JUDGMENT
D.P. Singh, J.
1. Heard Counsel for the parties and perused the record. Pleadings have been exchanged between the parties and they agree that the petition may be disposed of finally under the Rules of the Court.
2. This writ petition is directed against an order dated 22.9.2000 passed by the respondent No. 1 by which the representation of the petitioner has been decided in pursuance of an order of a learned Single Judge dated 15.12.1999 passed in Writ Petition No. 52013 of 1999. By the said order, the respondent No. 1 has rejected the approval application for the appointment of the petitioner as L.T. Grade teacher in the institution. Further relief for payment of current and arrears of salary has been sought.
3. Brief facts giving rise to this writ petition are that Rameshwar Mahadev Inter College, Krishna Nagar, Christ Nagar, Varanasi is duly recognised intermediate college governed by various educational enactments. A Lecturer in Economics, Sri Naveen Kumar Shukla, died in harness resulting in a substantive vacancy which was filled up on adhoc basis by promoting Sri Hausala Prasad Singh, a L.T. Grade teacher. This resulted in a short term vacancy in the L.T. Grade. The management exercising its power under the Second Removal of Difficulties Order issued advertisement in two daily newspapers namely ‘Dainik
Jagran’ and ‘Aaj’ published on 19.12.1998 and 20.12.1998 respectively. Large number of candidates applied in pursuance of the said advertisement and the petitioner was duly selected on the basis of quality points awarded to him. The said selection was approved by a resolution of the Committee of Management, in pursuance whereof, appointment letter was issued on 14.1.1999 and since 15.1.1999 the petitioner is continuously working on the post. As no decision was being taken on the letters for approval sent by the Management, no salary was also being paid. Thus, the petitioner was forced to file a Writ Petition No. 52053 of 1999 which came to be disposed of by an order dated 15.12.1999 with a direction to the District Inspector of Schools to decide the representation of the petitioner. This led to the passing of the impugned order.
4. The claim of the petitioner was rejected by the impugned order on the basis that on promotion of Sri Hausla Prasad Singh, a substantive vacancy had occurred and as such the Management did not have power to make any appointment on the said post which was to be filled by the Commission, thus, it was against the provisions of the U.P. Secondary Education Services Selection Board Act, 1982 (here-in-after referred to as 1982 Act). Other ground taken was that the said substantive vacancy came into being on 26.11.1995 and since it was not filled up, the vacancy lapsed since even the requisition was not sent to the Commission. This order is sought to be supplemented by averments made in the counter affidavit to the effect that the chart of awarding quality points has been signed only by the Management and not by the members of the Selection Committee and further in the advertisement issued, there was no mention of the fact that the vacancy was temporary.
5. Learned Counsel for the petitioner has firstly urged that the stand of the respondents in holding that the vacancy was substantive is incorrect.
6. It is common case of the parties that the vacancy arose by the promotion of Sri Haushla Prasad Singh. The order approving the promotion of Haushla Prasad is annexed as Annexure-9 to the writ petition which reads as under :
“……….L.T. VETAN KRAM MEIN KARYARAT SHRI HAUSHLA PRASAD SINGH KI VARISHT SAHAYAK ADHYAPAK KEY ROOP MEY PRASTAVIT PADUNNATI PEY AYOG DWARA ASTHAI HONE TAK ATHWA VIBHAG DWARA ANYATHA KOEE AADESH HONE TAK, JO BHI POORVA HO, TAK KEY LIYE SAHMATI PRADAN…”
7. From the aforesaid, it is crystal clear that the approval for promotion of Haushla Prasad Singh was contingent and adhoc. Though, it is not so mentioned in the approval order but, the condition so placed in the approval order shows that the promotion was only temporary or adhoc and he did not loose his lien on his substantive post. Therefore, it can not be said that the vacancy was substantive as he could be reverted to the post on the happening of any of the two contingencies envisaged in the order. Thus, in my opinion, this argument of the learned Counsel for the petitioner bound to be accepted.
8. The next argument of the Counsel for the petitioner is that the post on which there was temporary vacancy would not lapse as provided under Regulation 20 of Chapter 2 of the Regulations framed under the U.P. Intermediate Education Act.
9. Regulation 20 of Chapter 2 provides that where a sanctioned post is not advertised within three months of its vacancy, it would be deemed to have been surrendered and it cannot be filled up unless it is sanctioned afresh by the Director. Regulation 9 of the same Chapter deals with appointment on temporary vacancy. It provides that when temporary vacancy is likely to exceed six months,
it could be filled up by promotion or direct recruitment. It further provides that where a vacancy caused by promotion is for more than a month but less than six months, it can also be filled up by promotion. If the two regulations are read together in harmony, it leaves no room for doubt that when Regulation 20 uses the words ‘sanctioned post’ and ‘vacancy’, it refers to a substantive vacancy on a sanctioned post, otherwise Regulation 9 would become meaningless as it speaks about a vacancy exceeding six months. This question can also be examined from another angle. Under the 1982 Act every appointment has to be made by the Commission and only the Commission is entitled to advertise the post. Therefore, in view of Section 32 of the 1982 Act, the provision of Regulation 20 would be inapplicable. This latter view finds support from the decision rendered in Yogendra Nath Singh v. District Inspector of Schools, Jaunpur and Ors., (1991) 1 UPLBEC 484. Thus, the second argument of the learned Counsel for the petitioner also succeeds.
10. The submission of the learned Standing Counsel that the Management does not have the power of appointment even in short term vacancy is bereft of any force. It is not denied that the process of selection and the appointment was prior to the enforcement of Section 33-E in the 1982 Act. Prior to the enforcement of Section 33-E, the powers of appointment in short term vacancy lay with the Management under the U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981 (here-in-after referred to as a Second Order). This view is fortified by the ratio rendered in Mukesh Kumar v. State of U.P. and Ors., (1996) 2 UPLBEC 783.
11. The last submission of the learned Counsel for the respondents is that the policy of reservation was not kept in mind and further information was not given to the District Inspector of Schools before proceeding to make appointment and also the advertisement did not qualify that the vacancy was short term and selection proceeding bore the signatures of only the Manager, and as such, the appointment was illegal.
12. By now it is well settled that reservation would not apply to short term or temporary vacancy as has already been held by this Court in number of cases including in the case of Smt. Pratima Chauhan and Anr. v. Regional Deputy Director of Education and Ors., (1999) 2 UPLBEC 1621. Under the Second Order, there is no provision for prior information before making temporary appointments. It only provides that after selection had been made, the District Inspector of Schools should be informed. It is not denied that the entire proceedings were sent to the District Inspector of Schools. Mere non-mentioning in the advertisement that the vacancy was temporary, would not in any way vitiate the temporary appointment. The proceedings sent to the District Inspector of Schools were in the required format where quality point had been awarded. There is no whisper either in the impugned order or in the counter affidavit that a proper selection committee was not constituted and even though only the Manager had signed the communication of this proceedings, it will not invalidate the same.
13. No other point has been urged by any of the parties.
14. In view of the discussions hereinabove, this petition succeeds and is allowed. The impugned order dated 22.9.2000 is hereby quashed and the respondents are directed to pay arrears and current salary of the petitioner from the date of his appointment within a period of eight weeks from the date of service of a certified copy of this order. There shall be no order as to costs.