- (1.) D. K. Seth, J. On the retirement of one Sri Krishna Gupta on 30th June, 1990 a vacancy occurred on the post of Lecturer in Sri Gandhi Inter College, Orai (hereinafter referred to as the College ). The said post was sought to be filled up by the Committee of Management through direct recruitment by appointing the petitioner herein. The respondent No. 3 challenged the said ap pointment on the ground that the respon dent No. 3 having requisite qualification was eligible and entitled to promotion to the said vacancy.
(2.) SRI Vikram Nath, learned counsel appearing on behalf of the respondent No. 3 relying on the decision in the case of Charu Chandra Tewari v. District Inspector of Schools, Deoria, [ (1990)1 UPLBEC 1601 has contended that in case of duly qualified teacher is available in the institution, there cannot be any direct recruitment, in view of rule for 40% promotion for filling up of such posts. The grievance of the respondent No. 3 having not been attended to he had moved a writ petition, being Civil Misc. Writ Petition No. 31353 of 1991, disposed of on 7th October, 1991, as corrected on 11th November 1991. The said application was disposed of by directing the Deputy Direc tor of Education, to consider and dispose of the said representation of the petitioner. It is alleged that though the respondent No. 3 was made a party, respondent No. 4, therein, but the said application was disposed of without any notice to him. However, pur suant to the said order, by order dated 13th March, 1992 the said representation was disposed of, wherein it was found that the appointment of the petitioner was made depriving the respondent No. 3, herein of his promotion and that the same is also violative of Reservation of Scheduled Caste/schedule Tribes candidates. On the basis of such a finding the Deputy Director of Education of the Region, observed that appropriate proceeding for cancellation of the appointment of the petitioner be made under Section 16-E (10) of the U. P. Intermediate Education Act, 1921 (hereinafter referred to 1921 Act) and, thereafter promotion may be made to the respondent No. 3 followed by appropriate appointment order. It is this order which has been chal lenged by means of present writ petition. In support of his contention Sri Arun Tandon, learned counsel for the petitioner submits that in view of the provisions contained in Section 16-E (10) of the 1921 Act, it is the Director of Education, who can pass such an order. The Deputy Director of Education cannot have jurisdic tion even if he was so directed by this Court, particularly, in view of the facts that the said matter was decided in absence of the petitioner, by reason whereof the said order has no binding force or effect on the petitioner. But the fact remains that while pass ing the impugned order dated 13. 3. 1992 the petitioner was given adequate opportunity and his case was also considered. Therefore, it cannot be said that because of the said order passed by this Court the petitioner had suffered any prejudice. In fact, in the said order nothing was decided. On the other hand the representation made by the respondent No. 3 was directed to be decided by the concerned authority and in the course whereof the petitioner had appropriate op portunity to defend his case. Therefore, the said contention of Sri Tandon cannot be accounted.
(3.) SO far as the question raised by him with regard to the jurisdiction of Deputy Director of Education to decide the ques tion is concerned, also does not stand to reason. Inasmuch as Section 16-E (10) of 1921 Act empowers the Director to decide the said question as to the appointment of a teacher for the purposes of finding out whether such appointment has been made in contravention of the provisions of said 1921 Act. Admittedly, Section 16-E, of the 1921 Act, provides procedure for selection of a teacher and head of the institution. The said provision relates to the appointment of a teacher in regular manner. It does not deal with the question of appointment on ad hoc basis. Then again the said provision stands eclipsed to the extent as provided in the U. P. Secondary Education Service Commission and Selection Board Act, 1982. SO far as the provisions of the said 1982 Act provides, is contemplated in Section 32 of 1982 Act. S. 32 of the 1982 Act provides as under: "32. Applicability of U. P. Act II of 1921.- The provisions of the Intermediate Education Act, 1921 and the Regulations made there under in so far as they are not inconsistent with the provisions of this Act or the rules or regulations made hereunder shall continue to be inforce for the purposes of selection, appointment, promo tion, dismissal, removal, termination or reduction in rank of a teacher. " Therefore, only in absence of specific provision in 1982 Act the provisions of 1921 Act can be referred to. Section 16-E (10) of the 1921 Act can be applicable only in cases if there is no provisions made in 1982 Act. SO far as the question of decision with regard to the validity of ap pointment the learned counsel for either of the parties contend that 1982 Act does not contain any such provision. Therefore in absence of any specific provision with regard to cancellation of appointment on the ground of its being invalid the provisions of 1921 Act is to be resorted to. Though by reason of Section 16 of 1982 Act no appointment in contravention of 1982 Act would be valid with the exception as provided in Section 16 which is made such question subject to the provisions of Sections 18 and 33. The expression used in Section 16 provides as under:" "appointments to be made only on recom mendations of the Commissions of the Board.- (1) Notwithstanding anything to the contrary con tained in the Intermediate Education Act, 1921, or the Regulations made there under but subject to the provisions of Sections 18 and 33,18,21-B, 21-C, 21-D. 33 and 33-A- (a) every appointment of a teacher specified in the schedule shall, on or after 10th July 1981; he made by the management only on the recommen dation of the Commission (b) every appointment of a teacher (other than a teacher specified in the Schedule) shall, on or after 10th July 1981; be made by the manage ment only on the recommendation of the Board: Provided that in respect of retrenched employees, the provisions of S. 16-EE of the Inter mediate Education Act, 1921 shall apply with the modification that in sub-S. (2) of the aforesaid section for the words six months the words 'two years' shall be deemed to have been substituted. (2) Every appointment of a teacher, in con travention of the provisions of sub section (1) shall be void. " However, we are not concerned with the regular appointment. In the present case, admittedly the appointment of the petitioner was on ad hoc basis, the question of ad hoc appointment is governed by Sec tion 18 of the 1982 Act. In order to obviate certain difficulties certain procedures were prescribed by passing of the Removal of Difficulty Order, in succession by virtue of Section 33 of the said Act, which provides as under: "33. Power to remove difficulties.- (1) The State Government may, for the purposes of removing any difficulty, by a notified order direct that the provisions of this Act shall, during such period as may be specified in the order, have effect subject to such adaptations whether by way of modification, addition or omission as it may deemed to be necessary or expedient: Provided that no such order shall be made after two years from the date of commencement of this Act. (2) Every order made under sub-section (1) shall be laid before both the Houses of State Legislature. (3) No order under sub-section' (1) shall be called in question in any Court on the ground that no difficulty as is referred to in sub section (1) existed or required to be removed. So far as ad hoc appointment is concerned it is provided in Section 18 of 1982 Act which is reproduced below: "18. Ad hoc teachers.- (1) Where the management has notified a vacancy to the Com mission in accordance with the provisions of this Act and- (a) the Commission has failed to recom mend the name of any suitable candidate for being appointed as a teacher specified in the Schedule within one year from the date of such notification; or (b) the post of such teacher has actually remained vacant for more than two months then the management may appoint, by direct recruit ment or promotion, a teacher on purely ad hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made there under: (2) The provisions of sub section (1) shall also apply to the appointment of a teacher (other than a teacher specified in the Schedule) on ad hoc basis with the substitution of the expression 'board' for the expression 'commission'. (3) Every appointment on an ad hoc teacher under sub-section (1) or sub-section (2) shall cease to have effect from the earliest of the follow ing dates, namely- (a) when the candidate recommended by the Commission or the Board, as the case may be, joins the post; (b) when the period of one month referred to in sub section (4) of Section 11 expires; (c) thirtieth day of June following the date of such ad hoc appointment. ";