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Judgment
D. K. Seth. J.
The petitioners claim to have been appointed in short term vacancies pursuant to U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981. They made a representation for payment of their salary on account of such ad hoc appointment but the same was turned down by the District Inspector of Schools, Deoria, by his order dated 20.6.1996 (Annexure8) to the writ petition. It is against this order the present writ petition has been filed.
Sri O.K. Singh, learned counsel appearing on behalf of the petitioners contends that in the said order the petitioners case was rejected on the ground that para5 of U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 was not complied with. According to him the said 1981 Order being the first order contemplates only appointment against permanent vacancies, as it stood after the Second 1981 Order was promulgated. Admittedly the petitioners were appointed in short term vacancies and such vacancies cannot be governed by para5 of 1st Order of 1981.
In the facts and circumstances of the case, in view of the protection safeguarding the interest of the respondent no.3 provided in this order serve (sic) upon respondent no.3 is dispensed with.
Learned Standing counsel on the other hand contends that unless the appointment is made in compliance with the relevant order the same cannot be valid. But however, very fairly he conceded that if the appointment is in short term vacancies, in that event the 1st Order will not be applicable to the said appointment and will be governed by the Second Order of 1981, para2 of the 1st Order, 1981 are as under:
"2. Vacancit in which adhoc appointment can be made The management of an institution may appoint by promotion or by direct recruitment a teacher on purely adhoc basis in accordance with the provisions of this Order in the following cases, namely
(a) in the case of a substantive vacancy existing on the date of commencement of this order caused by death, retirement, resignation or otherwise;
(b) in the case of a leave, vacancy, where the whole or unexpired portion of the leave is for a period exceeding two months on the date of such commencement;
(e) where a vacancy of the nature specified ta clause (a) or clause (b) comes into existence within period of two months subsequent to the date of such commencement."
By reason of para5 of the Second Order para2 of the First Order stood replaced. Para2 of the 1st order is, therefore, to be read after the promulgation of the Second Order as follows:
" 5. Substitution of paragraph 2 of the (First) Removal of Difficulties Order,1981.ID the First Removal of Difficulties Order, 1981 for paragraph2 the following paragraph shall be substituted, namely''
"2The management of an institution may appoint by promotion or by direct recruitment a teacher on purely ad hoc basis in accordance with the provisions of this Order in the case of a substantive vacancy caused by death, retirement, resignation or otherwise."
Thus it appears that the First order deals with ad hoc appointment caused by death, retirement, resignation or otherwise. The ad hoc appointment against leave vacancy has been omitted from the First order. The Second Order in para2 provides for appointment in short term vacancies, which lays down as under:
" 2Procedure for filling up short term vacancies"(1) If short term vacancy in the post of a teacher caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise shall be filled by the Management of the Institution, by promotion of the permanent seniormost teacher of the institution in the next lower grade. The Management shall immediately inform the District Inspector of Schools of such promotion alongwith the particulars of the teacher so promoted.
(2) Where any vacancy referred to in clause (1) cannot be filled by promotion, due to non avaliablility of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualifications, it shall be filled by direct recruitment in the manner laid down in clause (3)
(3) (i) The management shall intimate the vacancies to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution, requiring the candidates to apply to the Manager of the institution along with the particulars given in Appendix to this order. The Selection shall be made on the basis of quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education Service Commission (Ramoval of Difficulties) Order, 1981 issued with Notification No. Ma1993/XV71(79)1981 dated July 31,1981, hereinafter to be referred to as the First Removal of Difficulties Order, 1981. The compilation of quality point marks shall be done under the personal supervision of the Head of institution.
(ii) The names and particulars of the candidates selected and also of other candidates and the quality point marks allotted to them shall be forwarded by the Manager to the District Inspector of Schools for his prior approval.
(iii) The District Inspector of Schools shall communicate his decision within seven days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval.
(iv) On receipt of the approval of the District Inspector of Schools or, as the case may be, on his failure, to communicate his decision within seven days of the receipt of papers by him from the Manager, the Mnanagment shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager."
Thus there is a marked difference in between the feld of operation between the said two order it is apparent that while the 1st order operates in the case of appointment against substantive vacancy the Second order operates in the field of ad hoc appointment against short term vacancy. Since the procedure for making short term vacancies are provided in para2 of the Second Order and the short term vacancies are not governed by the First order, therefore, compliance of para5 of the First Order is not necessary, in respect of appointment against short term vacancies. The appointment against short term vacancies are to be governed by the provisions of Second Order.
In the impugned order it has nowhere been said that the provisions contained in para2 of the Second Order, has not been complied with. On the other hand, the District Inspector of schools has proceded on the basis of wrong premise on thoroughly misconception the Para5 of the First Order, is to be complied with even in respect of appointment of short terms vacancies. Such grounds on which the case of the petitioners were rejected cannot be warranted after the Second Order is promulgated. The same could have been a valid ground until Second Order was promulgated. Now since the second order is operating, therefore, the said order cannot be sustained.
In that view of the matter the order dated 20.6.1996 (Annexure8) to the writ petition, impugned herein, is liable to be set aside and is accordingly quashed. The District Inspector of Schools shall, however, reconsider the same in terms of the said U.P. Secondary Education Services Commission (Removal of the Difficulties) (Second) Order, 1981 and in the light of observations, made above. I have not expressed any opinion on the merit of the case. The District Inspector of Schools, Deoria, shall be free to decide the same in accordance with merit of the case and in the manner indicated above. Before deciding the matter the responded no.3 shall be given adequate opportunity of filing objection against the petitioners'' claim to respondents no.3 and if respondent no.3 so desire and prays for opportunity of hearing the same may be afforded to it. Such consideration is to be completed within a period of three months from the date of service of this order before him. The decision shall be communicated to the petitioners within a period of two weeks from the date of such decision.
With these observations this writ petition is disposed of.
There shall be, however, no order as to costs. Petition disposed of