Heard learned counsel for the parties.
All these writ petitions involve same issues relating to the entitlement of the Committee of Management to make appointment of teachers against substantive vacancies and the consequential entitlement of such teachers to salary from the State-Exchequer, therefore, they have been heard and are being decided by a common judgment.
In all these writ petitions, the petitioners have been appointed by the Managing Committee of the Educational Institutions which are recognized and are allegedly aided by the State.
It is contended on behalf of the petitioners that in absence of regularly selected candidate the teaching in the institution could not be allowed to suffer, therefore, in these compelling circumstances the Managing Committee proceeded to make appointments on ad-hoc temporary basis against sanctioned post. They have placed reliance on the judgment of Rakesh Chandra Misra vs. State of U.P. and others reported in (2004) 3 UPLBEC 2671 as upheld in the case of Daya Shanker Mishra vs. District Inspector of Schools and others reported in [2010(28) LCD 1375] on the applicability of Section 16-E(11). They have claimed that the appointments are referable to the said provision and therefore, they are entitled to the payment of salary from the State-Exchequer.
The issue involved herein is no longer res-integra as the same has been considered and decided by a Division Bench of this Court on 17.12.2015 in the case of Abhishek Tripathi vs. State of U.P. through Secretary, Secondary Education, Lucknow and others wherein their Lordships have held as under:-
"We hence, find merit in the contention which has been urged on behalf of the State that the general considerations which weighed with the learned Single Judge in the decision in Sanjay Singh (supra) cannot form the foundation of a sustainable direction in law, that the State can be issued a writ of mandamus to pay salaries from the public exchequer in respect of an appointment made by the management against a substantive vacancy on an ad-hoc basis. The scope and ambit of the power of the management to fill up temporary vacancies is clearly defined by the provisions of Section 16-E (11) of the Act of 1921 and its regulations. The legislature in its wisdom has enacted the Act of 1982 so as to provide in Section 16 that notwithstanding anything contained in the Act of 1921, an appointment shall be made by the management only on the recommendation of the Board. The legislature further specified that any appointment made in contravention of the provisions of sub- section (1) of Section 16 would be void. During the period when the Removal of Difficulties Orders held the field, which contained a provision for making ad hoc appointments, the law was well settled both by the Supreme Court and by this Court that any appointment made in violation of the provisions contained in those orders would be void and that a direction for the payment of salary could not be sustained on the basis of such an appointment. After Section 18 was amended successively, a procedure was provided initially for making ad-hoc appointments but, as we have noticed, Section 18, in its present form is confined only to Principals and Headmasters. The only source of power then for making appointments of an ad-hoc nature is relatable to the provisions of Section 16-E (11) of the Act of 1921 read with regulations. Any appointment which is de-hors the provisions of the Act of 1921 and the regulations cannot be countenanced in law. A mandamus cannot be issued to the State for the payment of salary where the appointment by its very nature is in contravention of law and void.
There can be no dispute about the basic principle of interpretation which was sought to be emphasized by the petitioner that, in the course of interpreting a statute, it would be open to the Court to adopt an interpretation which, while being in accord with the terms of the statute, makes the statute workable. But equally in this process, it would not be open to the Court to re-write statutory provisions or to mandate an act such as the payment of salary in respect of an appointment which is made otherwise than in accordance with the statutory provisions and the rules. Article 21-A of the Constitution upon which reliance has been placed by the learned Single Judge in Sanjay Singh's case (supra) mandates that the State shall provide free and compulsory education to all children between ages of six to fourteen in such manner as the State may, by law, determine. The law undoubtedly, has to be fair, just and reasonable.
This Court in repeated judgments has drawn the attention of the State to the need to streamline the procedures in a line of precedent from this Court culminating in the judgment of the Full Bench in Santosh Kumar Singh (supra). The observations of this Court shall be taken up by the State with a sense of the highest priority and with all seriousness to ensure that a situation does not emerge where vacancies of a substantive nature are left unfilled over a long period of time to the detriment of education. The State Government must take up the matter with necessary alacrity and immediacy.
For these reasons, we have come to the conclusion that the view of the learned Single Judge in Sanjay Singh's case (supra) cannot be upheld as laying down the correct position in law. The view of the learned Single Judge shall stand, accordingly, overruled. The judgment in Pradeep Kumar (supra) is upheld subject to the principles which, we have enunciated in this judgment.
The second issue which has been referred for decision before the Division Bench is the scope of Section 16-E (11) when read in the context of Sections 16, 22, 32 and 33-E of the Act of 1982. We have already dealt with the interpretation of these provisions in the course of the judgment.
The reference to the Division Bench shall stand answered in the aforesaid terms. The record of these proceedings shall now be remitted back to the learned Single Judge, according to roster, for disposal in the light of the questions answered".
In view of the above the Managing Committee of a College does not have any statutory authority to appoint a teacher against a substantive vacancy de-hors the provisions of Section 16 of the U.P. Secondary Education (Services Selection Board) Act, 1982, consequently such appointee is not entitled to salary from the State-Exchequer.
As far as appointment under Section 16-E (11) of the Intermediate Act, 1921 is concerned, the law in this regard has already been explained and settled by the Full Bench decision in the case of Santosh Kumar Singh Vs. State of U.P. and others reported in 2015 (33) LCD 2402 as also in the aforesaid Division Bench decision in the case of Abhishek Tripathi (supra).
The relevant extracts of the Full Bench decision in Santosh Kumar Singh (supra) are quoted herein below:-
19. Sub-section (11) of Section 16-E has thus made a specific provision in regard to appointments in the case of temporary vacancies caused by (i) the grant of leave to an incumbent for a period not exceeding six months; or (ii) by death, termination or otherwise of an incumbent occurring during an educational session. The object of the provision is to ensure that where a temporary vacancy arises as a result of fortuitous circumstances, such as leave, death, termination or otherwise, the educational needs of students should not be disturbed. The purpose of making an arrangement in the case of a temporary vacancy is to protect the interest of education so that students are not left in the lurch by the absence of a teacher in the midst of an academic session. The proviso to sub-section (11), however, stipulates that an appointment which is made under the provisions of sub-section (11) shall, in no case, continue beyond the end of the educational session during which the appointment was made. The proviso is intended to ensure that the purpose of appointment against a temporary vacancy caused due to the absence of a teacher in the midst of an academic session is met by continuing the appointment during and until the end of the academic session but not further. This is a provision which has been made by the state legislature in its legislating wisdom. The statutory provision provides both for the circumstances in which a temporary vacancy can be filled up and the length of an appointment made against a temporary vacancy. The difficulty which arises is because the Board, which has been constituted under the Act, does not fulfill its mandate of promptly selecting teachers for regular appointment. The District Inspector of Schools is in possession of necessary factual data in regard to the dates of appointment and retirement of teachers of aided institutions. This can be summoned by the Board even if the management does not comply with its duty to intimate vacancies. There can be no justification for the Board not to discharge its duties with dispatch and expedition. This is liable to result in a situation where the educational needs of students are seriously disturbed due to the unavailability of duly selected teachers. Ad hoc appointments in temporary vacancies also cause a state of uncertainty for teachers and lay them open to grave exploitation at the hands of certain managements of educational institutions. Thus, considering the matter both from the perspective of the interest of education as well as the welfare of teachers, it is necessary that the Board must take due and proper steps well in advance of an anticipated vacancy to initiate the process of selection. Similarly, the State Government would do well to streamline the procedure for making appointments in respect of temporary vacancies consistent with the mandate of Section 16-E (11) so that, while the interest of students is protected, the teachers are not exposed to exploitation.
"20. We consequently answer the reference in the following terms:
(a) .................
(b) ................
(c) Under Section 16-E of the Intermediate Education Act, 1921, the Committee of Management is empowered to make an appointment against a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or in the case of death, termination or otherwise, of an incumbent occurring during an educational session. An appointment made under sub-section (11) of Section 16-E as provided in the proviso thereto shall, in any case, not continue beyond the end of educational session during which the appointment was made; and
(d) The judgment of the Division Bench in Subhash Chandra Tripathi (supra) is affirmed as laying down a correct interpretation of the judgment in A A Calton (supra)."
In view of the above pronouncement, appointment against temporary vacancy in terms of Section 16-E (11) of the Uttar Pradesh Intermediate Education Act, 1921 (For short 'the Intermediate Act, 1921') can be made only till the end of academic session meaning thereby such appointments can be made in the academic session in which the vacancy arises thereby creating a corresponding need for such appointment till the end of the academic session and not beyond that. Thus, appointment under Section 16-E (11) of the U.P. Intermediate Act, 1921 can not be made in a subsequent academic session.
Apart from an appointment against a temporary vacancy caused on account of leave of an incumbent for a period not exceeding six months, appointment in the case of a vacancy caused by 'death, termination or otherwise' of an incumbent during an educational session is also permissible under Section 16-E(11) of the Act 1921, with the rider that such appointments shall not in any case continue beyond another educational session during which such appointment was made.
Purport of the word 'or otherwise' has not been considered in any of the pronouncements referred to hereinabove and no such pronouncement has been placed before the Court by either of the parties wherein it may have been considered. As in the present case, most of the vacancies have arisen on account of retirement or promotion of the incumbent, which is not specifically mentioned in Section 16-E(11) of the Act, therefore, it is necessary to consider the purport and meaning of the words 'or otherwise' so as to determine the applicability of Rules 16-F (11) as has been pressed by the petitioners. Etymologically, the word 'otherwise' as per Black's Law Dictionary means "in a different manner; in another way; or in other ways". The word 'other' has been defined in the same dictionary to mean "different or distinct from that already mentioned; additional, or further, "following an enumeration of particular classes "other" must be read as "other such like" and includes only others of like kind and character." The use of words 'death or termination' is indicative of the fortuitous circumstances giving rise to the vacancy referred in the provision. In the pronouncements of this Court referred and quoted hereinabove it has already been said that the object of Section 16-E(11) is to ensure that where a temporary vacancy arises as a result of fortuitous circumstances, such as leave, death, termination or otherwise, the educational needs of students should not be disturbed, therefore, the aforesaid provision caters to the need created by fortuitous circumstances. The word 'Fortuitous' is defined in Black's Law Dictionary to mean "happening by chance or accident. Occurring unexpectedly, or without known cause, Accidental; undesigned; adventitious. Resulting from unavoidable physical causes". Vacancies on account of Death and Termination cannot be anticipated. They are based on fortuitous circumstances.
The rule of Ejusdem generis is that words of a general nature following specific and particular words should be construed as limited to things which are of the same nature as those specified. This rule is not to be applied where the context manifests a contrary intention.
In the present case the context is the provision contained in Section 16-E(11) of the Act providing for filling up of temporary vacancies and those of a fortuitous nature other than the vacancies which are to be filled up substantively under other provisions. Death and termination also creates a substantive vacancy but they are distinct from other substantive vacancies as they are fortuitous. They cannot be anticipated or known before hand nor pre-determined, therefore, they have been included under sub section 11 for being filled up temporarily in keeping with the object of the said provision.
Applying the principle of Ejusdem generis the general word "otherwise" is to be understood by giving a restricted meaning limited to matters of the same class, category or genus as the specific words preceding it. The principle underlying this approach to statutory is that the subsequent general words were only intended to guard against some accidental omission in the objects of the kind mentioned earlier and were not intended to extend to objects of a wholly different kind. The specific words preceding the general word "or otherwise" i.e. death and termination can be placed under a common category indicative of vacancies arising out of fortuitous circumstances, therefore, the general word "otherwise" following the specific words death and termination has to be read and understood as indicative of other vacancies which may also arise fortuitously such as resignation etc. If the word "otherwise" is given a wide meaning so as to include all other kinds of vacancies it will render the very provision of section 16-E (11) nugatory being contrary to its very object and the spirit underlying it. If this was the intention then there was no necessity of using the words death or termination, therefore, it has to be understood as referring to other vacancies of similar nature i.e. fortuitous vacancies. This is in consonance with the object of the provision as explained by Full Bench of this Court in the case of Santosh Kumar Singh (Supra).
A vacancy created by retirement is a substantive vacancy which is not fortuitous in nature. It can be anticipated and in fact is pre-determinable, therefore, against such vacancies appointments can not be made under Section 16-E(11) of the Act but can only be made under Section 16 of the Act, 1982, afortori because of Regulations of 21 of the Regulations made under U.P. Intermediate Act 1921 under which a teacher who attains the age of superannuation in the midst of an academic session is entitled to continue till the end of the session. Likewise a vacancy created by promotion can also not be said to be purely fortuitous, as, it can, in a given situation, very well be anticipated. Moreover it does not create absence of a teacher in the institution which is also one of the consequences of a vacancy arising out of death or termination. On promotion the teacher is very much available in the institution and he can also teach the lower classes if the need arises, therefore, the said vacancy is not covered by the aforesaid provision of Section 16-E(11). The provision does not evince any contrary intention so as to allow substantive vacancies, which are not of a fortuitous nature, to be filled under the said provision.
In the case of an appointment against temporary vacancy in terms of Section 16-E(11) of the U.P. Intermediate Act, 1921 a teacher may be entitled for salary but only till the end of academic session and not beyond that, that too, only if the appointment is against a post sanctioned/created as per Section 9 of the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act 1971 (hereinafter referred to as 'the Act 1971).
As per the dictum of the Full Bench decision of this Court in the Special Appeal defective No. 673 of 2014 (State of U.P. vs. Committee of Management, Sri Sukhpal Intermediate College) no direction for payment of salary to a teacher of an Educational Institution governed by the Payment of Salary Act, 1971 can be issued by this Court unless he has been appointed against a post sanctioned/created with compliance of Section 9 thereof. The relevant extracts of the aforesaid Full Bench decision are quoted herein below:-
"In our view, the field of dispute in the present case, is governed by the judgment of the Full Bench in Gopal Dubey (supra). The judgment in Gopal Dubey clearly holds that the Act of 1971 operates in a field which is distinct from the Act of 1921. The mere fact that recognition has been granted to an institution or, for that matter, for conducting a new course or subject or for an additional section, would not give rise to a presumption of a financial sanction having been granted to the creation of a post. A financial liability cannot be foisted on the State to reimburse the salary payable to the employee or the teacher on the basis of such a presumption. For the purpose of creating a new post of a teacher or other employee, the management has to obtain the prior approval of the Director as required under Section 9 of the Act 1971. Without the prior approval of the Director, a new post cannot be sanctioned or created. Section 9 is mandatory. This principle in Gopal Dubey's case follows specifically the judgment of the Supreme Court in Gajadhar Prasad Verma's case which was rendered while interpreting the provisions of Section 9 of the Act of 1971. The High Court cannot issue a direction contrary to the mandate of Section 9. Orders under Article 226 must conform to law and cannot be contrary to the mandate of law. No mandamus can issue - interim or final - for the payment of salary by the state in the absence of the prior approval of the Director.
For these reasons, we answer the questions which have been framed for reference to the Full Bench in the following terms:
In the absence of a sanctioned post, a direction cannot be issued to the state in the exercise of powers under Article 226 of the Constitution for the payment of salary. The position in law, with which we respectfully concur, is as laid down in the judgment of the Full Bench in Gopal Dubey's case. The judgment in Om Prakash Verma is consistent with the law laid down in Gopal Dubey's case. In the absence of a sanctioned post, the High Court under Article 226 of the Constitution would not be justified in issuing a mandamus for the payment of salary, particularly since a mandamus cannot lie in the absence of a legal right, based on the existence of a statutory duty."
When considered against the aforesaid legal backdrop the factual position which emerges in these bunch of petitions and the alleged entitlement of petitioners to salary from the State Exchequers is as under:-
As far as the Writ Petition No. 5890(SS) of 2015 is concerned, the appointment having been made by the Managing Committee against a substantive vacancy said to have arisen on 01.07.2013 due to retirement of the then incumbent, clearly the appointment is de-hors the Provisions of the Act, 1982 and the Act of the U.P. Intermediate Education Act, 1921 as also the regulations made thereunder, therefore, no direction for payment of salary from the State-Exchequer can be issued in favour of the petitioner. Moreover, even if such a vacancy could be filled under Section 16-E (11), the same could not have been done in the year 2015 but only in the academic session in which it occurred.
In Writ Petition No. 5957(SS) of 2015, the petitioner claims to have been appointed by the Managing Committee against a substantive vacancy which occurred on 30.06.2011 due to retirement of the then incumbent, therefore, clearly this appointment is also de-hors the statutory provisions thereby dis-entitling the petitioner to salary from the State-Exchequer. Assuming such a vacancy could be filled under Section 16-E (11) of the Act, 1921, the same could have been done only in the academic session in which it fell vacant and not in the succeeding academic session.
In Writ Petition No. 6490(SS) of 2015, the petitioner herein claims to have been appointed by the Managing Committee against a substantive vacancy which occurred on 30.06.2008 due to retirement of the then incumbent, therefore, for the reasons already stated hereinabove the appointment being de-hors the statutory provisions, no direction for payment of salary from the State-Exchequer can be issued.
In Writ Petition No. 6516(SS) of 2015, the petitioner herein claims to have been appointed by the Managing Committee against a substantive vacancy which occurred on 01.07.2014 due to retirement of the then incumbent, therefore, for the reasons already stated hereinabove the appointment being de-hors the statutory provisions, no direction for payment of salary from the State-Exchequer can be issued.
In Writ Petition No. 6539(SS) of 2015, the petitioner herein claims to have been appointed by the Managing Committee against a substantive vacancy which occurred on 01.07.2012 due to retirement of the then incumbent, therefore, for the reasons already stated hereinabove the appointment being de-hors the statutory provisions, no direction for payment of salary from the State-Exchequer can be issued.
In Writ Petition No. 6529(SS) of 2015, the petitioner herein claims to have been appointed by the Managing Committee against a substantive vacancy which occurred on 01.07.2014 due to retirement of the then incumbent, therefore, for the reasons already stated hereinabove the appointment being de-hors the statutory provisions, no direction for payment of salary from the State-Exchequer can be issued.
In Writ Petition No. 6612(SS) of 2015, the petitioner herein claims to have been appointed by the Managing Committee against a substantive vacancy which occurred on 01.07.2011 due to retirement of the then incumbent, therefore, for the reasons already stated hereinabove the appointment being de-hors the statutory provisions, no direction for payment of salary from the State-Exchequer can be issued.
In Writ Petition No. 6613(SS) of 2015, the petitioner herein claims to have been appointed by the Managing Committee against a substantive vacancy which occurred on 01.07.2012 due to retirement of the then incumbent, therefore, for the reasons already stated hereinabove the appointment being de-hors the statutory provisions, no direction for payment of salary from the State-Exchequer can be issued.
In Writ Petition No. 6177(SS) of 2015, the petitioner herein claims to have been appointed by the Managing Committee against a substantive vacancy which occurred on 30.06.2011 due to retirement of the then incumbent, therefore, for the reasons already stated hereinabove the appointment being de-hors the statutory provisions, no direction for payment of salary from the State-Exchequer can be issued.
In Writ Petition No. 6193(SS) of 2015, the petitioner herein claims to have been appointed by the Managing Committee against a substantive vacancy which occurred on 30.06.2011 due to retirement of the then incumbent, therefore, for the reasons already stated hereinabove the appointment being de-hors the statutory provisions, no direction for payment of salary from the State-Exchequer can be issued.
In Writ Petition No. 6558(SS) of 2015, the petitioner herein claims to have been appointed by the Managing Committee against a substantive vacancy which occurred on 01.07.2004 due to retirement of the then incumbent, therefore, for the reasons already stated hereinabove the appointment being de-hors the statutory provisions, no direction for payment of salary from the State-Exchequer can be issued.
In Writ Petition No. 7034(SS) of 2015, the petitioner herein claims to have been appointed by the Managing Committee against a substantive vacancy which occurred on 01.07.2013 due to retirement of the then incumbent, therefore, for the reasons already stated hereinabove the appointment being de-hors the statutory provisions, no direction for payment of salary from the State-Exchequer can be issued.
In Writ Petition No. 7076(SS) of 2015, the petitioner herein claims to have been appointed by the Managing Committee against a substantive vacancy which occurred on 30.06.2015 due to retirement of the then incumbent, therefore, for the reasons already stated hereinabove the appointment being de-hors the statutory provisions, no direction for payment of salary from the State-Exchequer can be issued.
In Writ Petition No. 7094(SS) of 2015, the petitioner herein claims to have been appointed by the Managing Committee against a substantive vacancy which occurred on 01.07.2012 due to retirement of the then incumbent, therefore, for the reasons already stated hereinabove the appointment being de-hors the statutory provisions, no direction for payment of salary from the State-Exchequer can be issued.
In Writ Petition No. 7177(SS) of 2015, the petitioner herein claims to have been appointed by the Managing Committee against a substantive vacancy which occurred on 01.07.2014 due to retirement of the then incumbent, therefore, for the reasons already stated hereinabove the appointment being de-hors the statutory provisions, no direction for payment of salary from the State-Exchequer can be issued.
In Writ Petition No. 7214(SS) of 2015, the petitioner herein claims to have been appointed by the Managing Committee against a substantive vacancy which occurred on 02.01.2013 due to retirement of the then incumbent, therefore, for the reasons already stated hereinabove the appointment being de-hors the statutory provisions, no direction for payment of salary from the State-Exchequer can be issued.
In Writ Petition No. 5950(SS) of 2015, the petitioner herein claims to have been appointed by the Managing Committee against a substantive vacancy which occurred on 30.06.2011 due to retirement of the then incumbent, therefore, for the reasons already stated hereinabove the appointment being de-hors the statutory provisions, no direction for payment of salary from the State-Exchequer can be issued.
For the reasons already stated in the earlier part of the judgment, the appointment of all these petitioners of the aforesaid writ petitions being de-hors the statutory provisions and the law laid down by the Full Bench of this Court at Allahabad in Santosh Kumar Singh (supra) and the Division Bench of this Court in Abhishek Tripathi (supra) as also the recent judgment of this Court dated 08.02.2016 passed in Writ Petition 6978(SS) of 2015 referred hereinabove, no direction for payment of salary to the petitioners from the State-Exchequer can be granted.
These writ petitions are accordingly, dismissed. There shall be no orders as to costs.
Writ Petition No. 5423(SS) of 2015 is ordered to be delinked and listed separately in the next cause list.