# Smt. Anamika v. State of U.P. and others

- **Citation:** (2001) 1 ILRA 185
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-12-11
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-anamika-v-state-of-u-p-and-others-39692
- **Pages:** 6

## Text

1All] Smt. Anamika V. State of U.P. and others 185
Management
has
to,
after
its
resolution has been approved, take steps
to determine the employment either by
giving the employee one month's notice
or one month's pay in lieu there of. It is
thus evident that what can be approved by
the Inspector is the proposal made by the
Committee for terminating the service of
the employee and not its action in
determining his employment."

On the strength of the above observation,
it was maintained that no steps were taken
by the committee of Management to
dispense with the services of Respondent
No. 5 after the Appeal was allowed by the
Basic Siksha Parishad and the Order of
injunction had been vacated by the
appellate Court in Misc. Appeal No. 207
of 1983. On the Order hand, it was
pointed out that the Respondent No. 5 has
been allowed to continue and function as
Principal of the College by the Committee
of Management throughout the long
period of about 17 years. Sri R.S. Misra
Pointed out that the Respondent No. 5 has
been
sticking
to
the
office
by
manipulating disputes between the rival
Committee of Management, particularly,
the managers and has taken full advantage
of
such
conflict
of
interest.
This
submission besides being merit-less, does
not to too far. The Respondent No. 5
cannot
be
expected
to
have
such
monstrous capacity as to maneuver office
bearers
of
various
Committees
of
Management
and
the
authorities
concerned with a view to cling to office.
The fact remains that the Respondent No.
5 has been working on the post of
Principal in spite of the Order of dismissal
passed in the year 1981. The said Order
was never given effect to. There are also
documents on record to indicate that Sri
Sant Ram Chaudhary and Sri Ram
Kishore Das Bhikari who have filed the
present Writ Petition in one capacity or
the
Order,
had
themselves
been
responsible to permit the Respondent No.
5 to function and continue as Principal of
the College.

11. In the conspectus of the above
facts, the present Writ Petition is held to
be not maintainable at the instance of Sant
Ram Chaudhary as well as Sri Ram
Kishore Das Bhikari. They have no locus
standi to continue the Writ Petition in
view of the resolution adopted by the new
Committee of Management to withdraw
the Writ Petition.

The Writ Petition is accordingly
dismissed without any Order as to cost
Dated November 11.12.2000.
Petition Dismissed.

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By the Court

1. This Petition is directed against
the Order dated 17.6.1996 Passed by the
Regional Deputy Director of Education
(Secondary), IVth Region, Allahabad and
the consequential notice dated 1.7.1996
issued by the Manager, Kamla Balika
Inter College, Khaga, Fatehpur being
annexure Nos. 11 and 13 respectively to
the Writ Petition. The Regional Deputy
Director of Education IVth Region,
Allahabad by her order dated 17.6.1996
has set aside the Petitioners ad-hoc
appointment to the post of Lecturer
(Economics)
in
Kamla Balika Inter
College, Khaga, Fatehpur (in short the
College) and Ordered for promotion of
Respondent Smt. Suman Sinha on the said
post. The impugned notice dated 1.7.1996
was consequently issued by the Manager
terminating the services of the Petitioner
w.e.f. 31.7.1996.

2. The facts giving rise to this Writ
Petition briefly stated are these, Smt.
Sarla Joshi, Permanent Principal of the
College died resulting in a vacancy in the
post of Principal Smt. Pramila Sinha the
senior most teacher of the College in
Lecturer
grade
was
given
ad-hoc
appointment on the post of Principal Smt.
Pramila
Sinha
was
Lecturer
in
Economics. Her appointment as Principal
resulted in a short term vacancy in the
post of lecturer in Economics. One Smt.
Pratibha Paul the senior most teacher of
the College in L.T. Grade was given addoc promotion to the vacant post of
Lecturer in Economics. Smt. Pratibha
Paul was, however, superannuated on
1All] Smt. Anamika V. State of U.P. and others 187
30.6.1990 and consequently the post of
Lecturer in Economics again fell vacant.
The Management of the College being of
the view that no qualified teacher was
available for Promotion advertised the
vacancy to be filled in by direct
recruitment
on
ad-doc
basis
vide
publication in news paper "Aaj" on
December 8.1990. The Petitioner being a
candidate was selected and appointed on
the post in question vide letter dated
24.12.1990 which contained a stipulation
that the ad- hoc appointment would come
to an end on the reversion of Smt. Pramila
Sinha from the post of Principal to her
substantive
post
of
Lecturer.
The
appointment
was
approved
by
the
Regional inspectress of the Girls School
IVth Region, Allahabad vide letter dated
6.6.1991 (annexure No. 3 to the Writ
Petition) It would appear that the fourth
Respondent
Km.
Suman
Sinha
represented her case to the Regional
Deputy Director of Education and also
filed a Writ Petition being Civil Misc.
Writ
Petition
No.
33143
of
1995
challenging
the
appointment
of
the
Petitioner on the post in question. The
said Writ Petition came to be disposed of
by judgment and order dated 21.11.1995
with a direction to the Regional Deputy
Director of Education, IVth Region,
Allahabad to look into the grievances of
the Petitioner therein and dispose of her
representation in accordance with Law.
Consequent upon the said Order. The
Regional deputy Director of Education,
IVth Region, Allahabad after affording
opportunity of hearing to the parties
passed
the
impugned
Order
dated
17.6.1996
thereby
holding
that
the
appointment of the Petitioner on the post
was illegal in that the post ought to have
been filled under 50% quota by promotion
of fourth Respondent Smt. Suman Sinha
who was qualified for appointment by
promotion.

3. Dr. R. Dwivedi, Senior Advocate
appearing for the Petitioner urged that the
fourth Respondent was not eligible and
qualified for promotion to the post in
question and the Management, therefore,
Justified in taking recourse to direct
appointment and the Regional Deputy
Director of Education has erred in holding
otherwise. It has been submitted by Dr.
Dwivedi that the fourth Respondent was
appointment as C.T. grade teacher in
which grade she was confirmed in 1973
and the post and status of L.T. grade
teacher was not given to her albeit the
scale of pay admissible to L.T. grade
teachers
was
given
pursuant
to
Government Orders on the basis of having
completed a stipulated length of service in
the C.T. grade. It has also been submitted
by Dr. Dwivedi that the pay of the fourth
Respondent was illegally fixed even in the
Lecturer grade w.e.f. 1.7.1988 and on that
basis she was Paid salary of Lecturer
grade for the recovery of which on Order
dated 11.12.1990 being annexure No. 5
was passed by the District Inspector of
Schools, Fatehpur. Sri T.P. Singh, Senior
Advocate
appearing
for
the
fourth
Respondent submitted on the other hand
that the Petitioner was a teacher in L.T.
Grade and being possessed of requisite
qualifications on the date of occurrence of
vacancy was entitled to be promoted to
the post of Lecturer in Economics which
was
illegally
filled
up
by
direct
Respondent.

4. Having given my anxious
consideration to the submissions made by
the learned Counsel. I an of the view that
the impugned Order Passed by the
Regional Deputy Director of Education, is
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
188
unsustainable for the Regional Deputy
Director of Education does not appear to
have properly perceived the controversy
involved in the case. The vacancy, as
would appear from the pleadings of the
parties, was of a short term nature liable
to be filled up in accordance with the U.P.
Secondary
Education
Service
Commission (Removal of Difficulties)
(Second) Order, 1981 Mere fact that the
teacher who was given ad-hoc promotion
on the post in question retired would not
change the nature of vacancy into
permanent one The Regional Deputy
Director
of
Education
has
illegally
proceeded on the assumption that the
vacancy had became permanent w.e.f.
1.7.1990 due to the retirement of Smt.
Pratibha Paul w.e.f. 30.6.1990. The
vacancy in fact could be converted into
permanent one, either on the permanent
incumbent Smt. Pramila Sinha being
substantively appointed as Principal or on
her being superannuated. No finding has
been recorded by the Regional Deputy
Director of Education on either of the two
eventualities.

5. It would be pertinent to observe
that validity of appointment depends on
whether the prescribed procedure was
followed
and
indisputably
different
procedures are prescribed for ad hoc
appointment on substantive and short
term vacancies. If vacancy had become
permanent on 1.7.1990. as held by the
Regional Deputy Director of Education,
then appointment of the Petitioner would
be void in view of Section 16 (2) of the
Act being in contravention of the Law
laid down by the full bench of this Court
in
Radha
Raizada's
case1'
The
procedure for ad-hoc appointment against

1 (1994) 3 U.P.L.B.E.C. 1551
the substantive vacancy was admittedly
not followed In case however the vacancy
was short term one, the appointment of
the Petitioner would be illegal only if a
qualified teacher in L.T. grade was
available
in the College for being
promoted in as much recourse to direct
recruitment on ad-hoc basis is permissible
only if no qualified teacher is available
for promotion Law in this regard is well
settled in view of the Full Bench decision
in Radha Raizada (supra) and the earlier
Division Bench decision of this Court in
Charu Chandra Tiwari Vs. District
Inspector
of
Schools,
Deoria
and
Other's2. Further if the vacancy became
substantive at any time subsequent to
appointment of the Petitioner then in view
of the Full Bench decision in Pramila
Misra
Vs.
Deputy
Director
of
Education3, ad-hoc appointment against
short term vacancy would automatically
cease w.e.f. the date the vacancy became
substantive. The vacancy in that event
may
be
filled
in
substantively
by
promotion if it falls in 50% quota Fixed
for
promotion
as
claimed
by
4th
Respondent or on ad-hoc basis by
promotion or direct recruitment under
Section 18 of the Act read with the related
Rules or Removal of Difficulties Order
then in force.

6.

Ad-hoc
appointment
by
promotion in a short term vacancy could
be made by the management as provided
in U.P. Secondary Education Service
Commission (Removal of Difficulties)
(Second) Order, 1981 but as against the
substantive vacancies Management had
no power to select a candidate for
appointment by direct recruitment as

2 (1990) 1 U.P.L.B.E.C. 160
3 (1997) 2 U.P.L.B.E.C. 1329
1All] Smt. Anamika V. State of U.P. and others 189
explained by the Full Bench in Radha
Raizada's case. After insertion of Rule 9A and 9-B vide notification dated
16.7.1992 published on 4.9.1992 in the
U.P.
Secondary
Education
Service
Commission Rules, 1983 the procedure
for ad-hoc appointment under Section 18
if the U.P. Act 5 of 1982 could be made in
substantive vacancies only in accordance.
With these provisions. Similarly Rules 15
and 16 of U.P. Secondary Education
Service Commission Rules 1955 lay
down
the
procedure
for
ad-hoc
appointment by direct recruitment and
promotion respectively in respect of
vacancies to be filled in by direct
recruitment and promotion under Section
18 of the Act. The Regional Deputy
Director of Education under these Rules
could not have had himself promoted the
fourth
Respondent
even
if
the
appointment of the Petitioner were to be
held
illegal.
The
Regional
Deputy
Director of Education does not appear to
have adverted herself to the relevant
questions.

7. The Regional Deputy Director of
Education has held in the Order impugned
herein that the 4th Respondent was a
teacher in L.T. grade and her claim for
promotion was illegally ignored by the
Management. In this connection the
Regional Deputy Director of Education
does not appear to have addressed herself
to the relevant Government Orders where
by teachers in C.T. grade and L.T. grade
were given only the scales of pay
admissible to L.T. grade and lecturer
grade respectively on completion of a
specified period of substantive service in
the lower grade. The question whether
grant of higher scale of pay on account of
completion of prescribed length of service
would
result
in
the
teacher
being
promoted to the next higher grade/ cadre
has not been examined by the Regional
deputy Director of Education . Even the
4th
Respondent
in
para
3 of her
representation
dated
16.12.
1995
(Annexure No. 8 to the Writ Petition)
addressed
to
the
Regional
Deputy
Director of Education, had stated that
grant of higher scale of pay is not
equivalent to grant of post in the higher
grade. Para 3 of the representation reads
thus:

"YEH KI PACHAS PRATISHAT
KOTE
MEIN
PADONNATI
KA
AUCHITYA
KALA
PRAVAKATA
VETANKRAM PAD NAHIN HAI.

KEVAL VETANMAN HAI ATAH
MERI
PADONNATI
PACHAS
PRATISHAT KOTE KE ANTARGAT
ARTHSHASTRA PRAVAKATA PAD
PAR
HONI
CHAHIYE
KYONKI
MUJHE
PRAVAKTA
VETANMAN
MILA HAI PRAVAKTA PAD NAHIN.
VIDYALAYA
SE
PRAPT
KALA
PRAVAKTA
VETAN
KRAM
JO
DINANK
1.7.88
SE
DARSHAYA
GAYA HAI LEKIN SAN 1991 SE DIYA
GAYA HAI KO DEVAL PRAVAKTA
VETANKRAM HAI PRAVAKTA PAD
NAHIN."

8. In my opinion, the matter needs to
be remitted back to the Regional Deputy
Director of Education for decision afresh
in the light of the above observations after
affording opportunity to the parties.

9. Accordingly the Petition succeeds
and is allowed. The impugned Order
dated 17.6.1996 and the notice. 1.7.1996
are
quashed.
The
Regional
Deputy
Director of Education is directed to decide
the representation afresh in the light of the
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
190
observations made in this judgment
within a period of three months from the
date of receipt of this Order. Parties may
submit their written statements etc. before
the
Regional
Deputy
Director
of
Education within a month.

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By the Court

1. The petitioner filed an application
under section 30 of the U.P. Trade Tax
Act copy of which has been filed as
Annexure
I
to
the
Supplementary
affidavit.

2. The petitioner is disposed of with
the direction to the authority concerned to
decide the application preferably within
one month from today.

3. We make it clear the under
Section 30 of the U.P. Trade Tax Act the
authority concerned has power to issue a
stay order of granting interim relief if stay
application is filed by the petitioner the
same shall be decided by the authority
concerned within three days from the date
of filing of the application.

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