petitioner and to pay him salary together with arrears from 1997. A substantive vacancy on the post of Assistant Teacher in L. T. grade came into existence on retirement of one Sriniwas Pathak on 30-6-1996. The Committee of Management initiated process for making ad hoc appointment on the said post after advertising the vacancy in two newspapers. The petitioner claims ad hoc appointment by the Committee of Management through the order dated 7-7- 1997. As no action was taken, the writ petition was filed The learned Single Judge relying on the Full Bench judgment of this Court reported in 1994 (2) ESC 345 (FB): (1994) 3 UPLBEC 1551 (All) (FB), Radha Raizada v. Committee of Management, took the view that the Management had no power or authority to make any ad hoc appointment on a substantive vacancy, hence the writ petition was dismissed
(3.) THE learned Counsel for the petitioner submitted that the Committee of Management had power and jurisdiction to make ad hoc appointment. He has referred to Section 16-E of the U. P. Intermediate Education Act, 1921 read with Section 32 of the U. P. Secondary Services Commission and Selection Boards Act, 1982 THE learned Counsel for the petitioner has also placed reliance on a judgment of a learned Single Judge reported in (2004) 3 UPLBEC 2671, Rakesh Chandra v. State of U. P. and Ors. . We have considered the submissions of the Counsel for the appellant and perused the record. The question which has arisen in this appeal is as to whether the Committee of Management was empowered to make ad hoc appointment on a substantive vacancy on 7-7-1997. when the appellant claims his appointment. The provisions of Section 18 of the U. P. Act 5 of 1982 was amended vide U. P. Act No. 24 of 1992 with, effect from 14-7-1992. The power to make ad hoc appointment on substantive vacancy with effect from 14-7-1992 was vested with a Selection Committee contemplated under Section 18 (8) headed by Regional Joint Director of Education. The relevant provisions of Section 18 as it existed in July, 1997 is extracted below "18. Ad-hoc Teacher.- (1) Where the Management has notified a vacancy to the (Board) in accordance with sub-section (1) of Section 10 and the post of a teacher actually remained vacant for more than two months, the Management may appoint by direct recruitment or promotion a teacher on purely ad hoc basis, in the manner hereinafter provided in this section. (2) A teacher other than a Principal or Headmaster, who is to be appointed by direct recruitment may be appointed on the recommendation of the Selection Committee referred to in sub-section (8 ). (3) A teacher other than a Principal or Headmaster, who is to be appointed by promotion, may in the prescribed manner be appointed by promoting the senior most teacher, possessing prescribed qualifications - (a) in that trained graduate's grade, as a lecturer in the case of a vacancy in the lecturer's grade; (b) in the Certificate of Teaching grade, as teacher in the trained graduate's grade, in the case of a vacancy in the trained graduate's grade. (4) A vacancy in the post of a Principal may be filled by promoting the senior most teacher in the lecturer's grade. (5) A vacancy in the post of a Headmaster may be filled by promoting the senior most teacher in the trained graduate's grade. (6) For the purposes of making appointments under sub-sections (2) and (3), the Management shall determine the number of vacancies, as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, the Scheduled Tribes and Other Backward Classes of citizen in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and, as soon as may be thereafter, intimate the vacancies to be filed by direct recruitment to the District Inspector of Schools and if the Management fails to intimate the vacancies and the post of a teacher has actually remained vacant for more than three months, that District Inspector of Schools may, subject to such directions as may be issued by the Director and after verification from such institution or from his own record, determine such vacancies himself. (7) The District Inspector of Schools shall on receipt of intimation of vacancies or as the case may be, after determining the vacancies under sub-section (6), forward the same to the Deputy Director of Education incharge of the Region, who shall invite applications from the persons possessing qualification prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder, for ad hoc appointment to the post of teachers other than Principal or Head Master in such manner as may be prescribed. (8) (a) For such region there shall be a Selection Committee for selection of candidates for ad hoc appointment by direct recruitment comprising - (i) Regional Joint Director of Education, (ii) Regional Deputy Director of Education (Secondary); (iii) Regional Assistant Director of Education (Basic); The Regional Joint Director of Education shall be the Chairman; (b) The Selection Committee constituted under clause (a) shall make selection of the candidates, prepare a list of the selected candidates, allocate them to the Institutions and recommended their names to the Management for appointment under sub-section (2 ). (c) The criteria and procedure for selection of candidates and the manner preparation of list of selected candidates and their allocation to the Institution shall be such as may be prescribed. (9) Every appointment of an ad hoc teacher under sub-section (1) shall cease to have effect from the date when the candidate recommended by the (Board) joins the post. (10) The provisions of Section 21-D shall mutatis mutandis apply to the teachers who are to be appointed under the provisions of this section. ";