UPTET SARKARI NAUKRI News - Court ne JD Education ke Order Ko Manmana Karar Dekar Radd Kiya, Maamla LT Grade Bhrtee ka -
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
Case :- WRIT - A No. - 321 of 2013
Petitioner :- C/M Ram Sajiwan Lal Inter College And Anr.
Respondent :- State Of U.P.Thru Secy & Ors.
Counsel for Petitioner :- Manoj Mishra
Counsel for Respondent :- C.S.C.,M.C.Tiwari,N.C.Tiwari,P.N. Tripathi,R.K.Pandey
Hon'ble Mrs. Sunita Agarwal,J.
Heard Sri Manoj Mishra, learned counsel for the petitioner, Sri P.N. Tripathi, learned counsel for respondent no. 6, Sri A.K. Yadav, learned counsel for respondent nos. 1, 2, 3 & 4 and Sri R.K. Pandey, learned counsel for respondent no. 5.
This writ petition is directed against the order dated 19.12.2012 passed by the Joint Director of Education, Vindhyachal Division, Mirzapur and the directions given by the District Inspector of Schools, Sant Ravidas Nagar, Bhadohi dated 22.9.2012, the Additional District Magistrate (Finance & Revenue) dated 21.9.2012 and by the Deputy Secretary, U.P. Secondary Education Service Selection Board, Allahabad dated 14.9.2012 to ensure joining of respondent no. 6 Sri Padmakar Yadav in the institution-in-question.
Brief facts relevant to decide the controversy in hand are that petitioner no. 1 is a recognised Intermediate College governed by U.P. Intermediate Education Act, Rules and Regulations framed thereunder. Provisions of Payment of Salaries Act, 1971 and U.P. Act No. 5 of 1982 are also applicable to the teachers and other employees of the institution. Petitioner no. 2 is the Manager of the Intermediate College.
There were 20 sanctioned posts of LT Grade teacher in the institution in question. Against 13 vacancies of LT Grade teacher, a requisition dated 1.2.2007 was sent by the manager to the District Inspector of Schools. Out of 13 vacancies, 10 vacancies of LT Grade teacher were existing whereas 3 were foreseen vacancies for the retirements due. Out of 10 posts, 4 posts in each subject namely Mathematics, Science, English and Art were reserved for Scheduled Caste category and 2 posts for Hindi and Science were reserved for other Backward Classes after the determination done by the management. In the meantime, 4 Assistant Teachers had joined the institution by attachment, as a result of which the reservation position in the institution was changed. As no selection was made by the Board pursuant to the requisition dated 1.2.2007 by that time, a requisition was again sent on 23.7.2009 for 10 posts out of 13 posts as 3 posts were already filled by attachment. Out of 10 posts, 4 posts for subjects English, Mathematics, Science and Biology were reserved for Scheduled Caste candidates and 2 posts for the subjects Art and English were reserved for other Backward Classes.
After the requisition was sent on 23.7.2009, one Sri Deepchand Saroj was selected and recommended by the Board for the post of LT Grade teacher in Art subject, pursuant to the requisition dated 1.2.2007 sent earlier by the petitioners. Direction was given by the District Inspector of Schools vide order dated 18.12.2012 to give him joining. Sri Deepchand Saroj had joined on the post of LT Grade teacher in Art subject on 1.1.2011 and is working since then.
It appears that another recommendation for appointment of respondent no. 6 in Art subject was made by the Board on 7.6.2012 against the requisition dated 23.7.2009. The District Inspector of Schools issued a letter dated 21.7.2012 to the petitioner to ensure joining of respondent no. 6. In reply, the petitioners informed the District Inspector of School by communication dated 14.8.2012 that there was no vacant post of Art teacher in the institution and hence it was not possible to allow respondent no. 6 to join. The details of LT Grade teachers working in the institution was provided to the District Inspector of Schools. It was informed therein that there were only 2 posts of LT Grade Teacher in Art subject and two teachers namely Sri Devmani Dubey and Sri Deepchand Saroj were working. Sri Devmani Dubey was working since 1981 whereas Sri Deepchand Saroj recommendee of the board had joined on 1.1.2011. The District Inspector of Schools had forwarded the said information to respondent no. 5, the Secretary, U.P. Secondary Education Service Selection Board. Respondent no. 5 had illegally initiated action against the petitioners under Section 17(2) and Sections 22 and 23 of U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the Act 1982).
First Information Report was directed to be lodged against the petitioners vide order dated 14.9.2012 passed by respondent no. 5. Pursuant to the order dated 14.9.2012, the District Inspector of Schools again directed the petitioner by order dated 22.9.2012 to ensure joining of respondent no. 6 else action under Sections 22 and 23 of the Act, 1982 would be recommended. Aggrieved by the orders of the District Inspector of Schools dated 22.9.2012, the Secretary, Selection Board dated 14.9.2012 and the order of Additional District Magistrate (Finance & Revenue) dated 21.9.2012 (to lodge First Information Report against the petitioner), a Writ Petition No. 50313 of 2012 was filed which was decided on 4.10.2012.
This Court after noticing the arguments of learned counsel for the parties has disposed of the writ petition with a direction to the Regional Joint Director of Education to consider and take action. It was further directed that till the matter was decided by the Regional Joint Director of Education, no coercive action under Sections 22/23 of the Act, 1982 would be taken. Pursuant to the directions of this Court dated 4.10.2012, the Joint Director of Education, Vindhyachal Division, Mirzapur has passed an order dated 19.12.2012 asking the petitioners to ensure joining of respondent no. 6 on the post of LT Grade teacher. Hence this Writ petition.
Challenging the order passed by the Joint Director of Education dated 19.12.2012, submission of learned counsel for the petitioner is that out of total 20 posts for 10 subjects in the institution, two posts of Art teacher have been filled and two teachers are working. As there was no vacant post, the educational authorities could not have pressurised for joining of respondent no. 6. In the order dated 19.12.2012 though it was found that against two posts determined by the Management for Art subject, two teachers were working, one of them having been selected by the board pursuant to the requisition dated 1.2.2007, yet it was directed that one post of Commerce teacher notified in the requisition dated 31.12.2011 be converted and treated as vacancy in Art subject, so as to accommodate respondent no. 6.
The reasoning given for the direction to convert the post of Commerce to Art teacher is that there was scope of increase in the number of post of Art teacher as the total number of students in Class 6th, 7th and 8th have not been disclosed by the management and further that Art is a compulsory subject uptill Class VIII.
Submission of learned counsel for the petitioners is that this approach of the Joint Director of Education is wholly whimsical. So far as identification and determination of vacancies in the institution is concerned, the management alone is competent to determine the number of vacancies in accordance with the sub-rule (1) of Rule 11 of the U.P. Secondary Education Services Education Selection Board, Rules, 1998 and notify the same.
Having heard learned counsel for the parties and perused the record. Before dealing with the controversy in hand, it would be apt to go through the Rules 10 and 11 of the Rules, 1998. Rules 10 and 11 are quoted as under:-.
10. Sources of recruitment.- Recruitment to the various categories of teachers shall be made from the following sources :-
(a) Principal of an Intermediate By direct recruitment
College or Head Master of a
High School
(b) Teachers of Lecturer's grade (i) 50 per cent direct recruitment
(ii)50 per cent by promotion from amongst substantively appointed teachers of the trained graduates grade.
(c) Teachers of trained graduates (i) 100 per cent direct recruitment
grade except the category of
institutions mentioned below in 2(ii); (ii) Those Intermediate colleges and High Schools in which teachers of attached primary section are getting salary under provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971, 75 per cent posts shall be filled by direct recruitment and the remaining 25 percent posts shall be filled by promotion from amongst those trained graduate teachers of attached primary section who have completed 5 years of satisfactory service:
Provided that if in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts may be filled by direct recruitment:
Provided further that if in calculating respective percentage of posts under this rule, there comes a fraction then the fraction of the posts to be filled by direct recruitment shall be ignored and the fraction of the posts to be filled by promotion shall be increased to make it one post.
11. Determination and notification of vacancies.- (1) For the purposes of direct recruitment to the post of teacher, the Management shall determine the number of vacancies in accordance with Sub-section (1) of Section 10 and notify the vacancies through the Inspector, in the Board in the manner hereinafter provided.
2(a) The statement of vacancies for each category of posts to be filled in by direct recruitment including the vacancy that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent in quadruplicate, in the proforma given in Appendix "A" by the Management to the Inspector by July 15 of the year of recruitment and the Inspector shall, after verification from the record of his office, prepare consolidated statement of vacancies of the district subject wise in respect of the vacancies of Lecturer grade and group-wise in respect of vacancies of trained graduates grade. The consolidated statement so prepared shall, along with the copies of statement received from the Management, be sent by the Inspector to the Board by July 31, with a copy thereof to the Joint Director:
Provided that if the State Government is satisfied that it is expedient so to do, it may, by order in writing, fix other dates for notification of vacancies to the Board in respect of any particular year of recruitment:
Provided further that in respect of the vacancies existing on the date of the commencement of these rules as well as the vacancies that are likely to arise on June 30,1998, the Management shall, unless some other dates are fixed under the preceding proviso, send the statement of vacancies by July 20,1998 to the Inspector and Inspector shall send the consolidated statement in accordance with this sub-rule to the Board by July, 25, 1998.
Explanation : For the purposes of this sub-rule the word 'group-wise' in respect to the trained graduates grade means in accordance with the following groups, namely.
(a) Language This group consist of the subject of Hindi
Sanskrit, Urdu, Persian and Arabic
(b) Science This group consists of the subjects of
Science and Mathematics.
(c) Art and Craft.
(d) Music
(e) Agriculture
(f) Home Science
(g) Physical Education
(h) General This group consists of the subjects not
covered in any of the foregoing groups.
(b) With regard to the post of Principal, or Headmaster, the Management shall also forward the names of two senior most teachers, along with copies of their service records (including character rolls) and such other record or particulars as the Board may require, from time to time.
Explanation : For the purpose of this sub-rule" senior most "teacher" means the senior most teacher in the post of the highest grade in the institution, irrespective of total service put in the institution.
(3) If, after the vacancies have been notified under Sub-rule (2), any vacancy in the post of teacher occurs, the Management shall, within fifteen days of its occurrence, notify to the Inspector in accordance with the said sub-rule and the Inspector shall within ten days of its receipt by him send if to the Board.
(4) Where, for any year of recruitment, the Management does not notify the vacancies by the date specified in Sub-rule (2) or fails to notify them in accordance with the said sub-rule, the Inspector shall on the basis of the record of his office, determine the vacancies in such institution in accordance with Sub-section (1) of Section 10 and notify them to the Board in the manner and by the date referred to in the said sub-rule. The vacancies notified to the Board under this sub rule shall be deemed to be notified by the Management of such institution.
Rule 11 provides the manner in which the vacancies are to be determined and notified by the management to the Board through the Inspector. The post of teacher is sanctioned by the State Government. Against the sanctioned post, the determination is to be done by the management looking to the requirement in the institution having regard to the reservation position and the source of recruitment as per rule 10 of 1998 Rules. It is sole prerogative of the management to determine vacancies subjectwise on the strength of the students studying in a particular subject. The Joint Director of Education and for that matter any other educational authority has no say in the determination of vacancy subjectwise in the institution.
They can only examine whether; (I) the notified vacancies/vacancy are/is against the sanctioned post, (ii) the management had adhered to the reservation rules while notifying the vacancy and (iii) the notified vacancies lies within 50% direct recruitment quota.
Moreover, the notification dated 31.12.2011 was for 4 vacancies of LT Grade teacher which occurred much later. Out of these vacancies, four teachers in subjects Hindi, Sociology and Commerce were to be appointed. It is undisputed that the total number of sanctioned post are 20 in number and these 20 posts of LT Grade teacher are for 10 subjects. Whether there was requirement for one more Art teacher as per the number of students studying in the institution is concerned the jurisdiction to determine this question is with the management. There appears to be requirement of one teacher in Commerce subject and hence the post was identified and notified to the Commission in requisition dated 31.12.2011 for the vacancy which arose much later. The earlier requisition dated 1.2.2007 and 23.7.2009 were for those vacancies which existed on 1.12.2007. Three foreseen vacancies of the same recruitment year were also added and requisitioned therein. As some time had lapsed in the selection by the Commission and in the meantime, three teachers were appointed by attachment, another requisition dated 23.7.2009 was sent again for the 10 posts, which were earlier requisitioned on 1.2.2007 and remain unfilled till that time. The requisition dated 23.7.2009 was sent for the reason that the reservation position on the post of LT Grade teacher was changed due to joining of three teachers by attachment, in the meantime. However, before selection of respondent no. 6, the vacancy of Art teacher requisitioned on 1.2.2007 and re-requisitioned on 23.7.2009 was filled by selection of Sri Devmani Dubey who had joined on 1.1.2011. When Respondent no. 6 was selected and recommended on 7.6.2012 pursuant to the requisition dated 23.7.2009, there remain no vacancy of the Art teacher. These fact are not disputed by the respondents.
Moreover, respondent no. 6 could not be adjusted against the vacancy which had occurred subsequently and requisitioned on 31.12.2011 for the post of Commerce teacher. There was no occasion before the Joint Director of Education to issue a direction for conversion of vacancy of commerce subject into Art subject.
It is evident from the record that this conflicting situation arose on account of two requisitions sent for one post. This situation was noted with approval by the Joint Director of Education in his order dated 19.12.2012. In absence of the vacancy of the Art teacher in the institution, no direction could be given for joining of respondent no. 6 that too against a subsequent vacancy which was notified on 31.12.2012. The joining of respondent no. 6 in the institution could have been directed only against a vacancy which was requisitioned on 23.7.2009 and had occurred till then. It is not disputed that the vacancy notified on 23.7.2009 was filled on 1.1.2011 pursuant to the earlier requisition dated 1.2.2007 for the same vacancy/post.
In the light of the above, the conclusion is that as there was no vacancy of Art teacher in the institution on 7.6.2012 when respondent no. 6 was recommended for appointment by the Commission, the management cannot be forced to ensure joining of respondent no. 6.
The order dated 19.12.2012 passed by the Joint Director of Education, Vindhayachal Division, Mirzapur is wholly whimsical, capricious and erroneous in law. The same is hereby quashed.
The writ petition is allowed.
It is open for respondent no. 6 to approach respondent no. 3 i.e. District Inspector of Schools who may forward his representation to respondent no. 5 for adjustment in any other institution, in accordance with law.
Order Date :- 26.5.2015
B.K.
(Sunita Agarwal, J.)
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HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
Case :- WRIT - A No. - 321 of 2013
Petitioner :- C/M Ram Sajiwan Lal Inter College And Anr.
Respondent :- State Of U.P.Thru Secy & Ors.
Counsel for Petitioner :- Manoj Mishra
Counsel for Respondent :- C.S.C.,M.C.Tiwari,N.C.Tiwari,P.N. Tripathi,R.K.Pandey
Hon'ble Mrs. Sunita Agarwal,J.
Heard Sri Manoj Mishra, learned counsel for the petitioner, Sri P.N. Tripathi, learned counsel for respondent no. 6, Sri A.K. Yadav, learned counsel for respondent nos. 1, 2, 3 & 4 and Sri R.K. Pandey, learned counsel for respondent no. 5.
This writ petition is directed against the order dated 19.12.2012 passed by the Joint Director of Education, Vindhyachal Division, Mirzapur and the directions given by the District Inspector of Schools, Sant Ravidas Nagar, Bhadohi dated 22.9.2012, the Additional District Magistrate (Finance & Revenue) dated 21.9.2012 and by the Deputy Secretary, U.P. Secondary Education Service Selection Board, Allahabad dated 14.9.2012 to ensure joining of respondent no. 6 Sri Padmakar Yadav in the institution-in-question.
Brief facts relevant to decide the controversy in hand are that petitioner no. 1 is a recognised Intermediate College governed by U.P. Intermediate Education Act, Rules and Regulations framed thereunder. Provisions of Payment of Salaries Act, 1971 and U.P. Act No. 5 of 1982 are also applicable to the teachers and other employees of the institution. Petitioner no. 2 is the Manager of the Intermediate College.
There were 20 sanctioned posts of LT Grade teacher in the institution in question. Against 13 vacancies of LT Grade teacher, a requisition dated 1.2.2007 was sent by the manager to the District Inspector of Schools. Out of 13 vacancies, 10 vacancies of LT Grade teacher were existing whereas 3 were foreseen vacancies for the retirements due. Out of 10 posts, 4 posts in each subject namely Mathematics, Science, English and Art were reserved for Scheduled Caste category and 2 posts for Hindi and Science were reserved for other Backward Classes after the determination done by the management. In the meantime, 4 Assistant Teachers had joined the institution by attachment, as a result of which the reservation position in the institution was changed. As no selection was made by the Board pursuant to the requisition dated 1.2.2007 by that time, a requisition was again sent on 23.7.2009 for 10 posts out of 13 posts as 3 posts were already filled by attachment. Out of 10 posts, 4 posts for subjects English, Mathematics, Science and Biology were reserved for Scheduled Caste candidates and 2 posts for the subjects Art and English were reserved for other Backward Classes.
After the requisition was sent on 23.7.2009, one Sri Deepchand Saroj was selected and recommended by the Board for the post of LT Grade teacher in Art subject, pursuant to the requisition dated 1.2.2007 sent earlier by the petitioners. Direction was given by the District Inspector of Schools vide order dated 18.12.2012 to give him joining. Sri Deepchand Saroj had joined on the post of LT Grade teacher in Art subject on 1.1.2011 and is working since then.
It appears that another recommendation for appointment of respondent no. 6 in Art subject was made by the Board on 7.6.2012 against the requisition dated 23.7.2009. The District Inspector of Schools issued a letter dated 21.7.2012 to the petitioner to ensure joining of respondent no. 6. In reply, the petitioners informed the District Inspector of School by communication dated 14.8.2012 that there was no vacant post of Art teacher in the institution and hence it was not possible to allow respondent no. 6 to join. The details of LT Grade teachers working in the institution was provided to the District Inspector of Schools. It was informed therein that there were only 2 posts of LT Grade Teacher in Art subject and two teachers namely Sri Devmani Dubey and Sri Deepchand Saroj were working. Sri Devmani Dubey was working since 1981 whereas Sri Deepchand Saroj recommendee of the board had joined on 1.1.2011. The District Inspector of Schools had forwarded the said information to respondent no. 5, the Secretary, U.P. Secondary Education Service Selection Board. Respondent no. 5 had illegally initiated action against the petitioners under Section 17(2) and Sections 22 and 23 of U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the Act 1982).
First Information Report was directed to be lodged against the petitioners vide order dated 14.9.2012 passed by respondent no. 5. Pursuant to the order dated 14.9.2012, the District Inspector of Schools again directed the petitioner by order dated 22.9.2012 to ensure joining of respondent no. 6 else action under Sections 22 and 23 of the Act, 1982 would be recommended. Aggrieved by the orders of the District Inspector of Schools dated 22.9.2012, the Secretary, Selection Board dated 14.9.2012 and the order of Additional District Magistrate (Finance & Revenue) dated 21.9.2012 (to lodge First Information Report against the petitioner), a Writ Petition No. 50313 of 2012 was filed which was decided on 4.10.2012.
This Court after noticing the arguments of learned counsel for the parties has disposed of the writ petition with a direction to the Regional Joint Director of Education to consider and take action. It was further directed that till the matter was decided by the Regional Joint Director of Education, no coercive action under Sections 22/23 of the Act, 1982 would be taken. Pursuant to the directions of this Court dated 4.10.2012, the Joint Director of Education, Vindhyachal Division, Mirzapur has passed an order dated 19.12.2012 asking the petitioners to ensure joining of respondent no. 6 on the post of LT Grade teacher. Hence this Writ petition.
Challenging the order passed by the Joint Director of Education dated 19.12.2012, submission of learned counsel for the petitioner is that out of total 20 posts for 10 subjects in the institution, two posts of Art teacher have been filled and two teachers are working. As there was no vacant post, the educational authorities could not have pressurised for joining of respondent no. 6. In the order dated 19.12.2012 though it was found that against two posts determined by the Management for Art subject, two teachers were working, one of them having been selected by the board pursuant to the requisition dated 1.2.2007, yet it was directed that one post of Commerce teacher notified in the requisition dated 31.12.2011 be converted and treated as vacancy in Art subject, so as to accommodate respondent no. 6.
The reasoning given for the direction to convert the post of Commerce to Art teacher is that there was scope of increase in the number of post of Art teacher as the total number of students in Class 6th, 7th and 8th have not been disclosed by the management and further that Art is a compulsory subject uptill Class VIII.
Submission of learned counsel for the petitioners is that this approach of the Joint Director of Education is wholly whimsical. So far as identification and determination of vacancies in the institution is concerned, the management alone is competent to determine the number of vacancies in accordance with the sub-rule (1) of Rule 11 of the U.P. Secondary Education Services Education Selection Board, Rules, 1998 and notify the same.
Having heard learned counsel for the parties and perused the record. Before dealing with the controversy in hand, it would be apt to go through the Rules 10 and 11 of the Rules, 1998. Rules 10 and 11 are quoted as under:-.
10. Sources of recruitment.- Recruitment to the various categories of teachers shall be made from the following sources :-
(a) Principal of an Intermediate By direct recruitment
College or Head Master of a
High School
(b) Teachers of Lecturer's grade (i) 50 per cent direct recruitment
(ii)50 per cent by promotion from amongst substantively appointed teachers of the trained graduates grade.
(c) Teachers of trained graduates (i) 100 per cent direct recruitment
grade except the category of
institutions mentioned below in 2(ii); (ii) Those Intermediate colleges and High Schools in which teachers of attached primary section are getting salary under provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971, 75 per cent posts shall be filled by direct recruitment and the remaining 25 percent posts shall be filled by promotion from amongst those trained graduate teachers of attached primary section who have completed 5 years of satisfactory service:
Provided that if in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts may be filled by direct recruitment:
Provided further that if in calculating respective percentage of posts under this rule, there comes a fraction then the fraction of the posts to be filled by direct recruitment shall be ignored and the fraction of the posts to be filled by promotion shall be increased to make it one post.
11. Determination and notification of vacancies.- (1) For the purposes of direct recruitment to the post of teacher, the Management shall determine the number of vacancies in accordance with Sub-section (1) of Section 10 and notify the vacancies through the Inspector, in the Board in the manner hereinafter provided.
2(a) The statement of vacancies for each category of posts to be filled in by direct recruitment including the vacancy that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent in quadruplicate, in the proforma given in Appendix "A" by the Management to the Inspector by July 15 of the year of recruitment and the Inspector shall, after verification from the record of his office, prepare consolidated statement of vacancies of the district subject wise in respect of the vacancies of Lecturer grade and group-wise in respect of vacancies of trained graduates grade. The consolidated statement so prepared shall, along with the copies of statement received from the Management, be sent by the Inspector to the Board by July 31, with a copy thereof to the Joint Director:
Provided that if the State Government is satisfied that it is expedient so to do, it may, by order in writing, fix other dates for notification of vacancies to the Board in respect of any particular year of recruitment:
Provided further that in respect of the vacancies existing on the date of the commencement of these rules as well as the vacancies that are likely to arise on June 30,1998, the Management shall, unless some other dates are fixed under the preceding proviso, send the statement of vacancies by July 20,1998 to the Inspector and Inspector shall send the consolidated statement in accordance with this sub-rule to the Board by July, 25, 1998.
Explanation : For the purposes of this sub-rule the word 'group-wise' in respect to the trained graduates grade means in accordance with the following groups, namely.
(a) Language This group consist of the subject of Hindi
Sanskrit, Urdu, Persian and Arabic
(b) Science This group consists of the subjects of
Science and Mathematics.
(c) Art and Craft.
(d) Music
(e) Agriculture
(f) Home Science
(g) Physical Education
(h) General This group consists of the subjects not
covered in any of the foregoing groups.
(b) With regard to the post of Principal, or Headmaster, the Management shall also forward the names of two senior most teachers, along with copies of their service records (including character rolls) and such other record or particulars as the Board may require, from time to time.
Explanation : For the purpose of this sub-rule" senior most "teacher" means the senior most teacher in the post of the highest grade in the institution, irrespective of total service put in the institution.
(3) If, after the vacancies have been notified under Sub-rule (2), any vacancy in the post of teacher occurs, the Management shall, within fifteen days of its occurrence, notify to the Inspector in accordance with the said sub-rule and the Inspector shall within ten days of its receipt by him send if to the Board.
(4) Where, for any year of recruitment, the Management does not notify the vacancies by the date specified in Sub-rule (2) or fails to notify them in accordance with the said sub-rule, the Inspector shall on the basis of the record of his office, determine the vacancies in such institution in accordance with Sub-section (1) of Section 10 and notify them to the Board in the manner and by the date referred to in the said sub-rule. The vacancies notified to the Board under this sub rule shall be deemed to be notified by the Management of such institution.
Rule 11 provides the manner in which the vacancies are to be determined and notified by the management to the Board through the Inspector. The post of teacher is sanctioned by the State Government. Against the sanctioned post, the determination is to be done by the management looking to the requirement in the institution having regard to the reservation position and the source of recruitment as per rule 10 of 1998 Rules. It is sole prerogative of the management to determine vacancies subjectwise on the strength of the students studying in a particular subject. The Joint Director of Education and for that matter any other educational authority has no say in the determination of vacancy subjectwise in the institution.
They can only examine whether; (I) the notified vacancies/vacancy are/is against the sanctioned post, (ii) the management had adhered to the reservation rules while notifying the vacancy and (iii) the notified vacancies lies within 50% direct recruitment quota.
Moreover, the notification dated 31.12.2011 was for 4 vacancies of LT Grade teacher which occurred much later. Out of these vacancies, four teachers in subjects Hindi, Sociology and Commerce were to be appointed. It is undisputed that the total number of sanctioned post are 20 in number and these 20 posts of LT Grade teacher are for 10 subjects. Whether there was requirement for one more Art teacher as per the number of students studying in the institution is concerned the jurisdiction to determine this question is with the management. There appears to be requirement of one teacher in Commerce subject and hence the post was identified and notified to the Commission in requisition dated 31.12.2011 for the vacancy which arose much later. The earlier requisition dated 1.2.2007 and 23.7.2009 were for those vacancies which existed on 1.12.2007. Three foreseen vacancies of the same recruitment year were also added and requisitioned therein. As some time had lapsed in the selection by the Commission and in the meantime, three teachers were appointed by attachment, another requisition dated 23.7.2009 was sent again for the 10 posts, which were earlier requisitioned on 1.2.2007 and remain unfilled till that time. The requisition dated 23.7.2009 was sent for the reason that the reservation position on the post of LT Grade teacher was changed due to joining of three teachers by attachment, in the meantime. However, before selection of respondent no. 6, the vacancy of Art teacher requisitioned on 1.2.2007 and re-requisitioned on 23.7.2009 was filled by selection of Sri Devmani Dubey who had joined on 1.1.2011. When Respondent no. 6 was selected and recommended on 7.6.2012 pursuant to the requisition dated 23.7.2009, there remain no vacancy of the Art teacher. These fact are not disputed by the respondents.
Moreover, respondent no. 6 could not be adjusted against the vacancy which had occurred subsequently and requisitioned on 31.12.2011 for the post of Commerce teacher. There was no occasion before the Joint Director of Education to issue a direction for conversion of vacancy of commerce subject into Art subject.
It is evident from the record that this conflicting situation arose on account of two requisitions sent for one post. This situation was noted with approval by the Joint Director of Education in his order dated 19.12.2012. In absence of the vacancy of the Art teacher in the institution, no direction could be given for joining of respondent no. 6 that too against a subsequent vacancy which was notified on 31.12.2012. The joining of respondent no. 6 in the institution could have been directed only against a vacancy which was requisitioned on 23.7.2009 and had occurred till then. It is not disputed that the vacancy notified on 23.7.2009 was filled on 1.1.2011 pursuant to the earlier requisition dated 1.2.2007 for the same vacancy/post.
In the light of the above, the conclusion is that as there was no vacancy of Art teacher in the institution on 7.6.2012 when respondent no. 6 was recommended for appointment by the Commission, the management cannot be forced to ensure joining of respondent no. 6.
The order dated 19.12.2012 passed by the Joint Director of Education, Vindhayachal Division, Mirzapur is wholly whimsical, capricious and erroneous in law. The same is hereby quashed.
The writ petition is allowed.
It is open for respondent no. 6 to approach respondent no. 3 i.e. District Inspector of Schools who may forward his representation to respondent no. 5 for adjustment in any other institution, in accordance with law.
Order Date :- 26.5.2015
B.K.
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