1 HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No. 105 (S/S) of 2007 Kailash Chandra Pandey, S/o Late Kripal Dutt Pandey …Petitioner Versus State of Uttarakhand & ors. …Respondents Dated :- 25th August, 2009 Mr. M.C. Kandpal, Senior Advocate assisted by Mr. S.S. Chaudhary, Advocate for the petitioner. Mr. Paresh Tripathi, Brief Holder for the State. Hon’ble J.C.S.Rawat, J. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner for the following reliefs:- (i) issue a writ, order or direction in the nature of certiorari to quash the order dated 31-05-99 passed by the Management of the Institution, which is annexed as Annexure No. 3 to the writ petition. (ii) Issue a writ, order or direction in the nature of mandamus commanding and directing to the respondent authorities to continue the petitioner on the post of Lecturer English in Lal Bahadur Shastri Inter College Saneti, District Bageshwar. (iv) Award the cost. 2 2. It is not disputed that the appointment of the petitioner was made for a short-term period against the vacancy which fell vacant for short term due to the ad- hoc promotion of the Senior Lecturer Sri Indra Singh Bhauriyal. The said promotion was made on the ad-hoc basis due to the said vacancy caused by the appointment of Indria Singh Bhauryal, Lecturer English and the vacant post was filled up by the Committee of Management by inviting applications from the local people by advertising the said vacancy. Pursuant to the said advertisement the petitioner was selected and his recommendation was sent to the District Education Officer for approval and the District Education Officer approved his candidature on the condition that his appointment would remain effective till Indra Singh Bhauryal reverted back to his original post or due to some other reasons the vacancy falls vacant. Pursuant to the said approval, the petitioner was appointed on 02-11-1992 in the institution as Lecturer, English and he remained on the said post till 30-6-1999. Mr. Bhauryal retired on 30-6-1999. The services of the petitioner were terminated as the substantive vacancy of Mr. Bhauryal fell vacant. 3. Learned Counsel for the petitioner contended that the petitioner was appointed on 2-11-1992 and all the teachers appointed after the appointment had been regularized under the provisions of Section 33-C of U.P. Secondary Education Service and Selection Boards Act, 1982 (hereinafter referred as Act No. 1982). The services of all the teachers who had been appointed as an ad-hoc teacher against a substantive vacancy in the intervening period of 14-5-1991 to 06-08-1993 are 3 entitled to get the regularization. The petitioner is claiming his regularization in view of the above provisions of law. 4. Learned Brief Holder for the State contended that the petitioner was appointed by the Committee of Management with the approval of the District Education Officer against leave vacancy and there was no clear vacancy available for the petitioner; the substantive vacancy had fallen vacant after the retirement of Mr. Bhauryal on 30-6-1999; when the substantive vacancy had fallen, the services of the petitioner had been terminated; the learned Brief Holder also relied upon the provisions of Section 18 of U.P. Higher Secondary Education Service Selection Boards Act, 1982 in which it has been provided in sub-Section 1 which is as under:- “[18.Ad hoc Teachers. –(1) Where the Management has notified a vacancy to the (Board) in according with sub- Section (1) of Section 10 and the post of a teacher actually remained vacant for more than two months, the Management may appoint by direct recruitment or promotion a teacher on purely ad hoc basis, in the manner hereinafter provided in this section. (2) A teacher other than a Principal or Headmaster, who is to be appointed by direct recruitment may be appointed on the recommendation of the Selection Committee referred to in sub-section (8). (3) A teacher other than a Principal or Headmaster, who is to be appointed by promotion, may in the prescribed manner be appointed by promoting the senior most teacher, possessing prescribed qualifications- 4 (a) in the trained gradute’s grade, as a lecturer, in the case of a vacancy in the lecturer’s grade. (b) in the Certificate of Teaching grade, as teacher in the trained graduate’s Grade, in the case of a vacancy in the Tained graduate’s grade. (4) A vacancy in the post of a Principal may be filed by promoting the senior most teacher in the lecturer’s grade. (5) A vacancy in the post of a Headmaster may be filled by promoting the senior most teacher in the trained graduate’s grade. (6) For the purposes of making appointments under sub-section (2) and (3) , the Management shall determine the number of vacancies, as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, the Scheduled Tribes an Other Backward Classes of citizen in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 and, as soon as may be thereafter, intimate the vacancies to be filled by direct recruitment to the District Inspector of Schools and if the Management fails to intimate the vacancies and the post of a teacher has actually remained vacant for more than three months, the District Inspector of Schools may, subject to such directions as may be issued by the Director and after verification from such institution or from his own record, determine such vacancies himself. (7) The District Inspector of Schools shall, on receipt of intimation of vacancies or as the case may be, after determining the vacancies under sub section (6), forward the same to the Deputy Director of Education incharge of the 5 Region, who shall invite applications from the persons possession qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder, for ad hoc appointment to the post of teachers other than Principal or Head Master in such manner as may be prescribed. (8) (a) For each region there shall be a Selection Committee for selection of candidates for ad hoc appointment by direct recruitment comprising- (i) Regional Joint Director of Education. (ii) Regional Deputy Director of Education (Secondary). (iii) Regional Assistant Director of Education (Basic). The Regional Joint Director of Education shall be the Chairman. (b) The Selection Committee constituted under clause (a) shall make selection of the candidates, prepare a list of the selected candidates, allocate them to the institutions and recommend their names to the management for appointment under sub-section (2). (c) The criteria and procedure for selection of candidates and the manner of preparation of list of selected candidates and their allocation to the Institution shall be such as may be prescribed. (9) Every appointment of an ad hoc teacher under sub-section (1) shall cease to have effect from the date when the candidate recommended by the [Board] joins the post. (10) The provisions of Section 21-D shall mutatis mutandis apply to the teachers who are to be appointed under the provisions of this Section.” 6 5. The substantive vacancy after the retirement of Mr. Bhauryal felt vacant on 30-6-1993 and after that the appointment was to be made by the adherence of the provisions of Section 18 of the Act. The perusal of the record clearly reveals that the appointment letter which was issued to the petitioner indicates that his ad hoc appointment was made against the temporary vacancy fell due to the ad hoc promotion of Sri Bhauryal; the said vacancy fell vacant substantively on 30-9-199 after the retirement of Mr. Bhauryal; there is no dispute that the said temporary vacancy had fallen in between 14-5-1991 to 6-8-1993 and the appointment of the petitioner has been made on temporary basis for a fixed period in a short term vacancy. The appointment letter clearly reveals that his appointment was against a short –term vacancy. It is clear that the appointment of the petitioner was purely on a temporary basis. The petitioner has no right to work even after the expiry of the leave vacancy; the leave vacancy or short term vacancy could not be converted into a substantive vacancy; and when substantive vacancy has occurred, it was obligatory on the part of the Management before making any appointment to refer it to the Board as provided above. 6. In the case of Smt. Pramila Mishra Vs. Deputy Director of Education, Jhansi Division, Jhansi and others reported in [(1997) 2 UPLBEC 1329], it has categorically stated that the teacher appointed by the Management of the institution on the adhoc basis in a short term vacancy which is subsequently converted into a substantive vacancy in accordance with the 7 provisions of the Act, Rules or orders (on death, resignation, dismissal or removal of the permanent incumbent), cannot claim a right to continue. He has, however, a right to be considered alongwith other eligible candidates for adhoc appointment in the substantive vacancy if he possess the requisite qualification. 7. Thus, it is apparent that the contention of the learned counsel for the petitioner has no force and I find force in the contention of the learned Brief Holder for the State. 8. Whereas Section 40 of the Act No. 2006 is concerned, it is clear that the petitioner has not pleaded this fact in the writ petition. It is a settled position of law if any material fact is to be taken as a ground for attack, it must be pleaded in the pleadings and the petitioner cannot give surprise to the other parties of a new fact which has not been taken in the pleadings. The contention raised by the learned counsel for the petitioner has no force. Apart from that, on merit, the petitioner has never been appointed against the substantive vacancy and he was appointed on the leave vacancy/ short term vacancy only. The case of the petitioner is not covered u/s 40 of the Act No. 2006. The Petitioner was never considered by the Selection Committee u/s 40 (7) of Act No. 2006; he has not filed any document in this regard; and he has not made any representation to the Government on this count. 8 9. In view of the above, I do not find any ground for interference. The writ petition is liable to be dismissed and is hereby dismissed accordingly. 10. Interim order dated 13/07/1999 stands vacated. ( J.C.S. Rawat,J. ) Dated 25.08.2009 Bhaskar