DAYA SHANKAR PANDE Vs. STATE OF U P

JUDGEMENT

(1.) In this petition filed by a teacher appointed to short-term vacancy, one of the questions that arises for consideration is what is the effect of rescission of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (in brief Second Order) by insertion of Section 33E in the Uttar Pradesh Secondary Education Services Selection Boards Act, 1982 (in brief the Act).

(2.) Maharshi Durbasa Inter College, Kakara Dubawal, Allahabad (in brief institution) is a recognised and aided institution. Sri Yaduraj Singh an Assistant Teacher L.T. grade took medical leave from 1.1.1998 to 30.6.1998. The management on 1.1.1998 intimated the District Inspector of Schools (in brief D.I.O.S.) to fill the short-term vacancy. This letter does not appear to have been received by the D.I.O.S. The management notified the vacancy on 7.1.1998 on the notice board and on the same day advertisement was published in newspaper 'Dainik Jagran'. The petitioner was selected on 18.1.1998 and papers were forwarded to the D.I.O.S. for approval. It again is not clear whether this letter was received by the D.I.O.S. The management on 29.1.1998 appointed the petitioner as Assistant Teacher L.T. grade in the short-term vacancy and forwarded the papers to D.I.O.S. for approval. The D.I.O.S. with reference to this letter informed the management on 8.4.1998 that the appointment of the petitioner having been made without informing him, the liability to pay his salary was of the management. The management was further required to furnish details about the short-term vacancy. This letter was replied by the management on 23.4.1998. It informed that Sri Yuvraj Singh had taken leave from 1.1.1998 to 30.6.1998. The letter further assured the D.I.O.S. that the management would not make any appointment in future without obtaining prior approval. Therefore, the appointment of the petitioner be approved. But the D.I.O.S. did not agree. He disapproved the appointment on 6.6.1998 because it was made without prior information and taking approval. The other reason for non-approval was that advertisement was not published in two newspapers. Further, the application was not invited by registered post. The petitioner filed an appeal/ representation on 16.3.1999 before the Regional Deputy Director of Education under paragraph 7 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (in brief First Order). He made another representation on 14.11.2000 to the Director of Education. He has filed photostat copies of attendance register for May, 1998, July, 1999 and January, 2000 to substantiate his claim that he is functioning as Assistant Teacher L.T. grade since his appointment till date. The petitioner has filed this petition challenging the order passed on 6.6.1998 by the D.I.O.S. and prayed that the Regional Deputy Director of Education and Director of Education should decide his appeal/ representation.

(3.) Sri Uma Kant the learned counsel for the petitioner has urged that the management had appointed the petitioner on 29.1.1998 in short-term vacancy prior to the deletion of Second Order. He is continuously working since the date of appointment, therefore, he is entitled for salary from 29.1.1998 till December, 2000. The learned counsel has further urged that deletion of Second Order with effect from 25.1.1999 would not affect the short-term appointments made prior to 25.1.1999 and such appointees are entitled to continue till the short-term vacancy exists. He placed reliance on the decision of the Apex Court in A. A. Calton v. Director of Education and another, AIR 1983 SC 1143. He urged that under Regulation 9 [1] of Chapter-II of the Regulations framed under the U. P. Intermediate Education Act, 1921, petitioner is entitled to continue in short-term vacancy irrespective of insertion of Section 33E in U. P. Act No. 5 of 1982. The learned counsel vehemently urged that advertisement having been made in one newspaper with wide circulation was sufficient and the order of D.I.O.S. being illegal is liable to be set aside. He placed reliance on a Division Bench decision in District Inspector of Schools, Kanpur Nagar and others v. Diwakar Lal and others, 2000 (3) ESC 1670. He urged that no prior permission of the D.I.O.S. was necessary to fill short-term vacancy. He relied on Shri Niwas Singh v. District Inspector of Schools, Ghazipur and others, 1998 (1) UPLBEC 276, and the Division Bench decision in Ashika Prasad Shukla v. District Inspector of Schools, Allahabad and another, 1998 (3) UPLBEC 1722. The learned counsel, in the alternative, urged that the respondents be directed to decide his appeal/representation.