IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) No. 7202 of 2001 Smt. Meena Rajwar ...Petitioner. Versus State of Uttaranchal and others …Respondents. Present : Mr. V. B. S. Negi, Senior Advocate assisted by Mr. Vikas Pande, Advocate for the petitioner. Mr. Anil Bisht, Brief Holder for the State of Uttarakhand. Hon’ble Sudhanshu Dhulia, J. (Oral) 1. Heard Mr. V. B. S. Negi, Senior Advocate assisted by Mr. Vikas Pande, Advocate for the petitioner and Mr. Anil Bisht, Brief Holder for the State of Uttarakhand. 2. The petitioner was appointed as Assistant Teacher L.T. Grade in “Arya Kanya Uchhattar Madhyamik Vidyalaya Doiwala”, District Dehradun on 17.1.1997. It is an admitted case that when such appointment was made, the proceedings had already been initiated for the school to come under the purview of grant-in-aid. This is also clear from order dated 13.9.1996 in which the Education Authorities have also directed, while creating the post, inter alia, Assistant Teacher L.T. Grade that such appointment can now only be made under the 1982 Act known as Secondary Education Commission and Selection Board Act, 1982 (from hereinafter referred to as “1982 Act”). 3. All the same, the petitioner was appointed by the Committee of Management. Since the salary of the said post was not given to the petitioner, the petitioner filed the present petition before this Court. The prayers of the petitioner reads as follows:- “A. Issue a writ, order or direction in the nature of mandamus, commanding the District Inspector of Schools and Account Officer based 2 at the Office of District Inspector of Schools, Dehradun to take immediate steps and ensure payment of salary to the petitioner in her capacity as Assistant Teachers L.T. Grade in Arya Kanya Uchhattar Madhyamik Vidyalaya, Doiwala, Dehradun. B. Issue any suitable writ, order or direction in the nature of which this Hon’ble Court may deem fit and proper in the circumstances of the case. C. Award the cost of the writ petition to the petitioner.” 4. The main contention of the State Government is that the very appointment of the petitioner is dehors the rules. The petitioner firstly could not have been appointed by the Committee of Management inasmuch as since it was permanent post, the appointment can only be made under the 1982 Act. The petitioner though has placed reliance upon Section 18 of the Uttar Pradesh Secondary Education (Services Commission) Act, 1982, which reads as follows:- “18. Ad hoc Teachers.-(1) Where the Management has notified a vacancy to the Commission in accordance 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- (a) in the trained graduate’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 Trained graduate’s grade. 3 (4) A vacancy in the post of a Principal may be filled 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-sections (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 and 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 Region, who shall invite applications from the persons possessing 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 Deputy Director of Education; (ii) Regional Deputy Director of Education (Second); (iii) Regional Assistant Director of Education (Basic). The Regional Deputy Director of Education who is senior shall be the Chairman. 4 (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 Commission joins the post. (10) The provisions of Section 21-D shall mutates mutandis apply to the teachers who are to be appointed under the provisions of this section.” 5. Firstly such a provision would not applicable in the present case inasmuch as ad hoc appointment can only be made as a stop gap arrangement, which was not the case presently inasmuch as the vacancy, which was created was a fresh permanent post. All the same, assuming for the sake of argument it was an ad hoc post, yet the contention of the petitioner that permission was taken by the District Inspector of Schools and subsequently appointment was made is also not correct inasmuch as the petitioner has totally failed to produce before this Court the facts that such a vacancy was ever “advertised” by the Committee of Management in any newspaper. Moreover, the very contention of the petitioner that the vacancy was advertised in the newspaper known as “Vishal Himalaya” itself reveals the circumstances under which such selection and appointment was made. Such vacancies even if have been made by the Committee of Management have to be advertised atleast in two newspapers who have wide circulation in the area. It has been stated at the bar by the respondents that “Vishal Himalaya” in any case does not have wide circulation in Doiwala District Dehradun 5 where such an appointment was made. Moreover, such advertisement was only made in one newspaper. Lastly, there is nothing on record to show that such an advertisement in any case was advertised. 6. Consequently, the very appointment of the petitioner, as Assistant Teacher L.T. Grade is not in accordance with law. The respondents are therefore perfectly justified in not releasing the salary of the petitioner. Reliance of the petitioner on the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 is also misconceived inasmuch as the petitioner only would have got right for such a salary if the appointment was made in accordance with law. Since, the appointment was dehors the rules, no relief as sought by the petitioner can be granted. The writ petition fails and is hereby dismissed. 7. No order as to costs. (Sudhanshu Dhulia, J.) 11.11.2011 Kuldeep