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Judgment
R.K. Agrawal, J.—Both these appeals have been filed against the common judgment and order dated 9th February 2011 passed by the learned single Judge whereby the writ petitions preferred by the Appellants have been dismissed.
In the district of Aligarh, there is a college known as Sanskrit Kanya Pathshala Inter College (hereinafter referred to as the Institution). It is recognised under the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as the Act) and is aided (up to High School) by the Government of Uttar Pradesh. The provisions of U.P. High School And Intermediate Colleges (Payment of Salary to Teachers and other Employees) Act, 1971 (hereinafter referred to as the 1971 Act) is applicable. The provisions of U.P. Secondary Education Services Commission and Selection Boards Act, 1982 (hereinafter referred to as the 1982 Act) is also applicable to the Institution. One Km. Madhu Raizada was appointed on 13.01.1977 as Assistant Teacher in the said Institution against a clear vacancy in C.T. Grade. She was subsequently appointed in February 1980 as an Assistant Teacher in Government Intermediate College, Etah where she was later on confirmed. She had initially applied leave for six months which was granted by the Committee of Management. The Committee of Management treated the vacancy as a short term vacancy and proceeded to make ad hoc appointment in accordance with the procedure prescribed in U.P. Secondary Education Services Commission (Removal of Difficulties)(2nd) Order, 1981. Km. Anju Saxena, the Appellant in Special Appeal No. 270(D) of 2011 claims to have been appointed on 01.08.1984 as ad hoc Assistant Teacher in C.T. Grade. Initially the appointment was up to 31.12.1984. Her appointment was extended from time to time with intermittent breaks i.e., from 05.01.1985 to 20.05.1985, 15.07.1985 to 31.12.1985, 08.01.1986 to 19.05.1986, 14.07.1986 to 31.12.1986, 05.01.1987 to 20.05.1987, 05.01.1988 to 20.05.1988, July 1989 to May 1990 and July 1990 to May 1991. She was paid salary for the actual period during which she had worked. Her salary was stopped after May 1991 whereupon she approached this Court by filing Writ Petition No. 16481 of 1991, which was disposed of vide judgment and order dated 05.05.1995 by directing her to prefer a representation before the Regional Inspectress of Girls School to be decided by the concerned authority within a time bound period. Pursuant to the directions contained in the judgment and order dated 05.05.1995, she made a representation on 16.08.1995, which was followed by a reminder on 15.06.1996. The Regional Deputy Director of Education vide order dated 09.10.1997 had rejected her representation. Feeling aggrieved by the order dated 09.10.1997 passed by the Regional Deputy Director of Education, Agra, she once again approached this Court by means of Writ Petition No. 39754 of 1997 (giving rise to the present appeal) seeking quashing of the said order and also seeking a direction in the nature of mandamus directing the Respondents therein to consider her claim for regularisation u/s 33B of the 1982 Act and to pay salary for the period 01.08.1984 to 20.05.1985 and for the period during which notional breaks were given and to treat her to be continuing in service.
It may be mentioned here that vide order dated 09.10.1997, the Regional Deputy Director of Education had held that though she was appointed as ad hoc C.T. Grade teacher in place of Km. Madhu Raizada for the period 01.08.1984 till 20.05.1988 for intermittent period, she has worked in the Institution as part time teacher from 01.07.1989 till May 1991 and from 01.01.1995 Smt. Meenakshi Sharma has been appointed as ad hoc teacher till Km. Madhu Raizada returns or a regular candidate is selected by the Commission. Therefore, Km. Anju Saxena is not entitled for any benefits as claimed by her. The Regional Deputy Director of Education had further held that as Km. Madhu Raizada was a teacher in C.T. Grade and there was no vacancy of L.T. Grade, the appointment of Smt. Meenakshi Sharma is irregular, which is liable to be cancelled.
According to Smt. Meenakshi Sharma, who is the Appellant in Special Appeal No. 406 of 2011, a post of Assistant Teacher in L.T. Grade fell vacant on account of the leave/absence of Km. Madhu Raizada and the advertisement for filling up the vacancy was published on 16.02.1995 in "Amar Ujala". After facing the Selection Committee, she was selected and was given appointment vide order dated 30.09.1995. The appointment was made on purely ad hoc basis from 01.08.1985 till 31.01.1996 which was also approved by the Regional Deputy Director of Education vide order dated 30.09.1995. She was reappointed on 05.01.1996, which was also approved by the Regional Director of Education vide order dated 25.01.1996. The term was extended till 21.01.1997. However, vide order dated 13.01.1997, the Committee of Management terminated the services of Smt. Meenakshi Sharma. The order dated 13.01.1997 passed by the Committee of Management was challenged by Smt. Meenakshi Sharma by filing Writ Petition No. 2680 of 1997 (giving rise to the present appeal). This Court vide interim order dated 21.01.1997 directed her to continue on the post of Assistant Teacher in L.T. Grade and also for payment of salary in accordance with law until further orders or till the availability of a regularly selected candidate whichever is earlier. Smt. Meenakshi Sharma continued to work in the Institution on the strength of the interim order dated 21.01.1997 passed by this Court.
Both the writ petitions were connected and heard together and vide order dated 09.02.2011, the learned single Judge had been pleased to dismiss both the writ petitions. The learned single Judge had held that the services of Km. Anju Saxena came to an end in the year 1991 itself and the plea taken by her that the provisions of U.P. Government Servant (Employment Leave) Rules, 2003 that the leave period of Km. Madhu Raizada can not be extended for more than 5 years and she would be deemed to have become permanent is not tenable as the said Rule is not applicable to the employees and teachers working in private Institutions. The learned single Judge further held that no benefit u/s 33B of the 1982 Act is available as she is not covered by the said section in as much as the leave vacancy against which she was working became substantive in the year 1989 and on the relevant date/cut-off date given in Section 33B of the 1982 Act, she was not working. So far as the case set-up by Smt. Meenakshi Sharma is concerned, the learned single Judge came to the conclusion that Km. Madhu Raizada had lost her lien as a teacher in the Institution from the date when she was confirmed as teacher in the Government College and on the said date itself the vacancy became substantive. Consequently, the appointment offered to her in the year 1995 against the substantive vacancy treating the same as leave vacancy was deliberate as the Committee of Management had no right to make ad hoc appointment against a substantive vacancy. The learned single Judge, therefore, dismissed the writ petition filed by Smt. Meenakshi Sharma also.
We have heard Sri Manish Goel, learned Counsel appearing for Km. Anju Saxena, Sri Ashok Khare, learned senior counsel assisted by Sri Siddharth Khare, appearing on behalf of Smt. Meenakshi Sharma, the learned standing counsel, who represents the State Respondents and Sri D.K. Jaiswal, learned Counsel representing the Committee of Management in both the appeals and have perused the impugned judgment and order dated 09.02.2011 passed by the learned single Judge giving rise the present appeals, the grounds taken in the memo of appeals and the documents filed along with it. Sri Manish Goel, learned Counsel submitted that Km. Anju Saxena was appointed as ad hoc teacher in the leave vacancy of Km. Madhu Raizada on 01.08.1984 and continued to work till May 1991 and on account of the fact that the leave vacancy became substantive vacancy as early as in the year 1989 when Km. Madhu Raizada was confirmed as teacher in the Government College in the year 1989, she was entitled to be regularised u/s 33B of the 1982 Act. He relied upon the provisions of U.P. Government Servant (Employment Leave) Rules, 2003 to buttress his plea that the leave can not be extended for a period of more than 5 years and Km. Madhu Raizada would be deemed to have lost her lien in the Institution the moment she was confirmed in the Government College. He, thus submitted that the order passed by the learned single Judge is liable to be set-aside and she should be regularised on the post of Assistant Teacher in the Institution. In support of his aforesaid plea, he has relied upon a decision of this Court in the case of Kumari Meena Singh Vs. District Inspector of Schools and Another, .
Sri Ashok Khare, learned senior counsel however, submitted that till such time Km. Madhu Raizada had not tendered her resignation from the post of Assistant Teacher in the Institution, she would be deemed to be continuing in service and the vacancy can not be deemed to have occurred substantively in the Institution. According to him, Smt. Meenakshi Sharma having been appointed as Assistant Teacher L.T. Grade on 30.07.1995 by the Committee of Management in the leave vacancy of Km. Madhu Raizada and working continuously till 15.01.1997 on which date the resignation submitted by Km. Madhu Raizada has been accepted. she was entitled to be regularised on occurrence of the substantive vacancy and the view to the contrary taken by the learned single Judge requires to be set-aside. Sri Ashok Khare, has relied upon a Division Bench decision of this Court in the case of Jagdish Singh Kushwaha v. U.P. Secondary Education Services Commission and Ors. 1993 HVD (Alld) 4 21 (Special Appeal No. 420 of 1993 decided on 16.7.1993) for the proposition that the principle of suspension and termination of a lien of a Government servant does not apply to private employment.
The learned standing counsel submitted that the Regional Deputy Director of Education was perfectly justified in holding that Km. Anju Saxena was not entitled to continue beyond 20.05.1989 as it came to an end and thereafter worked uptil 1991 as part-time teacher and thereafter till 1995, the post remained vacant. He further submitted that the vacancy caused on account of leave of Km. Madhu Raizada became substantive the moment she was confirmed in the Government College in the year 1989 and, therefore, the appointment of Smt. Meenakshi Sharma on ad hoc basis treating the vacancy as leave vacancy was not justified. He, thus submitted that the order passed by the learned single Judge does not call for any interference.
We have given our thoughtful consideration to the various pleas raised by the learned Counsel for the parties. From the pleadings, we find that it is not in dispute that both Km. Anju Saxena and Smt. Meenakshi Sharma claim to have been appointed as ad hoc Assistant Teacher on the vacancy caused by Km. Madhu Raizada. Km. Anju Saxena was initially appointed in the Institution as Assistant Teacher on 01.08.1984 where she worked intermittently till 20.05.1988. Thereafter, from July 1989 to May 1991 she had worked as a part-time teacher which would also be clear from the certificate issued by the Principal of the Institution, which finds place at page 133 and 134 of the Paper Book of Special Appeal No. 270 (D) of 2011 preferred by Km. Anju Saxena. Thus, she had worked as ad hoc teacher in leave vacancy till 20.05.1988 only. Section 33B of the 1982 Act was inserted on 07.08.1993. It provides for regularisation of teachers working in leave vacancy which had subsequently become substantive and would not be applicable in the present case as on the cutoff date ie 07.08.1993 Km. Anju Saxena was not working in the Institution. Moreover, it is the admitted case that after 20.05.1988 till 30th June 1989, she had not at all worked as Assistant Teacher in the said Institution. The plea raised by Sri Manish Goel that she had approached this Court by filing Writ Petition No. 16487 of 1991 in which this Court vide judgment and order dated 05.05.1995 had directed the authorities to decide her representation would be treated as continuing in service in the year 1991 can not be accepted as it is the own case of the Appellant Km. Anju Saxena that she had worked as part-time teacher in the Institution from July 1989 to May 1991 and thereafter did not work.
The question still remains as to whether the leave vacancy of Km. Madhu Raizada would be treated to have become substantive vacancy in the year 1989 when she was confirmed as teacher in Government College or not. The U.P. Government Servant Employment Rules, 2003 can not be pressed into service as it came into existence in the year 2003. Further, it has come on record that Km. Madhu Raizada had tendered her resignation from the post of Assistant Teacher in the Institution on 15.10.1996, which was to be made effective from 15.01.1997. The resignation was accepted with effect from 15.01.1997 by the Committee of Management vide Resolution passed on 12.01.1997. The vacancy thus, became substantive only on 15.01.1997. A Division Bench of this Court in the case of Jagdish Singh Kushwaha (Supra) had occasion to consider in a somewhat similar situation as to when a vacancy can be said to have become substantive. In the aforesaid case, one Sri Rajendra Singh Bhadauria was working as permanent Lecturer in Geography in Sanatan Dharm Inter College, Mainpuri. He was selected for appointment as Principal in Jan Sahyogi Uchchtar Madhyamik Vidyalay, Etawah. He joined the post and obtained leave from Sanatan Dharm Inter College, with effect from 12.04.1986. Despite his confirmation on the post of Principal in Jan Sahyogi Uchchtar Madhyamik Vidyalay, Etawah, he continued to be on leave. He submitted his resignation from the post of Lecturer in Geography in Sanatan Dharm Inter College, Mainpuri, on 04.04.1991. The resignation was accepted by the Committee of Management on 11.04.1991. The question up for consideration before the Division Bench was as to when a substantive vacancy of Lecturer in Geography in Sanatam Dharm Inter College occurred ie. when Sri Rajendra Singh Bhadauria was confirmed as Principal in Jan Sahyogi Uchchtar Madhyamik Vidyalay, Etawah or when the Committee of Management accepted the resignation on 11.04.1991. On the aforementioned facts, the Division Bench had held that acquisition of lien, termination thereof and simultaneous retention of lien on two or more posts is a matter governed by the Rules. It has held as follows:
28... In the case on hand our attention has not been invited to any rule incorporating the principle of lien applicable in government service and where under the lien held on one post would automatically be terminated on acquisition of lien on another post. According to the judgment of their Lordships the only consequence of the appointment of the Appellant in the Development Department in substantive and permanent capacity was that his lien in the Agriculture Department was suspended; it has not been held that it stood terminated automatically.
Shri Ashok Khare, learned Counsel for Chaturvedi strenuously submitted that the employment in the present case cannot be said to be private as it was governed by statutory provisions. On this basis the learned Counsel submitted that U.P. Fundamental Rules were attracted. Merely because the employment of a teacher in a government aided institution is governed by statutory provisions, it cannot become public. Neither Chaturvedi nor Kushwaha can claim to be government servants. There are specific statutes governing teachers of government aided private institutions. Only these statutes will apply to them and not other statutory provisions like fundamental rules.
In view of the above we are of the opinion that the post in question fell vacant substantively on 4th April, 1991 when Bhadauria submitted his resignation from the post of Lecturer. Acceptance of resignation on 11th April, 1991 was merely a formality. Accordingly in our opinion this date is not relevant.
Neither Sri Manish Goel, learned Counsel appearing for Km. Anju Saxena nor the learned Counsel appearing for the State Respondents were able to show that the aforesaid Division Bench decision does not hold the field.
Applying the principles laid down in the aforesaid case to the facts of the present case, we find that the Committee of Management had granted leave to Km. Madhu Raizada in the Resolution passed in the meeting held on 12.01.1997. She had tendered her resignation on 15.10.1996 to be effective from 15.01.1997. The Committee of Management had accepted her resignation with effect from 15.01.1997. That being the position, in our considered opinion, the vacancy on the post held by Km. Madhu Raizada became substantive vacancy only on 15.01.1997 and not prior to it. The view of the learned single Judge to the contrary being at variance with the Division Bench decision in the case of Jagdish Singh Kushwaha (Supra), therefore, can not be accepted and is set-aside. Thus, the Committee of Management was fully justified in appointing Smt. Meenakshi Sharma as ad hoc teacher in the year 1995 in the leave vacancy of Km. Madhu Raizada.
We may mention here that the decision cited by Sri Manish Goel in the case of Km. Meena Singh (supra) has been considered by the Full Bench of this Court in the case of Smt. Pramila Mishra v. Deputy Director of Education and Ors. (1997) 2 UPLBEC 1329 and the Full Bench has disagreed with the view taken in the aforesaid case. The Full Bench has held that a teacher appointed by the Management of the Institution on ad hoc basis in a short term vacancy which is subsequently converted into a substantive vacancy in accordance with the provisions of the Act, Rules and Orders can not claim a right to continue. He has right to be considered along with other eligible candidates for ad hoc appointment in the substantive vacancy, if he possess the requisite qualifications. The view taken in the case of Km. Meena Singh (Supra) was declared to be no longer good law.
In view of the foregoing discussions, the appeal preferred by Smt. Meenakshi Sharma is allowed being Special Appeal No. 406 of 2011. The appeal preferred by Km. Anju Saxena being Special Appeal No. 270 (D) of 2011 is dismissed. The judgment and order dated 09.02.2011 in sofaras it dismisses the writ petition filed by Smt. Meenakshi Sharma is set-aside and it is held that the ad hoc appointment of Smt. Meenakshi Sharma was legal and valid.
However, on the facts and circumstances of the case, the parties shall bear their own costs.