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Smt. Pratima Chauhan and Another Vs. Regional Deputy Director of Eduction (Madhyamik(, Agra and Others - Court Judgment

LegalCrystal Citation
SubjectService
CourtAllahabad High Court
Decided On
Case NumberC.M.W.P. No. 21353 of 1997
Judge
Reported in1999(2)AWC1234; (1999)2UPLBEC1621
Acts Uttar Pradesh Secondary Education Service Commission (Removal of Difficulties) (First) Order, 1981; Constitution of India - Article 226
AppellantSmt. Pratima Chauhan and Another
RespondentRegional Deputy Director of Eduction (Madhyamik(, Agra and Others
Appellant Advocate Ashok Bhushan, Adv.
Respondent Advocate Shyam Sunder Sharma, S.C.
Excerpt:
.....removal of difficulties order to the effect that the letter seeking approval had accompanied letter of appointment as well as joining report which was received on 16.2.1996. according to him by reason of clause 2 (3) (ii) (iii) of the o. 1, after perusing the entire papers vide order dated 28.2.1996 has rightly disapproved the appointment of the petitioners as the same were made purely on irregular and extraneous basis. ' 12. a perusal of the statements made in relevant paragraph of counter-affidavit as quoted above clearly indicates that in paragraphs 11 to 14 of the writ petition, the petitioner had asserted the fact that the approval was sought for vide letter dated 20.11.1995 and the same was received in the district inspector of schools on 16.2.1996 whereas the appointment was..........removal of difficulties order to the effect that the letter seeking approval had accompanied letter of appointment as well as joining report which was received on 16.2.1996. according to him by reason of clause 2 (3) (ii) (iii) of the o. p. secondary education services commission (removal of difficulties) (second order). 1981 no ad hoc appointment can be made before expiry of 7 days from the receipt of papers in the office of district inspector of schools. the appointment can only be issued after expiry of such 7 days as provided in clause 3 (i),(ii), (iii) and (iv) of the second removal of difficulties order. in the present case, the letter dated 20.11.1995 had accompanied the appointment letter and the joining report of the petitioners and the same received in the office of.....
Judgment:

D.K. Seth, J.

1. The petitioners were selected for appointment against short-term vacancies after publication of an advertisement in only one newspaper. The selection was sought to be approved by the Manager through his letter dated 20.11.1995 which is Annexure-3 to the writ petition. This was received by the Deputy Director of Education. Region II. Agra on 16.2.1996. But no approval was accorded to the proposed selection for appointment. On 26.2.1996 the Committee of Management issued appointment letters to the petitioners which is Annexures-4 and 5 to the writ petition. Pursuant to such appointment letters, the petitioners Joined on 27.2.1996. By letter dated28.2.1996, the Deputy Director ofEducation informed the Manager of the institution that the papers of appointment sent by the Management through letter dated 16.2.1996 are irregular and against the Government Orders and that the appointments were made illegally. The petitioners had moved a writ petition being Civil Misc. Writ Petition No. 12163 of 1996 against the refusal to approve ad hoc appointment of the petitioners. In the said writ petition, an interim order was granted. Ultimately, the said writ petition was allowed by order dated 14.3.1997 which is Annexure-9 to the writ petition by directing the respondent to consider the case of the petitioners for approval. Pursuant to such order, the petitioner's case was reconsidered by an order dated 2.6.1997 which is Annexure-10 to the writ petition. It is this order which has since been challenged in this writ petition.

2. Shri Ashok Bhushan, learned counsel for the petitioners contends that the earlier rejection of the approval which was subject-matter of the earlier writ petition was also on the self-same ground. Further, he contends that the grounds on which the approval was refused in the impugned order cannot be sustained in law and had relied on a decision in the case of Writ Petition No. 37497 of 1996 decided on 3.12.1996. Chatur Singh and another v. Regional Deputy Director of Education, Agra and others, wherein all these grounds were held to be invalid in an Identical situation.

3. Shri Shyam Sunder Sharma learned standing counsel on the other hand contends that the question is dependent on the valid selection and appointment of the petitioners. He relies on the statement made in paragraph 8 of the counter-affidavit and points out that the provisions of the U. P. Secondary Education Service Commission (Removal of Difficulties) (Second' Order), 1981 has not been followed and as such the appointment cannot be approved, He also assails the other contention of Mr. Ashok Bhushan and supported' the grounds of rejection of the approval.

4. A perusal of the impugned order indicates that the approval was refused on four grounds viz., (i) that the case of two C.T. grade teachers who were already working in the institution were ignored for promotion to the vacancy. Hi) that the question of reservation having not been filled up the same could not have been ignored. (iii) that the advertisement was published contrary to the ratio laid down in the decision in the case of Radha Raizada v. Committee of Management Vidyawati Darsari Girls Inter College, 1994 (3) UPLBEC 1551 : 1994 ALJ 1077 and (iv) that it has infracted the procedure for ad hoc appointment against short-term vacancy as provided in the Second Removal of Difficulties Order.

5. So far as the first ground is concerned Mr. Ashok Bhushan, learned counsel for the petitioners has pointed out from paragraph 17 of the writ petition that those two teachers were appointed on ad hoc basts and had been working in the school pursuant to the interim order in Writ Petition No. 12856 of 1986 and thus they were not holding any substantive appointment. This statement has been dealt with in paragraph 10 of the counter-affidavit wherein it has been pointed out that those two teachers fulfill all the requisite qualification for promotion but the assertion made in paragraph 17 of the writ petition that they were working on ad hoc basis pursuant to an Interim order granted in Writ Petition No. 12856 of 1986 and that they were not holding any substantive appointment has neither been admitted nor been denied.

The statement made asserting a particular fact has to be denied specifically. Unless such statement is denied specifically, it is presumed to have been admitted. There is nothing in paragraph No. 10 of the counter-affidavit to show that any attempt has been made to deny the said statement made in paragraph 17 of the writ petition. On the other hand, the said statement has been by-passed simply by making a statement that those two persons fulfil the requisite qualification for promotion. Unless itis asserted that the said two persons are holding substantive appointment on the teeth of the statement made in paragraph 17 of the writ petition, it cannot be concluded that there was sufficient denial to contradict the statement made in paragraph 17 of the writ petition. On the other hand, an evasive statement having been made in paragraph 10 of the counter-affidavit tt is to be considered as admission of the specific statement made in paragraph 17 of the writ petition.

6. The question of promotion on ad hoc basis is provided in U. P. Secondary Education Services Commission (Removal of Difficulties) Order. 1981 (hereinafter called as the First Order), where in paragraph 4 provisions have been made for filling up of post on ad hoc basis by promotion in sub-para (3) in respect of L.T. Grade from C.T. Grade. It is provided therein that 'every vacancy in the post of a teacher in the trained graduate (L.T.) grade shall be filled by promotion by the senior-most teacher of the institution in the trained undergraduate (C.T.) grade'. Paragraph 6 of the First Order provides for eligibility for appointment which provides that :

'Every appointment of a teacher under paragraph 4 or 5 shall be subject to the following conditions, namely :

(a) ....................

(b) ....................

(c) The candidate sought to be appointed by promotion under paragraph 4 must have been serving the institution in substantive capacity from before the date of commencement of this order.'

This expression came to be interpreted in the case of Mukhnath Rai v. District Inspector of Schools, 1991 (2) UPLBEC 1170. In the said decision, the expression 'from before the date of commencement of this order' was held to mean from before the occurrence of the vacancy. This proposition has not been disputed in his usual fairness by Shri ShyamSunder Sharma, learned standing counsel.

7. Thus, it appears that in order to consider for being promoted on ad hoc basis under sub-para (3) of para 4 of the First Order one has to serve the Institution in substantive capacity, in the present case as observed earlier, the said two persons having not been serving in substantive capacity, they cannot come within purview of sub-para (3) of para 4 of the First Order and as such their existence in the school cannot stand in the way of filling up the short-term vacancy by ad hoc appointment through recruitment in terms of Second Removal of Difficulties Order. Therefore, the first ground in the facts and circumstances of the present case cannot be sustained.

8. So far as the second ground is concerned, the question of reservation does not arise in the case of ad hoc appointment against short-term vacancy. It was so held in the decision in the case of Chatur Singh (supra) wherein it was held that the question of reservation is wholly irrelevant in respect of ad hoc appointment since such appointment is a stop-gap arrangement which is of short-term duration. Therefore, the second ground also cannot be sustained.

9. About the third ground that it was published in only one newspaper, the same question was involved in the case of Chatur Singh (supra) which relied on a decision in the case of J. A. Inter College, Khurja v. State of U. P, and others, 1996 (3) ESC 151 (SC), wherein it was held that the same being a technical irregularity in respect of short-term appointment, such appointment was allowed to be continued as stop-gap arrangement subject to the conditions that such candidate would not claim any right for continuance on the post either in the form of regularization or otherwise at any point of time and their continuance would come to an end as soon the candidates regularly selected by the Commission is available for Joining or the candidates selected according to the normsprescribed in the case of Radha Raizada (supra), read with the procedure laid down In Section 18 as reenacted by 1995 (Amendment) Act is available for joining such posts, whichever is earlier. I do not find any reason to take a different view from the view taken in the case of Chatur Singh (supra). Therefore, in the present case despite the fact that the advertisement was issued in only one newspaper in infraction of the principle of publication in two newspapers as provided in the case of Radha Raizada (supra), the appointment may be continued subject to the condition that the petitioners should not claim any right either in the form of regularization or to resist any appointment made following the procedure-either under Section 18 or Second Removal of Difficulties Order hereafter.

10. So far as the fourth ground is concerned, Shri Shyam Sunder Sharma, learned standing counsel had relied on paragraph 8 of the counter-affidavit and pointed out that there has been infraction of Second Removal of Difficulties Order to the effect that the letter seeking approval had accompanied letter of appointment as well as Joining report which was received on 16.2.1996. According to him by reason of clause 2 (3) (ii) (iii) of the O. P. Secondary Education Services Commission (Removal of Difficulties) (Second Order). 1981 no ad hoc appointment can be made before expiry of 7 days from the receipt of papers in the Office of District Inspector of Schools. The appointment can only be issued after expiry of such 7 days as provided in clause 3 (i),(ii), (iii) and (iv) of the Second Removal of Difficulties Order. In the present case, the letter dated 20.11.1995 had accompanied the appointment letter and the Joining report of the petitioners and the same received in the Office of District Inspector of Schools on 16.2.1996, thus the appointments having been granted even before the papers were forwarded in terms of clause 3 of Second Removal of Difficulties Order, there has been glaring infraction of the said provision and as such thepetitioner having not been properly appointed cannot claim any benefit and thus there was no Infirmity In the order of disapproval.

11. In order to appreciate the contention and the opposition advanced by Shri Ashok Bhushan, it would be useful to quote paragraph 8 of the counter-affidavit and paragraph Nos. 11 to 14 of the writ petition as hereinbelow :

'Paragraph 8 of the counter-affidavit :

'8. That in reply to the contents of paragraphs 11 to 14 of the writ petition it is stated that the petitioners have said in the paras under reply about the sending of letter dated 20.11.1995 by the manager to the respondent No. 1 along with the appointment letters and Joining of the petitioners, which was received on 16.2.1996. It is stated that the said action of the manager, i.e., for seeking approval of the respondent No. 1 by attaching the appointment order and joining reports of the petitioners along with the letter dated 20.11-1995, itself made sufficient ground for suspicion and irregularity adopted by the manager for making appointment of the petitioners. As such, the respondent No. 1, after perusing the entire papers vide order dated 28.2.1996 has rightly disapproved the appointment of the petitioners as the same were made purely on irregular and extraneous basis. In case, the respondent No. 3, i.e, manager is taking work from the petitioner, then, the manager himself is responsible for paying salary extra.'

Paragraphs 11 to 14 of the writ petition :

'11. That the Manager vide letter dated 20.11.1995 submitted papers to the Deputy Director of Education II Agra, along with relevant papers for approval. The said papers were received in the office of the Deputy Director of Education II. Agra on 16.2.1996. A true copy of the aforesaid letter dated 20.11.1995 is being filed herewith and marked as Annexure-3 to this writ petition.

12. That when the Committee of Management did not receive any communication from the Deputy Director of Education II. Agra. who was exercising powers of inspectress within one week from the receipt of the papers regarding selection on two posts of L.T. Grade teachers, the Committee of Management issued appointment letters to the petitioners on 26.2.1996. A true copy of the appointment letter of petitioner No. 1 and a true copy of the appointment letter with regard to petitioner No. 2 dated 26.2.1996 are being filed herewith and marked as Annexures-4 and 5 to this petition.

13. That both the petitioners submitted their joining in the institution on 27.2.1996 and both are functioning in the institution since then and are taking classes regularly,

14. That a letter dated 28.2.1996 was sent by the Deputy Director of Education (Madhyamik) to the Manager stating that the papers of appointment sent by the Management vide letter dated 16,2.1996 are irregular and against the Government Orders. The Deputy Director of Education (Madhyamik) took the view that the Management has made appointments illegally on its own. A true copy of the aforesaid letter dated 28.2.1996 is being filed herewith and marked as Annexure-6 to this petition.'

12. A perusal of the statements made in relevant paragraph of counter-affidavit as quoted above clearly indicates that in paragraphs 11 to 14 of the writ petition, the petitioner had asserted the fact that the approval was sought for vide letter dated 20.11.1995 and the same was received in the District Inspector of Schools on 16.2.1996 whereas the appointment was issued on 26.2.1996 and pursuant thereto the petitioners had joined on 27.2.1996. No where it was pleaded in the pleadings of the writ petition that the letter of appointment and the joining report had accompanied the letter dated20.11.1995. The said letter dated 20.11.1995 is Annexure-3 to the writ petition, from which it is apparent that five enclosures were annexed with the said letter. Those five enclosures were specified therein as (i) proposal ; (ii) Form 15A and 15B : (iii) Certificate that the candidates are not within the prohibited relation ; (iv) quality point mark ; and (v) copy of advertisement. There was an endorsement below this enclosure 'received dated 16.2.1996'. Thus, the said letter does not disclose that the said letter was accompanied by the appointment letter and the joining report. Then again the statement made in paragraph 8 of the counter-affidavit also shows that it was not assertive but argumentative. In the said paragraph, it was stated that tn paras 11 to 14 the petitioner had said about the sending of letter dated 20.11.1995 along with appointment letters and joining report, of the petitioners. Following this argumentative statement, further argument was advanced to the extent that such action of the Manager of the School seeking approval of the respondent No. 1 by attaching the appointment order and Joining reports of the petitioners along with the letter dated 20.11.1995 itself made sufficient ground for suspicion and irregularity adopted by the Manager for making appointment of the petitioners. This statement is also an argumentative one.

13. Unless the assertions in the pleading are denied specifically or a particular statement is made with an assertive tone contradicting the statement made in the pleadings in the writ petition, even if affirmed by oath, no assertive value could be given to such statement contradicting the statement made in the pleadings in the writ petition. The statement made in paragraph 8 of the counter-affidavit does not specifically point out that the copy of the letter dated 20.11.1995 contained in Annexure-3 to the writ petition is an incorrect copy or that the said letter accompanied the appointment letter or joining report. Neither any copy of the said letter has been produced before this Court nor any copythereof has been annexed with the counter-affidavit in order to show that the letter dated 20.11.1995 contained appointment letter and joining report. Therefore, reliance can be placed on the statement made in paragraph 8 of the counter-affidavit.

14. Then again, the said statements are to be read in the context of statement made in paras 11 to 14 of the writ petition wherein it has been specifically asserted that after the selection, as per the provisions contained in the Second Removal of Difficulties Order, the papers were forwarded for seeking approval to the selection for appointment of the petitioners on ad hoc basis by the Manager through his letter dated 20,11.1995 which was received in the office of District Inspector of Schools on 16.2.1996 and the appointment letter was issued on 26.2.1996 whereas the petitioners had joined on 27.2,1996. The seven days time as contemplated in clause 3 (iv) of the Second Removal of Difficulties Order expired on 23.2.1996 and the appointment letter was issued on 26.2.1996. viz., after expiry of 7 days which resulted into a deemed approval as contemplated in the said clause. In such context, it cannot be said that there was any infraction of the provisions of Second Removal of Difficulties Order in the matter of selection and appointment on ad hoc basis so far as the petitioners are concerned.

15. 1 have observed following the decision in the case of J. A. Inter College. Khurja (supra), that non-publicalion of advertisement in two newspapers and publication in only one newspaper did not stand in the way allowing such candidate to continue in service on ad hoc basis on the condition mentioned therein as has been held in the case of Chatur Singh (supra), with which T do not find any reason to differ. In the present case also, the petitioners may continue on the same condition that they would not be entitled to claim any right for their continuance on the post either in the form of regularization or otherwise at any point of time and their continuationwould come to an end as soon as the candidates regularly selected by the Commission is available for joining or the candidates selected according to the norms prescribed in the case of Radha Raizada (supra), read with the procedure laid down in Section as re-enacted by 1995 (Amendment) Act is available for joining such posts whichever is earlier.

16. In that view of the matter, the writ petition is allowed. The impugned order contained in Annexure-10 to the writ petition is hereby quashed. Let a writ of certiorari do issue accordingly. The Joint Director of Education, Agra is hereby directed to accord approval to the ad hoc appointment of the petitioners subject to the condition mentioned hereinbefore and to pay them salary from the date of joining till the cessation of the short-term vacancy or on the dale of its confirmation or till the post is converted into a substantive vacancy, whichever is earlier.

There will be no order as to cost.


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