DAYA SHANKAR MISHRA Vs. DISTRICT INSPECTOR OF SCHOOLS

JUDGEMENT

(1.) Learned Single Judge of this Court vide order dated 7.7.2006 required that a reference be made to a Larger Bench for authentic pronouncement on the following two questions: (i) Whether after rescission of U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 with effect from 25.1.1999, the Committee of Management can make temporary/Ad hoc appointment on short-term vacancies resorting to its power given under Chapter-II, Regulation 9 and Section 16-E(11) of the U.P. Intermediate Education Act, 1921 despite the provisions of Section 16(1) of the U.P. Secondary Education (Services Selection Boards) Act, 1982 (ii) Whether the judgment of learned Single Judge in Rakesh Chandra Misra v. State of U.P. and others, 2004 3 UPLBEC 2671, lays down correct law Pursuant thereto Hon'ble the Chief Justice vide order dated 14.11.2006 passed the following orders: "Let the matter be heard by Hon.R.K. Agarwal and Vikram Nath, JJ." It is thus that the matter has been placed before us for answering the questions referred to in the order dated 7.7.2006.

(2.) We have heard Sri P.N. Saxena, learned Senior Advocate assisted by Sri H.N. Pandey, Advocate on behalf of the petitioner and the learned standing counsel for the respondent No. 1 and have also perused the material on record. Before going into the questions and considering the relevant statutes and the case law relied upon by the learned counsel for the parties, the facts in brief are being stated herein under.

(3.) One Mohd. Arif who was working as L.T. Grade Teacher in Indira Gandhi Intermediate College, Jamha, Mau-Aima, District Allahabad (hereinafter referred to as the Institution) was selected and appointed as Principal in another Institution namely Vijay Laxmi Pandit Intermediate College, Phulpur, District Allahabad. He applied for leave w.e.f. 23.11.1998 from the Institution, which was duly granted. As a result of grant of such leave to Mohd. Arif a short-term vacancy arose in the Institution. This leave vacancy was advertised, against which the petitioner applied along with other candidates. The petitioner was selected and appointed by the Committee of Management of the Institution on 25.2.1999. The selection and appointment of the petitioner was not being approved by the District Inspector of Schools whereupon he filed a writ petition before this Court which was registered as Civil Misc. Writ Petition No. 1377 of 2001. The said writ petition was disposed of vide order dated 15.1.2001 with a direction to the District Inspector of Schools, Allahabad to take a decision in accordance with law by a speaking order. Pursuant to the said direction the District Inspector of Schools, Allahabad vide order dated 5.10.2001 declined to grant approval to the selection and appointment of the petitioner on the ground that in view of the insertion of Section 33-E in The Uttar Pradesh Secondary Education (Services Selection Board) Act, 1982 (hereinafter referred as the 1982 Act), whereby various Removal of Difficulties Orders were rescinded, the Committee of Management had no authority to make selection and appointment against short-term vacancy on Ad hoc basis. The said order of the District Inspector of Schools, Allahabad dated 5.10.2001 has been assailed in the present writ petition.