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2019 Supreme(All) 386
HIGH COURT OF JUDICATURE AT ALLAHABAD
Ashwani Kumar Mishra, J.
Triveni Nath Mishra – Appellant
Vs.
State of U P and Others – Respondent
Writ - A No. 15524, 22049 of 2012
Decided On : 27-03-2019
Radha Kant Ojha, Adv., Niraj Upadhyay, Adv., R.C. Tiwari, Adv., S.K. Dwivedi, Adv., S.N. Pandey, Adv.
Headnote:
U.P. Secondary Education Services Selection Board Act, 1982 – Sections 33-B and 33-C – U.P. Intermediate Education Act, 1921 – Section 16-E(10) – Appointed on post of Assistant Teacher on L.T. Grade on bases of ad-hoc – Held, Petitioners contention that sanctioned posts of Assistant Teachers in L.T. Grade by Regional Level Committee, order impugned, not sustainable inasmuch relevant materials in form of salary bill and post creation order etc not taken note of – Even otherwise, specific order of post creation was not shown available and authorities have proceeded merely on basis of payment of salary register which also supports claim of petitioner that post in excess of 14 teachers existed in institution concerned – Regional Level Committee while considering claim not justified in revoking regularisation order of petitioner as Division Bench, while passing order had not granted any liberty to Regional Level Committee to revisit regularisation order already passed in case of other teachers including petitioner – Appointment made in recognised intermediate institution, attained finality could otherwise be reopened by Director alone while exercising his jurisdiction under Section 16-E (10) of Act, 1921 – Such power not available to Regional Level Committee – Petition allowed. (Para. 13 & 14)
Facts of the case:
Appointed on post of Assistant Teacher on L.T. Grade on bases of ad-hoc – Petition against the order of Regional level Committee.
Findings of the court:
Petitioners contention that determination of sanctioned posts of Assistant Teachers in L.T. Grade by Regional Level Committee, order impugned, not sustainable inasmuch relevant materials in form of salary bill and post creation order etc not taken note of – Even otherwise, specific order of post creation was not shown available and authorities have proceeded merely on basis of payment of salary register which also supports claim of petitioner that post in excess of 14 teachers existed in institution concerned – Regional Level Committee while considering claim was not justified in revoking regularisation order of petitioner inasmuch as Division Bench, while passing order had not granted any such liberty to Regional Level Committee to revisit regularisation order already passed in case of other teachers including petitioner – Petitioner was otherwise not a party in the writ petition or in the Special Appeal filed by her – Appointment made in recognised intermediate institution, attained finality could otherwise be reopened by Director alone while exercising his jurisdiction under Section 16-E (10) of Act, 1921 – Such power not available to Regional Level Committee.
Result: Petition allowed
Ashwani Kumar Mishra, J.
While entertaining the writ petition, following orders were passed in the matter on 29.3.2012:-
"The contention of the petitioner is that in pursuance of a direction given by this Court on 08.04.2003 in Writ Petition No. 30967 of 1991, his services were regularised under Section 33-B of the U.P. Secondary Education Services Selection Board Act, 1982 vide order dated 09.10.2006 passed by the Joint Director of Education, Allahabad. It is submitted that a writ petition was filed by Smt. Uma Gupta for regularisation with reference to which, an order was passed by this Court in Special Appeal No. 463 of 2010, whereby it was directed that the case of Smt. Uma Gupta, who was also a teacher in the same institution, be considered by the Regularisation Committee constituted under Sections 33-B and 33-C of the U.P. Secondary Education Services Selection Board Act, 1982. It is contended that even though there was nothing in the order passed by the Division Bench to re-open the old and settled cases of regularisation, the Regularisation Committee reopened the case of regularisation of the petitioner and in an arbitrary manner came to the conclusion that there were no posts available on which the petitioner and two other Assistant Teachers could be regularised. The submission of the petitioner is that the conclusion drawn by the Regularisation Committee that there was no vacant post available at the time of appointment/regularisation of the petitioner is manifestly erroneous, as no such ground was taken earlier when direction was issued to consider regularisation of the petitioner.
Considering the facts and circumstances of this case and particularly the fact that the petitioner has been working for last more than 20 years, and was drawing salary, I am of the opinion that the petitioner has made out a prima facie case for interim protection.
In view of the aforesaid background, till the next date of listing, the effect and operation of the order dated 05.03.2012 passed by the Regional Level Committee, (respondent No.2) shall remain stayed."
2. After a counter affidavit was filed in the matter, the writ petition was heard again and following orders were passed on 20.2.2019:-
"Although it is alleged that order impugned is without jurisdiction, inasmuch as, once the order of regularization was passed and had attained finality, the authority who could look into the matter was the Director, under Section 16-E(10) of the U.P. Intermediate Education Act, 1921. Such a plea, however, does not appear to have been specifically taken.
Learned counsel, therefore, comes up with the prayer to adjourn the matter for today so as to enable him to file an appropriate application. It shall, however, be open for the learned Standing Counsel also to obtain instructions in that regard.
List in the next cause list."
3. The matter was further adjourned to 5.3.2019 to enable the learned Standing Counsel for the respondent to obtain instructions. It is in this back ground that the matter has been placed before the Court. With the consent of learned counsel for the parties the writ petition is taken up for final adjudication at the admission stage itself.
4. Petitioner was initially appointed as Assistant Teacher on L.T. Grade on adhoc basis on 30.11.1990 after the vacancy was advertised in news paper 'Amrit Prabhat' on 26.9.1990 and a further advertisement was issued on 2.11.1990. It appears that salary was not being paid to petitioner as such he approached this Court by filing Writ Petition No. 30967 of 1991 in which following interim order was passed on 13.3.1992 :-
"The petitioner is working as adhoc Lecturer in L.T. Grade. Till a regular selection is made by the Commission to the said post, the petitioner shall continue to work and he will be paid his salary from the date he has been appointed as adhoc basis. The District Inspector of Schools shall comply with the order of this Court within one week.
List this petition in July, 1992."
5. Pur
