RAM DULAR PAL Vs. STATE OF U P

JUDGEMENT

(1.) A. K. Yog, J. Petitioner, Ram Dular Pal, was appointed as Science Teacher in Jawahar Lal Nehru Intermediate College, Anapur, Machchilishar, Jaunpur to teach High School classes. Since petitioner did not possess training qualification he was granted 2/3rd of regular L. T. Grade admis sible to a trained teacher in accordance with relevant Government notification. District Inspector of Schools approved said appointment of the petitioner on the said post of Science teacher - L. T. Grade, which was sanctioned on 25-6-1974. The said post was advertised in Newspaper on 19/24 June, 1974. Interview was held on 4th July, 1974 and appointment letter was issued in favour of the petitioner, as no other trained teacher was available. Ap pointment of the petitioner was initially for short period and it was extended time to time up to 30th June, 1975. Petitioner contended that he continue to work on the said post beyond 30th June, 1975 and was working continuously as such even after 15th November, 1976 i. e. ; he fulfilled all the conditions contemplated under the U. P. Secondary Education (Removal of Difficulties) (Fifth) Order, 1976 (for short called Fifth Order, 1976) and was, thus, entitled to be regularised on the post of Assistant Teacher in L. T. Grade in the in stitution. Contention of the petitioner was disputed by the Committee of Manage ment of the College (Respondent No. 3 ). According to the Management, petitioner ceased to work in the institution after 30th June, 1975 and thereafter he applied for seeking appointment on the post of Assis tant Teacher C. T. Grade vide application dated 18th September, 1975. According to the Management requisite application was sent to the concerned District Inspec tor of Schools for approval on October 3, 1975 and District Inspector of Schools ac corded approval to the appointment of the petitioner in L. T Grade vide letter dated 21-10-1975. Copy of the said application filed by the petitioner for seeking appoint ment in L. T. Grade has been Annexed as Annexure No. 1 to the counter-affidavit of the Management (Respondent No. 3 ). Management, therefore, contended that petitioner did not work on the post of Assistant Teacher L. T. Grade during the relevant period mentioned in Clause 3 of Fifth Order, 1976.

(2.) PETITIONER claimed for regularisa tion. Matter was referred to the District Inspector of Schools, who passed order dated 6th/17th February 1997. The petitioner, however, disputes correctness of mention of C. T. Grade Said order was challenged by petitioner by filing Writ Petition No. 7561 of 1978 (Ram Dular Pal v. The District Inspector of Schools and another ). A Division Bench of this court partly allowed the said petition (complete record of which has been filed as Annexure 5 to the petition ). After carefully noting the controversy raised on behalf of the parties, a Division Bench ignored letter dated 21-10-1975 of the District Inspector of Schools. The Division Bench took the view that plea of the Management that petitioner had ceased to work in the in stitution after 30th June, 1975 was belied, in view of District Inspector of Schools letter dated 6/17th February, 1977. Relevant extract of the Judgment of Division Bench in Writ Petition No. 7561 of 1978 reads: . . . . . "it is, therefore, obvious from the above that the petitioner's working from 2-2-1975 until 15-11- 1997 is acceptable. Reference may be made to Annexure I to the counter-af fidavit dated 21-10-1975 passed by the Respon dent No. 1 which purports to approve the ap pointment of the petitioner afresh. Great em phasis was laid on this letter/order by the learned counsel for the Respondent No. 2. But in our opinion this letter cannot take precedent over the subsequent letter order dated 6-2-1977 An nexure VI to the writ petition, which we have considered above. Once this petition crystallizes the provisions of U. P. Secondary Education (Removal of Difficulties) (Fifty) Order, 1976 would came into play. The provisions of Para graph 3 of the above order would be attracted. We are, therefore, unable to accept the conten tion raised by Respondent No. 2 to the contrary. It may be mentioned here that the Respondent No. 1 did not file any counter-af fidavit nor indicated the stand that his depart ment was taking in this regard. The next question for consideration is as to what grade the petitioner be entitled to. It is apparent from the contents of Annexure VI to the writ petition that the petitioner's qualifica tions are B. Sc. B. Ed and also M. A. He was appointed for teaching Science subjects to High School classes. The basic qualification for teach ing Science subjects is there with the petitioner. It is stated that the petitioner was taking Science and Maths classes. We feel that it would not be proper to express an opinion at this stage in regard to the grade that should be given to the petitioner. The reason is that we are not aware and further it has not been expressly stated by either the petitioner or the Respondent No. 2 whether the vacancy in L. T Grade had been filled up in the College. Reference may be made to Paragraph 6 of the aforementioned order which makes it clear that nothing in Clause 3 shall entitle any teacher to substantive appoint ment on any post if on the date of publication of this Order such post has already been filled or selection for such post has already been filled or selection for such post has already been made in accordance with the Act and the regulations made there under. It will, therefore, be necessary for the Respondent No. 1 to ascertain correct position and then pass appropriate order. We may mention here that even when the petitioner was appointed originally has was not given C. T. Grade but was allowed (sic) pay of the L. T Grade. That was the time when he did not have B. Ed, degree. After having acquired the degree the position would certainly improve for he would be deemed to be a trained teacher. In view of the above, we are of the opinion that the petitioner must succeed but partially. While holding that the petitioner was in con tinuous employment until 15-11-1976 and en titled to the benefit of the provisions of U. P. Secondary Education (Removal of Difficulties) (Fifth) Order, 1976, we leave the matter of fixa tion of grade to be determined afresh by the Respondent No. 1 in accordance with law. That would meet the ends of Justice. . . . . . . " Bench allowed writ petition partly and directed the District Inspector of Schools to consider and decide question of granting of the grade due to the petitioner in accordance with law within a period of three months.

(3.) MANAGEMENT's plea of petitioner having been appointed in C. T. Grade and that the petitioner was not working on the post of Assistant Teacher L. T. Grade w. e. f. 30he June, 1975 was of no consequence as it was not open, to the parties to re-open those issues. The District Inspector of Schools has failed to record finding on the relevant issue which was required to be determined under the Judgment of the Division Bench in Writ Petition No. 7561 of 1978. In the impugned order, there is no finding recorded by District Inspector of Schools as to whether any person w7as ap pointed on the post of Assistant Teacher L. T. Grade between 30th June, 1975 on passing of the Fifth Order, 1976 and whether any other person was allowed to work on the said post of Assistant Teacher L. T. Grade held by the petitioner. The Core question, which was required to be determined by District Inspector of Schools, has not been adverted to and the order of District Inspector of Schools suf fers from manifest error apparent on the face record and hence liable to be set aside.