1. This writ petition has been filed, praying for issuance of a writ of mandamus, directing and commanding the respondents to take work from petitioner and to pay salary, to which petitioner is entitled as per law.
2. From the materials brought on record, it transpires that Arya Kanya Inter College, Moradabad, is a recognized institution under provisions of U.P. Intermediate Education Act, 1921, upon which provisions of Payment of Salaries Act, 1971 are applicable. A vacancy is said to have been caused on the post of Lecturer in Hindi, on account of retirement of one Smt. Mithlesh Kumari Saxena on 30th June, 1993. It seems that vacancy was notified to the Commission, but no recommendation for appointment was made. Committee of Management, consequently, proceeded to advertise the post, and ad hoc appointment was granted to the petitioner, pursuant to selection proceedings undertaken for ad hoc appointment. Petitioner claims that though she was allowed to work, but she was not given salary. It is claimed that District Inspector of Schools had called for certain comments from the Committee of Management, but petitioner was neither allowed to work, nor paid salary. It is further claimed that Regional Deputy Director of Education, Moradabad, by an order passed on 15.7.1996, approved ad hoc appointment of petitioner, but despite such order, petitioner was neither permitted to work, nor was paid salary, as a result whereof, petitioner was compelled to approach this Court by filing the present writ petition. An interim order was issued in favour of the petitioner on 17.11.1997 directing the petitioner to continue and to be paid salary.
3. A counter affidavit has been filed, in which it is stated that appointment of petitioner has been made against a substantive vacancy by the Committee of Management. It is submitted that Committee of Management had no right to make ad hoc appointment against a substantive vacancy under Section 18 of the U.P. Secondary Education Services Commission and Selection Boards Act, 1982, inasmuch as procedure for making of such appointment had been prescribed in the First Removal of Difficulties Order, 1981, but such procedure has not been followed.
4. The matter was heard on 8th March, 2016, and following observations were made:-
"Learned Standing Counsel points out that as the vacancy against which petitioner was appointed was a substantive vacancy the Committee of Management had no jurisdiction to appoint the petitioner on adhoc basis.
Learned counsel for the petitioner seeks an opportunity to respond.
List in the next cause list.
It is made clear that no request for adjournment would be entertained on the next date."
5. Learned counsel for the petitioner contends that in view of the law laid down by this Court in Suresh Chandra Vs. District Inspector of Schools, Saharanpur and others, reported in 1991 (2) UPLBEC 1097, an ad hoc appointment could be made by the Committee of Management against a substantive vacancy on ad hoc basis. Relinace has also been placed upon the Full Bench judgment of this Court in Radha Raizada and others Vs. Committee of Management, Vidyawati Darbari Girls Inter College and others, reported in 1994 (3) UPLBEC 1551.
6. I have heard Sri A.K. Gupta, learned counsel for the petitioner, and learned Standing Counsel for the respondents, and have perused the records.
7. The question as to whether Committee of Management could resort to exercise of jurisdiction under Section 18 of the U.P. Act No.4 of 1982, after amendment introduced vide U.P. Act No.1 of 1993 w.e.f. 7.8.1993, has been specifically dealt with in Full Bench judgment of this Court in Radha Raizada (supra). After Section 16 of the Act stood amended by Section 11 of the U.P. Act No.1 of 1993, it was no longer open for the Committee of Management to make any ad hoc appointment under Section 18 of the Act. An ad hoc appointment could thus be made only in accordance with the First Removal of Difficulties Order. Para-5 of the First Removal of Difficulties Order provides for the procedure to be followed for making ad hoc appointment against a substantive vacancy. The procedure contemplated in Para-5 admittedly has not been followed before appointing the petitioner. The alleged order of approval by the Deputy Director of Education is not shown to have been passed in accordance with the provisions of law applicable. In para-5 of the counter affidavit, it has been stated that no records relating to the alleged approval order dated 15.7.1996 are available on record, and the same appears to be doubtful.
8. This Court finds that considering the settled position of law, no ad hoc appointment against a substantive vacancy could otherwise have been made by the Committee of Management. In Prabhat Kumar Sharma and others Vs. State of U.P. and others, reported in 1996 (10) SCC 62, the provisions relating to ad hoc appointment against substantive vacancy has been examined by the Apex Court, in the context of judgment delivered by Full Bench of this Court in Radha Raizada (supra). Paragraphs 5, 6, 7 and 10 of the judgment are reproduced:-
"5. Section 33 of the Act empowers the State Government to issue by a notification order for removal of difficulties in implementation of, and to give effect to the Act by way of modifications addition or omission, as it may be deemed necessary or expedient In exercise of this power, the First 1981 Order came to be made. Para 5 of the First 1581 Order which is relevant for our purpose reads as under:
"5 - Ad hoc appointment by direct recruitment.- (i) Where any vacancy cannot to filled by promotion under paragraph 4, the same may be filled by direct recruitment in accordance with clauses (2) to (5).
(ii) 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 advertisements in at least two newspapers.
(iii) 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 envelop bearing postal stamp for purposes of registration.
(iv) The Distt. Inspector of Schools shall cause the best candidates selected on the basis of quality points specified in Appendix. The complication of quality points may be done on remunerative basis by retired Gazetted Government servants under the personal supervision of such Inspector.
(v) If more than one teacher or the same subject or category is to be recruited for more than one institution, the names cf 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 institution, This process shall be repeated till both the lists are exhausted."
6. We are not concerned in this case with the Second Removal of Difficulties Order 1981 which deal with filling up of short-term vacancies of ad hoc teachers. It is, therefore, not necessary to deal with the procedure prescribed in that behalf. The Full Bench as elaborately considered the legislative history. In paragraphs 23 and 27 it had dealt with the amendments to the U.P. Intermediate Education Act, 1921 and various provisions of Ordinance 8 of 1981. The object was to provide teachers selected through the Commission or the Board with a view to raise the standard of education and in the event of there being delay in allotting the selected teachers, with view to allow the institution to appoint teachers on ad hoc basis so as to avoid hardship to the students. Procedure and Section 18 was provided for appointment of such teachers in the institutions purely on ad hoc basis in accordance with the procedure prescribed thereunder. The method of recruitment and appointment of such teachers is regulated in para 5 of the First 1981 Order The appointment, therefore, should be made in accordance with the said procedure. In paragraph 41 of the judgment, it has expressly dealt with a appointment as under:
"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 issue three Removal of Difficulties Order dated 30.1.82 and Removal of Difficulties Order 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 teachers. This power to appoint ad hoc teachers by direct recruitment thus, it available only when pre-conditions mentioned in Section 187 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 defined vacancy. However, the vacancy has been defined 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 prevention 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 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 the 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 applications 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 complication 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 1 of Chapter II of the Regulations 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 paragraph 18 of the Act are present and only in the manner provided in paragraph 5 of the Removal of Difficulties Order.
.......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. 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 appointments 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 harmonised. 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 First 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."
(emphasis supplied)
7. It would thus be clear that any ad hoc appointment of the teachers under Section 18 shall be only transient in nature. pending allotment of the teachers selected by the Commission and recommended for appointment, Such ad hoc appointments should also be made in accordance with the procedure prescribed in para 5 of the First 1981 Order which was later streamlined in the amended Section 18 of the Act with which we are not presently concerned. Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees. The removal of difficulties envisaged under Section 33 was effective not only during the period when the Commission was not constituted but also even thereafter as is evident from second paragraph or the preamble to the First 1981 Order which reads as under:
"And whereas the establishment of the Commission and the Selection Boards as likely to take some time and even after the establishment of the said Commission and Boards, it is not possible to make selection of the teachers for the first few months."
10. These principles are unexceptionable. However, the question is whether they get attracted to the facts of this case. It is seen that when intimation was given by the college to the Commission for allotment of the teachers, the Act envisaged that within one year the recommendation would be made by the Commission for appointment; but within two months from the date of the intimation if the allotment of the selected candidates is not made to obviate the difficulty of the Management in imparting education to the students, Section 18 gives power to the Management to make ad hoc appointments. Section 16 is mandatory. Any appointment in violation thereof is void. As seen prior to the Amendment Act of 1982 the First 1981 Order envisages recruitment as per the procedure prescribed in para 5 thereof. It is an in-built procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the Management to any posts in aided institution. It is obvious that when the salary is paid by the State to the Government aided private educational institutions, public interest demands that the teachers' selection must be in accordance with the procedure prescribed under the Act read with the First 1981 Order. Therefore, the Order is a permanent one but not transient as contended for. The Full Bench of the High Court has elaborately considered the effect of the Order and for cogent and valid reasons it has held that the Order will supplement the power to select and appoint ad hoc teachers as per the procedure prescribed under Section 18 of the Act. The view taken by the Division Bench following the Full Bench decision, therefore, cannot be faulted with. Accordingly, we find no merit in special leave petition."
9. A supplementary affidavit has been filed, in which reliance has been placed upon a Division Bench judgment of this Court in Shambhoo Saran Singh and another Vs. DIOS and others, passed in Special Appeal No.345 of 2012, dated 21.2.2012. Perusal of the said order goes to show that none of the contentions raised by the parties had been adjudicated, in view of the fact that a Regional Level Committee has been constituted in different regions to consider the question of regularization. Paras-7 and 10 of the judgment is reproduced:-
"7. It is not necessary for us to decide the contentions raised by the parties. It is not disputed that a Regional Level Committee has been constituted in different regions under the chairmanship of Joint Director of Education to consider the question of regularization. The College of the appellant is under the jurisdiction of the Regional Level Committee, Gorakhpur which is under the chairmanship of Joint Director of Education (Secondary), Gorakhpur.
8. In the circumstances of the case, the appellants may file a representation before Regional Level Committee, Gorakhpur within one month. In case the representation is filed, it may be decided by Regional Level Committee, Gorakhpur by a speaking order, if possible, within three month from the date of receipt of the representation. The appellant will file a certified copy of this order, other necessary documents and a duly stamped self addressed envelope along with his representation. The Regional Level Committee, Gorakhpur after taking decision will communicate the same to the appellants.
9. The position as exists today shall continue till the Regional Level Committee, Gorakhpur passes an order on the regularization of the appellants.
10. With the aforesaid observations, the appeal is disposed of. "
10. Reliance has also been placed upon an order of this Court in Anant Kumar Gupta Vs. DIOS, Allahabad and others, in Writ Petition No.8095 of 1992, dated 11.12.1998, which also does not lay any proposition of law in support of petitioner's claim. A notification dated 22nd March, 2016 adding Section 33(g) in U.P. Act No.4 of 1982 has also been brought on record, in order to contend that appointments made under Para-2 of Second Removal of Difficulties Order could be regularized, in case the short term vacancy has been converted into a substantive vacancy. Admittedly, in the facts of the present case, petitioner's appointment has not been made against any short term vacancy, but her appointment is against a substantive vacancy, and therefore, the amendment made in U.P. Act No.4 of 1982 has no applicability, in the facts and circumstances of the present case.
11. In view of the settled position of law, this Court finds that petitioner is not entitled to any benefit, in view of the judgment delivered in Suresh Chandra (supra), particularly after amendment made vide U.P. Act No.1 of 1993. The mere fact that petitioner has continued to work and receive salary under the interim orders of this Court, would not entitle the petitioner to any relief, as the same is impermissible in law.
12. The writ petition, accordingly, fails and is dismissed. Interim order stands discharged.
Order Date :- 27.5.2016 Anil