Partly allowed

Mukesh Kumar Sharma v. Dios and Others

Allahabad HC6 Dec 2019SPLAD/1103/2012

Case brief

AI extract

What is this about?

This special appeal involves a request for regularization of an ad hoc appointment. The Full Bench decision in Jahaj Pal was applied to direct the High Court to examine the appellant's claim for substantive appointment under Section 33-G of Act No. 5 of 1982.

What did the court decide?

Respondents to examine the petitioner's claim for appointment on substantive vacancy under Section 33-G within two months.

Mukesh Kumar Sharma Vs Dios and Others — Pension and Retirement Benefits | Allahabad HC (2019)

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Court No. - 4

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Case :- SPECIAL APPEAL DEFECTIVE No. - 1103 of 2012

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Appellant :- Mukesh Kumar Sharma Respondent :- Dios And Others Counsel for Appellant :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C.

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Hon'ble Bala Krishna Narayana,J. Hon'ble Rohit Ranjan Agarwal,J.

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Learned counsel for the appellant is permitted to implead Joint Director of Education, Saharanpur as respondent no. 4 in this appeal.

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Heard Sri Siddharth Khare, learned counsel for the appellant and learned Standing Counsel for the respondent nos. 1 and 2.

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This special appeal is directed against the order dated 07.11.2012 passed by learned Single Judge of this Court in Civil Misc. Writ Petition No. 21288 of 1994 (Mukesh Kumar Sharma Vs. District Inspector of Schools, Saharanpur and others) preferred by the appellant Mukesh Kumar Sharma before this Court for issuing a writ of mandamus directing the respondents to pay his salary for the post of ad hoc Lecturer in Public Inter College, Sadhauli Khadeem, District- Saharanpur (hereinafter referred to as the College).

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Facts of the case as recited in the order impugned with regard to which there is no dispute among the parties are as hereunder :-

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One Sri Shambhu Lal Vashisth was the permanent Principal of the institution, who retired on 30.06.1990, causing a substantive vacancy of Principal. The requisition with regard to the vacancy was sent by the management to the Secondary Education Service Commission through District Inspector of Schools. When no regular appointment was made on the post of Principal, the committee of management appointed one Sri Jaipal Singh, permanent Lecturer Maths as officiating Principal by way of ad hoc promotion. As a result of ad hoc promotion of Sri Jaipal Singh as Principal, a short term vacancy arose. It appears that by letter dated 08.07.1993, Accounts Officer in the office of District Inspector of Schools, Saharanpur accorded the sanction with regard to the filling up vacancies, including the short term vacancy of Lecturer in Maths caused by the grant of ad hoc promotion to Sri Jaipal Singh. Thereafter, the management of the institution advertised the post of Lecturer in Maths in newspaper, namely, Amar Ujala on 24.07.1993. In pursuance of the said advertisement, the petitioner applied for the post of Lecturer in Maths. The petitioner being qualified was selected and committee of management passed the resolution on 08.08.1993 appointing the petitioner on ad hoc basis as Lecturer in Maths. In pursuance of the aforesaid, appointment letter was issued to the petitioner on 14.08.1993. The petitioner joined the institution on 14.08.1993. The institution forwarded all the papers to the District Inspector of Schools for payment of salary along with the covering letter dated 02.09.1993. The petitioner continuously worked but his salary was not paid despite several requests. Hence, the petitioner filed the aforesaid writ petition.

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On 07.07.1994 this Court had entertained the writ petition and directed the respondents to file counter affidavit and as an interim measure the respondent nos.1, 2 and 3 were directed to pay current salary to the petitioner provided he was working on the post on the basis of the order of appointment letter dated 14.08.1993.

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Counter and rejoinder affidavits were exchanged. In the counter affidavit the respondent took the stand that by letter dated 24.07.1993 issued by the Deputy Director of Education, Meerut, a complete ban was imposed on appointment under Section 18 of Act No. 24 of 1992 and, therefore, ad hoc appointment of the petitioner was not justified and was contrary to the Government Order dated 24.07.1993.

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Before the writ court, it was contended by the learned counsel for the appellant/petitioner that Section 18 as it existed at the relevant time was applicable to ad hoc appointment of Lecturer either by way of promotion or by way of direct recruitment against the substantive vacancy and not against the filling up the post against the short term vacancy. The ad hoc appointment is contemplated in Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, (hereinafter referred to as "Second Order, 1981") issued in exercise of power under Section 33 of Act No. 5 of 1982. The petitioner's appointment was made after following the procedure prescribed and with regard to which the respondents never raised any dispute.

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Before the writ court, it was also contended by the learned counsel for the appellant/petitioner that Jaipal Singh retired in the year 2000. The stand of the State Government before the writ court was that after the retirement of Jaipal Singh in the year 2000, the short-term vacancy on which appointment was pending, ceased to exist and therefore, the petitioner was not entitled to any salary.

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Learned Single Judge after considering the submissions advanced before him by the learned counsel for the parties and perusing the record, allowed the writ petition in part by the impugned order. Although the learned Single Judge found that the petitioner's appointment on ad hoc basis by the Committee of Management was not justified, but since he had worked, he was entitled to salary from the date of appointment. As regards the contention raised before the writ court by the petitioner's counsel that the appellant/petitioner was entitled to payment of salary even after the retirement of Jaipal Singh, the learned Single Judge held that once after the retirement of Jaipal Singh, the vacancy became substantive, the appellant/petitioner had no right to continue on the said post.

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Learned Single Judge relied on decision rendered in the case of Smt. Pramila Mishra Vs. Deputy Director of Education, Jhansi Division, Jhansi and others, reported in 1997 UPLBEC, 1329.

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However, the learned Single Judge further held that since the appellant/petitioner continued to work and receive salary in terms of interim order, the amount paid to him towards salary shall not be recovered, in case the appellant/petitioner had worked but the continuance of the appellant/petitioner after the retirement of Jaipal Singh was held to be unjustified.

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It is contended by Sri Siddharth Khare, learned counsel for the appellant

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that after the passing of the impugned order, a new Section 33 G was inserted in the Act No. 5 of 1982 on 05.03.2016 which provided for regularization of certain appointments mentioned therein. He next contended that the case of Smt. Pramila Mishra (supra) was considered by a Full Bench of this Court in the case of Jahaj Pal Vs. District Inspector of Schools and Another, passed in Special Appeal No. 280 of 2013 and connected cases on 21.02.2019 and the Full Bench in paragraph 206 of the aforesaid judgement observed and clarified the bald statement in paragraph 16 of the judgement and held that the cases governed by provisions relating to substantive appointment/regularization like 33-B and 33-F etc., the same wherever applicable, will prevail over otherwise inconsistent provision contained in Removal of Difficulties Order and in particular Second Order. He further submitted that since pursuant to the interim order passed in favour of the appellant/petitioner in this appeal, the appellant/petitioner has continued to work on the post of Lecturer in the College, he is entitled for consideration of his claim for regularization u/s 33-G (a) of Act No. 5 of 1982.

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Per contra, learned Standing Counsel made his submissions in support of the impugned order dated 07.11.2012.

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After having heard learned counsel for the parties and perused the impugned order as well as other material brought on record, we find that there is force in the submissions made by learned counsel for the appellant/petitioner.

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Section 33-G (1) of Act No. 5 of 1982 which is relevant for our purpose reads as hereunder :-

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33-G. Regularisation of certain more appointments against short term vacancies- (1) Any teacher, other than the Principal or the Headmaster, who-

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(a) was appointed by promotion or by direct recruitment in the lecturer's grade or trained graduate grade on or after August 7, 1993 but not later than January 25, 1999 against a short term vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, as amended from time to time, and such vacancy was subsequently converted into a substantive vacancy;

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(b) was appointed by promotion or by direct recruitment on or after August 7, 1993, but not later than December 30, 2000 on ad hoc basis against substantive vacancy in accordance with Section 18, in the Lecturer grade or Trained Graduate grade;

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(c) possesses the qualifications prescribed under, or is exempted from such qualification in accordance with the provisions of the Intermediate Education Act, 1921;

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(d) has been continuously serving the institution from the date of such appointment up to the date of the commencement of the Uttar Pradesh Secondary Education Services Selection Board (Amendment) Act, 2016;

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(e) has been found suitable for appointment in a substantive capacity by the selection committee referred to in clause (a) of sub-section (2) of

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Section 33-C in accordance with the procedure prescribed under clause (b) of the said sub-section;

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shall be given substantive appointments by the Management.

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Since there is no dispute about the fact that the petitioner was appointed on ad hoc basis against short-term vacancy after following the procedure prescribed under the second Removal of Difficulties Order on 14.08.1993 which falls between two dates mentioned in Section 33-G 1(b), he is entitled for being given appointment on the substantive vacancy.

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This special appeal accordingly succeeds and is allowed to the extent that respondents shall examine the claim of petitioner for being appointed on substantive vacancy strictly in accordance with the provisions of Section 33-G of Act No. 5 of 1982 and keeping in view the law laid down by the Full Bench of this Court in case of Jahaj Pal (supra).

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The necessary exercise in this regard shall be completed by respondent no. 4 within a period of two months from the date of filing of certified copy of this order before him.

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Order Date :- 6.12.2019 KS

Mukesh Kumar Sharma v. Dios and Others

Case brief

What is this about?

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Mukesh Kumar Sharma v. Dios and Others

Case brief

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What did the court decide?

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