JUDGMENT Ashok Bhushan, J.
1. Heard Sri H.N. Pandey, learned Counsel for the petitioner and learned standing counsel.
2. By this writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 5th October, 2001 passed by District Inspector of Schools, Allahabad refusing to approve the ad hoc appointment of the petitioner as Assistant Teacher L.T. Grade on the leave vacancy of one Mohd. Arif in Indira Gandhi Intermediate College, Jamha, Mau-Aima, District Allahabad (hereinafter referred to as the College),
3. The case of the petitioner in the writ petition is that one Mohd. Arif, who was working as L.T. Grade teacher in the College, was selected as Principal in Vijay Laxmi Pandit Intermediate College, Phulpur, Allahabad, consequently he was granted leave with effect from 23rd November, 1998 from the College, On account of grant of leave to Mohd. Arif a short term vacancy (leave vacancy) arose in the College on which short term vacancy the petitioner applied, selected and was appointed by the Committee of Management on 25th February, 1999. Petitioner's case further is that petitioner submitted a representation for payment of salary and filed Writ Petition No. 1377 of 2001 Daya Shankar Mishra v. The District Inspector of Schools, Allahabad and Ors. which was disposed of on 15th January, 2001 by this Court permitting the petitioner to make a representation to the District Inspector of Schools, who was directed to decide the same in accordance with law. In pursuance of the order of this Court the District Inspector of Schools rejected the claim of the petitioner on the post of Assistant Teacher L.T. Grade. The District Inspector of Schools took the view that the power to make ad hoc appointment on short term vacancy was there under the U.P. Secondary Education Services Commission (Removal of Difficulties (Second) Order, 1981, which order was rescinded on 25.1.1999, hence after 25.1.1999 the Committee of Management has no jurisdiction to make ad hoc appointment on short term vacancy and thus the appointment of the petitioner being without jurisdiction cannot be approved.
4. Sri H.N. Pandey, learned Counsel for the petitioner, challenging the order, contended that despite rescission of the U.P. Secondary Education Services Commission (Removal of Difficulties (Second) Order, 1981 with effect from 25.1.1999, the Committee of Management has power to make ad hoc appointment on short term vacancy in accordance with the provisions of Chapter- II, Regulation-9 of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as the 1921 Act). He submits that there is no provision in the U.P. Secondary Education (Services Selection Board) Act, 1982 (hereinafter referred to as the 1982 Act) with regard to ad hoc appointment on short term vacancy, hence there being no conflicting provision in U.P. Act No. 5 of 1982, the aforesaid provisions of the 1921 Act shall apply by virtue of Section 32 of the 1982 Act. Sri Pandey placed reliance on a judgment of learned single Judge of this Court reported in (2004)3 UPLBEC 2671 Rakesh Chandra Mishra v. State of U.P. and Ors..
5. Learned standing counsel supporting the order of District Inspector of Schools has submitted that the Committee of Management has no jurisdiction to make ad hoc appointment after 25th January, 1999.
6. I have considered the submissions of both the parties and perused the record.
7. The question which has arisen in the writ petition is that as to whether the Committee of Management is empowered to make ad hoc appointment on short term vacancy after 25.1.1999, i.e., after rescission of U.P. Secondary Education Services Commission (Removal of Difficulties (Second) Order, 1981 from which date Section 33E of the 1982 Act has been enforced.
8. Before proceeding to consider the question raised in the writ petition, it is necessary to note the relevant provisions of 1921 Act and 1982 Act. The selection and appointment of teachers was being governed by the provisions of the 1921 Act and apart from the provisions of selection on regular substantive basis, Chapter- II, Regulation 9 provided for filling of short term vacancy by the Committee of Management. Chapter- II, Regulation- 9 of the 1921 Act is quoted below:
9.(1) Where a vacancy in the post of teacher is caused by grant of leave to him for a period exceeding six months or where a teacher is placed under suspension which has been approved in writing by the Inspector under Sub-section (7) of Section 16G and the period of such suspension is likely to exceed six months from the date of such approval [the vacancy may, subject to the provisions of these Regulations be filled temporarily by direct recruitment or promotion, as the case may be.] (2) Where any vacancy is of the nature referred to in Clause (1) or is caused as a result of promotion under Regulation 2 and the period of such vacancy exceeds thirty days but does not exceed six months, it may be filled by the Committee of Management by promotion of a duly qualified permanent teacher of the institution in the next lower grade on the basis of seniority.
(3) If any vacancy under Clause (2) cannot be filled due to the non availability of any teacher of the institution in the next lower grade, possessing the prescribed minimum qualifications for the post, it may be filled on ad hoc basis by the Committee of Management by the direct appointment for a period not exceeding six months in aggregate.
(4) All vacancies filled under Clause (2) or Clause (3) shall be reported to the Inspector in the proforma prescribed in Appendix 'B' within a week of being filled up.
9. Another provision of the 1921 Act relied by the petitioner is Section 16-E(11), which is quoted below:
'16-E(11). Notwithstanding anything contained in the foregoing sub-sections, appointments in the case of a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or [by death, termination or otherwise] of an incumbent occurring during an educational sessions, may be made by direct recruitment or promotion without reference to the Selection Committee in such manner and subject to such conditions as may be prescribed:
Provided that no appointment made under this sub-section shall, in any case, continue beyond the end of the educational session during which such appointment was made.]'
10. The 1982 Act has been enacted to establish a Secondary Education Service Selection Board for the selection of teachers in the institutions. The relevant provisions of the 1982 Act, as applicable in the present case, i.e., on the date of alleged appointment of the petitioner (25.2.1999) are to be noted.
11. Several amendments were made in 1982 Act including the amendments brought by UP. Act No. 25 of 1998 with effect from 20th April, 1998. Section 16 of the Act, as amended by U.P. Act No. 25 of 1998, is as follows:
16. Appointment to be made only on the recommendation of the Board.-(1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the regulations made thereunder but [subject to the provisions of [Sections 12, 18, 21-B, 21-C, 21-D, 33, 33-A, 33-B, 33-C and 33-D, every appointment of a teacher, shall on or after the date of the commencement of the Uttar Pradesh Secondary Education Services Commission (Amendment) Act, 1998 be made by the Management only on the recommendation of the Board:] Provided that in respect of retrenched employees, the provisions of Section 16- EE of the Intermediate Education Act, 1921, shall mutatis mutandis apply.
Provided further that the appointment of a teacher by transfer from one Institution to another, may be made in accordance with the regulations made under Clause (c) of Sub-section (2) of Section 16-G of the Intermediate Education Act, 1921.
(2) Any appointment made in contravention of the provisions of Sub-section (1) shall be void.
[Provided also that the dependent, of a teacher or other employee of an Institution dying in harness, who possesses the qualifications prescribed under the Intermediate Education Act, 1921 may be appointed as teacher in Trained Graduate's Grade in accordance with the regulations made under Sub-section (4) of Section 9 of the said Act.]
12. Section 18 of the 1982 Act, as existing on the relevant date, is as follows:
[18. Ad hoc Teachers.-(1) Where the Management has notified a vacancy to the [Board] 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.
(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 grained 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 Joint Director of Education;
(ii) Regional Deputy Director of Education (Secondary);
(iii) Regional Assistant Director of Education (Basic).
The Regional Joint Director of Education shall be the Chairman.
(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 (Board) joins the posts.
(10) The provisions of Section 21-D shall mutatis mutandis apply to the teachers who are to be appointed under the provisions of this section.
13. Section 32 of U.P. Act No. 5 of 1982 provides that provisions of the 1921 Act and Regulations made thereunder in so far as they are not inconsistent with the provisions of this Act shall continue to be in force for the purposes of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher. Section 33 empowered the State Government to remove difficulties by a notified order. Section 33-A to 33-C contain provisions for regularisation of various ad hoc appointments. Section 33-E provides for rescission of various difficulties order including UP. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 with effect from 25.1.1999.
14. After the enforcement of U.P. Act No. 5 of 1982 the power to make ad hoc appointment on short term vacancy was given to the Committee of Management by virtue of U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981. There is no dispute that Committee of Management of various recognised institutions have been making appointments in accordance with the U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 on short term vacancies. It is relevant to note that after enforcement of U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 for appointment on short term vacancies the provisions of U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 were resorted to and the said appointments were not made exercising the power under Chapter-II Regulation 9 or under Section 16-E(11) of 1921 Act. The question to be answered is as to what is the consequence of rescission of U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 with effect from 25.1.1999 and as to whether despite rescission of U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 the Management can resort to its power under Chapter-II, Regulation 9 and Section 16-E(11) for making temporary/ad hoc appointment on short term vacancies.
15. The learned Single Judge in Rakesh Chandra Misra's case (supra) has held that during the period when removal of difficulties order were in force or when the provisions of Section 18 of 1982 Act were in force, the appointment against short term vacancies and the ad hoc appointments could have been made only in the manner prescribed for making ad hoc/short term appointments and the provisions of Regulation 9 of Chapter II of 1921 Act could not have been used for making such appointment during the aforesaid period. However, the learned Single Judge further held that there being no inconsistent provision in 1982 Act after 25.1,1999 to one contained in Chapter-II, Regulation 9 and Section 16-E(11), the provisions of Chapter-II, Regulation 9 and Section 16-E(11) shall continue to hold the field by virtue of Section 32 of 1982 Act. Paragraphs 71, 72, 75 and 79 of the said judgment are extracted below:
71. An understanding of the provisions of (Removal of Difficulties) Orders, UP. Act No. 5 of 1982 as amended from time to time and the Regulation 9 of Chapter II of the Act 1921 makes it clear that during the period when either the (Removal of Difficulties) Orders issued under the provisions of Selection Board Act, were in force or when the provisions of Section 18 of the said Act were in force, the appointment against short- term vacancies and the adhoc appointments could have been made only in the manner prescribed for making adhoc/short- term appointments. The provisions of Regulation 9 of Chapter II of the Act, 1921 could not have been used for making such appointment during the aforesaid period but during all such period when there existed no such provision either under the (Removal of Difficulties) Orders aforesaid or Selection Board Act No. 5 of 1982 as amended from time to time, the Committee of Management could have made the appointments or could make the appointments strictly in accordance with the provisions of Regulation 9(1) and (2).
72. Likewise at all times when there existed no such power to make appointment on temporary vacancy caused because of death, termination or otherwise during mid of the academic sessions the recourse could be taken to the provisions of Section 16-E(11) of U.P. Intermediate Education Act, 1921 for making such appointment which could lost till the end of such academic session in which such appointment was made, but this provision can be given a purposeful meaning, by keeping the appointment intact till a regularly selected candidate is made available.
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75. After the Amendment Act, 2001 the power to make adhoc appointment has been completely taken away, even from the hands of the Educational Authorities and the power of the Committee of Management to make appointment was already taken away by virtue of U.P. Act No. 24 of 1992 by conferring the power upon the Selection Committee constituted under the provisions of amended Section 18. This power has also been taken away by the aforesaid Amendment of the year 2001. Thus after the Amending Act, 2001 came into force with effect from 30th December, 2000 there remains no power either with the Committee of Management or with the Educational Authorities or the Selection Committee constituted under the Act for making such appointment under the provisions of the Selection Board Act, 1982. The power to make adhoc appointment under various (Removal of Difficulties) Orders has already ceased by insertion of Section 33-E of the Act by means of Amending Act of 1999 which came into force on 25.1.1999.
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79. While concluding I hold that in the circumstances detailed in the judgment all the appointments made by the Committee of Management, on the vacancy, if the vacancy is/was in the nature of vacancy as specified in Regulations 9(1) and 9(2) of the U.P. Act of 1921 has been filled during the period when either U.P. Act of 1921 was in force or when neither the (Removal of Difficulties) Orders issued under U.P. Act No. 5 of 1982 were available nor there was a provision under the Selection Board Act or the Rules framed there under to make such appointment the Committee of Management would have the power to make such appointment on short- term vacancy in accordance with the Regulation 9, which appointment would be in the nature of adhoc appointments as given under the said provisions.
16. The basis of the judgment of learned Single Judge in Rakesh Chandra Misra's case (supra) is that there being no inconsistent provision under U.P. Act No. 5 of 1982 to the provisions of Chapter- II, Regulation 9 and Section 16-E(11), the said provision shall continue to apply by virtue of Section 32 of the U.P. Act No. 5 of 1982. After rescission of difficulties orders, there is no provision under the U.P. Act No. 5 of 1982 to make ad hoc/temporary appointment on short term vacancy by the Committee of Management. Section 18 of 1982 Act which provides for ad hoc appointment still survives and at the relevant time, i.e., 15.1.1999 ad hoc appointment could have been made in accordance with the procedure as prescribed under Section 18 of 1982 Act. The appointment under Section 18 of 1982 Act can be made only when vacancy has been intimated to the Board in accordance with the provisions of 1982 Act and rules framed thereunder. The most crucial provision under U.P. Act No. 5 of 1982 is Section 16, as quoted above. Section 16 contains an injunction under Section 16(1) that notwithstanding to the contrary contained in 1921 Act or the regulations made thereunder but subject to provisions of Section 12, 18, 21 - B, 21 - C, 21 - D, 33, 33- A, 33- B, 33- C and 33-D, every appointment of a teacher, shall on or after the date of the commencement of the Uttar Pradesh Secondary Education Services Commission (Amendment) Act, 1998 be made by the Management only on the recommendation of the Board. Section 16(1) uses the words "every appointment of a teacher". The embargo put by Section 16 is on "every appointment of a teacher". Whether the words "every appointment" contemplated under Section 16(1) means only substantive appointment alone or also prohibit temporary/ad hoc appointment, is a question to be answered. In the event it is held that words "every appointment" only mean substantive appointment then the embargo under Section 16(1) shall not apply to ad hoc/temporary appointment and the provisions of Chapter- II, Regulation 9 and Section 16-E(11) shall have free play. However, in case interpretation to words "every appointment" is given as every kind of appointment including ad hoc/temporary then this provision shall hit temporary appointment contemplated under Section 16-E(11) and Chapter-II, Regulation 9. Looking to the scheme of U.P. Act No. 5 of 1982 am of the opinion that words "every appointment" used in Section 16(1) cannot be given a restricted meaning. The words used are "every appointment of a teacher". The words "every appointment of a teacher" are comprehensive words which include every appointment including substantive/ad hoc appointment. Further the scheme of Section 16(1) itself indicates that words "every appointment" were never meant every substantive appointment or every appointment on substantive vacancy alone, which is clear from the scheme of the section itself. Section 16(1) itself contains exceptions to the embargo put by it and two exceptions contained are Section 18 and Section 33. Section 18 refers to ad hoc appointment and Section 33 refers to removal of difficulties order to which the State Government is empowered. Two kind of the appointments which have been taken out from the embargo of Section 16(1) are ad hoc appointment under Section 18 and appointment under the removal of difficulties order issued under Section 33. The appointments under the removal of difficulties order, as noted above, were both on substantive and on short term vacancy. Had the embargo under Section 16(1) was to operate only with regard to substantive appointment by the Board or appointment on substantive vacancy alone, there was no occasion to mention Section 18 and Section 33 in Section 16(1). The judgment of the learned Single Judge in Rakesh Chandra Mishra's case (supra) is a well considered judgment and has noted all the relevant provisions of U.P. Act No. 5 of 1982 and 1921 Act but His Lordship's attention was not drawn to the embargo which has been put by Section 16(1), i.e., "every appointment of a teacher".
17. The submission of petitioner's counsel that in the event it is accepted that there is no power with the Committee of Management to make appointment on short term vacancy, the interest of the institution shall suffer also has to be looked into. U.P. Act No. 5 of 1982 take into consideration every type of appointment, i.e., appointment on short term vacancy, substantive appointment by the Board on posts to be filled up by direct recruitment and the post to be filled up by promotion by the Regional Level Selection Committee as contemplated under Section 12. From Section 16 it is also clear that with regard to certain appointments, e.g., appointment of retrenched employees, appointment of teacher by transfer and appointment of dependent of deceased employee dying in harness the provisions of 1921 Act has been specifically made applicable. Although Section 32 of 1982 Act in general terms provides that provisions of 1921 Act and regulations made thereunder in so far as they are not inconsistent with the provisions of 1982 Act shall continue to be in force but express words used in Section 16(1) of 1982 Act putting embargo on every appointment of a teacher indicate that every kind of appointment of teacher is restrained except in accordance with the scheme as mention in Section 16. Section 16 and Section 32 both have to be given harmonious construction to give effect to the scheme of 1982 Act.
18. The learned Single Judge in Rakesh Chandra Misra's case (supra) has rightly observed in paragraph 91 that the Court has no reason to believe that the State Government is oblivious of the aforesaid almost anomic situation prevailing in the educational institutions and the Government must consider that it is high time when appropriate measures should be taken and necessary provisions be made for meeting the exigency of filling up the vacancy, which can neither be termed as unforeseen vacancies and also the vacancies, which are likely to occur in near future. Paragraphs 91 of the said judgment is quoted below:
91. The significance and the importance of the education is to be, the first preference of the State and this Court has no reason to believe that the State Government is oblivious of the aforesaid almost anomic situation prevailing in the educational institutions and, therefore, the Government must consider that it is high time when appropriate measures should be taken and necessary provisions be made for meeting the exigency of filling up the vacancy which can either be termed as unforeseen vacancies and also the vacancies, which are likely to occur in near future, including regular substantive vacancies by providing a mechanism for making adhoc appointments against such vacancies either by direct recruitment or by promotion till a duly selected candidate is made available by the Board. Effective steps be also taken for making regular appointments through the agency of the Board within the minimum possible time so that the education does not suffer and even the bonafide and sincere students do not start losing interest in attending the colleges. Making a provision for meeting the aforesaid existing void in the matter of appointment against short- term vacancies as also against the substantive vacancies would not only save the educational atmosphere in the institution but would also be a prudent Management of the system of education in the State.
19. It is well settled that when the statutes are clear, the Court by putting interpretation cannot add or subtract any words or alter the scheme of the Act. It is for the Legislature and the State Government to come forward and take appropriate steps for redeeming the situation. The attention of the learned Single Judge was not drawn towards the embargo contained in Section 16(1) of 1982 Act, i.e., the words "every appointment of a teacher", which as observed above, can include both substantive and short term appointment. I am of the opinion that following questions raised in this writ petition require to be referred to a Larger Bench for authoritative pronouncement:
(i) Whether after rescission of U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 with effect from 25.1.1999, the Committee of Management can make temporary/ad hoc appointment on short term vacancies resorting to its power given under Chapter-II, Regulation 9 and Section 16-E(11) of the U.P. Intermediate Education Act, 1921 despite the provisions of Section 16(1) of the U.P. Secondary Education (Services Selection Boards) Act, 1982?
(ii) Whether the judgment of learned Single Judge in Rakesh Chandra Misra v. State of U.P. and Ors. (2004)3 UPLBEC 2671, lays down correct law.
20. Let the papers be placed before the Hon'ble the Chief Justice for constituting a Larger Bench.