DINESH KUMAR Vs. DISTRICT INSPECTOR OF SCHOOLS MUZAFFARNAGAR

JUDGEMENT

(1.) The petitioner alleges that on account of the seniormost teacher in Economics having been promoted on ad hoc basis to the post of Principal, a short-term vacancy occurred. It is alleged that the petitioner was appointed in the said short-term vacancy through direct recruitment as Lecturer in Economics. He claims that he possesses the requisite qualification for being so appointed. The petitioner claims to have been appointed under the U. P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981. He is aggrieved by the grant of approval to his appointment by the order dated 1st December, 1990, which limited the period of his appointment till 20th May, 1991. By reasons of such limitation imposed on the appointment, the petitioner's service was sought to be terminated by an order dated 18th May, 1991, which is Annexure-IV to the writ petition. The petitioner has accordingly challenged the said order dated 18th May, 1991 contained in Annexure-IV. The prayers made in the writ petition may be beneficial for our present purpose to be quoted herein below : (i) a writ of certiorari to quash the order dated 18.5.1991, Annexure-IV. (ii) a writ of mandamus commanding the opposite parties to treat the petitioner as a Lecturer in Economics and to pay him his salary as such till the permanent incumbent on the post returns. (iii) any other writ, order, or direction to which the petitioner is found entitled under the circumstances of the case.

(2.) Mr. V. B. Khare, learned counsel for the petitioner has contended that the respondent No. 3, who is claiming the said post under paragraph 2 of the Second Removal of Difficulties Order is ineligible on account of absence of 5 years' continuous service in the L.T. Grade, namely, the lower grade than that of Lecturer as contemplated in Regulation 6, Chapter II of the Regulations framed under the U. P. Intermediate Education Act. read with Rule 9 of the U. P. Secondary Education Services Commission Rules, 1983. Therefore the respondent No. 3 cannot claim any right to the said post. He contends that by virtue of paragraph 3 of Second Removal of Difficulties Order, the appointment of the petitioner in the short-term vacancy could not be limited. Such appointment is subject to cessation only on the circumstances mentioned in paragraph 3 of the said Removal of Difficulties Order, which does not envisage any other limitations. He further contends that he has been appointed after following the procedure laid down in the Second Removal of Difficulties Order, and, therefore, he is liable to continue till the period contemplated in paragraph 3 of the Second Removal of Difficulties Order. As such the limitation provided in the order of approval as well as the order of termination on account of such limitation imposed in the order of approval, cannot be sustained. On these grounds, he claims the reliefs as mentioned above.

(3.) Mr. C. S. Sharma, learned counsel for respondent No. 3 on the other hand contends that, admittedly, both the petitioner and respondent No. 3 do possess the requisite qualification for being appointed as Lecturer in Economics. According to him, it is not 5 years' continuous service in the Grade lower but it is 5 years' continuous service as teacher either in C. T. Grade or in L. T. Garde, or both combined. He also refers to Rule 9 of the said Service Commission Rules and points out that there is nothing to indicate in the said Rules that 5 years' continuous service should be in the next lower grade Therefore, according to him, by virtue of paragraph 2 of the Second Removal of Difficulties Order, the post can be filled up only by promotion since the petitioner was the seniormost permanent teacher, duly qualified for such promotion under the said paragraph. According to him if there is inconsistency between the rules framed or orders issued under the Service Commission Act and the Regulations framed under U. P. Intermediate Education Act. in that event the provisions contained in the U. P. Intermediate Education Act or the Regulations framed thereunder would stand eclipsed and those of the Service Commission Act. Rules and orders shall prevail. Therefore, according to him. respondent No. 3 is eligible and entitled to promotion to the said post.