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HIGH COURT OF ALLAHABAD
R.B. MEHROTRA, J.
Krishna Nand Dwivedi - Appellant
Versus
District Inspector of Schools, Ghazipur - Respondent
Civil Misc. Writ Petition No. 1968 of 1994
Decided on : Jan 13, 1994
CONSTITUTIONAL LAW - ARTICLE 16 - EQUALITY OF OPPORTUNITY IN MATTERS OF PUBLIC EMPLOYMENT - REQUIREMENT OF PUBLIC NOTICE FOR FILLING UP VACANCIES - NOTIFICATION ON NOTICE BOARD OF INSTITUTION INSUFFICIENT - VIOLATIVE OF ARTICLE 16.
Fact of the Case:
A short-term vacancy arose in an institution due to the ad hoc promotion of a teacher. The vacancy was advertised on the notice board of the institution, stating that it was reserved for scheduled caste candidates, but general candidates could also apply. The petitioner, a general candidate, was appointed to the post. The District Inspector of Schools (D.I.O.S.) did not grant financial approval to the petitioner's appointment, and the petitioner filed a writ petition seeking a writ of mandamus directing the opposite parties to make payment of salary to the petitioner.
Finding of the Court:
The court held that notifying the vacancy on the notice board of the institution did not meet the requirement of public notice, as it deprived qualified and competent applicants of their right to apply for the post. The court also held that the provision in the U. P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, which required the vacancy to be notified on the notice board of the institution, was ultra vires of Article 16 of the Constitution of India.
Issues: 1. Whether notifying the vacancy on the notice board of the institution met the requirement of public notice? 2. Whether the provision in the U. P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, which required the vacancy to be notified on the notice board of the institution, was ultra vires of Article 16 of the Constitution of India?
Ratio Decidendi: 1. The court held that notifying the vacancy on the notice board of the institution did not meet the requirement of public notice, as it deprived qualified and competent applicants of their right to apply for the post. The court reasoned that a public notice should be given to all concerned who may know that the post is required to be filled so that the persons who are qualified for the said post may seek employment. If a post is filled without giving public notice, it will be violative of the guarantee of equality of opportunity in the matter of employment. 2. The court held that the provision in the U. P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, which required the vacancy to be notified on the notice board of the institution, was ultra vires of Article 16 of the Constitution of India. The court reasoned that the provision was violative of Article 16 because it discriminated against qualified and competent applicants who were not aware of the vacancy.
Final Decision: The court declared that the provision in the U. P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, which required the vacancy to be notified on the notice board of the institution, was ultra vires of Article 16 of the Constitution of India. The court directed that all vacancies under the said Order shall hereinafter be filled by notifying the vacancy atleast in two such newspapers which has wide circulation throughout the State and by an intimation to the local Employment Exchange.
R.B. Mehrotra
1. Janta Inter College, Jeopur, District Ghazipur is an institution recognised, under the provisions of U. P. Intermediate Education Act 1921. The said College is being referred to as 'the institution' hereinafter. The institution is in grant-in-aid of the State Government and the teachers and employees are getting their salary under the provisions of U. P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act 1971. (U. P. Act No. 24 of 1971).
2. The Committee of Management of the institution has been dissolved and the institution is being run and controlled by an authorised controller. The principal, Government City Inter College, Ghazipur has been appointed as an authorised controller. The post of Sanskrit Lecturer fell vacant in the institution and the senior most L T. Grade Teacher Sri Shasnikant Tripathi was promoted on adhoc basis as Lecturer in Sanskrit in the institution. The adhoc promotion was approved by the District Inspector of Schools, Ghazipur (hereinafter referred to as the D.I.O.S.) with the conditions that till a regularly selected candidate, by the Higher Secondary Education Service Commission, Joins the post of Sanskrit Lecturer in the institution, Sri Shashikant Tripathi will continue, thereafter, he will be reverted back to the post of L.T, Grade Teacher. A short term vacancy arose in the institution on the post of Assistant Teacher L.T. Grade due to adhoc promotion of Sri Shashikant Tripathi on the post of Sanskrit Lecturer.
The authorised controller after due information of such vacancy to the D.I.OS. advertised the vacancy on the notice board of the institution on 5-5-1993. The advertisement put on the notice board specifically stated that the vacancy is a short term vacancy and is reserved for scheduled caste candidate. In case no scheduled caste candidate is available then the post can be filled by general candidate. It was also stated in the advertisement notice, that the general candidates can also apply for the post.
3. In response to the aforesaid notice the petitioner's contention is that only three persons applied for the post namely; (1) Sri Krishna Nand Dwivedi, petitioner himself (2) Sri Veerendraj Singh and (3) Sri Guru Charan Singh Yadav. The petitioner had highest quality point, marks, amongst the three applicants. Accordingly the selection committee of the College selected the petitioner on the post of L.T. Grade Teacher in the College in the short term vacancy. The authorised controller appointed the petitioner in the aforesaid short term vacancy as L.T. Grade Teacher on adhoc basis. The appointment of the petitioner was subject to the conditions that the petitioner will continue on the post till Sri Shashikant Tripathi joins back his original post or till the vacancy is filled by the Higher Secondary Education Service Commission (hereinafter referred to as the Commission). The authorised controller vide his letter dated 1-6-1993 forwarded the decision of the Selection Committee to the D.I.O.S. for formal approval along with the applications and the quality point marks of all the applicants and the copy of the resolution of the Selection Committee and copy of the advertisement for filling up the post. Despite several reminders and representations the D.I O.S. neither granted financial approval to the petitioner's appointment nor the petitioner is being paid salary under the provisions of High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971.
4. In the aforesaid background the petitioner has filed the present writ petition seeking a writ of mandamus directing the opposite parties to make payment of the salary to the petitioner since the date of his appointment i.e. 9-7-1993 and for the future direction that the petitioner should be paid salary on month to month basis till Sri Shashikant Tripathi returns to his original post or till the duly selected candidate of the Commission j
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