1. Heard Sri H.G.S. Parihar, learned Senior Advocate, assisted by Sri Shashank Parihar, Advocate, for petitioner, learned Standing Counsel for respondents and perused the record.
2. In both writ petitions the facts as also legal controversy are common in nature and, therefore, both are dealt with together and decided by a common judgment.
3. Writ Petition No.5427 of 2000 (hereinafter referred to as "first writ petition") has been preferred by Sri Amit Yadav who has sought a writ of certiorari for quashing order dated 08.09.2000 passed by District Inspector of Schools, Raibareli, declining approval to petitioner's appointment as Assistant Teacher in L.T. Grade in Bhagirathi Intermediate College, Murai Bagh, Raibareli (hereinafter referred to as "College"). Petitioner has also sought a writ of mandamus, commanding the respondents to pay his salary w.e.f. 01.08.2000.
4. In Writ Petition No.6005 of 2001 (hereinafter referred to as "second writ petition"), petitioner Vijay Kumar Mishra has sought a writ of mandamus, commanding the respondents to pay him regular salary on the post of Assistant Teacher in L.T. Grade w.e.f. 10.11.2000 i.e. date, on which, Committee of Management appointed him on the aforesaid post.
5. Before considering legality or validity of appointment, it would be appropriate to place on record brief facts of the two cases.
6. Coming to the first petition, the College is Secondary Educational Institution, imparting education up to Intermediate classes and recognized by Board of High School and Intermediate, U.P. Allahabad and is governed by Intermediate Education Act, 1921 (hereinafter referred to as "the Act 1921"). The institution is also under grant-in-aid. Payment of Salary to the Teachers and non-teaching staff of the college is governed by the provisions of U.P. High School and Intermediate Colleges (Payment of Salaries to the Teachers and other Employees) Act, 1971 (hereinafter referred to as "the Act 1971"). Further, recruitment to the post of teachers in the college is also governed by the provisions of U.P. Secondary Education Service Selection Board Act, 1982 (hereinafter referred to as the Act, 1982).
7. A post of Assistant Teacher, L.T. Grade was created in College by Director Secondary Education, U.P. Allahabad by order dated 13.02.1992 (Annexure 1 to the writ petition). The Management of the College took steps for recruitment of a Teacher on the aforesaid post and sent requisition to District Inspector of Schools (hereinafter referred to as "DIOS") vide letter dated 18.10.992, which was received in the office of DIOS on the same day. It is said that no candidate was recommended by the Board for almost 8 years, whereafter, Management itself proceeded to make appointment by publishing an advertisement in daily newspaper 'Anand Times' dated 08.07.2000. Pursuant thereto, petitioner and a few others applied. Selection Committee selected petitioner and made recommendation, which was accepted by Committee of Management vide resolution dated 24.07.2000 and pursuant whereto, petitioner was issued a letter of appointment on 25.07.2000 (Annexure 7 to the writ petition). Petitioner joined on 01.08.2000. Documents were sent to DIOS for his approval vide management letter dated 16.08.2000, but DIOS vide impugned order dated 08.09.2000, has disapproved petitioner's appointment and declined payment of salary to him from State Exchequer.
8. Second writ petition relates to Jagdish Narain Intermediate College, Dhingwas, Pratapgarh (hereinafter referred to as "second College"). This college is also Intermediate College and governed by Acts, 1971 and 1982. Sri Gokul Prasad Verma, Lecturer in Geography, after attaining the age of superannuation and completion of session, retired on 30.06.2000, causing a substantive vacancy on 01.12.2000. One Anil Kumar Tewari, Assistant Teacher, who was qualified, promoted as Lecturer (Geography), by the Management, under intimation to District Inspector of Schools, Pratapgarh (hereinafter referred to as DIOS, Pratapgarh) vide letter dated 07.07.2001 which was received in the office of DIOS, Pratapgarh on 09.08.2001. In resultant short term vacancy of Assistant Teacher, (L.T. Grade), the management took steps for recruitment and published an advertisement in daily newspaper 'Bela Samrat' dated 03.07.2001. Thereafter Selection Committee vide minutes dated 24.07.2001 passed resolution to appoint petitioner on the post of Assistant Teacher (L.T. Grade). Appointment letter was issued to petitioner on 24.07.2001. The documents were forwarded to DIOS, Pratapgarh vide management's letter dated 08.08.2001. Since the date of his appointment, petitioner is continuously working but salary has not been paid, as such a writ of mandamus has been sought for the purpose of payment of salary from State Exchequer.
9. Sri H.G.S. Parihar, learned Senior Advocate, appearing for petitioners, contended that after enforcement of U.P. Act No.5 of 2001 w.e.f. 30.12.2000 under Section 18, no ad hoc appointment of Teacher could be made. Therefore, the Management must be empowered to make arrangement for running Educational institution smoothly, if the candidates are not recommended by the Board, otherwise it will amount to renunciation of education which would be against the very constitutional provision guaranteeing right of education as fundamental right. He also submitted that a Single Judge (Hon'ble Shabihul Hasnain, J.) in Sanjay Singh Vs. State of U.P. and others in Writ Petition No.3348 (S/S) of 2012 has taken a view which supports the petitioner but another Hon'ble Single Judge (Hon'ble Arun Tandon, J.) in the case of Pradeep Kumar Vs. State of U.P. and others in Writ-A No.22520 of 2013 has taken a contrary view vide judgment dated 01.05.2013. Recognizing conflict between two judgments, another Hon'ble Single Judge (Hon'ble Suneet Kumar, J.) in Writ Petition No.655 (S/S) of 2014, Abhishek Tripathi Vs. State of U.P. and others vide order dated 03.02.2014 has made a reference to Larger Bench, formulating the following two questions:
" 1. Which of the two cases namely Sanjai Singh Versus State of U.P. and others in Writ Petition No.3348 (S/S) of 2012 or Pradeep Kumar Versus State of U.P. and others in Writ Petition No.22520 of 2013, lays down the correct law.
2. Scope of Section 16-E(11) of the Intermediate Act, 1921 read with Sections 16, 22, 32 and 33-E of the U.P. Secondary Education Service Section Board Act, 1982."
10. Sri Parihar, learned Senior Advocate for petitioner, states that since the matter is now seized with Larger Bench, these matters may also be referred to there. In normal course, if similar questions are involved, the suggestion by learned Senior Counsel would have been accepted but I find, strictly speaking, that the issue, as has been raised by Sri Parihar, is not involved in these cases rather it has been attempted to mould and argue in that manner and, therefore, there is no reason to refer these matters since the issues referred to larger Bench, in my view, do not arise in these cases.
11. Coming to the first writ petition, this Court finds that the vacancy came in existence when a new post was created on 13.02.1992. The Management, did not find any urgency of making appointment on such post. It took eight years in taking steps for filling the post by making ad hoc appointment. The requisition sent to Commission is dated 18.10.1992. At that time, if a regularly selected candidate recommended by Commission was not made available within two months, ad hoc appointment could have been made in accordance with the procedure prescribed under Section 18 of Act, 1982 read with Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as "First Order") but no such steps were taken. Clauses 2 and 5 of first Order as was applicable in 1992-93 provided procedure for ad hoc appointment as under :
"2. Vacancies in which ad hoc appointment can be made.-- The management of an institution may appoint by promotion or by direct recruitment a teacher on purely ad hoc basis in accordance with the provisions of this Order in the following cases, namely:-
(a) in the case of a substantive vacancy existing on the date of commencement of this Order caused by death, retirement, resignation or otherwise;
(b) in the case of a leave vacancy, where the whole or unexpired portion of the leave is for a period exceeding two months on the date of such commencement;
(c) where a vacancy of the nature specified in clause (a) or clause (b) comes into existence within a period of two months subsequent to the date of such commencement."
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 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 addressed 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 points 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 institution 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 Girls' Schools".
12. Management did not find any exigency, urgency or necessity to have newly created post filled on ad hoc basis. Therefore, it took no steps at all. With subsequent amendment, procedure for ad hoc appointment has undergone some changes and ultimately, w.e.f. 30.12.2000 vide U.P. Act No.5 of 2001, provision for ad hoc appointment in Secondary Education Institution has been done away. It does not mean that an ad hoc appointment cannot be made at all inasmuch as in absence of any otherwise provision contemplated under Act 1982, provision of Act, 1921 would have to come into play, Section 16-E(11) of Act 1921 permits a management to make appointment on temporary vacancy for a period not exceeding three months or till the end of academic session. It is not a case where management finds any urgency to make appointment in the vacancy on newly created post in 1992. On its own, it took more than six months, initially, in making requisition to the Board. Thereafter did not take any step for 8 years and more, despite the fact, that power of making ad hoc appointment and the procedure therefor, both were available, yet the same, not utilized. It is also interesting to note that, had the power been utilized by management within a reasonable time, after making requisition to the Board on 18.10.1992, petitioner probably could not have been able to apply, for the reason, that he did not possess requisite qualification in 1992-93 and immediately thereafter, inasmuch as in 1992, he possessed only Intermediate qualification. Para-10 of first writ petition makes it clear that petitioner passed B.Sc. Examination in 1995, B.Ed. in 1997 and M.A. (Ancient History) Examination in 1998. Therefore, till 1997 petitioner was not eligible at all. Further, date of birth of petitioner in first petition is 24.02.1976, as is evident from his High School marks sheet (Annexure 4 to the writ petition), it is also evident that he was ineligible, in respect of age, till 1997. The provisions and procedure for ad hoc appointments were available but not availed by Management at the relevant time. In these facts and circumstances, it cannot be said that appointment of petitioner in the first writ petition, is valid, so as to justify issuance of writ of mandamus for payment of salary to petitioner from the State Exchequer. The appointment of petitioner is apparently illegal having not being made under any authority of law and, therefore, the order of DIOS disapproving his appointment warrants no interference.
13. Now I come to second petition. Here also, the substantive vacancy on the post of Lecturer in Geography occurred on 1st July, 2000. The management made ad hoc promotion of Sri Anil Kumar Tewari, an Assistant Teacher, (L.T. Grade), and informed DIOS, seeking approval for such ad hoc appointment vide letter dated 07.07.2001. Here pleadings and documents speak differently. In paras 4 and 5 of second writ petition, it is stated that after retirement of Sri Gokul Prasad Verma, Lecturer in Geography on 30.06.2000, Sri Anil Kumar Tewari was promoted to the post of Lecturer (Geography), who joined on 06.07.2001 and information was given to DIOS, vide letter dated 08.08.2000 but Annexure 1 clearly shows that letter sent to DIOS is dated 07.07.2001, which was received in his office on 08.08.2001 and not on 08.08.2000. The date given in para-5 of the writ petition is clearly incorrect. In normal course, it could be treated as typing mistake but looking to the subsequent fact also, I find that documents are clearly manipulated and fabricated. It is said that in resultant vacancy of Assistant Teacher (L.T. Grade), after ad hoc promotion of Anil Kumar Tewari as Lecturer (Geography), the appointment was to be made on the post of Assistant Teacher (L.T. Grade) and, therefore, the vacancy was advertised. Interesting thing is that the advertisement in daily newspaper 'Bela Samrat' is said to be published on 03.07.2001, as stated in paragraph 7 of writ petition, as also in Annexure 2 thereof. I also find that in the advertisement, it has been mentioned that vacancy of Assistant Teacher (L.T. Grade) is lying from 07.07.2001. It is apparently false and inconceivable. How, in an advertisement, published on 03.07.2001, the factum of the vacancy which occurred subsequently i.e. on 06.07.2001, could have been mentioned to have occurred. If vacancy occurred on 06.07.2001, the advertisement could have been published only thereafter. This shows that advertisement in question also is clearly a manufactured one. Moreover, in this writ petition, there is no averment as to when vacancy of Lecturer (Geography) and Assistant Teacher (L.T. Grade) has been notified to the Board. The management could have proceeded to make appointment only when Commission/Board failed to make recommendation of duly selected candidate within reasonable time. No such step was taken by the management. On its own, the management made ad hoc appointment, despite the fact that in 2001 it had no power to make ad hoc appointment at all due to amendment vide U.P. Act no.5 of 2001 which came into force on 30.12.2000. Before that, DIOS, in accordance with committee constituted under Section 18, could have taken steps for ad hoc appointment but no endeavour appears to have been made by the management. Therefore, the case of petitioner is not covered by the exposition of law laid down in Sanjai Singh (Supra). It has been held in both the cases i.e. Sanjai Singh (Supra) and Pradeep Kumar (Supra) that under the Act, 1982 management has no power to make ad hoc appointment. However, in the emergent cases, where the management has shown urgency, in the interest of institution, power to make ad hoc appointment has been read in Sanjai Singh (supra) but not otherwise.
14. The appointment of petitioners, are patently illegal and without jurisdiction, hence mandamus to pay salary from State Exchequer cannot be issued. Both the petitions lack merit and are liable to be dismissed.
15. Learned counsel for the petitioners further contended that pursuant to the interim order passed by this Court in both the petitions, petitioners are continuously getting their salary and after a decade passing of any order otherwise would cause a serious prejudice to them, therefore, this Court may allow them to continue to receive salary from State Exchequer.
16. This submission of learned counsel for petitioners is also thoroughly misconceived. The mere fact that an incumbent has continued on the basis of an interim order though substantially he/she had no right to continue, would not help him/her. An interim order would not result in conferment of something which otherwise could not have been claimed in law. The effect of dismissal of writ petition, is, as if, no interim order was ever passed. This aspect has been clarified by several judgments of this Court and this view has been affirmed in Kanaria Chemicals and Industries Ltd. And others v. U.P. State Electricity Board and others., (1997) 5 SCC 772, wherein the Court has observed that "it is equally well settled that an order of stay granted pending disposal of a writ petition/suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and it is the duty of the Court in such a case to put the parties in the same position they would have been put for the interim orders of the court".
17. Instead of saddling this judgment with several other authorities on the same point it would be useful to refer a recent judgment of this Court in Avinash Mohan (Dr.) v. State of U.P. and others, (2008) 3 UPLBEC 2148 where most of these cases are relied and referred.
18. A Division Bench of this Court (of which I was also a member) in Shri Ajai Kumar Dubey Vs. The Farrukhabad District Cooperative Bank Limited and others, 2009 (3) ADJ 555 while considering the effect of interim order on dismissal of the writ petition, has said:
"There is another facet of the issue. An ex parte interim order is normally granted considering a prima facie case, balance of convenience and irreparable loss but the Court cannot simultaneously put other side in a situation where on account of interim order other side would suffer irreparable loss. "Actus curia e neminem gravabit" is now well accepted doctrine applicable in these circumstances. The act of the Court shall prejudice none. No person can claim that because of the interim order of the Court he is entitled to retain certain benefit, for which he is otherwise not entitled. The respondents despite having won the case cannot be put to a disadvantageous position, which it would not have faced. If the said litigation would not have commenced. Mere filing of a case and obtain of an interim order can never result in a situation giving a permanent advantage to petitioner and permanent disadvantage to the respondents, though, ultimately, the writ petition is found to be frivolous or lacking merit and is dismissed. In order to claim benefit of certain statutory provisions, which require continuance of person's service on a particular date, if would mean that such continuance is based on his own rights of the incumbent and not on the clutches founded on interim order of Court of law. This aspect has also been dealt with in detail by this Court in Smt. Vijay Rani V. Regional Inspectress of Girls' Schools, Region-I, Meerut and others, 2007 (2) ESC 987 and we are in respectful agreement of the exposition of law laid down thereunder, which is fully applicable in the case in hand also. We have no hesitation in observing that the appellant here also cannot take any advantage flowing from the interim order, which he has obtained in the writ petition, which has ultimately been dismissed."
19. The aforesaid dictum has also been followed by this Court in Smt. Jyotsna Bajpai Vs. State of U.P. and others ( Writ A No. 15477 of 1992)decided on 1.8.2011 and several other matters..
20. In the result, both the writ petitions lack merit, hence fail. They are accordingly dismissed.
21. Interim orders in both the writ petitions are vacated.
Order Date :- 24.09.2014 P/AKN