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Ran Vijay Singh Chauhan Vs. Joint Director of Education, Jhansi and Others - Court Judgment

LegalCrystal Citation
SubjectService
CourtAllahabad High Court
Decided On
Case NumberC.M.W.P. No. 30535 of 1998
Judge
Reported in2001(1)AWC744; (2001)1UPLBEC407
Acts U. P. Intermediate Education Act, 1921; U. P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 - Sections 33B; U. P. Act, 1982 - Sections 18; U. P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971;
AppellantRan Vijay Singh Chauhan
RespondentJoint Director of Education, Jhansi and Others
Appellant AdvocateP.S. Baghel and ;V.S. Chauhan, Advs.
Respondent AdvocateS.C.
Excerpt:
(i) service - illegal promotion - regulation 6(1) of chapter 2 of u.p. intermediate education act, 1921 and paras 3 and 5 of u.p. secondary education services commission (removal of difficulties)(second) order, 1981 (since rescinded) - vacancy of post of lecturer in hindi - promotion of petitioner as sociology lecturer to fill up vacancy in post of hindi lecturer - held, such promotion illegal and liable to be quashed. (ii) authority of d.i.o.s. to recall - approval of appointment on incorrect facts - d.i.o.s. authorized to recall approval on subsequent communication of correct facts by joint director of education - no injury caused to petitioner - order of recall without giving opportunity of hearing valid. (iii) conversion of vacancy - claim of appointment against short term vacancy -.....v. m. sahai, j.1. the question that arises for consideration in thispetition filed by seniormost teacher l.t. grade is whether he could be appointed as lecturer sociology even though the post which fell vacant was of lecturer hindi ; whether the appointment on short-term vacancy ceases on the vacancy becoming substantive ; whether the approval granted by the district inspector of schools could be withdrawn or cancelled by him ; whether the joint director of education could itself cancel the approval granted by the district inspector of schools or he could direct the district inspector of schools to cancel it?2. brahm vigyan inter college,atarra, district banda is a recognised and aided institution (in brief institution). two posts of lecturers were created on 15.12.1975 to be filled by.....
Judgment:

V. M. Sahai, J.

1. The question that arises for consideration in thispetition filed by seniormost teacher L.T. grade is whether he could be appointed as Lecturer Sociology even though the post which fell vacant was of Lecturer Hindi ; whether the appointment on short-term vacancy ceases on the vacancy becoming substantive ; whether the approval granted by the District Inspector of Schools could be withdrawn or cancelled by him ; whether the joint Director of Education could itself cancel the approval granted by the District Inspector of Schools or he could direct the District Inspector of Schools to cancel it?

2. Brahm Vigyan Inter College,Atarra, district Banda is a recognised and aided institution (in brief institution). Two posts of Lecturers were created on 15.12.1975 to be filled by promotion without mentioning any subject for which the posts were created and sanctioned. The third post of Lecturer Sanskrit and Civics was created on 21.12.1976 with a condition that he would also teach Sociology in intermediate classes. Sri Ram Pal Singh was working as Lecturer Hindi and Sri Nandi Singh was working as Lecturer English. It is not on record as to who was working as Lecturer Sanskrit and Civics. Sri Avinashi Nandan Dwivedi the permanent principal retired on 30.6.1993 and the committee of management sent requisition to Commission to fill the vacancy. In the meantime Sri Ram Pal Singh Lecturer Hindi was promoted on ad hoc basis as officiating principal and the District Inspector of Schools. Banda (in brief D.I.O.S.) approved it on 13.12.1993 with a condition that he would continue to work as Lecturer Hindi.

3. The petitioner was appointed on 29.7.1969 as Assistant Teacher, C.T. grade. He is the seniormost teacher in L.T. grade. He is M.A. in Sociology. Due to the promotion of Sri Ram Pal Singh as officiating principal, short-term vacancy on the post of Lecturer Hindi arose. The retired principal Sri Avinashl Nandan Dwivedi taught Sociology to intermediate classes. And after his retirement, a teacher in Sociologywas required, therefore, the management passed a resolution on 20.2.1994 promoting the petitioner on the post of Lecturer Sociology till Sri Ram Pal Singh was reverted or selected candidate from Commission came and joined. The promotion was approved on 12.9.1994 by the D.I.O.S. The records with regard to short-term promotion of petitioner was sent by the D.I.O.S. to Joint Director of Education, Jhansi Region. Jhansi. The Joint Director of Education, after examining the records, came to the conclusion that no post of Lecturer Sociology had been created in the institution and the petitioner could not have been appointed on ad hoc basis as Lecturer Sociology. He further found that Sri Ram Pal Singh was only permitted to discharge the duties of principal and he continued to work as Lecturer Hindi, therefore, there was no vacancy and the management in promoting the petitioner in short-term vacancy of Lecturer acted illegally. Consequently, he passed an order on 18.6.1998 declaring the approval granted on 12.9.1994 by the D.I.O.S. to be inoperative and the D.I.O.S. was directed to tale necessary action. In compliance of this order, the D.I.O.S. on 20.6.1998 cancelled approval granted on 12.9.1994. He further informed the management that salary bill of petitioner be sent on the post of Assistant Teacher. L.T. grade and salary paid in excess to the petitioner in Lecturer's grade may be recovered from him. The petitioner by means of this writ petition has challenged the orders passed on 18.6.1998 by Joint Director of Education and 20.6.1998 by the D.I.O.S.

4. During pendency of this petition, the D.I.O.S. wrote a letter on 16.9.1998 to the Joint Director of Education to reconsider his earlier order as the petitioner was the seniormost teacher and he had been appointed on the vacant post of Lecturer Sociology. While the letter was pending, the Joint Director of Education on 6.9.1999 regularised Sri Ram Pal Singh as principal of the institution with effect from 20.4.1998. Consequently, a substantive vacancy occurred of Lecturer Hindi. Themanagement sent the requisition to the Board to fill the vacancy. The papers were forwarded by D.I.O.S. on 29.11.1999 to the Board. It appears the Board did not select any candidate. The management, therefore, called a meeting on 5.1.2000 for considering ad hoc promotion on the substantive vacancy of Lecturer Hindi. The petitioner came to know of it. He made a representation on 4.1.2000 to the management not to proceed with the selection as his writ petition was pending before this Court. The management on 5.1.2000 passed a resolution for ad hoc promotion of Sri Raja Bhaiya Singh who was M.A. in Hindi and Sociology as Lecturer Hindi under Section 18 of the U. P. Act No. 5 of 1982, and the papers were forwarded to educational authorities on 8.1.2000. The petitioner again made a representation to the management on 10.1.2000 that he had worked as Lecturer Sociology from 13.9.1994 to 17.6.1998 and the order of Joint Director of Education passed on 18.6.1998 was under challenge in this writ petition, therefore, the management should not proceed with the selection. He filed an amendment application in this petition on 12.1.2000 for quashing of the resolution passed by the management on 5.1.2000 and a direction to the Joint Director of Education and the D.I.O.S. not to grant approval to the resolution. This Court did not pass any interim order. The D.I.O.S. on 25.1.2000 approved the ad hoc promotion of Sri Raja Bhaiya Singh till a regularly selected candidate came and joined. Two applications supported by affidavit were filed by the petitioner on 13.3.2000, one for impleading Sri Raja Bhaiya Singh as respondent No. 7 and the other for staying the order dated 25.1.2000. The amendment application filed on 12.1.2000 and impleadment application filed on 13.3.2000 were allowed on 12.5.2000 and operation of order dated 25.1.2000 was stayed. In compliance of the stay order, the D.I.O.S. passed an order on 25.5.2000 permitting the petitioner to work as Lecturer Sociology. By another order dated21.10.2000, the D.I.O.S. on legal advice recalled and modified his order dated 25.5.2000 by which petitioner was permitted to work as Lecturer Sociology as this Court had not passed any order permitting the petitioner to work as Lecturer Sociology. The petitioner was reverted back to his post of Assistant Teacher L.T. grade. This order dated 21.10.2000 has been filed by the petitioner along with the affidavit. It is prayed that the orders dated 18.6.1998 and 20.6.1998 may be stayed. The petitioner has not challenged the orders passed on 25.1.2000 and 21.10.2000 by amending this writ petition.

5. Sri P.S. Baghel the learned counsel for the petitioner has vehemently urged that once a post in Lecturer's grade falls vacant, it had to be filled by promotion of the seniormost Assistant Teacher in L.T. grade. He urged that promotion in Lecturer's grade under Rules is not linked with subject. The learned counsel urged that the short-term vacancy of Lecturer Hindi could be filled by the seniormost Assistant Teacher L.T. grade who has been working on any subject recognised in the institution by the educational authorities. He relied on Regulation 6 (1) of Chapter-II of the Regulations framed under the U. P. Intermediate Education Act, 1921 (in brief Regulations) and urged it applied to regular promotion. According to him same principle would be applicable while making promotion in short-term vacancy. Moreover, on 15.12.1975 when two post of Lecturers were created in the institution subjects were not mentioned, therefore, after the post fell vacant it was open to the management to appoint seniormost Lecturer in any subject recognised in the institution. Therefore, the management did not commit any error in appointing the petitioner as Lecturer Sociology. He placed reliance on three Division Bench decisions of this Court in B. P. Tripathi v. State of U. P. and others, 1985 UPLBEC 669, Pati Ram Pal v. District Inspector of Schools and others, 1993 (1) UPLBEC 319 and Parmatma Nand Yadav v. DistrictInspector of Schools, Mau and others, 1997 (1) UPLBEC 308. The learned counsel further urged that the post of Lecturer Sociology had been created in the institution and once approval was granted by the D.I.O.S. to the appointment of the petitioner it could not be cancelled by respondents without affording any opportunity of hearing to him. He urged that the Joint Director of Education had no jurisdiction to cancel the approval granted by the D.I.O.S. The learned counsel urged that the Joint Director of Education having acted at the instance of local M.L.A. the order cancelling approval was liable to be quashed. He placed reliance on a Division Bench of this Court in Committee of Management, Subhadra Kumar Intermediate College, Basni district Varanasi v. Director of Education, U. P. Allahabad and others, 1980 UPLBEC 353 and Kumari Jatindra Phoolka v. Director of Education, U. P., Allahabad and others, 1984 UPLBEC 21. He urged that Sri Ram Pal Singh the officiating principal was regularised by order passed by the Joint Director of Education on 6.9.1999 with effect from 20.4.1998. According to the learned counsel the effect of the order is that the short-term vacancy stood converted in substantive vacancy. Since petitioner was working as Lecturer Sociology on 20.4.1998 in the short-term vacancy he was entitled to continue and he cannot be thrown out till a regularly selected candidate from Board comes and joins the post. The learned counsel urged that Sri Raja Bhaiya Singh could not be appointed on ad hoc basis as Lecturer Hindi on the substantive vacancy since the petitioner had been working in short-term vacancy and had been occupying the post. He placed reliance on two Division Bench decisions of this Court in District Inspector of Schools, Kanpur Nagar and others v. Diwakar Lal and others. 2000 (3) ESC 1670 and Smt. Shashi Saxena and others v. Deputy Director of Education and others. 2000 (3) ESC 1990.

6. On the other hand, Sri S. P. Gupta, brief-holder State of U. P., appearing for respondent Nos. 1 to 3and 5 urged that two posts ofLecturers were created in theinstitution in 1975 withoutmentioning any subject. It was left tothe discretion of the management toappoint Lecturer in any recognisedsubject but once the managementallotted the subject to the post ofLecturers subsequently it cannot bechanged from one subject to another.He urged that the management hadappointed Lecturers in Hindi andEnglish, therefore, these two posts ofLecturers could be filled only byAssistant Teacher L.T. grade whopossessed the prescribed minimumqualification for teaching the subjectin which vacancy occurred. Sinceshort-term vacancy occurred on thepost of Lecturer Hindi, therefore, itcould be filled only by AssistantTeacher L.T. grade who was qualifiedand possessed essentialqualifications to teach Hindi inintermediate classes in accordancewith seniority. He placed reliance ona Full Bench decision of this Court inSmt. Basanti Gaur v. RegionalInspectress of Girls Schools. VII RegionGorakhpur and others, 1987 UPLBEC121 (FB). The learned counsel for theState urged that the post of LecturerSociology had not been created in theinstitution, therefore, the petitionerwas not entitled for any salary asLecturer Sociology and any amountpaid in excess to him was liable to berecovered. He placed reliance on theFull Bench decision in Gopal Dubey v.District Inspector of Schools andothers, 1999 (1) UPLBEC 3 (FB). Thelearned State counsel further urgedthat if approval is obtained by thecommittee of management by placingincorrect facts or by concealment ofmaterial facts or bymisrepresentation or fraud then theJoint Director of Education and theD.I.O.S. were competent to cancel theapproval and no opportunity ofhearing was required to be given tothe petitioner. He submitted that theallegations of mala fide have beenmade to give colour to the petitionand it does not arise. The learnedState counsel urged that the decisionsin Diwakar Lal (supra) and Smt.Shoshi Saxena (supra) are in the teethof Full Bench decision of this Court inSmt. Pramila Mishra v. Deputy Director of Education, Jhansi Division, Jhansi and others, 1997 (2) UPLBEC 1329 (FB).

7. The question is whether seniormost teacher in L.T. grade could be appointed as Lecturer Sociology even though the post which fell vacant was of Lecturer Hindi? The educational authorities by order passed on 15.12.1975 created and sanctioned two posts of Lecturers in the institution without mentioning any subject. It was also provided that these posts were to be filled by promotion. One post was filled by Sri Ram Pal Singh Lecturer Hindi and the other by Sri Nandi Singh Lecturer English. By another order passed on 21.12.1976, the third post of Lecturer was created and sanctioned in the institution to teach Sanskrit and Civics with a condition that he would teach Sociology in intermediate classes. The order further provided that Lecturer English would also teach History to intermediate classes. It appears that though only three posts of Lecturers had been sanctioned in the institution but permission had been granted for imparting education in other subjects as well. After the retirement of permanent principal on 30.6.1993, Sri Ram Pal Singh lecturer Hindi was promoted on ad hoc basis as officiating principal which was approved by the D.I.O.S. with a condition that he would continue as Lecturer Hindi. A short-term vacancy on the post of Lecturer Hindi occurred. Since the ad hoc principal was to teach Hindi in intermediate classes, the management could promote the seniormost Assistant Teacher L.T. grade in accordance with seniority and merit in the subject in which the vacancy had occurred. Regulation 6 (1) of Chapter 11 of the Regulations applies to regular promotions. The same principle would be applicable while making promotion in short-term vacancy under U. P. Secondary Education Service Commission (Removal of Difficulties) (Second! Order 1981. Regulation 6 (1) of Chapter II of the Regulations is extracted below :

'6. (1) Where any vacancy in the Lecturer's grade or in the L.T. grade as determined under Regulation 5, is to be filled by promotion, all teachers working in the L.T. or the C.T. grade, as the case may be, having a minimum of five years continuous substantive service to their credit on the date of occurrence of the vacancy shall be considered for promotion by the Committee of Management without their having to apply for the same provided they possess the prescribed minimum qualifications for teaching the subject in which the teacher in the Lecturer's grade or in the L.T. grade is required.

Note: For purposes of this clause, service rendered by a teacher in the L.T. or the C.T. grade in any other recognised institution shall count for eligibility, unless interrupted by removal, dismissal or reduction to lower post.'

8. From Regulation 6 (1), it is clear that promotion of seniormost Assistant Teacher in L.T. grade could be made in Lecturer's grade provided he possessed the prescribed minimum qualifications for teaching the subject in which the teacher in the Lecturer's grade is required. The words 'for teaching the subject in which the teacher in the Lecturer's grade or L.T. grade is required' are important. It means that the subject in which the vacancy has occurred is to be filled by promotion. It cannot be accepted that the management could fill the vacancy of Lecturer Hindi by Lecturer Sociology. The post of Lecturer or any other post is created under Section 9 of the U. P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971, by the Director or such officer as may be empowered in that behalf by the Director. Salary could be paid only on sanctioned post as held by Full Bench in Gopal Dubey (supra).The post once sanctioned could only be changed by the Director or any other authority empowered by the Director. If the post is sanctioned without mentioning any subject, then it is open to the management to allot it to any subject. But once the management had allotted the post of Lecturer for a subject and it has been approved by the D.I.O.S., then subsequently it cannot change it to a post of Lecturer in a different subject. Otherwise it would lead to arbitrariness and favouritism. If the management was of the opinion that it did not require Lecturer in Hindi, it could have made a request to the educational authority for changing the subject. This question came up for consideration before a Full Bench of this Court in Smt. Basanti Gaur (supra). It was held that promotion could be made from out of eligible persons having qualification in the subject in which vacancy occurred.

9. The learned counsel for the petitioner has vehemently urged that the Full Bench has not laid down any ratio. The Full Bench has approved the decisions given by two Division Benches of this Court, therefore, the law laid down as affirmed by the Full Bench was the ratio laid down by the Full Bench and is binding. The Full Bench was conscious of the fact that seniormost Assistant Teachers L.T. grade may be deprived by its decision to claim the promotional post of Lecturer, but the Full Bench having considered and decided the question that when a vacancy in Lecturer's grade occurred, it has to be filled by the seniormost teacher L.T. grade in accordance with seniority and merit after considering the experience in teaching the subject in which the post of Lecturers has fallen vacant, it approved the Division Bench decision in Vidya Sugar Sharma v. Deputy Director of Education, Meerut and another, W.P. No. 6449 of 1974, decided on 17.12.1977 and Shamsher Bahadur Singh v. District Inspector of Schools, Mirzapur and others, 1985 UPLBEC 592. The argument of the learned counsel for the petitioner that promotion could be made of the seniormost teacher in any subject cannot be accepted. The decision inPati Ram Pal (supra). B. P. Tripathi (supra) and Parmatma Nand Yadav (supra) being contrary to Full Bench decision of this Court in Smt. Basanti Gaur (supra) cannot help the petitioner. Therefore, since the short-term vacancy on the post of Lecturer Hindi occurred, it could only be filled by an Assistant Teacher L.T. grade in accordance with seniority and merit by a teacher who possessed the minimum educational qualification of Lecturer Hindi. The promotion of petitioner made on the post of Lecturer Sociology in the vacancy of Lecturer Hindi was illegal and has rightly been set aside by the impugned orders.

10. The next question is that once the D.I.O.S. granted approval to the promotion of petitioner whether it could be cancelled by the D.I.O.S. on the directions of Joint Director of Education without affording any opportunity of hearing to the petitioner. The management promoted the petitioner in the short-term vacancy as Lecturer Sociology. It is not on record as to who was teaching Sanskrit and Civics in the institution. From the order dated 21.12.1976 passed by Director of Education by which post of Lecturer Sanskrit and Civics was created, it is clear that Lecturer Sanskrit and Civics was required to teach Sociology in intermediate classes. It is reasonable to assume that Sociology was taught by Lecturer Sanskrit and Civics working in the institution. The management could have promoted the seniormost Assistant Teacher L.T. grade in the short-term vacancy of Lecturer Hindi as provided by U. P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, in the subject in which vacancy arose. But the petitioner who is M.A. in Sociology could not be promoted as Lecturer Sociology on the post of Lecturer Hindi. The post of Lecturer Sociology has not been created or sanctioned in the institution. The management in its resolution did not place correct facts before the D.I.O.S. and did not inform him that Sociology in intermediate classes is to be taught by LecturerSanskrit and Civics. The approval to the short-term promotion of the petitioner as Lecturer Sociology was obtained on incomplete facts. From the records, it was found by the Joint Director of Education that no post of Lecturer Sociology had been created in the institution, therefore, he passed an order on 18.6.1998 on the basis of which the D.I.O.S. cancelled the approval earlier granted on 12.9.1994 by his order dated 20.6.1998. The argument of the learned counsel for the petitioner that approval once granted by the D.I.O.S. on 12.9.1994 to the short-term promotion of the petitioner was final and could not be cancelled without affording any opportunity of hearing and the D.I.O.S. does not have any power of review and the order passed by him on 20.6.1998 cancelling the approval on direction of the Joint Director of Education was without jurisdiction raises two issues one of principles of natural Justice and other absence of any power of review. Further, could the Joint Director of Education have issued the order for cancelling the approval. From the facts stated in the petition and annexures filed, it is clear that the management did not inform the D.I.O.S. that Sociology in intermediate classes has to be taught by Lecturer Sanskrit and Civics. There is no whisper in the resolution dated 20.2.1994 sent by committee of management to the D.I.O.S. as to who was working as Lecturer Sanskrit and Civics in the institution and whether he was teaching Sociology subject to intermediate classes or not. Therefore, the management failed to place material facts before the D.I.O.S. and the approval was against law. The learned counsel for the petitioner could not show that the post of Lecturer Sociology has been created or sanctioned in the institution. Since the approval was obtained by the management on incorrect facts, the D.I.O.S. could cancel it. A Division Bench of this Court in Lalit Mohan Misra and another v. District Inspector of Schools and others, 1979 ALJ 1025, has held that the District Inspector of Schools can rectify any illegal approval orderearlier passed by him to restore back the legal position. Such an order cannot be said to have been passed in excess of jurisdiction. It has been held in Committee of Management, Subhadra Kumar Intermediate College. Basni. District Varanasi (supra) that if any order approving a certain appointment is obtained by concealment of facts, the District Inspector of Schools can review it. In Kumari Jatindra Phoolka (supra), it has been held that normally the D.I.O.S. has to apply his own independent mind but if it is revealed to a higher educational authority from the records that approval has been granted by the D.I.O.S. which was a result of a fraud or misrepresentation, then the higher educational authority can always direct the D.I.O.S. informing him about the mistake committed by him and to pass appropriate orders. In Havaldar Singh v. U. P. Shtksha Nideshak VII Mandal. Gorakhpur. 1976 AWC 123, it has been held that even in the absence of any statutory provision, the power of review can be exercised by the administrative authority in case of fraud or misrepresentation but the fraud or misrepresentation must be in relation to matters vitally connected with the exercise of power or which may have affected the initial jurisdiction of the authority. It is thus settled by this Court that the D.I.O.S. can recall approval granted by him. Since the approval was obtained by furnishing incorrect facts which was the basis of exercise of jurisdiction for grant of approval, the D.I.O.S. on being apprised of correct facts could recall its order. It is true that the order was recalled on the direction of the Joint Director of Education. He had no power to pass the order. He could have pointed out the mistake to the D.I.O.S. who should have exercised the power. But in view of the facts stated earlier that the approval was obtained on incorrect facts, no relief can be granted to the petitioner.

11. The next question is whether before cancelling the approval earlier granted, the D.I.O.S. was required to give an opportunity of hearing to the petitioner or the management. Thelearned counsel for the petitioner had vehemently argued that the order granting approval was final and could not be cancelled without affording opportunity of hearing to the petitioner. In Kumari Jatindra Phoolka (supra), it has been held that 'once approval is granted to the appointment of a teacher and if the orders of his appointment are issued, a vested right is accrued in favour of the teacher concerned more so in a case where a teacher is appointed in a permanent vacancy on probation. That right cannot be taken away by revoking the order of approval without giving opportunity to the teacher concerned as that would violate the principles of natural justice. In case, thus, where a mistake or misrepresentation is shown to vitiate the order of approval, the R.I.G.S. is competent to make a review subject however, to the basic requirement of natural justice, namely, that of according opportunity to the person likely to be affected upon such review being observed.' From the facts of this case, it is clear that the management obtained the approval by concealment of material facts. In such a situation, if the authority cancels the order no prejudice is caused, as on the undisputed facts only one conclusion is possible that the approval was obtained illegally from the D.I.O.S. An order passed without affording any opportunity of hearing in violation of principles of natural Justice would not be interfered by this Court under Article 226 of the Constitution of India if the quashing of the impugned order is likely to result in revival of another order which is in itself illegal. The Apex Court in Aligarh Muslim University and others v. Mansoor Alt Khan, 2000 (4) ESC 2457 (SC), has held that it depends on the facts of each case as to whether there is a breach of principles of natural justice or not. It held that on the facts before it on the admitted or indisputable facts only one view is possible, in that event no prejudice can be said to be caused. In paragraph 23 it was held :

'Chinnappa Reddy, J., in S. L. Kapoor's case, laid down two exceptions (at p. 395) namely. 'Ifupon admitted or indisputable facts only one conclusion was possible.' then in such a case the principle that breach of natural justice was in itself prejudice, would not apply. In other words, if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception.'

12. The argument of the learned counsel for the petitioner that approval has been cancelled mala fidely at the instance of Sri Daddu Prasad, M.L.A. cannot be accepted. No foundation has been laid nor any material has been filed to establish mala fide.

13. The next argument of the learned counsel for the petitioner is that Sri Ram Pal Singh the officiating principal was regularised by order passed by the Joint Director of Education on 6.9.1999 with effect from 20.4.1998, therefore, prior to the order passed on 18.6.1998 by the Joint Director of Education by fiction the short-term vacancy stood converted in substantive vacancy, Since he was working as Lecturer Sociology on 20.4.1998 in the short-term vacancy, therefore, he was entitled to continue and he cannot be thrown out till a regularly selected candidate from the Board joined. The learned counsel urged that the petitioner was permitted to work as Lecturer Sociology under the order of D.I.O.S. passed on 25.5.2000 and even if this order was recalled and modified on 21.10.2000 but since he was working on 6.9.1999 when the short-term vacancy stood converted in permanent vacancy. Sri Raja Bhaiya Singh could not be appointed on ad hoc basis as he had been occupying the post. The question is that if a short-term vacancy is converted into a substantive vacancy whether short-term appointment would continue or it would come to an end. The Full Bench in Smt. Pramila Mishra (supra) has considered thisquestion. The law laid down by the Full Bench is extracted as under :

'Summing up our conclusions in the light of the discussions in the foregoing paragraphs, we hold that a teacher appointed by the management of the institution on ad hoc basis in a short-term vacancy (leave vacancy/ suspension vacancy), which is subsequently converted into a substantive vacancy in accordance with the provisions of the Act, Rules and Orders, (on death, resignation, dismissal or removal of the permanent incumbent), cannot claim a right to continue. He has, however, right to be considered along with other eligible candidates for ad hoc appointment in the substantive vacancy if he possesses the requisite qualifications. Consequent upon the view taken by us, as noted above, we hold that the decisions of this Court like Km. Meena Singh's case (supra) and other cases taking contrary view, are declared to be no longer good law.'

Therefore, the petitioner cannot claim that he continued and the management could not appoint Sri Raja Bhaiya Singh on ad hoc basis. The right to continue in short-term vacancy could be accepted either when the vacancy continued or by operation of any legal principle. But when the vacancy ceased, the right to continue automatically came to an end. Such a teacher may not be denied consideration for ad hoc appointment along with others as held by the Full Bench but the right to be considered for ad hoc appointment in a substantive vacancy and the right to continue on short-term vacancy after its coming to an end till regular selection is made are two different rights. The latter comes to an end by operation of taw. The continuance of such teacher would be contrary to paragraph 3 of the Second Removal of Difficulties Order, 1981, and the law declared by the Full Bench. The learned counsel for the petitioner, however, vehementlyargued that two Division Benches of this Court have considered the ratio in Smt. Pramila Mishra (supra) and held that even when short-term vacancy gets converted into substantive vacancy, he cannot be thrown out and he has a right to continue till regular candidate joins, therefore, the management could not appoint Sri Raja Bhaiya Singh as ad hoc teacher. Reliance was placed on Dtwakar Lal (supra). Smt. Shashi Saxenct (supra) and Raj Kumar Verma u. District Inspector of Schools, Saharanpur and others, 1999 (2) UPLBEC 1420. In Diwakar Lal (supra), the Division Bench observed in paragraph 15 as under :

'In view of the Judgment, 1992 (2) UPLBEC 1420, we are of the opinion that the incumbents working on ad hoc basis against short-term vacancies should not be automatically thrown out of service in view of the decision in case of Pramila Mishra (supra) when 'short-term' vacancy became 'substantive vacancy'. in such a situation an ad hoc appointee should normally be allowed to continue (If there is no complaint about his working), till a regular ad hoc appointment is made against substantive vacancy as contemplated under Removal of Difficulties Order.'

14. To similar effect observation was made in paragraph 21 in Smt. Shashi Saxena (supra) which is extracted below :

'Hence, it cannot be said that the services of Smt. Shashi Saxena came to an end automatically on the post of Assistant Teacher L.T. grade being converted into substantive vacancy on the retirement of Smt. Rama Dixit.'

15. The observations undoubtedly support the petitioner. It is. therefore, necessary to examine whether the petitioner can rely on the observations made by the Division Bench, which had been made after the Full Bench decision in Pramila Mishra (supra). It is necessary to mention that a learned single Judgeof this Court in Km. Meena Singh v. District Inspector of Schools, Jaunpur and another. 1994 (3) UPLBEC 1653, in paragraph 14 held as under :

'In my opinion, therefore, a teacher duly appointed against short-term vacancy under Para 2 of the Second Removal of Difficulties Order. 1981, would be entitled to continue even after the vacancy is converted into a substantive one by reasons of resignation, retirement, death or otherwise till such time as a candidate selected for regular appointment turns up to join the post held by ad hoc appointee unless his services are terminated earlier on the grounds connected with misconduct, unsuitability or bona fide abolition of post.'

16. The Full Bench in Smt.Pramila Mishra (supra) while declaring the law on the nature of short-term appointments after conversion of vacancy into substantive, specifically overruled this decision and held in paragraph 24 as below :

'.....that the decisionsof this Court like Km. Meena Singh's case (supra) and other cases taking contrary view, are declared to be no longer good '

17. The direction issued by thelearned single Judge in Km. Meena Singh which was declared by the Full Bench to be no longer good law with utmost respect to the Judges of the Division Bench has been issued again as is clear from the directive extracted earlier. The support for these directions was derived from Division Bench in Raj Kumar Verma's case. The Bench in this case was concerned with Assistant Teachers appointed in C.T. grade in short-term vacancy on 7.8.1987. Although the single Judge held that the vacancy ceased to exist when promotees were confirmed but the Division Bench in special appeal accepted their claim on Section 33B as the teachers had been appointed prior to 1991. While taking this view, the Bench observed in paragraph 7 as below :

'......The view we aretaking is not in conflict with the view taken by the Full Bench of this Court in the case of Promila Mishra.'

In paragraph 10 the Bench observed :

The question herein is not whether a teacher appointed in a short-term vacancy is entitled to continue as of right even after the vacancy is converted into a substantive vacancy. The question involved in the instant case is whether the appellants are entitled to be considered for being given substantive appointment.'

18. Entitlement for substantive appointment under Section 33B was held by the Division Bench in Raj Kumar Verma's case due to provision of regularisation under Section 33B after the vacancy became substantive. This decision, therefore, could not be invoked by an Assistant Teacher appointed after 14.5.1991. His rights would be governed by Second Removal of Difficulties Order, 1981, and not by interaction of Section 33B and Second Removal of Difficulties Order, 1981. Before the Division Bench in Dwaker Lal (supra), the case was of appointment in short-term vacancy after 1991. Therefore, the principle of Raj Kumar Verma's case could not be invoked. In any case, with great humility to learned Judges the Division Bench could not issue the direction. 'That the incumbent working on ad hoc basis against short-term vacancies should not be automatically thrown out of service-In view of the decision in the case of Smt. Pramila Mishra (supra),' as it amounted to saying that the decision of the Full Bench was erroneous, therefore, it should not be followed and the directive issued by the Division Bench based on Raj Kumar Verma's case, to continue the Assistant Teacher may be accepted and enforced. The Apex Court has never approved such action of a Single or Division Bench even when it attempted to distinguish a Full Bench decision in taking a contrary view. In Smt. Lakhraj Devi and others v. Stateof Bihar and others, 2000 (40) ALR 19 (SC), the Apex Court has held as under:

'The learned Judges distinguished the Full Bench decision of the Patna High Court in Harendra Prasad Singh v. State of Bihar, which has been cited before us too. We have gone through the judgment. The learned single Judge and the Division Bench were bound by the law laid down by the Full Bench decision of the High Court. There is hardly any ground to distinguish that judgment.'

19. The Supreme Court in State of U. P. v. C. L. Agarwal, AIR 1997 SC 2431, held that a Division Bench cannot hold that a decision of a Full Bench was not binding or it was erroneous because of a Supreme Court decision. The Court in paragraph 19 expressed its unhappiness and observed as under :

'We are dismayed that the Division Bench hearing the said writ petition should have proposed to examine the issue 'notwithstanding the aforesaid pronouncement of the Full Bench Judgment.....' if thejudgments in the case of Supreme Court Employees' Welfare Association, AIR 1990 SC 334 and M. C. Puttaswamy. AIR 1991 SC 295, were cited and the respondents to the said writ petition submitted that the Full Bench Judgment was erroneous by reason thereof, the proper course for the Division Bench to follow, if it found any merit in the submission, was to refer the said writ petition to a Full Bench. Judicial discipline requires that a Division Bench should not examine de novo an issue that is concluded by the decision of a Full Bench of that High Court.'

20. In Smt. Shashi Saxena (supra), the Division Bench relying on earlier observation in Raj Kumar Varma (supra) directed in paragraph 23 as under :

'A writ of mandamus is issued against the respondents to allowthe petitioner Smt. Shashi Saxena to continue on the post of L.T. Grade Teacher in College even after short-term vacancy on the post held by her got converted into substantive vacancy with effect from 30th June, 1996, to pay arrears of salary and to continue to pay in future such salary/emoluments, etc. as may become due in accordance with law until she is finally regularised and/or a duly selected candidate by U. P. Secondary Education Selection Board joins the post, as the case may be.'

21. The Bench went much beyond Raj Kumar Verma (supra) and issued direction, which was against law declared by Full Bench decision in Smt. Pramila Mishra (supra). The Apex Court in another decision in Sub-Inspector Rooplal and another v. Lt. Governor through Chief Secretary. Delhi and others, (2000) 1 SCO 644, has held in paragraph 12 as under :

'At the outset, we must express our serious dissatisfaction in regard to the manner in which a Coordinate Bench of the Tribunal has overruled, in effect, an earlier judgment of another Coordinate Bench of the same Tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the Tribunal was of the opinion that the earlier view taken by the Coordinate Bench of the same Tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two Coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known Rules of precedents. Precedents which enunciate rules of law form the foundation of administration of justice under our system. This is a fundamental principle which every presiding officer of a judicial forum ought to know, forconsistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again that precedent law must be followed by all concerned ; deviation from the same should be only on a procedure known to law. A subordinate court is bound by the enunciation of law made by the superior courts. A Coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement. This Court in the case of Tribhouandas Purshottamdas Thakkar v. Ratilal Motilal Patel while dealing with a case in which a judge of the High Court had failed to follow the earlier judgment of a larger Bench of the same Court observed thus :

'The judgment of the Full Bench of the Gujarat High Court was binding upon Raju, J. If the learned Judge was of the view that the decision of Bhagwati. J., in Pinjare Karimbhai case and of Macleod. C.J., in Haridas case did not lay down the correct law or Rule of practice. It was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it. Our system of administration of justice aims at certainty in the law and that can be achieved only if judges do not ignore decisions by Courts of coordinate authority or of superior authority. Gajendragadkar. C.J. observed in Bhagwan v. Ram Chand :

'It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to takethe view that the earlier decisions of the High Court, whether of a Division Bench or of single Judge, need to be reconsidered, he should not embark upon that inquiry sitting as a single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety.'

22. The direction in Diwakar Lal (supra) and Smt. Shashi Saxena (supra) with great respect and profound humility is contrary to the judicial discipline as explained by the Apex Court in Sub-Inspector Roop Lal (supra). It being contrary to the ratio of the Full Bench in Smt. Pramila Mishra (supra) cannot be relied by the learned counsel for the petitioner to claim that the petitioner would continue even when the vacancy stood converted into substantive till a regularly selected candidate joined. The directions in the circumstances has neither any binding force nor any legal effect. Therefore, the argument of the learned counsel for the petitioner is devoid of any merit.

23. The learned counsel for the petitioner has lastly urged that the management could not fill the post of Lecturer Hindi on which substantive vacancy has occurred by ad hoc appointment under U. P. Secondary Education Services Selection Board Act, 1982. The substantive vacancy of Lecturer Hindi occurred on 6.9.1999 when Sri Ram Pal Singh ad hoc principal was regularised with effect from 20.4.1998. The petitioner was appointed in short-term vacancy under the U. P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981. This Removal of Difficulty Order has been rescinded with effect from 25.1.1999 by insertion of Section 33E in U. P. Act No. 5 of 1982. Thus, adhoc appointment on substantive vacancy could only be made under the provisions of U. P. Act No. 5 of 1982. The petitioner has not challenged the order passed by the D.I.O.S. on 25.1.2000 under the U. P. Act No. 5 of 1982 by which the appointment of respondent No. 7 as ad hoc Lecturer Hindi was approved. He has also not challenged the order dated 21.10.2000 passed by D.I.O.S. recalling and modifying his earlier order passed on 25.5.2000. In absence of any challenge to these orders, it is not open to the petitioner's counsel to urge that these orders were illegal.

24. For the reasons aforesaid, I do not find any merit in this petition.

25. The writ petition fails and is accordingly dismissed.


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