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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