Full Judgment Text
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PETITIONER:
SMT. RAM SAKHI DEVI UTTAR PRADESH PRADHAN ADHYAPAK PARISHAD&
Vs.
RESPONDENT:
U.P. SECONDARY EDUCATION SERVICE COMMISSION ,STATE OF U.P. &
DATE OF JUDGMENT: 20/03/1997
BENCH:
K. RAMASWAMY, S. SAGHIR AHMAD
ACT:
HEADNOTE:
JUDGMENT:
WITH
CIVIL APPEAL NO.1825 OF 1986
O R D E R
CA NO.472/86:
This appeal by special leave arises from the judgment
of the Division Bench of the Allahabad High Court, made on
November 6, 1985 in Civil Miscellaneous Writ Petition
No.10982/85.
The admitted facts are that the appellant was appointed
as Headmistress of Junior High School, Kamla Nehru Kanya
Vidyalaya, Shiv Shankari Dham Pachewara Chunal Mirzapur
which was upgraded in July, 1982 as High School. The
Managing Committee advertised through newspaper under the
U.P. Intermediate Education Act, 1921 for selection of the
candidates, obviously, under Section 16-E. The committee had
selected the appellant on December 17, 1983 and the
appellant was sought to be ratified. Since the ratification
was not accorded by the District Inspector, the appellant
had approached by the High Court. The High Court relying
upon its earlier decision in Jai Prakesh Sharma vs. State of
U.P. & Ors. [WP No.174/85] dismissed the writ petition.
Thus, this appeal by special leave.
Though the High Court may not be correct in following
its judgment in dismissing the writ petition, on facts we
find that there is no substantial difference in the result.
The admitted position is that the U.P. Secondary Education
(Services Commission) Act, 1982, had come into force with
effect from July 14, 1981. Section 10 of the Act specifies
the purpose of making appointment to the posts of teachers
specified in the Schedule. It postulates thus:
"(1) For the purpose of making
appointment of a teacher specified
in the Schedule, the management
shall notify the vacancy to the
Commission in such manner and
through such officer or authority
as may be prescribed.
(2) The procedure of selection of
candidates for appointment to the
posts of such teachers shall be
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such as may be prescribed:
Provided that the Commission shall,
with a view to inviting talented
persons, give wide publicity in the
State to the vacancies notified
under sub-section (1)."
It is, thus, clear that Section 10 envisages two steps,
namely, every institution is enjoined to notify to the
Commission the vacancies through such officer or authority
as may be prescribed. The Service Commission, before
selection, will give wide publicity by inviting applications
from all qualified candidates so that talented candidates
would apply for get selected to the post. Though this
Section has been amended by Amendment Act 12 of 1985, the
same is not relevant and has no application to this case. It
reads as under:
"Notwithstanding anything to the
contrary contained in the
Intermediate Education Act, 1921 or
the Regulations made thereunder but
subject to the provisions of
Sections 18, 21-B, 21-C. 21-D, 33
and 33-A on or after July 10, 1981,
be made by the management only on
the recommendation of the
Commission;
(b) every appointment of a teacher
specified in the Scheduled, shall,
on or after July 1, 1981, be made
by the management only on the
recommendation of the Board."
Thus, it could be seen that after coming into force of
the said Amendment Act, the power of the Management to
constitute a Selection Committee under Section 16-E of the
U.P. Intermediate Act has been taken away. Instead the
selection has to be made only through the Commission under
the Act and the selected candidate shall be appointed on its
recommendation and in no other manner. The selection by the
School under Intermediate Education Act, 1921 is illegal.
Learned counsel for the appellant has sought to place
reliance on Section 33-A of the Regulation made under
Section 16-E of the U.P. Intermediate Act to regularise such
ad hoc appointments. Undoubtedly, every teacher directly
appointed before the commencement of the Act, in other
words, on ad hoc basis, against the substantive vacancy may
be regularised under Section 33-A; but it cannot be used as
a routine. It is mandatory for the management to notify to
the Commission and in case the Commission is unable to
recommend the selected candidates within a reasonable time,
any candidate appointed on ad hoc basis will be deemed to
have been appointed in substantive capacity. The resourse to
Section 33-A should be made sparingly and not as a routine.
If Section 33-A route is adopted as a routine, the entire
process of Selection contemplated under the Act would be
given a decent burial and illegal appointment would gain
legitimacy. Under these circumstances, we do not think that
the counsel is right in contending that the appellant could
be regularised under Section 33-A of the Regulation.
The appeal is accordingly dismissed. No. costs.
CA NO.1825/86:
The appeal having become infructuous, is dismissed. No
Costs.