- (1.) SUDHIR Agarwal, J. This special appeal, under the rules of the Court, arises from a judgment of the Hon'ble Single Judge dated 21-5-1998 in writ petition No. 6847 of 1996 of the petitioner-appellant.
(2.) WE have heard ShriAshok Khare,learned Senior Counsel appearing for the appellant and the learned Standing Counsel appearing for the respondent Nos. 1 to 3. None has appeared on behalf of the committee of management, although name of Shri Prem Prakash Srivastava is shown in the cause list. Learned Counsel for the appellant vehemently argued that the petitioner-appellant was appointed against the short-term vacancy after following the procedure prescribed in this regard and, therefore, has right to continue in service until an ad hoc appointment against the post in question is made or vacancy is filled by a regular appointment on the basis of the recommendation of the commission. It is further submitted that though the Hon'ble Single Judge granted relief for the payment of salary for a period up to 30-6-1994 but did not grant further relief, although in the writ petition, he claimed that he is entitled to continue till the vacancy is filled in accordance with law. On the other hand, learned Standing Counsel pointed out that the alleged short-term appointment of the petitioner-appellant has not been approved by the District Inspector of Schools. It is further pointed out that the District Inspector of Schools after receipt of papers from the institution in question vide letter dated 11-1-1996 declined approval on account of ban imposed by the Director of Education vide letter 9-6-1995.
(3.) BE that as it may, in our view, the short controversy involved in the writ petition and the special appeal is whether the appointment of the petitioner-appellant was in accordance with law or not. The short-term vacancy ought to be filled in accordance with the provisions contained in the Uttar Pradesh Secondary Education (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as 'the Order of 1981' ). Clause 2 of the Order of 1981 provides that short-term vacancy on 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. However, where such short-term vacancy cannot be filled by promotion on account of non-availability of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualifications, in that eventuality the committee of management is authorised to make direct recruitment in the manner laid down in Clause (3 ). Sub-Clause (3) of Clause 2 reads as under : " (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. " From a perusal of the aforesaid provision it is apparent that the management of the institution is required to intimate such vacancy immediately to the District Inspector of Schools and also to notify the same on the notice board of the institution. The candidate is required to apply to the manager of the institution with the particulars given in Appendix 'b' to this order. The selection is thereafter to be made on the quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education (Removal of Difficulties) Order, 1975 (hereinafter referred to as 'the first difficulty order. The institution thereafter shall proceed with the selection and forward the papers pertaining to such selection of all the candidates alongwith quality point marks allotted to them to the District Inspector of Schools for his approval. Therefore, as per sub-clause (3) (ii) of Clause 2 of the order of 1981 the papers pertaining to the selected candidate as well as the candidate, who applied but could not be selected, are to be sent to the District Inspector of Schools. Under sub-clause 3 (iii) of Clause 2 of the Order of 1981 the District Inspector of Schools is required to communicate his decision within seven days of the date of receipt of particulars by him failing which it would be deemed that the approval has been granted by the District Inspector of Schools. Sub-clause 3 (iv) of Clause 2 of the Order of 1981 empowers the management to issue appointment letter only after the expiry of the period of seven days from the date the papers are forwarded to the District Inspector of Schools. Nothing has been brought on record to show that the procedure prescribed, in this regard, has been followed. The Hon'ble Single Judge has also not addressed on this question and decided the petition only on the basis of the objection taken in the counter-affidavit that there was ban in respect of such appointment.;