1. Heard Sri V.K.Singh, Senior Advocate, assisted by Sri Prakhar Tandon, learned counsel for petitioners, learned Standing Counsel for respondents and perused the record.
2. Public Inter College, Bidhuna, Auraiya (hereinafter referred to as "College") is a Secondary Educational Institution governed by provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as "Act,1921"). Payment of salary to teaching and non-teaching staff is governed by the provision of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act 1971 (hereinafter referred to as "Act 1971"). Recruitment of teaching staff is governed by provisions of U.P. Secondary Education Services Selection Boards Act, 1982 (hereinafter referred to as "Act, 1982").
3. It is said that there were five vacancies of Assistant Teachers in the College for which requisition was sent to U.P. Secondary Education Board (hereinafter referred to as "Board") but no recommendation was received therefrom. Consequently, Management decided to fill in the said vacancy on ad hoc basis. An advertisement was published in daily newspaper 'Pioneer' dated 30.01.1998 and 'Dainik Din Pat' dated 05.01.1998 inviting applications for ad hoc appointments. Petitioners applied and were interviewed on 25.2.1998 and selected. Accepting recommendation of Selection Committee, a resolution was passed by Committee of Management on 25.02.1998 for appointing petitioners as Assistant Teacher on adhoc basis and consequently appointment letters were issued on 26.2.1998. Documents were forwarded vide letter dated 09.01.1999 to respondent 3 for its financial approval alongwith covering letter dated 28.03.1998. No action was taken by respondent 3 then petitioners approached this Court in Writ petition No.41206 of 1999 seeking mandamus commanding respondents District Inspector of Schools and Committee of Management of College to pay salary to petitioners. The writ petition was disposed of finally vide order dated 24.9.1999 directing District Inspector of Schools, Auriya/Etawah (hereinafter referred to as "DIOS") to dispose of petitioners' representation within one month. DIOS passed order dated 11.02.2000 rejecting petitioners' claim and declined to grant approval on the ground that appointments were banned vide Goverment Order dated 30.07.1991 and management had no power to make appointment.
4. The aforesaid order was challenged by petitioners in Writ Petition No.22000 of 2000 on the ground that ban imposed by Government Order dated 30.7.1991 was already removed on 26.09.1991 and therefore, DIOS erred in law in declining to grant approval on the aforesaid ground. Reliance was placed on a judgment dated 24.8.1999 passed by a learned Single Judge in Writ Petition No.36087 of 1999 (Bhupendra Kumar Singh Vs. District Inspector of Schools, Etawah and Another). Vide judgment dated 17.5.2000 this Court (Hon'ble Aloke Chakrabarti, J.) allowed the writ petition, set aside order dated 11.02.2000 and directed DIOS to pass a fresh order in accordance with law. Thereafter, DIOS has passed order dated 14.11.2000 and rejected claim of petitioners on the ground that in 1998, Management had no power to make ad hoc appointment since under Section 18 of Act, 1982 it was Selection Committee, who was empowered to make recruitment and on the recommendation thereof, appointment could have been made. This order has been assailed in the present writ petition.
5. Learned Senior Counsel for petitioners contended that this ground was earlier taken by DIOS when order dated 11.02.2000 was passed but that order was set aside in Writ Petition No.22000 of 2000 decided on 17.5.2000 hence could not have been relied on again in passing the impugned order.
6. However, I find no force in the submission. The order of learned Single Judge dated 17.5.2000 nowhere shows that question whether management had power to make ad hoc appointment or not was examined. The only issue considered by Court was in respect of ban imposed by Government and thereafter DIOS was directed to pass fresh order in accordance with law.
7. Moreover, it could not be disputed by learned Senior Counsel that adhoc appointment could have been made under Act, 1982 only in accordance with Section 18 which, as it stood at the relevant time, read as under :
"18. Ad-hoc teachers.-(1) Where the Management has notified a vacancy to the Commission in accordance with sub-section (1) of Section 10 and the post of a teacher actually remained vacant for more than two months, the Management may appoint by direct recruitment or promotion a teacher on purely ad-hoc basis, in the manner hereinafter provided in this section.
(2) A teacher other than a Principal or Headmaster, who is to be appointed by direct recruitment may be appointed on the recommendation of the Selection Committee referred to in sub-section (8).
(3) A teacher other than a Principal or Headmaster, who is to be appointed by promotion, may in the prescribed manner be appointed by promoting the seniormost teacher, possessing prescribed qualifications-
(a) in the trained graduate's grade, as a lecturer, in the case of a vacancy in the lecturer's grade;
(b) in the Certificate of Teaching grade, as teacher in the trained graduate's Grade, in the case of a vacancy in the Trained graduate's grade.
(4) A vacancy in the post of a Principal may be filled by promoting the senior most teacher in the lecturer's grade.
(5) A vacancy in the post of a Headmaster may be filled by promoting the senior most teacher in the trained graduate's grade.
(6) For the purposes of making appointments under sub-sections (2) and (3), the Management shall determine the number of vacancies, as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, the Scheduled Tribes and Other Backward Classes of citizen in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and, as soon as may be thereafter, intimate the vacancies to be filled by direct recruitment to the District Inspector of Schools and if the Management fails to intimate the vacancies and the post of a teacher has actually remained vacant for more than three months, the District Inspector of Schools may, subject to such directions as may be issued by the Director and after verification from such institution or from his own record, determine such vacancies himself.
(7) The District Inspector of Schools shall, on receipt of intimation of vacancies or as the case may be, after determining the vacancies under sub-section (6), forward the same to the Deputy Director of Education in charge of the Region, who shall invite applications from the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder, for ad-hoc appointment to the post of teachers other than Principal or Head Master in such manner as may be prescribed.
(8)(a) For each region there shall be a Selection Committee for selection of candidates for ad-hoc appointment by direct recruitment comprising-
(i) Regional Deputy Director of Education;
(ii) Regional Deputy Director of Education (Second);
(iii) Regional Assistant Director of Education (Basic).
The Regional Deputy Director of Education who is senior shall be the Chairman.
(b) The Selection Committee constituted under clause (a) shall make selection of the candidates, prepare a list of the selected candidates, allocate them to the Institutions and recommend their names to the Management for appointment under sub-section (2).
(c) The criteria and procedure for selection of candidates and the manner of preparation of list of selected candidates and their allocation to the Institution shall be such as may be prescribed.
(9) Every appointment of an ad-hoc teacher under sub-section (1) shall cease to have effect from the date when the candidate recommended by the Commission joins the post.
(10) The provisions of Section 21-D shall mutatis mutandis apply to the teachers who are to be appointed under the provisions of this section." (Emphasis added)
8. This issue has been considered by a Division Bench of this Court in Kailash Pati Pathak Vs. District Inspector of Schools, Chandauli and others, 2006 (3) ESC 2095 and it has been held that in view of Section 18 of Act, 1982 on and after 14.07.1992, ad hoc appointment could not have been made by Committee of Management against a substantive vacancy since it is the Selection Committee which has to make recruitment and on the recommendation of such Committee, adhoc appointment has to be made. This provision is mandatory and ad hoc appointment made otherwise is illegal.
9. Similar view has been taken by a five Judges Bench of this Court in Special Appeal No. 280 of 2013 (Jahaj Pal Vs. District Inspector of Schools and Another) decided on 21.02.2019, wherein the Bench, in para 59 and 207(I) of the judgment has said :
"59. The tenure of ad hoc appointment as provided under Section 18 enacted in Act, 1982 initially remained shadowed by the tenure provided in First and Second Order by virtue of Section 33 read with Section 36 but when Section 18 itself was amended and substituted w.e.f. 14.07.1992 providing the contingencies of making substantive appointment the procedure for such appointment and tenure as also the otherwise provisions of Removal of Difficulties Orders ceased. Therefore, after Section 18 as amended and substituted w.e.f. 14.07.1992, virtually the provisions of First Order got substituted and thereafter ad hoc appointment against substantive vacancies had to be made as per Section 18 of Act, 1982. Somewhat similar condition continued after substitution of Section 18 w.e.f. 28.12.1994. However, in respect of short term vacancies, Second Order continued to remain in force till it was rescinded w.e.f. 25.01.1999."
"207. In the light of above discussion on some of aspect, we may summarize our conclusion as under:
I. After enforcement of Act, 1982, Ad-hoc appointment could have been made in accordance with Section 18 read with Removal of Difficulties Orders issued under the said Act." (Emphasis added)
10. In view thereof, order passed by DIOS cannot said to be erroneous or illegal since petitioners were not appointed in accordance with procedure prescribed under Section 18 of Act, 1982.
11. Supreme Court in Prabhat Kumar Sharma and others Vs. State of U.P. and others JT 1996 (6) SC 579 while interpreting provisions of Removal of Difficulties Order issued under Act, 1982 as also Section 18 thereof, for the purpose of ad hoc appointment, has held that an ad hoc appointment not made in accordance with aforesaid provisions will be wholly illegal and will not confer any right upon incumbent either to hold the post or claim salary.
12. Following Prabhat Kumar Sharma (supra), a Division Bench of this Court in Lalta Prasad Goswami Vs. State of U.P. & Ors. (Special Appeal No. 32 of 2006), decided on 12.01.2006, took the same view. The Division Bench upheld judgment of Single Judge and dismissed intra Court Appeal. The appellate judgment dated 12.1.2006 was confirmed in Special Leave Petition No. 6948 of 2006 by Apex Court vide order dated 28.4.2006 in the following terms:
"The petitioner having not been appointed as a Principal in terms of the provision under section 18 of the Act, we are of the opinion that the question of his being regularized in the same post does not arise. The Special leave petition is dismissed accordingly." (emphasis added)
13. The decision in Prabhat Kumar Sharma & Ors. (supra), has also been followed in Shesh Mani Shukla Vs. DIOS, Deoria & Ors., JT 2009 (10) SC 309, where the Court has held that an appointment made in violation of Section 18 and Removal of Difficulties Orders is patently illegal and void ab initio and such an appointment would not confer any right upon the incumbent either to hold the post or claim salary.
14. In view thereof, writ petition fails and is accordingly dismissed.
15. Interim order, if any, stands vacated.
Order Date :- 27.2.2019 KA