TMI Blog1991 (9) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... ointments on 12 posts of Assistant Teachers in L.T. Grade which included 7 posts on which petitioners are working. These applications were invited in exercise of power under Section 18 of the Act for making appointments after notifying the vacancies to the U.P. Secondary Education Service Commission (referred as Commission). The Management held selection on 20th August, 1990 and by means of the letter dated 23-8-1990 the Manager of the Institution forwarded relevant papers to the D.I.O.S. seeking financial sanction to said ad hoc appointment. The D.I.O.S. being satisfied with selection granted approval on 27-8-1990 for making ad hoc appointment of selected persons petitioners being amongst selected persons. On 1-9-1990 D.I.O.S. informed the Manager of Institution that he has received certain complaints in respect of selection for appointment of Assistant Teachers for whom approval was granted. As the D.I.O.S. intended to hold inquiry, he directed that till further order and during the pendency of inquiry his order of approval dated 27-8-1990 will remain suspended. Subsequently on 6-9-1990 the D.I.O.S. passed an order cancelling the approval dated 27-8-1990. The reason assigned by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to justify the order passed by the D.I.O.S. submitting that since the vacancies were Lot revived and fresh sanction was not obtained from the Director of Education under Chapter II, Regulation 20, the said vacancies could not be notified to the Commission and no ad hoc appointment could be made under section 18 of the Act He further submitted that the approval dated 27-8-1990 was obtained by the Management in collusion with a Clerk at the office of D.I.O.S. and, therefore, was liable to be cancelled on that ground. Lastly, he submitted that the order was passed after providing necessary opportunity of hearing to the petitioners. 5. The first point raised by learned counsel for petitioners which arise for considering in this writ petition is as to whether the posts, in dispute stand surrendered and the sanction to the posts lapsed under Chapter II Regulation 20 of the Regulations and fresh sanction was required from Director of Education (Secondary) U.P. before making appointments of petitioners on said posts on ad hoc basis? The point is to be considered in the light of fact that the vacancies were duly notified to the Commission. Chapter II, Regulation 20 of the Regulations fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided in Chapter II of the Regulations, the two procedures being so different from each other that they could not go on together, and, therefore, the procedure contained under Service Commission Act will prevail over that provided in Chapter II for advertising vacancies, selecting candidates and appointing them. As the vacancies are to be advertised by Commission and not by Committee of Management, the provisions of Chapter II, Regulation 20 cannot be made applicable to Institutions where vacancies are to be filled up by notifying the same to Commission. In respect of posts in dispute the Committee of Management was required to notify vacancy to Commission and, therefore, Chapter II, Regulation 20 is inapplicable in respect of the posts in dispute. 7. In the case of Yogendra Nath Singh v. District Inspector of Schools (Supra) this Court has taken the view that after enforcement of Service Commission Act every vacancy has to be filled in only by the Commission and ad hoc appointments can be made by Committee of Management only in the circumstances contained in Section 18(1)(b) of Service Commission Act. The Court repelled the contention under similar circumstances, that vacancy la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of writ petition in this respect are denied. The case set up by respondents in counter affidavit is that while issuing notice to the Manager of Institution on 1-9-1990, the D.I.O.S. required the Manager to inform the concerned teachers to be present at his office on 4-9-1990. According to the case of respondents this opportunity should have been availed by the petitioners. In paragraph 12 of the rejoinder-affidavit the petitioners have denied that any such notice was issued to them through the Manager. They have relied upon the notice issued to the Manager annexed as Annexure-8 to the writ petition. The counsel for petitioners on the basis of that notice argued that the notice issued to the Manager does not indicate that the Manager was required to give notice to the petitioners. On perusal of notice I find that argument advanced by petitioners' counsel is correct. I do not find anywhere in the notice that D.I.O.S. required Manager to inform concerned teachers to be present at his office on 4-9-1990. In view of this factual position I am of the opinion that the D.I.O.S. did not provide any opportunity of hearing to petitioners and his order is vitiated due to want of opportuni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violated and the order is liable to be quashed for that reason also. 11. The learned Standing Counsel has tried to justify the order for two additional reasons, which have not been taken into consideration by D.I.O.S. while passing the order of cancellation of approval. As stated earlier, he has tried to justify, the order on the ground that the order of approval was passed due to collusion of a Clerk as well as the order Being a 'Farji' order. These reasons are absolutely new reasons and they are not the basis of order of D.I.O.S. by which the D.I.O.S. has cancelled the approval and, therefore, the respondents cannot be allowed to justify the impugned order by taking new additional reasons in present writ petition for justifying impugned order. The above view finds support from the case of Mohinder Singh Gill v. Election Commissioner, AIR 1987 SC 851 858 wherein it has been held that, when a statutory functionary makes an order based on certain grounds its validity must be judged by the reasons so mentioned and can not be supplemented by fresh reasons in the shape of affidavit or otherwise. As I am of the view that respondents cannot be allowed to justify the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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