JUDGMENT Ashok Bhushan, J.
1. Heard Shri Vikash Budhwar, learned Counsel for the petitioners and Shri Pradeep Verma appearing for the respondent.
2. By this writ petition, the petitioners have prayed for quashing the order dated 22/23.1.2004 passed by District Inspector of Schools rejecting the claim of the petitioner for approval as Ad hoc Assistant Teacher in LT Grade in a recognised institution. Brief facts necessary for deciding the writ petition are; the Colonelganj Inter College, Allahabad is a recognised Institution under the provisions of UP Intermediate Education Act 1921. The Institution is also receiving the grant in aid and is governed by the provisions of U.P Secondary Education Service Selection Board Act, 1982.
3. There were two substantive vacancies in LT grade. One vacancy was caused due to retirement of D.S. Upadhyaya retired on 30.6.1988. Another vacancy of Assistant Teacher (Commerce) came into existence due to retirement of Shri R.K. Pandey which retirement took place in the year 1980. The Committee of Management made ad hoc appointment of the petitioners as L.T grade teacher. Petitioners claimed to have been issued an appointment letter on 29.3.1993 as Assistant Teacher L.T grade. The information of the selection was sent to the District Inspector of Schools. The petitioners were also represented to the District Inspector of Schools for payment of salary in pursuance of a direction passed by this Court. The representation of the petitioners were rejected vide order dated 28.11.1998. A writ petition was filed by the petitioner challenging the said order of District Inspector of Schools. This Court vide its order dated 13.8.2002 allowed the writ petition and took the view that amendment made in Section 18 by U.P Act 1993 were never enforced i.e. Section 18 of U.P Act was not omitted at the relevant time. Hence, the order of District Inspector of Schools was quashed and the District Inspector of Schools was directed to consider the matter afresh. Consequent to direction of this Court dated 13.8.2002 District Inspector of Schools has considered again the claim of the petitioner and rejected. The District Inspector of Schools apart from other reason rejected the representation on the ground that in accordance with Section 18 of U.P Act 5 of 1982 as amended on 14.7.1992 the ad hoc appointment on substantive vacancy is. to be made by a selection committee as referred to Section 18(9). The District Inspector of Schools held that the appointment of the petitioners were not made in accordance with Section 18. It was further held that advertisement was published only in one newspaper. Reference of Chapter II Regulation 20 of the U.P Intermediate Education Act was also made. It was further held that according to financial survey only 28 posts are said to be created where as College is claiming 31 posts. The order of District Inspector of Schools has been challenged by the petitioner in this writ petition.
4. The learned Counsel for the petitioners challenging the order contended that vacancy on which petitioners were given ad hoc appointment arose before 30.6.1988 and hence ad hoc appointment on those vacancy shall be made in accordance with the earlier rules and provisions of Section 18 as amended on 14.7.1992 are not applicable.
5. The learned Counsel for the petitioner has also placed reliance on a judgement of the Apex Court B.L. Gupta and Anr. v. M.C.D.
6. I have considered the submission of the parties and perused the record.
7. There is no dispute that ad hoc appointment of the petitioners as Assistant Teacher in LT grade are being claimed on the vacancy which arose on 30.6.1988 and 30.6.1980 due to retirement of D.S. Upadhyaya and due to promotion of R.K. Pandey. The ad hoc appointment of the petitioners' as LT grade teacher is claimed to be made on 29.3.1993. The advertisement is said to be published on 8.2.1993 by the Manager of Committee of Management, copy of which has been filed as annexure-3 to the writ petition. The petitioners claimed to have applied. The Committee of Management vide its resolution dated 28.3.1993 resolved to give ad hoc appointment to the petitioners. The provision of Section 18 of U.P Act 5 of 1982 as amended on 14.7.1982 and as existing at the relevant time was as follows:
18. Ad hoc teachers - (1) Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and the post of such teacher has 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 (9).
(3)...
(4)...
(5)...
(6)...
(7)...
(8) 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(7), 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 Headmasters in such manner as may be prescribed.
(9)(a) For each district, there shall be a Selection Committee for selection of candidates for ad hoc appointment by direct recruitment comprising
(i) District Inspector of Schools, who shall be the Chairman;
(ii) Basic Shiksha Adhikari
(iii) District Inspectress of Girls' Schools, and where there if no such Inspectress, the Principal of the Government Girls' Intermediate College and where there are more than one such college, the seniormost Principal of such Colleges and where there is no such College, the Principal of the Government Girls' Intermediate College as nominated by the State Government.
(b) The Selection Committee constituted under Clause(a) shall make selection of the candidate, 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.
8. A Full Bench judgement of this Court reported in (1994) 3 UPLBEC 1551 Radha Raizada and Ors. v. Committee of Management and Ors. has considered the procedure of ad hoc appointment of teachers in recognised aided institution under the U.P Secondary Education Service Selection Board Act 1982. In paragraph-47 of the judgement, the Full Bench noticed the procedure of ad hoc appointment between 14.7.1992 to 6.8.1993.
9. In the present case, the ad hoc appointment is claimed by the petitioner between the aforesaid period. - After noticing the amendments made in Section 18 by U.P Act No. 24 of 1992, the Full Bench laid down following in paragraph-47:
The only change that has been brought by the new Section 18 is in respect of method of ad hoc appointment by direct recruitment. Under Sub-section (8) of Section 18 the District Inspector of Schools on receipt of intimation of vacancy or as the case may be after determining the vacancy in Sub-section (7) is required to invite application from the person possessing qualification prescribed in the Intermediate Education Act or the regulations framed thereunder ad hoc appointment to the post of teacher. Under sub- section (9) of Section 18 a Selection Committee is to be constituted for selection of candidate for ad hoc appointment by direct recruitment comprising of District Inspector of Schools as Chairman, Basic Shiksha Adhikari and District Inspectress of Girls Schools. The Selection Committee so constituted is further required to make selection of the candidate and prepare a list of selected candidate and allocate them to the institution and recommend their name to the management for appointment. This is in brief the procedure which is required to be undergone where the ad hoc appointment is to be made by the direct recruitment. If the ad hoc appointment by direct recruitment is made under Sub-section (9) of Section 18, no further approval of the District Inspector of Schools for such appointment is required.
10. The ad hoc appointment on substantive vacancy after 14.7.1992 was contemplated to be made by a selection committee under Section 18 sub Section 9 headed by Educational Authorities themselves. After 14.7.1992 the Committee of Management was no longer had any jurisdiction to make ad hoc appointment on substantive vacancies.
11. The appointment of petitioners are claimed to be made under Section 18 of U.P Act 5 of 1982 and earlier writ petition of the petitioner was allowed on 13.8.2002 on the ground that Section 18 as existing on the relevant date was not looked into by the District Inspector of Schools while rejecting the representation of the petitioner.
12. The vacancy on which petitioners were appointed being substantive vacancy, the management was denuded of its jurisdiction to make any ad hoc appointment on the said post. The ad hoc appointment of the petitioner in contravention of provisions of Section 18 is clearly void and does not give any right to the petitioner to claim payment of salary from the State. No error has been committed by District Inspector of Schools in rejecting the representation of the petitioner claiming approval and payment salary.
13. The judgement relied by counsel for the petitioner in B.L. Gupta's case (supra) was a case relating to promotion. Recruitment Rules of the 1978 dealt with question of promotion to the various post. In the aforesaid case, the Court took the view that the vacancy which occurred prior to 1995 were to be filled up according to the recruitment rules 1978. The Apex Court was considering the claim of promotion. The right of existing incumbent for promotion is based on different footing than right of a person claiming ad hoc appointment against an existing vacancy. There is no right in the person claiming ad hoc appointment to claim that the post be filled up in any particular manner. Admittedly, advertisement for the post in question was claimed by the Management on 8.2.1993 i.e. after 14.7.1992 when Section 18 of UP Act 5 of 1982 was amended. The case relied by counsel for the petitioner has no application in the facts of the present case and does not help the petitioner in any manner.
14. In event the Management has taken work from the petitioner, it is always open for the petitioner to claim their salary from the Management.
15. In view of the foregoing discussion, no grounds have been made out for quashing the order dated 22/23.1.2004 nor petitioners have made out any case for issue of mandamus for payment of their salary by the State.
16. The writ petition lacks merit and is dismissed.