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Smt. Shashi Saxena Vs. Deputy Director of Education and Others - Court Judgment

LegalCrystal Citation
SubjectService
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal Nos. 475-79 of 1998
Judge
Reported in2000(4)AWC2685
ActsUttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982 - Sections 33A, 33B and 33B(1) and (3); Constitution of India - Article 226; Uttar Pradesh Intermediate Education Act, 1921; Uttar Pradesh High School and Intermediate College (Payment of Salaries of Teachers and Other Employees) Act, 1971; Uttar Pradesh Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981
AppellantSmt. Shashi Saxena
RespondentDeputy Director of Education and Others
Appellant Advocate B.B. Paul, Adv.
Respondent Advocate S.C., V. Singh and ;K.D. Mishra, Advs.
Cases ReferredSingh v. District Inspector of Schools and
Excerpt:
.....(l.t.) grade and another teacher appointed directly on ad hoc basis to post vacated by her - assistant teacher (l.t.) grade retired - substantive vacancy was created - another teacher claimed promotion to this post - she did not have a right to claim appointment as she could not be granted appointment on ad hoc basis a second time - petitioner claimed appointment against the substantive vacancy created - it was granted to her - petitioner also wanted that the order regularising of ad hoc teacher's services be set aside - held, as the order did not in any way affect her rights it would not be set aside. - - 5 of 1982, if the conditions stipulated therein are satisfied and such teacher is found by the selection committee 'suitable' and 'eligible' for being given substantive..........in favour of kusum singh.22.11.95order ofdistrict inspector of schools, annexure-ca 1.29.1.96kusumsingh regularised with retrospectiveeffect from 6-4-1991 as grade videorder dated 25/29.1.96- annexure-9/p- 49.12.2.96order of regularisation dated 29.1.1996 cancelled. writ annexure-10/pp. 52.3. the five special appeals, arising from a common judgment and order dated 29th may, 1998, passed by a learned single judge of this court, are dealt hereunder:i. special appeal no. 475 of 1998 (leading case-arising from writ petition no. 3054 of 1994, kusum singh v. reginioal inspectress of girls schools, agra and others).4. relevant facts and figures, which are necessary for the purpose of deciding controversy between the parties, are not in dispute and the same are given below for ready.....
Judgment:

A. K. Yog, J.

1. Abovementioned five Special Appeals arise from writ petitions under Article 226. Constitution of India, which were filed in this Court due to dispute between Smt. Shashi Saxena (present appellant) and one Smt. Kusum Singh--both Assistant Teachers in 'Shree Teeka Ram Girls Inter College', (called the College) a 'recognised' girls intermediate college receiving 'grant-in-aid' as contemplated under U. P. Intermediate Education Act, 1921 (as amended up-to-date). Admittedly, The U. P. High School and Intermediate College (Payment of Salaries of Teachers and Other Employees) Act. 1971. U. P. Act No. 24 of 1971 and U. P. Secondary Service Commission Act. 1982 U. P, Act No. 5 of 1982 (as amended up-to-date) are applicable to the college.

2. Dates in chronological order are given hereunder to appreciate the controversy between the parties :

24.9.85

One Shashi Kant Sharma -Assistant Teacher- C.T. grade- Promoted ad hoc -as Assistant Teacher- (L.T. grade) regularised w.e.f. 7.8.1995videorder dated 29.1,96. Writ Annexure-9, P,49. Cancelled on 12.2.96 Writ Annexure-10. P. 52.

3.10.85

Kusum Slngh (R-6) appointed directly on ad hoc basis- against short-term vacancy on the aforesaid post of Assistant Teacher- C.T. grade (caused by ad hoc

Promotion of Shashi Kant Sharma fromC.T.to L.T. grade.

District Inspector of approval and Kusum Singh paid salary as Assistant Teacher (C.T. grade).

30.6.87

Term of Kusum Singh, as ad hoc, extended up to 30.6.87 or till a regularly selected candidate by U. P. Secondary Education Service Commission was available.

24.3.90

Resolution of Committee of Management - One Rama Dixit (L.T. grade Assistant Teacher] promoted ad hoc- As Lecturer (Hindi).Short-Post held by Rama Dixit.

7.12.91

Resolution of Committee posing to make direct promoting Kusum Slngh.

20.5.93

Regional Ins pec tress of Girls Schools.

2.7.93

(Impugned)

Application/letter in favour of Shashi Saxena by Committee of Management making short termdirect ad hoc appointment. Writ Annexure-2/P. 18.

16.7.93

Committee of Management's resolution.

22.7.93

Papers sent to Regional Inspectress of Girls Schools- Writ Annexure-3/P. 20,

7.8.93

Shashi Kant Sharma regularised retrospectively videorder dated 23.1.1996.

28.8.93

(Impugned)

Regional Inspectress of Girls Schools' approval

to Committee of Management resolution dated 16.7.93- Annexure-3/P. 2O.

1.10.93

Application by Kusum Si ngh- Seeking promotion against L.T. post of Smt. Rama Dixit.

16.10-93(Impugned)

Girls Schools orders)giving approval to Shashi Saxena and asking Manager to explain 8 excessposts of AssistantAnnexure-13.

WritPetition No.3054 of 94. Kusum Singh v. Regional Inspectress of Girls Schools, challenging Annexures-2 and 3.L.T. post heldby ShashiSaxena (falling vacancy on promotion of Smt. Rama Dixit with effect from July. 1993.

21 -1.94

Interim order to pay salary to Shashi Saxena. after D.D.E. satisfiedregarding validity of appointment of ShashiSaxena.

14.9.94

(Impugned)

Order ofDeputy Director of Education to pay salary to Shashi Saxena. (26.9.94 stayed by Highappointment of Shashi Saxena decided)- Writ Annexure-14.

10.1.95

(Impugned)

Order ofDeputy Director of Education to pay salary to Shashi Saxena - Writ Annexure-15.

29.1.95

Order ofDeputy Director of Education in favour of Kusum Singh.

22.11.95

Order ofDistrict Inspector of Schools, Annexure-CA 1.

29.1.96

KusumSingh regularised with retrospectiveeffect from 6-4-1991 as grade videorder dated 25/29.1.96- Annexure-9/P- 49.

12.2.96

Order of regularisation dated 29.1.1996 cancelled. Writ Annexure-10/PP. 52.

3. The five special appeals, arising from a common judgment and order dated 29th May, 1998, passed by a learned single Judge of this Court, are dealt hereunder:

I. Special Appeal No. 475 of 1998 (Leading Case-arising from Writ Petition No. 3054 of 1994, Kusum Singh v. Reginioal Inspectress of Girls Schools, Agra and others).

4. Relevant facts and figures, which are necessary for the purpose of deciding controversy between the parties, are not in dispute and the same are given below for ready reference :

'One Shashi Kant Sharma, Assistant Teacher in C.T. grade, working in College was promoted on ad hoc basis as Assistant Teacher in L.T. grade with effect from 24th September. 1985 and consequently causing 'short-term' vacancy on the post of Assistant Teacher--C.T. grade (held by the said Shashi Kant Sharma) with effect from 24th September, 1985.'

5. Smt. Kusum Singh was given ad hoc appointment on direct basis against aforementioned 'short-term' vacancy on 3rd October. 1985, which was approved by the District Inspector of Schools/Regional Inspectress of Girls Schools and consequently she was paid salary also. Since appointment of Smt. Kusum Singh was against short-term vacancy. It was extended from time to time. Her ad hoc appointment against short-term vacancy on becoming substantive, was to continue till a regular appointment was being made as is evident from the perusal of theManager's letter dated 30th June, 1987 (Annexure-1 to the rejoinder-affidavit in Writ Petition No. 3054 of 1994).

6. Smt. Kusum Singh, admittedly, since 1987 held a post of Assistant Teacher C.T. grade, purely on ad hoc basis against short-term vacancy and continued as such when one Smt. Rama Dixie. Assistant Teacher L.T. grade, was given ad hoc promotion against short-term vacancy on the post of Lecturer (Hindi) in pursuance to the management's resolution dated 24th March. 1990.

7. Since Smt. Rama Dixit wasgiven ad hoc promotion against short-term vacancy on the post of Lecturer,a contingency arose to fill up the postof Assistant Teacher, L.T. grade (sofar held by said Smt. Rama Dixit) bymaking ad hoc short-termappointment.

8. On 7th December, 1991. Committee of Management decided to fill up 'short-term' vacancy of Assistant Teacher. L.T. grade (caused by ad hoc promotion of Smt. Rama Dixit) by making direct selection. Smt. Kusum Singh, since working on ad hoc basis in C.T. grade, was, therefore, not eligible for second 'ad hoc' promotion on the post in L.T. grade. The then Regional Inspectress of Girls Schools, however, initially rejected the proposal of the management vide order dated 20th May. 1993. The Committee of Management, however, passed another resolution dated 16th July. 1993 recommending the name of Smt. Shashi Saxena (present appellant) to be appointed by direct selection on ad hoc basis against aforementioned short term vacancy in L.T. grade (earlier held by Smt. Rama Dixit). Papers were sent to the Regional Inspectress of Girls Schools and the then Regional Inspectress of Girls Schools accorded approval to the said proposal of ad hoc appointment of Smt. Shashi Saxena vide letter dated 28th August. 1993.

9. It appears that Smt. Kusum Singh made representation dated 1st October, 1993, raising grievance thatshe should have been promoted against the post of Assistant Teacher. L.T. grade (vacated by Smt. Rama Dixit). Having found no positive action in her favour, Smt. Kusum Singh filed Writ Petition No. 3054 of 1994 (subsequently amended and prayed for issuing writ of certiorari to quash orders dated 2nd July. 1993--Annexure-11 to the writ petition, dated 28th August, 1993--Annexure-12 to the writ petition, dated 16th October, 1993--Annexure-13 to the writ petition, passed by the management and the Regional Inspectress of Girls Schools, dated 14th September. 1994--Annexure-14 to the writ petition and dated 10th January, 1995--Annexure-15 to the writ petition passed by Regional Inspectress of Girls Schools. In favour of Smt. Shashi Saxena. Perusal of the impugned order dated 10th January. 1995 passed by the Deputy Director of Education (Annexure-5 to the writ petition) shows that the claim of Smt. Kusum Singh was rejected on the ground that she was working on ad hoc basis against the short-term vacancy in C.T. grade and hence she could not be considered for second ad hoc appointment by promotion in L.T. grade.

10. Smt. Kusum Singh in aforementioned petition also claimed writ of mandamus directing the respondents to promote her on the post of Assistant Teacher. L.T. grade, on short-term vacancy caused by promotion of Smt. Rama Dixit on the post of Lecturer (Hindi) and also for payment of salary to her as Assistant Teacher in L.T. grade with effect from July. 1993. Smt. Kusum Singh also filed application for interim order, which was rejected vide order dated 30th July. 1997.

11. Smt. Shashi Saxena filed counter-affidavit and contested the claim of Smt. Kusum Singh. Smt. Shashi Saxena in Paras 3 to 9 of the supplementary counter-affidavit sworn on 23rd March, 1996, stated that the then Deputy Director of Education. Ram Naresh Suman had objected on payment of salary after 30th June, 1986 to Smt. Kusum Singh as her appointment was approved upto 19th May, 1986 and initially refused to regularise the services of Smt. Kusum Singh vide letters dated 13th October, 1995 and 22nd December, 1995. Aforementioned orders were changed without assigning reasons by the same authority illegally, arbitrarily and apparently due to extraneous considerations. There were general complaints against said Ram Naresh Suman for acting arbitrarily and illegally on the eve of his retirement (which was due on 31st January, 1996). Director of Education was pleased to stay such orders vide order dated 25th January. 1996 (copy filed along with supplementary counter-affidavit). Smt. Kusum Singh, therefore, get no benefit or valid base for her claim on the basis of these illegal orders.

12. Undisputedly. Shashi Kant Sharma (whose post of C.T. grade Assistant Teacher was held by Smt. Kusum Singh) was regularised by the Deputy Director of Education aide order dated 23rd January. 1996 as Assistant Teacher in L.T. grade under Section 33B. U. P. Secondary Education Service Commission Act, 1982 (Annexure-8 to the affidavit in the leading case). In the said order, it was mentioned that Smt. Kusum Singh was not regularised because of position of vacancy with respect to the post held by her not being clear. It has also come on record that Smt. Kusum Singh was subsequently regularised by the order of Deputy Director of Education dated 29th January, 1996--Annexure-9 to the affidavit in leading appeal where-under Smt. Kusum Singh was regularised in C.T. grade with effect from 7th August. 1993. Aforesaid orders of the Deputy Director of Education dated 23rd January, 1996 and 29th January. 1996 (Annexures-8 and 9 referred to above) go to show that while Smt. Shashi Saxena was regularised as Assistant Teacher with effect from 7th August, 1993 in L.T. grade, Smt. Kusum Singh was regularised as Assistant Teacher with effect from 7th August., 1993 in C.T. grade.

13. It is clear and beyond doubt that Smt. Kusum Singh was working on ad hoc basis against short-term vacancy in C.T. grade when Smt. Shashi Saxena was appointed on regular basis as Assistant Teacher in L.T. grade vide order of approval dated 28th August, 1993, passed by Regional Inspectress of Girls Schools in favour of Smt. Shashi Saxena. This goes to show that Smt. Kusum Singh had no right whatsoever to claim appointment on the post of L.T. grade which was vacated by Smt. Rama Dixit in the year 1990. To this extent, we find no irregularity or illegality in the order of Deputy Director of Education dated 10th January, 1995 (Annexure-15 to the writ petition).

14. In view of the above, the reliefs claimed by Smt. Kusum Singh in Writ Petition No. 3054 of 1994 cannot be granted. Writ petition deserves to be dismissed.

15. Consequently. Writ Petition No. 3054 of 1994 is dismissed. Special Appeal No. 475 of 1998 allowed with costs.

II. Special Appeal No- 478 of 1998. Smt. Shashi Saxena v. Deputy Director of Education and others, arising out of Writ Petition No. 20349 of 1996. Smt. Shashi Saxena v. Deputy Director of Education and others.

16. Smt. Shashi Saxena through this petition claimed writ of mandamus against the respondents to allow her to continue on the post of Assistant Teacher in L.T. grade in the college though she was appointed initially against short-term vacancy and notwithstanding that Smt. Rama Dixit, permanent incumbent had attained age of superannuation and retired with effect from 30th June. 1996, and, consequently, substantive vacancy had occurred with effect from 1st July. 1996.

17. Smt. Shashi Saxena continued to work as such irrespective of the above order of Deputy Director of Education dated 29th January. 1996 in favour of Smt. Kusum Singh apparently due to theorder of Director of Education dated 25th January, 1996 (copy on record).

18. In this petition, learned single Judge at the admission stage vide order dated 4th July, 1996, directed status quo as on date to be maintained.

19. Division Bench decision of this Court in the case of Raj Kumar Verma v. District Inspector of Schools, Saharanpur and others 1993 (3S ESC 1950 Pr 10 (referring to the Full Bench case of Pramila Mishra v. Deputy Director of Education, Jhansi Division, Jhansi and others. (1997) 2 UPLBEC 1329), observed that the question 'whether an ad hoc appointee working against short term vacancy shall cease automatically on such short term vacancy being converted into substantive vacancy' was not considered in the said Full Bench. Above referred Para 10 of the said Division Bench Judgment reads :

'10. 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. The right to be so considered for being substantive appointment under Section 33B accrues only upon conversion of the short term vacancy into substantive vacancy as provided in sub-section (1) of Section 33B. A teacher appointed in short term vacancy on or before the dates specified in sub-clause (a) (i) of sub-section (1) of Section 33B if not found 'suitable' and 'eligible' to get substantive appointment would cease to hold the post on such date as the State Government may by order specify. That is how the provisions contained in Section 33B of U. P. Act No. 5 of 1982 'interact' with those of the U. P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981, in respect of teachers appointed prior to thedate specified in the section. The question as to how do the two provisions 'Interact' has not been specifically answered by the Full Bench in Pramila Mishra's case (supra). In our opinion the right of a teacher appointed in a short term vacancy on or before the date specified in Section 33B (1) accrues only upon the short term vacancy being converted into a substantive vacancy and a teacher, appointed in short term vacancy on or before the specified dates, who is not found 'suitable' and 'eligible' or substantive appointment shall cease to hold the appointment on such date as the State Government may by order specify and not on the date the short term vacancy came to be converted into substantive vacancy. The question in our considered opinion, needs to be examined by the duly constituted Selection Committee comprehended by sub-section (3) of Section 33B as the appellants were concededly appointed in Certificate of Teaching Grade before the specified date namely. May 13. 1989. Whether they fulfil other conditions of being given substantive appointment is a question which is to be decided by the Selection Committee. In our opinion, therefore, the Judgment of the learned single Judge needs to be modified accordingly for nothing in Pramila Mishra's case inhibits substantive appointment being given to a teacher appointed against a short term vacancy prior to the dates specified in Section 33B of U. P. Act No. 5 of 1982, if the conditions stipulated therein are satisfied and such teacher is found by the Selection Committee 'suitable' and 'eligible' for being given substantive appointment. As a matter of fact the question as to the 'interaction' of Section 33B of U. P. Act No. 5 of 1982, with the provisions contained in the U. P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order. 1981, though posed by Full Bench inPramila Mishra has not been answered, perhaps due to inadvertence. If we may say so with utmost respect and humility. The contention of Sri Sabhajeet Yadav, standing counsel is, therefore, unacceptable to us.'

20. The Deputy Director of Education, U. P., in the letter dated 17th August. 1996 (Annexure-2 to the supplementary affidavit along with Miscellaneous Application No. 13364 of 2000) had taken the same view as has been upheld by the Division Bench of this Court in the case of Raj Kumar Verma (supra). The Regional Joint Director of Education, Agra, after hearing concerned parties including Smt. Kusum Singh, vide order dated 10th February, 1999, found that said Smt. Kusum Singh was working on ad hoc basis by direct appointment against short-term vacancy on the post of Assistant Teacher (C.T. grade) ; a vacancy caused by ad hoc short term promotion of Smt. Shashi Kant Sharma as Assistant Teacher from C.T grade to the post of Assistant Teacher L.T. grade and that Smt Kusum Singh has been rightly regularised as Assistant Teacher in C.T. grade under Section 33A with effect from 7th August, 1993. (Annexure-SA 1 to the supplementary affidavit annexed with Miscellaneous Application No. 13364 of 2000).

21. Hence, it cannot be said that the services of Smt. Shashi Saxena came to an end automatically on the post of Assistant Teacher in L.T. grade being converted into substantive vacancy on the retirement of Smt. Rama Dixit. There being no adverse circumstance or material against the working of Smt. Shashi Saxena as such, we find no Justification in depriving said Smt. Shashi Saxena the relief claimed in Writ Petition No. 20349 of 1996. Writ Petition No. 20349 of 1996 is allowed.

22. Consequently, Special Appeal No. 478 of 1998 is allowed with costs.

A writ of mandamus is issued against the respondents to allow the petitioner Smt. Shashi Saxena to continue on the post of L.T. gradeteacher 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 the U. P. Secondary Education Selection Board joins the post, as the case may be.

III. Special Appeal No. 477 of 1998, Smt. Shashi Saxena v. Deputy Director of Education and others, arising out of Writ Petition No. 33235 of 1996. Smt. Shashi Saxena v. Deputy Director of Education and others.-

22A. This writ petition was filed by Smt. Shashi Saxena claiming writ of mandamus commanding concerned respondent Nos. 2. 3 and 4 to pay her salary regularly of the post of L.T. grade teacher in the college with effect from July. 1996 and punish Subhash Chand Jaiswal, the then Accounts Officer in the Office of District inspector of Schools for wilfully disobeying the order of this Court dated 4th June. 1996 (Annexure-5 to the writ petition) and that of his superiors dated 15th July. 1996. 7th August, 1996, 17th August. 1996 and 19th August. 1996 (Annexures-6 to 9 to the writ petition) and further writ of mandamus commanding the respondents to decide her several representations (copies filed as (Annexures-10, 11, 12. 13 and 15 to the writ petition) as well as for direction to the concerned authorities to regularly pay salary to the petitioner on the post of Assistant Teacher in L.T. grade.

23. Relief claiming writ ofmandamus for decidingrepresentation has lost its efficacy inview of the fact that Writ Petition No.3054 of 1994 has been allowed.

24. The other reliefs (regarding continuance of the petitioner as Assistant Teacher in L.T. grade in the college with effect from July. 1996 and to allow the petitioner to continue as Assistant Teacher in L.T.grade. If she has not been regularised as yet, and be paid salary till a regularly selected candidate by the U. P. Secondary Education Board Joins the post in question) have already been granted and the same are affirmed.

IV. Special Appeal No. 476 of 1998, Smt. Shashi Saxena v. Deputy Director of Education and others, arising out of Writ Petition No. 37288 oj 1998, Smt. Shashi Saxena v. Deputy Director of Education and others.

25. Smt. Shashi Saxena again filed Writ Petition No. 37288 of 1998 seeking a writ of certiorari to quash the impugned order dated 29th January, 1996, passed by Deputy Director of Education informing the manager or the college that he had regularised the services of Smt. Kusum Singh. In view of the facts stated above, we find that this petition is misconceived inasmuch as regularl sat ion of Smt. Kusum Singh as Assistant Teacher in C.T. grade under the impugned order does not affect or in any manner prejudice any right to Smt. Shashi Saxena.

26. Writ petition is, accordingly dismissed with the observation that regularisation of Smt. Kusum Singh as Assistant Teacher in C.T. grade ; does not affect services of Smt. Shashi Saxena, in any manner.

Special Appeal is also dismissed.

No order as to costs.

No costs.

V. Special Appeal Wo. 479 oj 1998, Smt. Shashi Saxena v. Deputy Director of Education and others, arising out of Writ Petition No. 5585 of 1998 , Smt. Kusum, Singh v. District Inspector of Schools and others.

27. This writ petition filed by Smt. Kusum Singh for claiming writ of certiorari to quash order dated 19th January. 1998 passed by District Inspector of Schools (Annexure-8 to the writ petition) cannot be entertained and nor she is entitled tothe reliefs claimed-in view of our decision in Writ Petition No. 3054 of 1994. This petition is, accordingly, dismissed.

28. Special Appeal No. 479 of 1998 is allowed.

No other point has been raised.

No order as to costs.


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