1. Heard Sri Rajendra Rai, learned counsel for the petitioner and perused the record.
2. This writ petition was heard on 04.12.2009 and the judgment itself was dictated in open Court dismissing the writ petition. The judgment writer, however, could not take the dictation completely and after a long time submitted a transcription full of several gaps and extraordinary mistakes making virtually impossible to understand as to what has been said there. His explanation was called by my order dated 13.04.2010 on administrative side, besides seeking explanation from Head Private Secretary. Everybody tried to shift burden on others. Since the matter came before me after more than six months and it needed redictation of judgment, in the fitness of things I find it expedient that the writ petition should be listed in the Court again so that counsels may also appear and in their presence it should be dictated again after giving them opportunity to address, if the Court finds such occasion. I, therefore, passed order on 13.04.2010, relevant extract whereof is as under:
"Since the judgment was dictated in the open court and it requires to be dictated again, list this matter in the Court when I am sitting singly for dictation of the judgment in the Court again in the presence of learned counsel for the parties as it is not appropriate to dictate the judgment again and that too after such a long time particularly when from the judgment it is difficult to discern as to what was considered and what was decided therein."
3. Sri Rajendra Rai, learned counsel appearing for petitioner taking advantage that the case has been listed again, sought to file a supplementary affidavit taking a stand that some documents earlier could not be placed before this Court and to do justice the said documents may also be looked into. Though it was wholly improper on his part to submit any fresh pleadings and documents at this stage, but the learned Standing Counsel stated that he does not propose to file any further reply since everything is already contained in his earlier counter affidavit, in the interest of justice, so that for mere technicalities, parties to the litigation, may not suffer, I permitted him to place the said documents.
4. After hearing the parties the judgment is dictated in open Court today itself.
5. The petitioner, claiming to be working as Ad hoc Lecturer (Civics) in Vedic Inter College Somai, Jalaun at Orai (hereinafter referred to as the "College"), has come to this Court by means of present writ petition seeking a writ of mandamus commanding respondents to make payment of salary month to month, with arrears, and, also to direct, the District Inspector of Schools, Jalaun at Orai (hereinafter referred to as the "DIOS") to grant approval to petitioner's ad hoc appointment as Lecturer (Civics) and/or this Court may treat ad hoc appointment of petitioner as deemed approved, by operation of law.
6. It is not disputed that College is recognised to impart education up to intermediate under the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as the "Act, 1921"). For the purpose of recruitment of teaching staff, it is governed by U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the "Act, 1982") and for the purpose of payment of salary to the staff, (teaching and non-teaching), it is governed by provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (hereinafter referred to as the "Act, 1971").
7. The facts as borne out and alleged in the writ petition are, that the erstwhile Principal of College attained age of superannuation and retired on completion of Session on 30.06.1990. It is said that on 01.07.1990 the senior most teacher of College was promoted as ad hoc Principal causing a short term vacancy on the post of Lecturer (Civics). The management appointed petitioner in accordance with Para 2 of U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as the "Second Order, 1981") vide appointment letter dated 01.09.1991 (Annexure-1 to the writ petition). The letter of appointment refers to management's resolution dated 21.07.1991 whereby a decision was taken to appoint petitioner on the post of Lecturer (Civics) on ad hoc basis, in a leave vacancy. Pursuant thereto, petitioner claims to have submitted his joining on the same day, i.e., 01.09.1991.
8. Learned counsel for the petitioner contended that in making the aforesaid ad hoc appointment procedure prescribed in Second Order 1981 was followed, inasmuch as vacancy was advertised by placing notice, on the notice board of College, on 30.06.1991, inviting applications up to 14.07.1991. The Selection Committee considered and selected petitioner, whereafter Committee of Management passed resolution on 21.07.1991 for petitioner's appointment. The said resolution was communicated to DIOS by management's letter dated 23.07.1991 requesting him to grant approval. Since the DIOS failed to communicate his decision within a week, the management sent reminders also on 08.08.1991 and 21.08.1991. Thereafter the Manager of the College issued letter of appointment to petitioner on 01.09.1991. The information about appointment was also conveyed to DIOS by management's letter dated 02.09.1991 but DIOS still having failed to take any steps for payment of salary to petitioner, the present writ petition has been filed.
9. A counter affidavit has been filed by official respondents, i.e., the DIOS, contesting petitioner's claim for payment of salary. It is stated that though the College is a recognised institution and is also receiving grant-in-aid but there are only 27 sanctioned posts of teachers, whereagainst 33 are actually working and receiving salary out of which salary paid to two teachers is pursuant to interim orders of this Court. No intimation was ever received from College about the matter of appointment of petitioner. There was no vacancy against which any such appointment could have been made in 1991. The alleged appointment of petitioner is illegal. He is not entitled for payment of salary from State Exchequer under Act, 1971.
10. The averments made in para 3 of counter affidavit in this regard have been replied in para 4 of rejoinder affidavit. About the factum that teachers, more than the sanctioned post are working in College, nothing has been said except that the person in whose vacancy petitioner was appointed, was a permanent Lecturer, therefore, it cannot be said that petitioner's appointment is not against an existing short term vacancy.
11. I propose to examine this case from two angles. Firstly, whether appointment of petitioner satisfies the procedure prescribed in law, for making such ad hoc appointment; and, secondly, whether there existed any vacancy against which petitioner could have been appointed.
12. In order to answer the first question I proceed with the assumption that after retirement of erstwhile Principal of College on 30.06.1990, a vacancy on the post of Principal occurred. If there would have been a valid appointment/ promotion on the post of Principal, even if on ad hoc basis, only that would result in a vacancy on the feeder post from which the incumbent holding office in the College is promoted/appointed as ad hoc Principal.
13. It is not in dispute that Sri Surendra Narayan Singh, the then Lecturer (Civics) was the senior most teacher in the College. Till a candidate recruited and selected by U.P. Secondary Education Service Selection Board (hereinafter referred to as the "Board") is available, Sri Surendra Narayan Singh would have been entitled for ad hoc appointment/ promotion as Principal. Now it requires scrutiny of those provisions which permit management to make ad hoc appointment.
14. It is not disputed by counsel for petitioner that no appointment can be made on the post of teacher, which includes the post of Principal, in a secondary institution, unless the selected candidate is recruited and recommended by Board. Section 16(2) of Act, 1982 declares any appointment made in contravention of sub-section (1) thereof, void. This is a declaration of law and, therefore, leave no manner of doubt that an appointment made in contravention of provisions of Section 16(1) of Act, 1982 would be void.
15. Section 16, as existed in 1990 or 1991 when alleged appointment of petitioner was made, reads as under:
"16. Appointment is to be made only on recommendations of the Commission or 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 18, 21-B, 21-C, 21-D, 33 and 33-A;
(a) every appointment of a teacher specified in the Scheduled shall, on or after July 10, 1981, be made by the management only on the recommendation of the Commission:
(b) every appointment of a teacher (other than a teacher specified in the Schedule) shall on or after July 10, 1981, 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 apply with the modification that in sub-section (2) of the aforesaid section, for the words 'six months' the words 'two years' shall be deemed to have been substituted.
(2) Every appointment of a teacher, in contravention of the provisions of sub- section (1), shall be void."
(emphasis added)
16. An ad hoc appointment in the College was permitted by Section 18 of Act, 1982 which contemplates, where the vacancy has been notified by Management to the Board in accordance with Section 10(1) of Act, 1982 and the post has actually remained vacant for more than two months, the management then shall fill such vacancy on purely ad hoc basis.
17. Sections 10(1) and 18 as were applicable and existed in 1990 and 1991, read as under:
"10. Procedure of selection of teachers specified in the Schedule.-(1) For the purposes of making appointment of a teacher specified in the Schedule, the management shall notify the vacancy to the Commission in such manner and through such officer or authority as may be prescribed.
(2) The procedure of selection of candidates for appointment to the posts of such teachers shall be such as may be prescribed :
Provided that the Commission shall, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under sub Section (1)."
"18. Ad hoc Teachers.-(1) Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and-
(a) the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher specified in the Schedule within one year from the date of such notification ; or
(b) the post of such teacher has actually remained vacant for more than two months, then, the management may appoint, by direct recruitment or promotion, a teacher on purely ad hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder.
(2) The provisions of sub-section (1) shall also apply to the appointment of a teacher (other than a teacher specified in the Schedule) on ad hoc basis with the substitution of the expression ''Board' for the expression "Commission".
(3) Every appointment of an ad hoc teacher under sub-section (1) or sub-section (2) shall cease to have effect from the earliest of the following dates, namely-
(a) when the candidate recommended by the Commission or the Board, as the case may be, joins the post ;
(b) when the period of one month referred to in sub-section (4) of Section 11 expires;
(c) thirtieth day of June following the date of such ad hoc appointment." (emphasis added)
18. A harmonious and cumulative reading of Sections 10, 16 and 18 shows that whenever a vacancy of teacher occurred in the College or his likely to occur, the Management will have to notify the same to Board in the manner prescribed. Where the Management has notified vacancy to the Board and post of teacher has actually remained vacant for more than two months, the Management can proceed to make ad hoc appointment in such vacancy. Another contingency, where vacancy has been notified to the Board and Board has failed to recommend name of any suitable candidate for appointment within one year from the date of such notification. In that case also, such ad hoc appointment can be made. In both these contingencies, the Management possess a power of ad hoc appointment but not otherwise.
19. These provisions are mandatory and consequences are also serious for the reason that Section 16(2) declares that an appointment made in contravention of Section 18 (there are some other provisions also which are not relevant in this case) shall be void. Therefore, by no stretch of imagination and in no situation an ad hoc appointment under Section 18 of Act, 1982 can be made on the very next day when incumbent has retired. In other words, as has actually happened in this case, the erstwhile principal attained age of superannuation on 30.06.1990. If that being so, no ad hoc appointment under Section 18 can be or could be made on 01.07.1990 itself since on that day none of the conditions in which such ad hoc appointment could have been made by Management could have attracted.
20. It is not stated anywhere in the writ petition or elsewhere as to when vacancy of Principal was notified to Board or whether it was actually notified to Board or not. Unless the vacancy is notified and post has actually remained vacant for two months, an ad hoc appointment by management could not have been made since it was not so permitted by Section 18 of Act, 1982.
21. In the present case the erstwhile Principal retired on 30.06.1990. It is not the case of petitioner that post of Principal remained actually vacant for two months and thereafter anyone was given ad hoc promotion/appointment on the said post. Under Section 18 of Act, 1982 no ad hoc appointment could have been made by management on 01.07.1990, i.e., on the very date on which the vacancy occurred. The erstwhile Principal worked upto 30.06.1990 and retired. Vacancy actually came into existence on 01.07.1990. If that be so, Section 18 clearly bars an ad hoc appointment on the said vacancy on the same day.
22. Even the order of alleged promotion or ad hoc appointment of Sri Surendra Narayan Singh is not available on record to show whether he was actually promoted on the post of Principal or was given only charge to function as Principal on officiating basis. It admits no doubt that an actual promotion and handing over charge are two different connotations. When a person is given charge of higher post, it does not mean that he has been appointed or promoted on the higher post. This aspect has been considered by a Division Bench in Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools Region-I, Meerut and others, 2007(2) ESC 987 and the Court said:
". . . . . . Taking charge of a higher office and discharge its function; and to discharge function of a higher office after promotion pursuant to an order of promotion, whether on regular or ad-hoc or officiating basis, are two different things. In the former, the incumbent continue to possess the status and position of the office in which he/she is appointed substantively but look after the duties of the higher office of which charge has been handed over in addition to her substantive duties, but it does not result in a vacancy of any kind to the post/office, the incumbent is substantively holding, but, in the later case, the incumbent vacates his substantive office and discharge function of higher office by occupying the higher post. If the promotion is officiating or ad hoc such occupancy may be temporary, but the fact remain that it result in a vacancy in the lower post, may be short term and temporary.
. . . . . In State of Haryana Vs. S.M. Sharma AIR 1993 SC 2273, the Chief Administrator of the Board entrusted Sri S.M. Sharma, with the current duty charge of the post of Executive Engineer, which was subsequently withdrawn as a result of his transfer to other post. He challenged the said order stating that it amounts to reversion. The Apex Court held that Sri Sharma was only having current duty charge of the Executive Engineer and was never promoted or appointed to the aforesaid post and therefore, on transfer to some other post, it did not result in reversion from the post of Executive Engineer.
A somewhat similar situation occurred in Ramakant Shripad Sinai Advalpalkar Vs. Union of India and others, 1991 Supple (2) SCC 733 and the Apex Court observed as under:-
"The distinction between a situation where a government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion."
It was further held that such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it sometimes. However the person continues to hold substantive lower post and only discharges duties of the higher post essentially as a spot-gap arrangement. A further contention was raised that if such an arrangement continued for a very long period it would give some kind of right to continue on the post but negativing such contention, it was held that an in-charge arrangement is neither recognition nor is necessarily based on seniority and therefore, no rights, equities and expectations can be built upon it."
23. This Court has also to consider, how and in what circumstances an ad hoc appointment is permissible under Section 18 of Act, 1982 or, whether there is any other provision under which such an appointment could validly be made immediately on the date when vacancy has occurred. In considering this aspect, reference to Removal of Difficulties Orders issued under Section 33 of Act, 1982 has also to be made since procedure for ad hoc appointment was prescribed therein. I need not make my own observations in this regard since it has already been dealt with in reference to First Order by a Division Bench decision in Smt. Vijay Rani (supra) wherein this Court has said:
"The First Order is, therefore applicable to fill in a substantive vacancy on ad hoc basis, where a candidate selected by the Commission is not available. In the case in hand, the Principal retired on 30th June 1988 and therefore a substantive vacancy occurred on 1st July 1988. Being substantive vacancy, in view of Section 18 read with First Order, the same could have been filled in by ad hoc appointment of the senior most teacher of the College by the management only if the post after sending requisition to the Commission, remained vacant for more than two months. The Petitioner-Appellant having claimed to be appointed on 1st July 1988 cannot be said to have been appointed in accordance with Section 18 read with First Order and such an appointment cannot be said to be under the aforesaid provision. It is worthy to mention at this stage that a Full Bench of this Court in Radha Raizada Vs. Committee of Management 1994 (3) UPLBEC 1551 considered the relationship of Section 18 and First Order and in Para 37 of the judgment and held that they operate in the same field and part of one integrated scheme. The relevant observations are reproduced as under :
"In fact Section 18 as well as First Removal of Difficulties Order operate in one field and are part of one integrated scheme, namely, for providing ad hoc teachers who are urgently required in the institutions. Thus, ad hoc appointment of teacher either under Section 18 of the Act or under the provisions of First Removal of Difficulties Orders has to be done in the manner laid down in paragraphs 4 and 5 of the First Removal of Difficulties Order, 1981."
The Full Bench while approving earlier Division Bench judgment in Charu Chandra Tiwari Vs. District Inspector of Schools, 1990 UPLBEC 160, in Para-39 of the judgment also, held as under :
"I am, therefore, of the view that the existing substantive vacancy which has been notified to the Commission and the condition provided under Section 18 of the Act is present, the vacancy has to be filled up firstly by promotion from amongst senior most teacher in next lower grade."
Finding difficult to justify appointment under Section 18 of the Act and First Order, the learned counsel for the Petitioner-Appellant contended that in order to meet a situation where substantive vacancy on ad hoc basis cannot be filled in by resorting to Section 18 of the Act and First Order, since it could be filled in only after 60 days from the date of sending requisition to the Commission and to that extent, it would amount to a short term vacancy and therefore it could have been filled in under the Second Order. In the alternative, it is contended that the appointment of the Petitioner-Appellant is referable only to Para-2 of the First Order and Section 18 would have no application, therefore, her appointment was in accordance with law. We Find these submission difficult to accept for more that one reason. Admittedly, the vacancy being substantive, it has to be filled in accordance with the procedure prescribed under the First Order read with Section 18 of the Act. The contingency termed as short term vacancy has been described under para-2 of the Second Order. The period during which the management otherwise does not possess power to make ad hoc appointment either under Section 18 and/or the First Order cannot be read to bring in the concept of short term vacancy, since this attempt would not only distort the scheme of the Act and various Removal of Difficulties Orders and Rules and Regulations framed thereunder, but may also create several functional and practical difficulties. To elaborate our point, if submission of the learned counsel for the Petitioner-Appellant is accepted that at least for 60 days during which the substantive vacancy may not be filled up by the management by resort to Section 18 of the Act and read with First Order and for the said period, it may be treated to be a short term vacancy permitting the management to fill in under the Second Order, we find that almost the same period will have to be consumed by the management or the authorities in order to make appointment under the Second Order as well. Even under the Second Order, where the vacancy may not be filled in by promotion, the management is required to intimate the vacancy to DIOS, notify the same on the notice board and also to make advertisement calling application from the prospective candidates. Thereafter, selection on the basis of the quality point marks shall be made and the papers shall be forwarded to DIOS, who will have seven days' time to convey his approval failing which, it will be deemed to have been granted. Thereafter, only the management can make appointment under the Second Order. Thus the entire exercise in case of direct recruitment under Second Order would take at least a month and more, meaning thereby after such an exercise, the candidate may not be able to work even for a full month, since immediately thereafter, the occasion to make appointment under the First Order would arise and by virtue of Clause 3 of the Second Order, the appointment shall seize. This entire futile exercise would neither be in public interest nor would serve either the interest of the institution or even the prospective candidates at large. In an educational institution, no person can serve better if is to be appointed for a few days only, since he may not be able to discharge his duties with due devotion, keen interest and considering welfare and interest of the students at large. For the purpose of making ad hoc promotion in the case of substantive or short term vacancy, the senior most teacher in the next lower grade has to be considered at the first instance and, if ex facie the vacancy is substantive, it cannot be termed to be short term as a result of time taken in observance of the statute. Besides, it is a will recognized principle that something, which is not permissible directly, should not be allowed or resorted to indirectly. When law requires something to be done in a particular manner, any other mode is prohibited and any thing done otherwise is illegal. In Competent Authority vs. Barangore Jute Factory and others- 2005 (13) SCC 477, it was held where the statute requires a particular act to be done in a particular manner, the act should be done in that manner alone. Every word of the statute has to be given its due meaning. Similar dictum has been laid down in Nazir Ahmad Vs. King Emperor-AIR 1936 Privy Council 253 and reiterated in catena of cases and we do not propose to add all the said authorities except of referring one of the recent judgment of the Apex Court.
Coming to alternative argument that the appointment may still be referable to Para-2 of the First Order and Section 18 would have no application, we find that a controversy somewhat similar came up for consideration in Munishwar Dutt Pandey Vs. Ramjeet Tiwari and other (1997) 3 SCC 599 where the Apex Court considered the question whether an appointment referable to Para-2 of the First Order would necessarily attract Section 18 of the Act and would be valid even if the conditions laid down under Section 18 are not satisfied. It was held though para-2 of the First Order and Section 18 refers to the same topic namely ad hoc appointment for teachers in an institution governed by the Act, and, Section 33 of the Act provides that the authority, may, in case of difficulty remove the same by Notified Order but once such a contingency occur, than the Order itself would have the effect of modification even by omission of existing provision of the Act for the period specified in the Order. If a persons is appointed in accordance with para-2 of the Order, its validity need not be looked into by applying Section 18 of the Act for the purpose of attracting Section 33A (1-A) of the Act since it is applicable only to the appointment made under para-2 of the First Order and has no application to Section 18 of the Act. The relevant observations made in para 19 and 20 of the judgment are reproduced as under :
"It is of course true that both of them deal with the same topic, namely, "Ad hoc appointment of teachers in an institution governed by the Act". But a mere look at Section 33 shows that the legislature in its wisdom has provided that the Order-making authority may in case of difficulties remove the same by notified order. Once that happens the Order itself has the effect of modifying or even omitting the existing provisions of the Act for the period specified in the Order. As there is no specification of any period of life for the Order and as held by this Court it operates on a permanent basis, when the Order operates the provisions of the Act which may be covering the field will themselves get modified or altered or even omitted. That exercise is permitted by the parent legislation itself by enacting Section 33 the vires of which are not in dispute before us. Even that apart sub-section (2) of Section 33 itself provides that such an order has to be laid before both the Houses of the State Legislature. So it would get the sanction of the parent legislature itself. As we have seen earlier Section 16 of the Act, which deals with "appointments to be made only on recommendations of the Commission or the Board" is expressly made subject to sections 33 and 33-A amongst other. These provisions are in the parent Act itself and consequently Section 33-A which is a part and parcel of the parent provision has to operate of its own and there cannot be inconsistency or incongruity between the two provisions of the same Act, namely, Section 18 on the one hand and Section 33-A including Section 33-A(1-A) on the other.
20. For all these reasons, therefore, contention of the contesting respondent that para 2 of the Order which itself is incorporated in Section 33-A(1-A) and is a part and parcel of the same parent provision is in any way repugnant to Section 18 of the Act (sic). It must, therefore, be held that none of the conditions for applicability of Section 18 is shown to have existed on the facts of the present case, as the writ petitioner was put in saddle as Principal of the College by the Managing Committee itself ratifying his promotion on ad hoc basis with effect from 1-7-1988 prior to the notifying of the vacancy by the management to the Commission and such appointment being made not within two months of such notification and as the said post had not remained actually vacant during that period on account of the ratification by the Managing Committee of the action of its President as seen earlier. The second point for determination, therefore, is answered in the negative."
The Court, in fact, was considering the application of Section 33A (1-A) of the Act and held that only requirement for extending benefit under Section 33A (1-A) of the Act is whether the appointment has been made under para-2 of the First Order in accordance with the procedure prescribed thereunder and for that purpose, there is no necessity to look into the requirement of Section 18 of the Act.
To Attract Section 33A (1-A), therefore, if the appointment is not made under para-2 of the First Order, no benefit can be extended thereof. In Kiran Gupta & others Vs. State of U.P. and others 2000(7) SCC 719, the Court observed that to attract Section 33A (1-A) of the Act, following conditions must be shown to have been fulfilled-(1) Appointment must have been on ad hoc basis against a substantive vacancy; (2) Appointment should have been in accordance with para-2 of the First Order as amended from time to time; (3) The incumbent must possess qualification prescribed under the Act or should be exempted under the Act; (4) Should have been continuously serving in the institution from the date of ad hoc appointment till the date of commencement of U.P. Secondary Education Services Commission and Selection Board (Amendment) Act 1991, i.e., 6th April 1991. If any of the condition is unsatisfied and lacking, Section 33A (1-A) would have no application. Therefore, testing the case of the Petitioner-Appellant in the light of above, we are afraid that she does not qualify to get any benefit for the reason that her appointment is not shown to have been made under Para-2 of the First Order and thus, Section 33-A(1-A) of the Act would have no application. Para-2 of the First Order clearly states that the ad hoc appointment has to be made in accordance with the procedure prescribed in the said order, which brings in Para-4 which in turn provide that the senior most teacher has to be appointed on ad hoc basis as Principal of the College. Para-2 read with 4 of the First Order, thus confer a right upon the senior most teacher to be appointed as officiating Principal, if a substantive vacancy has occurred on the post of Principal and the management intend to make ad hoc appointment by promotion. If senior most teacher for one or the other reason is not available, the management may appoint the next one but in no case, it can justify the appointment of a person, who was such a junior teacher, namely, at Sl. No. 17 in the seniority list. Even if the contention of the learned counsel for the Petitioner-Appellant is accepted that three senior most teachers declined to officiate as Principal, yet 13 more teachers, who were senior to the Petitioner-Appellant still were available, who had a right to be appointed by promotion on the substantive vacancy of Principal under para-2 and 4 of the First Order. Admittedly, there is neither any averment nor any material nor any suggestion by the learned counsel for the Petitioner-Appellant that other teachers also declined to function as officiating Principal of the College. In these circumstances, even if it is assumed that the Petitioner-Appellant was appointed as officiating Principal, her appointment cannot be said to have been made as per procedure prescribed under para-2 and 4 of the First Order. The question where an appointment is made not strictly in accordance with the provision of the Act or Removal of Difficulties order, still can a benefit be claimed, specifically has been answered in Prabhat Kuamr Sharma and others Vs. State of U.P. and others (1996) 10 SCC 62=AIR 1996 SC 2638 and it was held :
"Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointee. " (Para-7) The Apex Court agreed and upheld the Full Bench decision in Radha Raijada (supra) and made the aforesaid observation. Similar view has been taken by this Court in a number of cases, some of which may be referred as under :
(A) In the case of Dr. R.K. Pandey Vs. Sukh Ram Pal Singh Sahravat 1995 (1) ESC 74, this Court held:
"As the appointment of Dr. Raman Kumar Pandey was made before two months from the date of vacancy could expire, it was wholly illegal, having been made in contravention of Section 18 of the Act."(para 7) (B) In the case of Anilesh Pratap Singh Vs. State of U.P. 2003 (5) ALR 674, A Division Bench of this court held :
"Applying the principles laid down in the aforementioned cases we are of the considered opinion that the provisions of Section 18 of the 1982 Act is mandatory and unless and until the period of two months expires from the date of notifying the vacancy to the Commission, the Committee of Management does not get any power to fill up the vacancy on ad-hoc basis."
The aforesaid view has been followed recently by us also in Special Appeal No. 32 of 2006 Lalta Prasad Gaswami Vs. State of U.P. and Ors. Decided on 12th January 2006."
24. I may mention that judgment of this court in Lalta Prasad Goswami (supra) has been confirmed in Special Leave Petition No. 6948 of 2006 by Apex Court vide order dated 28.04.2006 in the following terms:
"The petitioner having not been appointed as a Principal in terms of the provisions under section 18 of the Act, we are of the opinion that the question of his being regularized in the said post does not arise. The Special leave petition is dismissed accordingly."
(emphasis added)
25. In the present case the claim set up by petitioner with reference to occurrence of a short term vacancy on 01.07.1990 after the so called ad hoc promotion of Sri Surendra Narayan Singh on the post of Principal on ad hoc basis stands completely demolished from the above discussion. But it would not give rest to the dispute on this ground alone since petitioner has more serious hurdles to clear even if it is assumed that a short term vacancy actually occurred on 01.07.1990, after the alleged ad hoc promotion/appointment of the senior most Lecturer, i.e., Sri Surendra Narayan Singh, who was working as Lecturer (Civics).
26. Learned counsel for the petitioner admitted that for making an ad hoc appointment on short term basis the procedure prescribed in Second Order had to be followed strictly and meticulously. The said procedure prescribed in Para 2 of Second Order, 1981 reads as under:
"2. Procedure for filling up short-term vacancies.-(1) If short-term vacancy in the post of a teacher caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise, shall be filled by the Management of the Institution by promotion of the permanent senior-most teacher of the institution, in the next lower grade. The Management shall immediately inform the District Inspector of Schools of such promotion along with the particulars of the teacher so promoted.
(2) Where any vacancy referred to in Clause (1) cannot be filled by promotion, due to non-availability of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualifications, it shall be filled by direct recruitment in the manner laid down in Clause (3).
(3) (i) The management shall intimate the vacancies to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution, requiring the candidates to apply to the Manager of the Institution along with the particulars given in Appendix "B" to this Order. The selection shall be made on the basis of quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, issued with Notification No. Ma-1993/XV-7(79)-1981, dated July 31, 1981, hereinafter to be referred to as the First Removal of Difficulties Order, 1981. The compilation of quality point marks shall be done under the personal supervision of the Head of Institution.
(ii) The names and particulars of the candidate selected and also of other candidates and the quality point marks allotted to them shall be forwarded by the Manager to the District Inspector of Schools for his prior approval.
(iii) The District Inspector of Schools shall communicate his decision within seven days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval.
(iv) On receipt of the approval of the District Inspector of Schools or, as the case may be, on his failure, to communicate his decision within seven days of the receipt of papers by him from the Manager, the Management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager.
Explanation-For the purpose of this Paragraph-
(i) the expression "senior-most teacher" means the teacher having longest continuous service in the institution in the Lecturer's grade or the Trained graduate (L.T.) grade or Trained under-graduate (C.T.) grade or J.T.C. or B.T.C. grade as the case may be;
(ii) in relation to institution imparting instructions to women, the expression ''District Inspector of Schools' shall mean the Regional Inspectress of Girls' Schools;
(iii) short-term vacancy which is not substantive and is of a limited duration."
27. Despite repeated query, learned counsel for the petitioner could not tell as to when alleged short term vacancy was communicated by management to DIOS.
28. Clause (3)(i) requires the management that it shall intimate vacancy to DIOS and immediately notify the same on notice board of College requiring the candidates to apply to the Manager alongwith particulars given in Appendix 'B' to Second Order, 1981. It also requires that selection shall be made on the basis of quality point marks specified in Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, notified on 31.07.1981 (hereinafter referred to as the "First Order"). This compilation of quality point marks has to be done under the personal supervision of Head of the Institution. The names and particulars of selected candidates as also other candidates and quality point marks allotted to them have to be forwarded by Manager to DIOS, for his prior approval.
29. In the present case there is nothing on record to show, when procedure required in Clause (3)(i) was observed and whether it was actually observed or not.
30. In para 5 of supplementary affidavit dated 04.10.2009, petitioner has said only this much that creation of short term vacancy after appointment of Sri Surendra Narayan Singh as ad hoc Principal was communicated to DIOS. This paragraph has been sworn on the basis of personal knowledge. It does not give any date and no material has been placed on record, when it was so communicated. It is claimed that vacancy was notified on notice board on 30.06.1991. If it was informed to DIOS on 01.07.1990, as orally stated by learned counsel for the petitioner before this Court, why it was not immediately notified on the notice board, could not be explained. The alleged letter dated 23.07.1991, copy whereof has been placed on record alongwith supplementary affidavit as Annexure SA-1, does not mention anywhere that alleged short term vacancy was ever communicated to DIOS. Moreover, it refers to the occurrence of a short term vacancy on account of leave and not that of ad hoc promotion of the incumbent holding the post of Lecturer (Civics).
31. In fact para 1 of letter dated 23.07.1991 is self contradictory, inasmuch as on the one hand it talks of leave vacancy in which all the selections were made but simultaneously it talks of short term vacancy occurred due to appointment of Sri Surendra Narayan Singh, Lecturer (Civics) as Principal. The receipt of these letters has specifically been denied in para 6 of the counter affidavit to which in para 6 of rejoinder affidavit nothing specifically has been said. The learned counsel for petitioner could not explain, how the letter which has now been produced alongwith supplementary affidavit filed in 2009, could not be placed before this Court alongwith his rejoinder affidavit which was filed in August, 2000, i.e., almost 12 years and more, back. He also could not tell, who has put in signature on the top of the alleged letter. Similarly copy of letter dated 23.07.1991 has been filed to show that there is a seal of office of DIOS receiving the same on 23.07.1991 but it could not be informed as to who has signed it.
32. Learned Standing Counsel has stated that from bare perusal of seal it is evident that is a forged one, inasmuch as it has mentioned not "DIOS" but it reads as "ftyk fo|ky; fujh'kd tkykSu LFkku mjbZ" (Zila Vidyalaya Nirishak, Jalaun at Orai). The hindi meaning of word "Inspector" is "fujh{kd" (Nirikshak) and not "fujh'kd" (Nirishak). Learned Standing Counsel stated that it cannot be assumed that DIOS must have prepared a seal mentioning his wrong designation as "fujh'kd" (Nirishak). He submitted that all these letters appended to supplementary affidavit must have been prepared subsequently for the purpose of this case, and, with a fraudulent and forged seal, they have been attempted to be relied by placing now before this Court. The apparent discrepancy in seal could not be explained by learned counsel for petitioner. In these circumstances no reliance can be laid on documents which have now been filed, though enough time passed when the petitioner filed rejoinder affidavit and supplementary rejoinder affidavit and he had enough time to file all such documents, if existed on record at that time. All these facts led to an inescapable inference that procedure of Second Order, 1981 was not observed.
33. In the circumstances, it cannot be said that appointment of petitioner was made after following the procedure prescribed in law.
34. The next issue up for consideration in the matter is, whether there was any vacancy, substantive or short term, as the case may be, whereagainst the petitioner could have been appointed at all.
35. Stand of respondent no.2 through out has been that the sanctioned strength of teachers in the college is 27 while 33 were actually working and receiving salary. There were already 6 teachers, over and above the sanctioned strength. Out of the above 33, two were working under the orders of this Court.
36. It is argued by learned Standing Counsel that since a number of surplus teachers were working in the College, therefore, after retirement of Principal, and, ad-hoc promotion of one of senior most teacher as Principal, yet no vacancy actually resulted where against petitioner could have been appointed.
37. The contesting respondent in paragraphs no. 5,3,6,8,13 and 17 of the counter affidavit filed by the respondent no.1 has stated that there was no sanctioned post available in the college where against petitioner could have been appointed. The reply of averments contained in above paragraphs of counter affidavit has been given in paragraphs no. 4,6,8,13 and 15 of rejoinder affidavit wherein the only submission made by petitioner is that since permanent lecturer (Civics) was promoted, therefore, vacancy occurred where against petitioner was appointed. It is not a case of petitioner in the entire rejoinder affidavit or elsewhere that permanent teachers working in the college were within the sanctioned strength or the college has sanctioned strength of more than 27 teachers or that the vacancy occurred was within the sanctioned strength.
38. In fact, the clear stand taken by respondent no. 1 is that 6 teachers were already beyond sanctioned strength, and, therefore, retirement of one teacher or ad-hoc promotion, would not have resulted in occurrence of a substantive vacancy. This has not been replied specifically in the rejoinder affidavit. Even in the second supplementary rejoinder affidavit nothing has been said by petitioner.
39. Sri Rai, learned counsel for petitioner, submitted that sanctioned strength taken in the counter affidavit is based on the strength of teachers in 1988-89 and in certain other years and that could not be treated as sanctioned strength in the college, in absence of any other material showing that there were six teachers beyond the sanctioned strength. The number of teachers working in the college by itself cannot be taken by Court as sanctioned particularly when the respondents have taken a clear stand in their counter affidavit that the sanctioned in the college was 27, and, 33 were actually working. It was incumbent upon petitioner to show that the stand taken by respondents in the counter affidavit to the effect that sanctioned strength in the college was 27, not correct, by placing relevant material. The knowledge of sanctioned strength must be with management as well as the educational authorities. The educational authorities have come up with a specific stand. The management is also a party but in its wisdom has chosen not to come forward by placing relevant facts before this Court. Since validity of petitioner's very appointment has been attacked by educational authorities, the petitioner, before seeking a relief of mandamus, is under an obligation to demonstrate that his appointment is within the four corners of law, having been made validly and, therefore, he is entitled for issuance of a mandamus for payment of salary from State exchequer under Act, 1971. The onus to prove a fact lie upon a person who would fail in case the particular disputed fact is not proved.
40. Be that as it may, even if I do not record any specific finding in respect to the fact whether certain number of teachers actually working in the College were beyond sanctioned strength or not, that itself would not make petitioner's appointment valid in view of discussion already made, regarding the manner in which appointment is claimed to have been made. It shows that there was a complete disregard to various mandatory provisions of Act, 1982.
41. It is further contended that whatever was the situation initially, the subsequent facts are that Sri Surendra Narayan Singh, the erstwhile ad hoc Principal was regularized on the post of Principal by Joint Director of Education's order dated 10/11.02.1999 (Annexure-2 to the supplementary affidavit dated 01.12.2008) and, therefore, vacancy on the post of Lecturer (Civics) became substantive thereupon, hence petitioner became entitled for regularization under Section 33-F of Act, 1982 and cannot be ousted without consideration for regularization.
42. The above submission, in fact, leads to the question, not only, whether petitioner was entitled to be considered for regularization but also whether his continuance on the aforesaid post was valid after the vacancy became substantive, on regular appointment of ad hoc Principal, i.e., Sri Surendra Narayan Singh.
43. This question has already been discussed by Division Bench in Smt. Vijay Rani (supra) and it is held that for the purpose of regularization only such ad hoc appointment can be looked into which was validly made in accordance with Removal of Difficulties Orders concerned.
44. Sub-section (1) of Section 33-F of Act, 1982 reads as under:
"33-F. Regularisation of appointment against short term vacancies.-(1) Any teacher who,
(a) was appointed by promotion or by direct recruitment in the lecturer's grade or trained graduates grade on or after May 14, 1991 but not later than August 6, 1993 against a short term vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, as amended from time to time, and such vacancy was subsequently converted into a substantive vacancy;
(b) possesses the qualification prescribed under, or is exempted from such qualifications in accordance with, the provisions of the Intermediate Education Act, 1921;
(c) has been continuously serving the institution from the date of such appointment up to the date of commencement of the Uttar Pradesh Secondary Education Services Selection Board (Amendment) Act, 2001;
(d) has been found suitable for appointment in a substantive capacity by the Selection Committee referred to in clause (a) of sub-section (2) of Section 33-C in accordance with the procedure prescribed under clause (b) of the said sub-section;
shall be given substantive appointments by the Management."
45. It is only when an ad hoc appointment on a short term vacancy has been made validly in accordance with procedure prescribed in Second Order, 1981, only then an incumbent could have claimed right of regularization under Section 33-F and not otherwise. This Court has already discussed in detail demonstrating that ad hoc appointment of petitioner was not at all in conformity with the procedure prescribed in Section Order, 1981.
46. Besides, one more aspect has been pointed out in the supplementary counter affidavit filed by DIOS. It reads that as per Para 2 of Second Order, 1981 a short-term vacancy, first has to be filled in by promotion and only when a suitable candidate is not available, then only, the Management can resort for direct recruitment. In the present case there was a teacher, namely, Sri Ram Swaroop Niranjan who was senior most L.T. Grade Teacher, possessing qualification of M.A. (Civics) and he was eligible and entitled for ad hoc promotion on the post of Lecturer (Civics). His case was never considered and ignoring compliance and observance of requirement of Para 2 of Second Order, 1981 the management proceeded by resorting to direct recruitment for ad hoc appointment so as to appoint the petitioner which was clearly illegal.
47. These submissions made in paras 6 and 7 of supplementary counter affidavit have been replied by petitioner in para 6 of supplementary rejoinder affidavit wherein qualification and seniority of Sri Ram Swaroop Niranjan, L.T. Grade Assistant Teacher, has not been disputed but what is asserted is that Sri Ram Swaroop Niranjan having not raised any dispute regarding appointment of petitioner, his non promotion will make no difference.
48. This stand of petitioner is again totally fallacious. The committee of management could gather entitlement to resort for direct recruitment in making ad hoc appointment on a vacancy of teacher under Second Order, 1981 only if no teacher working in the College is eligible and suitable for ad hoc promotion. If such eligible and suitable teacher is available, his ad hoc promotion could not have been ignored by management so as to resort for direct recruitment. This is another way of defeating the procedure prescribed in Second Order, making ad hoc appointment of petitioner, wholly illegal and void ab initio. The Apex Court has repeatedly held that ad hoc appointment under Section 18 of Act, 1982 and Removal of Difficulties Order must be made strictly in accordance with procedure prescribed therein, else, the same would be void ab initio and shall not give any right or entitlement to the concerned person either to continue on the basis of such ad hoc appointment or to claim salary.
49. Lastly, it is contended that since petitioner pursuant to interim order passed by this Court has continued for long and has been receiving salary, therefore, at such a fag end of his service he should not be made to suffer but not only should be allowed to work but also be considered for regularization on equitable considerations.
50. It is well settled that actus curiae neminem gravabit. The act of Court prejudice none. No person can derive any advantage only on the basis of an interim order passed by this Court if otherwise in law he has no right to hold the post or continue in service. The concept derives its justification from the principle that once a writ petition is dismissed or a case is dismissed, the interim order passed earlier in such matter shall also stand dismissed and disappear as if it was never granted. Time and again this Court has observed as such. This has also been reiterated by several judgments of this Court and Apex Court in Kanoria Chemicals and Industries Ltd. and others Vs. U.P. State Electricity Board and others., (1997) 5 SCC 772. In Kanoria Chemicals and Industries Ltd. (supra) the Apex Court observed:
"It is equally well settled that an order of stay granted pending disposal of a writ petition/suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and it is the duty of the Court in such a case to put the parties in the same position they would have been but for the interim orders of the Court".
51. Instead of saddling this judgment with several other authorities on the same point it would be useful to refer a recent judgment of this Court in Avinash Mohan (Dr.) v. State of U.P. and other, (2008) 3 UPLBEC 2148 where most of these cases are relied and referred. The above decision of the Apex Court has been followed by a Division Bench of this Court in Ajai Kumar Dubey Vs. The Farrukhabad District Cooperative Bank Ltd. and others 2009 (3) ADJ 555.
52. The above discussion leads to inescapable conclusion that this Court being under constitutional obligation of upholding majesty of law and rule of law, has no justification to grant any relief to petitioner from any angle. The writ petition, therefore, deserves to be dismissed.
53. Dismissed.
54. Interim order, if any, stands vacated.
55. No costs.
Order Date :- 19.11.2012 AK