Hon'ble Shashi Kant,J.
(Delivered by Hon'ble Rakesh Tiwari, J.)
1. Heard Sri Somesh Khare, learned counsel for the appellant, learned Standing Counsel for the respondents and perused the record.
2. This special appeal under Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952, has been preferred against the judgment and order dated 09.12.2011 passed by learned Single Judge in Civil Misc. Writ Petition No.4560 of 2003 - Gyanendra Singh Vs. Joint Director of Education, Meerut & Ors., whereby the writ petition filed by the petitioner-appellant was dismissed.
3. The relief sought by means of this special appeal is that the judgment and order dated 09.12.2011 passed by learned Single Judge be set aside and the writ petition be allowed.
4. Brief facts giving rise to aforesaid appeal are :
4.1 There is an institution namely Lala Babu Baijal Memorial Inter College, Lodhipur, District Ghaziabad, governed by the provisions of U.P. Intermediate Education Act, 1921 and the salary of the teachers and its employees are being paid under the provision of U.P. High School and Intermediate Education (Payment of Salaries to its Teaching and Non-Teaching Staff) Act, 1971.
4.2. On account of death of one Sukhbir Singh, Lecturer, a post of lecturer fell vacant and since no person was eligible to be promoted on the post of lecturer from the teachers working in the institution in C.T.Grade, the Committee of Management of the Institution passed a resolution on 17.07.1991 to fill up the aforesaid vacancy by way of direct recruitment under the provisions of Section 18 of U.P. Secondary Education Services Commission Act, 1981.
4.3 Pursuant to the aforesaid resolution, a number of candidates appeared before the selection committee duly constituted by the Committee of Management of the Institution for selecting suitable candidate for the vacant post. The petitioner-appellant was found suitable for the aforesaid post i.e. Lecturer in Sociology and therefore an appointment letter was issued on 18.07.1991 and pursuant thereto, petitioner-appellant joined the duties with effect from 26.07.1991.
4.4 After the appointment papers were sent to the District Inspector of Schools (hereinafter referred to "DIOS") for according financial approval to the appointment of the petitioner-appellant but no response was given.
4.5 When neither financial approval was accorded nor any decision was taken in this regard, the petitioner-appellant filed writ petition No.nil of 1992 (Gyanendra Singh Vs. State of U.P. & Ors.) before this court in which an order was passed on 14.07.1992 whereby DIOS was directed to make payment of salary to the petitioner-appellant upto 30.06.1992 within a month. The DIOS, Ghaziabad was further directed to take a decision on the papers for approval sent to him by the Management, within two weeks from the date of receipt of the order.
4.6 Pursuant to the order passed by this court, DIOS passed order on 29.08.1992 whereby financial approval to the appointment of the petitioner-appellant on the post of lecturer in the institution was rejected on the ground that the vacancy was not notified within a period of 90 days from the date of death and that the post comes under the quota of Schedule caste candidate.
4.7 Thereafter the petitioner-appellant moved a representation dated 30.03.1995 requesting DIOS to recall his earlier order.
4.8 When no response was received, the petitioner-appellant filed writ petition No.1680 of 1996 and this Court vide order dated 12.1.1996 directed the respondents to decide the representation of petitioner-appellant within a period of six weeks from the date of receipt of order.
4.9 A notice dated 26.3.2002 was received by the petitioner-appellant whereby DIOS asked the petitioner-appellant to show cause as to why payment of salary should not be stopped.
4.10 After receipt of notice, the petitioner-appellant submitted his reply dated 09.04.2002 mentioning therein that the post on which petitioner-appellant has appointed was a sanctioned post in the institution and therefore the proceedings initiated against him be dropped.
4.11 The DIOS passed an order on 30.12.2002 whereby financial approval according to the petitioner-appellant was set aside, whereagainst writ petition No.4560 of 2003 was filed, which was dismissed by learned Single Judge vide judgment and order dated 09.12.2011.
4.12 Hence this special appeal has been filed.
5. The petitioner-appellant has assailed the impugned judgment and order on the following grounds :
5.1 Learned Single Judge has not considered the validity of selection as well as appointment of the petitioner-appellant and has not taken care that by order impugned, order of approval granted in favour of petitioner-appellant was cancelled. He has also not considered that power which was exercised by DIOS in passing the order impugned almost after the lapse of 8 years from granting approval and almost after the lapse of 12 years from the date of initial appointment of the petitioner-appellant it is not open for him to pass order impugned since neither under the Act nor Regulation there are any power conferred to DIOS and only the Director of Education have power to deal with such dispute under Section 16-E(10) of the Act.
5.2 The claim of the petitioner-appellant has wrongly been rejected by the order impugned on the ground that procedure required under the statute has not been followed and the Court failed to consider that once the appointment was accorded by DIOS, who is competent person, any infirmity/irregularity which was committed at the time of selection the same has been merged in the order of approval; that the writ Court failed to consider that DIOS was not discharging the judicial functions as such he cannot take action suo-moto as the order impugned has been passed by him and that the petitioner-appellant is continuously working in the institution in question since the date of his joining and he has elapsed about 20 years in the institution.
6. Per contra, learned Standing Counsel, appearing for the State supported the order passed by learned Single Judge on the basis of reasoning given therein and states that the petitioner-appellant was appointed by the Management without following the procedure prescribed under paragraph 5 of U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 and therefore appointment of the petitioner-appellant is void ab initio.
7. In rebuttal, counsel for the petitioner-appellant could not show anything to persuade this Court to take a different view than what has been taken by learned Single Judge in the impugned judgment.
8. The relevant portion of the impugned judgment and order reads thus:
"I have considered the submissions advanced by learned counsel for the parties.
The procedure for making ad-hoc appointment by direct recruitment against the substantive vacancy has been provided for in the First Removal of Difficulties Order. In the present case, ad-hoc appointment has been made by direct recruitment and, therefore, paragraph 5 of the First Removal of Difficulties Order, which provides the procedure, is quoted below:-
"5. Ad hoc appointment by direct recruitment.-(1) Where any vacancy cannot be filed by promotion under Paragraph 4, the same may be filled by direct recruitment in accordance with clauses (2) to (5).
(2)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 advertisement in at least two newspapers having adequate circulation in Uttar Pradesh.
(3) 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 envelope bearing postal stamp for purposes of registration.
(4)The District Inspector of Schools shall cause the best candidates selected on the basis of quality points specified in Appendix. The compilation of quality points may be done on remunerative basis by the retired Gazetted Government servants under the personal supervision of such Inspector.
(5)If more than one teacher of the same subject or category is to be recruited for more than one institution, the names of the selected teachers and the names of the institutions 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 the institution. This process shall be repeated till both the lists are exhausted.
Explanation.- In relation to an institution imparting instruction to women the expression "District Inspector of Schools" shall mean the ''Regional Inspectress of Girls Schools".
Perusal of the averments made in the writ petition indicates that the Management, on its own, made the appointment and the procedure as prescribed in paragraph 5 of the First Removal of Difficulties Order was not followed. Infact what has been stated in the writ petition is that on 17th July, 1991, the Committee of Management of the Institution resolved to fill up the vacant post of Lecturer by direct recruitment and on 18th July, 1991, the appointment order was issued to the petitioner who joined the Institution on 26th July, 1991. It is, therefore, clear that neither the District Inspector of Schools was informed, as was required under Clause 5(2) of the First Removal of Difficulties Order and nor any advertisement in two newspapers was issued. The other procedure prescribed in the First Removal of Difficulties Order for making the selection has also not been followed.
It is, therefore, apparent that the appointment of the petitioner was not made in accordance with the provisions of the First Removal of Difficulties Order. The effect of an appointment which has not made in accordance with the First Removal of Difficulties Order has to be considered. This matter was considered by a Full Bench of this Court in the case of Radha Raizada and others vs. Committee of Management, Vidyawati Darbari Girls Inter College and others reported in (1994) 3 UPLBEC 1551. The Full Bench held that if the contingency arises for ad hoc appointment by direct recruitment, the procedure provided for under the First Removal of Difficulties Order has to be followed and if the management makes an ad hoc appointment without following the procedure laid down in paragraph 5, the District Inspector of Schools would be justified in stopping the payment of salary of such a teacher. It has further been held that if the procedure is not followed in making the appointment, the appointment is void and cannot confer any right on the person so appointed.
The Supreme Court also had an occasion to examine the validity of the ad hoc appointments which were not made in accordance with the procedure provided for under paragraph 5 of the First Removal of Difficulties Order in the case of Prabhat Kumar Sharma and others Vs. State of U.P. and others reported in (1996) 10, SCC 62 and it was clearly held that any ad hoc appointment not made in accordance with paragraph 5 of the First Removal of Difficulties Order is an illegal appointment and is void and confers no right on the appointee. It may be useful to reproduce a passage from the judgment made in the context of paragraph 5 of the First Removal of Difficulties Order and it is as follows:-
"It is an inbuilt procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the management to any post in an 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".
The Supreme Court in Shesh Mani Shukla Vs. District Inspector of Schools, Deoria & Ors., (2009) 15 SCC 436 has also examined the validity of the appointment not made in accordance with the procedure prescribed in paragraph 5 of the First Removal of Difficulties Order and has observed that any appointment made dehors the provisions of paragraph 5 of the First Removal of Difficulties Order is void-ab-initio and no exception can be taken even if such person has worked for a long time.
In view of the law laid down in the aforesaid decisions, it has to be held that the appointment of the petitioner having been made in utter violation of the provisions of the First Removal of Difficulties Order is void and does not confer any right upon the petitioner and is liable to be ignored.
Such being the position, no relief can be granted to the petitioner.
The writ petition is, accordingly, dismissed."
9. From perusal of order passed by learned Single Judge it is evident that after considering the judgment rendered by the Full Bench of this Court in the case of Radha Raizada and others Vs. Committee of Management, Vidyawati Darbari Girls Inter College and others, (1994) 3 UPLBEC 1551 and also judgment rendered by Hon'ble Apex Court in the Case of Prabhat Kumar Sharma and others Vs. State of U.P. and others, (1996) 10 SCC 62 and Shesh Mani Shukla Vs. District Inspector of Schools, Deoria & Ors. (2009) 15 SCC 436 has came to the conclusion that appointment of the petitioner-appellant was made in utter violation of the provisions of the First Removal of Difficulties Order and therefore is void and does not confer any right upon him.
10. Even as per own case of the petitioner-appellant, the Management has passed resolution on 17.07.1991 to fill up the vacancy by way of direct recruitment under the provisions of Section 18 of U.P. Secondary Education Services Commission Act, 1981. Appointment letter was issued to him on very next day i.e. 18.07.1991 and pursuant thereto, he joined the duties with effect from 26.07.1991 and thereafter papers were sent to DIOS for according financial approval, who vide order dated 29.08.1992, declined to accord financial approval to the appointment of petitioner-appellant on the post of lecturer in the institution mentioning that vacancy was not notified within a period of 90 days from the date of death.
11. A perusal of the record reveals that in the entire writ petition there is no averment showing that procedure prescribed in Paragraph 5 of the First Removal of Difficulties Order has been followed or was ever observed. As such it is evident that procedure prescribed in First Order has not at all been observed and therefore in view of the law laid down by Apex Court in the case of Prabhat Kumar Sharma (supra) and Shesh Mani Shukla (supra), appointment of the petitioner-appellant was void ab initio.
12. We are not impressed by the argument of learned counsel for the appellant that since appellant has continued working for long period of last more than two decades therefore, at this stage, he should not be left in lurch and some leniency should be shown in his favour because due to non observance of paragraph 5 of First Removal of Difficulties Order and appointment of petitioner-appellant was made in very hasty manner on 18.07.1991, on the very next day of passing of resolution to fill up the vacant post of Lecturer by direct recruitment. The vacancy was not notified within a period of 90 days from the date of death and even papers were sent thereafter to DIOS for according financial approval.
13. In recent decade a strict approach has been shown by Apex Court which is more apt to adhere to rule of law. The kind of sympathy sought in this case has been termed as "misplaced sympathy". The view of the Court is that anything acquired illegally if allowed to remain with the person so acquired it would amount to confer a premium upon him of such illegality. This would encourage the people to go ahead with such kind of illegalities with expectations in the context of similar precedence that if they are successful in continuing long time, the judicial forums may not interfere and allow them to continue with their illegally obtained benefits. This has been seriously castigated and held to benefit more the violators and cause a permanent deprivation to law abiders.
14. In State of Orissa and another Vs. Mamata Mohanty, 2011(3) SCC 436 the Apex Court says that an order bad from inception would not get sanctified at a later stage. No subsequent action or development can validate an action which was not lawful at its inception for the reason that illegality strikes at the root of order. It goes on to say that it would be beyond the competence of any authority to validate such an order. Relying and referring to its earlier decisions in Upen Chandra Gogoi Vs. State of Assam and others, AIR 1998 SC 1289; Mangal Prasad Tamoli (Dead) by L.Rs. Vs. Narvadeshwar Mishra (Dead) by L.Rs. and others, AIR 2005 SC 1964; and, Ritesh Tiwari and another Vs. State of U.P. and others, AIR 2010 SC 3823, the court in para 20 of the judgement said:
"It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin."
15. Furthermore, learned Single Judge also in the impugned judgment has considered this aspect of the matter and made an observation that no exception can be taken even if such person has worked for a long time.
16. We have also looked into this matter in full detail find nothing wrong in the findings recorded by learned Single Judge warranting interference by this Court.
17. In view of above discussion and exposition of law, the special appeal lacks merit and is hereby dismissed.
18. There is no order as to costs.
Order Date :- 18.01.2016 KA