JUDGMENT R.K. Agrawal, J.
1. The present special has been filed against the judgment and order dated 11.12.1998 passed by a learned Single Judge of this Court in Civil Misc. Writ Petition No. 15293 of 1992, whereby the writ petition filed by the writ petitioner-appellant has been dismissed.
2. Briefly stated the facts giving rise to the present special appeal are as follows :
Janta Inter College, Barsathi, Jaunpur (hereinafter referred to as the 'College') is a recognised and aided College under the provisions of U.P. Intermediate Act, 1921. One Sri Karam Raj Mishra, lecturer in Civics retired on 30.6.1991. The Committee of Management of the said College advertised the vacancy on 4.7.1991, in the local newspaper "Dainik Manyavar", a newspaper published in the District Jaunpur. The Committee of Management of the College vide resolution passed on 4.8.1991, selected the writ petitioner-appellant on the post of Lecturer in Civics and issued an appointment letter on 16.8.1991. The appointment of the writ petitioner-appellant was made on ad-hoc basis. He joined on the post of Lecturer in Civics in the said College on 19.8.1991. When the appellant was not being paid the salary, he approached this Court by filing a writ petition under Article 226 of the Constitution of India, which as mentioned hereinbefore had been dismissed by the learned Single Judge whose order is under challenge in the present special appeal.
3. We have heard Sri Anil Bhushan, learned Counsel for the appellant and Sri Ran Vijay Singh, learned Standing Counsel appearing on behalf of the respondents.
4. The learned Counsel for the appellant submitted that the appellant was appointed on 16.8.1991 as ad-hoc Lecturer in Civics against the vacancy caused by the retirement of Sri Karam Raj Mishra. The College Authority had sent the requisition under Section 18 of the U.P. Secondary Education Service Commission and Selection Board Act, 1982 (hereinafter referred to as the 1982 Act). The vacancy was notified to the Commission and even if the appointment has been made before the expiry of a period of two months from the date of notifying the vacancy to the Commission, the appointment would not be bad and illegal, but would take effect after the expiry of the period of two months. He further submitted that the vacancy was advertised in the local newspaper Dainik Manyawar' published on 24.7.1991, which is a widely circulated newspaper in the District of Jaunpur and if the vacancy was not advertised in two daily newspapers, as per U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1982, then it is only an irregularity, which will not make the appointment void. He further submitted that the requirement of advertisement in two newspapers was directory and not mandatory. He relied upon the following cases :
1. Km. Madhu Chauhan v. District Inspector of Schools, 1988 UPLBEC 397;
2. Ashika Prasad Shukl v. District Inspector of Schools, Allahabad and Anr., 1998 (3) ESC 2006 (All);
3. Radha Raizada and Ors. v. Committee of Management, Vidyawati Darbari Girls Inter College and Ors., 1994 (2) ESC 345 (All) (FB);
4. Konch Degree College, Jalaun and Ors. v. Ram Sajivan Shukla and Anr., 1997 (11) SCF 153; and
5. Arun Tiwari and Ors. v. Zila Mansavi Shikshak Sangh, 1998 (1) ESC 257 (SC).
5. Sri Ran Vijay Singh, learned Standing Counsel, however, submitted that under Section 18 of the 1982 Act, the Management has been given powers to make appointment by direct recruitment or promotion of a Teacher on purely ad-hoc basis only after the Management had notified the vacancy to the Commission in accordance with Sub-section (1) of Section 10 of the aforesaid Act and the post of the Teacher actually remained vacant for more than two months. According to him the post of Lecturer in Civics in the College fell vacant only on 1.7.1991 and the appointment of the appellant was made on 16.8.1991, even without waiting for the expiry of the period of two months. Moreover, the Committee of Management had taken steps for filling up the vacancy immediately after the vacancy had occurred and had in fact, advertised the same on 4.7.1991, whereas, the Committee of Management could have exercised the powers for filling up the vacancy on ad-hoc basis only after the expiry of the period of two months from the date of notifying the vacancy to the Commission in the event the said vacancy was not filled up by the Commission. He submitted that under Para 5 of the U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as the First Removal of Difficulties Order), the ad-hoc appointment by direct recruitment can be made only after the vacancy is advertised in at least two newspapers having adequate circulation in U.P. which is a mandatory requirement and therefore, the advertisement made in only one newspaper and that too in a local newspaper of District Jaunpur, does not fulfill requirement of the aforesaid paragraph. Thus, the appointment of the writ petitioner-appellant is wholly illegal and contrary to law and the learned Judge had rightly dismissed the writ petition, which calls for no interference in appeal.
6. Having heard the learned Counsel for the parties, we find that admittedly, the vacancy on the post of Lecturer in Civics in the College occurred on 1.7.1991, on the retirement of one Sri Karam Raj Mishra on 30.6.1991. The vacancy was advertised in the local newspaper 'Dainik Manyavar' on 4.7.1991. There is no material on record to show as to on what date the Committee of Management of the College had notified the vacancy to the Commission. Under Section 18 of the 1982 Act, the Management gets the power to fill up the vacancy by way of ad-hoc appointment only after the said post remains vacant for a period of two months from the date the vacancy has been notified to the Commission. In the present case, without waiting for the expiry of the period of two months from the date of notifying the vacancy to the Commission, if any, the Management immediately advertised the vacancy on 4.7.1991, held the interview on 4.8.1991 and filled up the vacancy on 16.8.1991, i.e., within a short span of one month. The Committee of Management had no power to fill up the vacancy at that time, when the appointment was made. Thus, the appointment of the appellant was wholly illegal and contrary to law and the learned Single Judge had rightly dismissed the writ petition.
7. In the case of Madhu Chauhan (supra), a Division Bench of this Court considered the provisions of Section 16(1) of U.P. Higher Education Service Commission Act, 1980, which relates to appointment of ad-hoc Teachers. It read as follows :
"Where the Management has notified a vacancy to the Commission in accordance with Sub-section (2) of Section 12 and the Commission fails to recommend the names of suitable candidates in accordance with Sub-section (1) of that section within three months from the date of such notification, the Management may appoint a Teacher on purely ad-hoc basis from amongst the persons holding qualification prescribed thereof."
8. After considering the provision of the aforesaid section, the Court thought it proper not to deprive the petitioner therein of her salary as it appeared that no name had been recommended by the Commission till date. The relevant portion of Para 12 of the reports is reproduced below :
"The question that now arises is whether the appointment of Kumari Madhu Chauhan falls within the ambit of Section 16(1) in order to entitle her to claim salary for the post of Lecturer in Sociology. The Management does not dispute the validity of her appointment. The opposite parties in her writ petition have not filed any counter-affidavit to controvert her claim. However, one irregularity does appear in her appointment. In Management's writ petition it has been stated that the vacancy was notified to the Commission in the first week of September, 1986. It is then stated that the Committee of Management adopted resolution on 26th November, 1986 for appointing Kumari Madhu Chauhan to the post in question. In Paragraph-9 of the Management's writ petition is mentioned that Kumari Madhu Chauhan was appointed with effect from 4th December, 1986. Under Section 16(1) the Management acquires right to make ad-hoc appointment only after the Commission fails to recommend names of suitable candidates within three months from the date of notification of vacancy. In the present case, the Committee of Management adopted resolution in favour of Kumari Madhu Chauhan's appointment before the period of three months expired. The Management has not stated the exact date on which the vacancy was notified to the Commission and has merely stated that the notification made in the first week of September, 1986. The appointment letter was issued on 4th December, 1986. It, therefore, appears that the period of three months referred to in Section 6(1) had not expired when Kumari Madhu Chauhan was appointed Lecturer in Sociology. However, on the ground we do not propose to deprive her salary as it appears that till date no name has been recommended by the Commission. Her petition also, therefore, deserves to be allowed."
9. From a reading of the aforesaid paragraph, it is clear that the Division Bench had not held that the appointment made prior to the expiry of the period of three months from the date of notifying the vacancy to the Commission is directory or will take effect after the expiry of three months, as canvassed by the learned Counsel for the writ petitioner-appellant.
10. In the case of Ashika Prasad Shukla (supra), the Division Bench of this Court was examining the provision of Para 2 of the U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981, which provided for the procedure for filling up short term vacancy. It provided that the Manager shall forward the names and particulars of the candidates selected and also other candidates and the quality point marks allotted to them to the District Inspector of Schools for his prior approval and the District Inspector. of Schools shall communicate his decision within seven days of the date of receipt of the papers by him, failing which the Inspector will be deemed to have given approval and on receipt of the approval of the District Inspector of Schools or as the case may be, on his failure to communicate the decision within seven days of the receipt of the papers by him from the Manager, the Management was empowered to appointment the selected candidate and to issue an order of appointment under his signature.
11. The Division Bench of this Court in the case of Ashika Prasad Shukla (supra), have held that if the appointment is made prior to the approval or deemed approval then it would become effective from the date of approval or deemed approval. The relevant Paragraphs 15 and 16 of the reports are reproduced below :
"15. The next question that falls for consideration is whether the appointment of the petitioner-appellant could still stand invalidated on the ground that it was made without prior approval of the District Inspector of Schools. Sri Yatindra Singh placed reliance on a Division Bench decision of this Court in A.K. Pathshala v. Smt. M.D. Agnihotri, 1971 All U 983, wherein it was held, on construction of Section 16-F (1) of the U.P. Intermediate Education Act, 1921, that appointment without prior approval by the Competent Authority would, in the eye of law, be no appointment. The ratio of the said decision as held by a subsequent Division Bench in Lalit Mohan Mishra v. District Inspector of Schools, 1979 All LJ 1025, is that a "person gets the status of a Teacher when requisite formality is completed". The relevant observations are as under :
"Without approval the person does not get the status of a Teacher even though the approval is to be followed by formal letter but in the absence of formal letter the person gets the status of a Teacher after approval to the appointment is given by the District Inspector of Schools. The appointment of a person as a Teacher becomes effective only from the date approval is given and even if a person is allowed to work before the same has no recognition under the U.P. Intermediate Education Act.
16. Paragraph 2(3)(iv) of the Second Removal of Difficulties Order is not phrased in a prohibitory language as was the language used in Section 16-F(1) of the U.P. Intermediate Education Act, 1921. The words 'prior approval have been used in Sub-clause (iii) of Paragraph 2(3) of the Second Removal of Difficulties Order and conjoint reading of Sub-clauses (ii), (iii) and (iv) of Clause (3) of Paragraph 2, no doubt, leads to an inescapable conclusion that the appointment would be issued under the signature to the Manager only on the approval having been communicated by the District Inspector of Schools within seven days of the receipt of the papers or where the approval is deemed to have been accorded as visualised by Sub-clause (iii) of Clause (3) of Paragraph 2 of the Second Removal of Difficulties Order. However, appointment if made prior to approval of deemed approval, would become effective from the date of approval of deemed approval as held by the Division Bench of this Court in Lalit Mohan Mishra. There is nothing on the record to connote that prerequisite conditions attracting deemed approval were not satisfied in the instant case. The learned Single Judge has also not addressed himself to this facts of the matter and the judgment under appeal on this score too cannot be sustained."
12. From a reading of the aforesaid paragraphs it will be seen that the Division Bench had no occasion to consider the provision of Section 18 of the 1982 Act, which puts a complete embargo on the powers of the Committee of Management to fill up any vacancy on ad-hoc basis unless and until the expiry of the period of two months from the date of notifying the vacancy to the Commission.
13. In the case of Radha Raizada (supra), a Full Bench of this Court has held that the power to appoint ad-hoc Teachers by direct recruitment in a substantive vacancy is available only when the pre-conditions mentioned in Section 18 of the Act, arc satisfied. It further held that the ad-hoc appointment of a Teacher by direct recruitment can be resorted to only when the condition precedent for such powers, as stated in Para 18 of the Act are present and only in the manner provided for in Paragraph 5 of the Removal of Difficulties Order. The relevant Paragraphs 41 and 42 of the report are reproduced below :
"41. It has already been noticed that Section 18 of the Principal Act, provides for power to appoint a Teacher purely on ad-hoc basis either by promotion or by direct recruitment against the substantive vacancy in the institution when the condition precedent for exercise of powers exist namely that the Management has notified the said vacancy to the Commission in accordance with the provisions of the Act and the Commission has failed to recommend the name of any suitable candidate for being appointed as a Teacher within one year from the date of such notification of the post of such Teacher has actually remained vacant for more than two months. However, since the State Government was alive to the situation that the establishment of the Commission may take long time and even after it is established, it may take long time to make available the required Teacher in the institution and as such issued three Removal of Difficulties Orders namely Removal of Difficulties Order dated 11.9.1981, Removal of Difficulties Orders dated 14.4.1982. In fact these Removal of Difficulties Orders were issued to remove the difficulties coming in the way of a Management in running the institution in absence of Teacher. This power to appoint ad-hoc Teachers by direct recruitment, thus, it is available only when the pre-conditions mentioned in Section 18 of the Act are satisfied, secondly, the vacancy is substantive vacancy and thirdly, the vacancy could not be filled by promotion. Neither the Act nor the Removal of Difficulties Order defines vacancy. However, the vacancy has been denied in Rule 2(11) of U.P. Secondary Education Services Commission Rules, 1983. 'Vacancy means a vacancy arising out as a result of death, retirement, resignation, termination, dismissal creation of new post or appointment/promotion of the incumbent to any higher post in substantive capacity. Thus, both under Section 18 of the Act and under the Removal of Difficulties Order the Management of an institution is empowered to make ad-hoc appointment by direct recruitment, in the manner laid down in Paragraph 5 of the First Removal of Difficulties Order only when such vacancy cannot be filled by promotion and for a period till a candidate duly selected by the Commission joins the post. As noticed earlier both Section 18 of the Act and the provisions of First Removal of Difficulties Order provide for ad-hoc appointment of Teacher in the institution, later further providing for method and manner of such appointments are part of one scheme. Scheme being provision for ad-hoc appointment of Teacher in the absence of duly selected Teachers by the Commission. The provisions may be two but the power to appoint is one and the same and therefore, the provisions contained in Section 18 and Removal of Difficulties Order are to harmonized. It is, therefore, not correct to say that appointment of a Teacher on ad-hoc basis is either under Section 18 of the Act or under the Removal of Difficulties Order. Thus, if contingency arises for ad-hoc appointment of Teacher by direct recruitment the procedure provided under the First Removal of Difficulties Order has to be followed. Paragraph-5 of the First Removal of Difficulties Order provides that the* Management shall, as soon as may be, inform the District Inspector of Schools about the details of vacancy and the District Inspector of Schools shall invite application from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh. Sub-paragraph (3) of Paragraph 5 further provides that every such application shall be addressed to the District Inspector of Schools Sub-paragraph (4) of Paragraph 5 of the Removal of Difficulties Order provides that the District Inspector of Schools shall cause the best candidate selected on the basis of quality point specified in Appendix. The compilation of quality point may be done by the Retired Government Gazetted Officer, in the personal supervision of the Inspector. Paragraph-6 of the First Removal of Difficulties Order further provides for appointment of such Teacher under Paragraph 5 who shall possess such essential qualification as laid down in Appendix-A referred to in the Regulation 2 of Chapter II of the Regulation made in the Intermediate Education Act.
42. In view of these provisions the ad-hoc appointment of a Teacher by direct recruitment can be resorted to only when the condition precedent for exercise of such powers as stated in Section 18 of the Act are present and only in the manner provided for in Paragraph 5 of the Removal of Difficulties Order. This view of mine finds support in a number of decisions namely, Ran Bahadur Singh and Ors. v. District Inspector of Schools, Saharanpur, (1991) 2 UPLBEC 1079 and Lalta Prasad Yadav and Ors. v. State of U.P., 1988 UPLBEC 345. When a Teacher is appointed on ad-hoc basis is in accordance with the Paragraph 5 of the First Removal of Difficulties Order there is further no requirement of approval or prior approval of the District Inspector of Schools for such appointment. However, it goes without saying that if a Management without following the procedure indicated above makes an ad-hoc appointment the District Inspector of Schools makes an ad-hoc appointment the District Inspector of Schools possess general power under the Payment of Salaries Act to stop payment of salary to such Teacher."
14. The Full Bench decision of this Court in Radha Raizada's case has been approved by the Apex Court in the case of Prabhat Kumar Sharma and Ors. v. State of IIP. and Ors.,. JT 1996 (6) SC 579. the Apex Court in the aforesaid case has held that any ad-hoc appointment of the Teachers under Section 18 shall be only transient in nature pending allotment of Teachers selected by the Commission and recommended for appointment and such ad-hoc appointments should also be made in accordance with the procedure prescribed in Para 5 of the First 1981 Order and any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees.
15. Applying the principles laid down in the aforementioned cases, we are of the considered opinion that the provisions of Section 18 of the 1982 Act is mandatory and unless and until the period of two months expires from the date of notifying the vacancy to the Commission, the Committee of Management does not get any power to fill up the vacancy on ad-hoc basis.
16. Since we have come to the conclusion that the Committee of Management had no power to make appointment on ad-hoc basis on the substantive vacancy of the post of Lecturer in Civics in the College before the expiry of the period of two months from the date of notifying the vacancy to the Commission, the date being not on record and even if it is taken that immediately after the occurring of the vacancy the same was notified to it on 2.7.1991 and as the period of two months did not expire before 31.8.2001 and the appointment having been made much before i.e., on 16.8.1991, the Committee of Management could not have made such appointment and the same is contrary to law, therefore, we are not going into the other question as to whether the advertisement in two newspapers, as provided in Para-5 of the First Removal of Difficulties Order is mandatory and is to be strictly complied with or not.
17. In view of the foregoing discussions, we do not find any merit in this appeal and it is dismissed. However, the parties shall bear their own costs.