IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No.158 of 2006 Rajendra Singh Bani ……Appellant Versus Puran Chandra Lohani & others ....Respondents Mr. K.N. Joshi, learned counsel for the appellant. Mr. C.D. Bahuguna, learned counsel for respondent no.1. Mr. Anup Kumar Verma, learned counsel for respondent no.2. Mr. P.C. Bisht, Brief Holder for the State/respondents 3, 4 & 5. Dated : April 12th 2010 Coram: Hon’ble J.S. Khehar, C.J. Hon’ble V.K. Bist, J. Hon’ble V.K. Bist, J (Oral) Heard learned counsel for the parties. Present special appeal has been filed against the judgment and order dated 18.09.2004 passed by Hon’ble Single Judge in writ petition no.5981 (S/S) of 2001 by which the respondent authorities were directed to consider respondent no.1 for promotion on the post of lecturer Hindi. Facts relevant to the controversy involved in this special appeal are that on 01.07.1973 respondent no.1 was appointed as Assistant Teacher in Jyoli Madhyamik Vidhyalaya, Almora (hereinafter referred to as the College). On 11.11.1978 he was promoted as C.T. Grade teacher. The College was upgraded as Intermediate College in the year 2 1988. The C.T. Grade was declared dying cadre w.e.f. 11.08.1989. After upgradation of the College four posts of lecturers in Hindi, Political Science, Geography and English subjects were created on 05.07.1990. Two posts of lecturer in Political Science and Geography were filled up by promoting the senior most Assistant Teacher of L.T. Grade under Section 18 of the Uttar Pradesh Secondary Education Service Commission Selection Board Act, 1982 (for short the Act) read with provisions of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties Order), 1981 (for short 1981 Removal of Difficulties Order) and two other posts were proposed to be filled up by direct recruitment on adhoc basis by the Committee of Management under the aforesaid provisions. The vacancy of the post of lecturer in Hindi was created on 05.07.1990 and was notified by the Committee of Management of the College and same was forwarded to the Secondary Education Service Commission by the Deputy Director of Education vide letter dated 24.04.1990. The Manager of the College advertised the post of Hindi lecturer and then interview was held on 27.07.1990. The appellant was selected for the post of Hindi lecturer. Against the appointment of the appellant, the respondent no.1 submitted several representations to the departmental authorities stating therein the post of Hindi lecturer was not capable of being filled in by direct recruitment and respondent no.1, being senior most L.T. Grade teacher, was entitled to be promoted as Hindi lecturer. Respondent no.1 also filed writ 3 petition before Allahabad High Court, which was finally disposed of on 28.02.1992 with direction that respondent no.1 will file fresh representation before the District Inspector of Schools, Almora and the Deputy Director of Education Kumaon, Nainital and the said authorities will decide the representation of the respondent no.1 in accordance with law. On 08.06.1992 the District Inspector of School, Almora (for short D.I.O.S.) disposed of the representation of respondent no.1 rejecting his claim for promotion. Deputy Director of Education, Kumaon, Nainital also rejected the claim of respondent no.1 for promotion by the order dated 05.02.1993. These two orders were challenged by respondent no.1 in writ petition no.5981 (S/S) of 2001. The writ petition was allowed on 18.09.2004. Aggrieved by the judgment and order dated 18.09.2004 passed by Hon’ble Single Judge present special appeal has been preferred by the appellant. Learned counsel for the appellant submitted that appellant was appointed against the vacant post which was to be filled by direct recruitment. He was selected by the Committee of Management of the College on the basis of interview held on 27.07.1990 in which respondent no.1 also participated but not selected. He argued that since respondent no.1 participated in the selection process, he lost his right to challenge the appointment of the appellant. He further submitted that the appointment of the appellant was not cancelled by the Hon’ble Single Judge and as such 4 direction issued for considering respondent no.1 for promotion on the post of lecturer Hindi is not correct. He also submitted that by making promotion of respondent no.1 on the post of lecturer Hindi, quota fixed for promotion will be exceeded. On the other hand, the learned counsel for the respondent no.1 argued that the judgment passed by the Hon’ble Single Judge is perfectly correct as respondent no.1, being senior most L.T. Grade teacher, was entitled for adhoc promotion in view of section 3 of the Act and paragraph 4(4) of The 1981 Removal of Difficulties Order. For proper appreciation of the facts the relevant provisions of the Act as well as of 1981 Removal of Difficulties Order are being narrated in subsequent paragraphs. Section 18 of the Act: “18. Ad hoc Teachers.-(1) where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and- (a) the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher specified in the Schedule within one year from the date of such notification; or (b) the post of such teacher has actually remained vacant for more than two months, then, the management may appoint, by direct recruitment or promotion, a teacher on purely ad hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder. (2) The provisions of sub-section (1) shall also apply to the appointment of a teacher (other than a teacher specified in the 5 Schedule) on ad hoc basis with the substitution of the expression ‘Board’ for the expression “Commission”. (3) Every appointment of an ad hoc teacher under sub-section (1) or sub-section (2) shall cease to have effect from the earliest of the following dates, namely- (a) when the candidate recommended by the Commission or the Board, as the case may be, joins the post; (b) when the period of one month referred to in sub-section (4) of Section 11 expires; (c) thirtieth day of June following the date of such ad hoc appointment.’’ Paragraph 4(2) of 1981 Removal of Difficulties Order:- “Adhoc appointment by promotion-(1) Every vacancy in the post of the Head of an institution may be filled by promotion: (a) in the case of an Intermediate College, by the seniormost teacher of the institution in the Lecturer’s grade; (b) in the case of a High School raised to the level of an Intermediate College, by the Headmaster of such High School; (c) in the case of a Junior High School raised to the level of a High School, by the Headmaster of such Junior High School. (2) Every vacancy in the post of a teacher in Lecturers grade may be filled by promotion by the senior-most teacher of the institution in the trained-graduate (L.T.) grade”. Paragraph 5 of 1981 Removal of Difficulties Order:- “5 . Ad hoc appointment by direct recruitment- (1) Where any vacancy cannot be filled by promotion under Paragraph 4, the same may be filled by direct recruitment in accordance with Clauses (2) to (5). (2) The Management shall as soon as may be, inform the District Inspector of Schools about the details of the vacancy and such Inspector shall invite applications from 6 the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh. (3) Every application referred to in Clause (2) shall, be address to the District Inspector of Schools and shall be accompanied- (a) by a crossed postal order worth ten rupees payable to such Inspector; (b) by a self-addressed envelope bearing postal stamp for purposes of registration. (4) The District Inspector of Schools shall cause the best candidates selected on the basis of quality point specified in Appendix. The compilation of quality points may be done on remunerative basis by the retired Gazetted Government servants under the personal supervision of such Inspector. (5) If more than one teacher of the same subject or category is to be recruited for more than one institution, the names of the selected teachers and names of the institutions shall be arranged in Hindi alphabetical order. The candidate whose name appears on the top of the list shall be allotted to the institution the name whereof appears on the top of the list of the institution. This process shall be repeated till both the lists are exhausted. Explanation.-In relation to an institution imparting instruction to women the expression ‘District Inspector of Schools’ shall mean the ‘Regional Inspector of Girl’s Schools.’’ From the perusal of the aforesaid provisions it is clear that when the vacancy has been notified and Commission has failed to recommend the name of a suitable candidate for being appointed or where the post of such teachers has actually remained vacant for more than two months, such vacant posts may be filled on adhoc basis by the Committee of Management. Aforesaid provisions further provide that 7 every vacancy in the post of a teacher in lecturer grade may be filled by promotion by the senior most teacher of the institution in the L.T. Grade and where any vacancy cannot be filled by promotion, the same may be filled by direct recruitment. In the instant case the vacancy was already notified by the Committee of Management of the College on 24.04.1990 and the Manager of the College took steps for filling up the vacancies by advertising the post of Hindi Lecturer on 27.07.1990. The Manager of the College was right in taking steps for adhoc promotions but in view of paragraph 4(2) of 1981 Removal of Difficulties Order and also in view of the fact that respondent no.1 was senior most L.T. Grade teacher eligible for promotion, the Manager of the College should have filled up the post of lecturer Hindi by promotion as provided in paragraph 4(2) of 1981 Removal of Difficulties Order. The Manager of the College erred by advertising the post of Lecturer Hindi and by making adhoc appointment ignoring the claim of respondent no.1. It is not disputed that the appellant was appointed on adhoc basis under sub-section 1 of section 18 of the Act and in view of sub-section 3 of Section 18 of the Act his appointment came to an end on 30.06.1991. Therefore, the argument of learned counsel for the appellant that the Hon’ble Single Judge erred in issuing direction for considering the promotion of respondent no.1 on the post of lecturer Hindi, without cancelling the appointment of appellant, has no force. Paragraph 5 of the 1981 Removal of 8 Difficulties Order clearly provides that where vacancy cannot be filled by promotion, the same may be filled by direct recruitment. Another argument of leaned counsel for the appellant that by issuing direction for making promotion of respondent no.1, the quota for promotion by direct recruitment will be exceeded is also misconceived because the claim of respondent no.1 was not for regular promotion. His claim was only for adhoc promotion in the College till the joining of regularly selected candidate. In our view, the Hon’ble Single Judge has rightly allowed the writ petition and issued direction to the authorities for considering the respondent no.1 for promotion on the post of lecturer Hindi. However, it is clarified that the promotion of respondent no.1 made in pursuance of the direction issued by this Court will be an adhoc promotion as provided under paragraph 4 of the 1981 Removal of Difficulties Order. With the aforesaid discussion, the special appeal is dismissed. No order as to costs. (V.K.Bist, J.) (J.S. Khehar,C.J.) 12.04.2010 Arti 9 10