1. Heard Sri Anil Kumar Nishad, Advocate, holding brief of Sri H.B.Singh, learned counsel for the petitioner, learned Standing Counsel for the respondents and perused the record.
2. Ramraj Inter College, Patti, District Pratapgarh (hereinafter referred to as "College") is imparting education upto intermediate and is recognized from the Board of High School and Intermediate, U.P. Allahabad. It is governed by the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as "1921 Act"), U.P. Secondary Education Service Selection Board Act, 1982 (hereinafter referred to as "1982 Act") and U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as "1971 Act").
3. One Ram Lakhan Pandey, working as Assistant Teacher, L.T.Grade, retired on attaining the age of superannuation and after completion of session, on 30.6.2001, causing a vacancy on the post of Assistant Teacher, L.T. Grade on 01.07.2001. It is said that Management sent a requisition dated 25.6.2001 to the District Inspector of Schools, Pratapgarh (hereinafter referred to as "DIOS") intimating him vacancy. Thereafter, Management proceeded to make selection and appointment on the aforesaid post at its own level and got an advertisement published in daily newspaper "Dainik Lok Mitra" on 03.9.2001 inviting applications upto 12.9.2001 and notified date of interview as 14.9.2001.
4. It is said that petitioner was selected and consequently Committee of Management, vide resolution dated 18.9.2001 took a decision to appoint him. A letter of appointment was issued to the petitioner on 19.9.2001 appointing him on ad hoc/short term basis till regularly selected candidate from the U.P. Secondary Education Service Selection Board (hereinafter referred to as "the Board") is available. The documents, seeking approval for petitioner's appointment, were referred to DIOS vide Management's letter dated 20.9.2001.
5. The DIOS did not pass any order either by approving appointment of petitioner or for payment of salary from State Exchequer despite some representations made by petitioner also. The reminder letters were sent by Management also. Hence this writ petition has been filed seeking a mandamus commanding the respondents to pay salary to the petitioner regularly w.e.f. 21.9.2001.
6. A counter affidavit has been filed on behalf of respondents sworn by Sri Channu Lal Verma, DIOS, wherein it has been stated that after occurrence of vacancy, no requisition/intimation was received from the Management despite DIOS also called for such requisition vide letters dated 03.01.2002 and 20.5.2002. Ultimately, office of DIOS itself made a requisition to the Board on 01.7.2002 for making recruitment/ selection for appointment on the post of Assistant Teacher in the College and, therefore, ad hoc appointment of petitioner is patently illegal. In regard to what was stated in para 5 of the writ petition that requisition was sent on 25.6.2001 to DIOS and copy of such requisition is Annexure 3 to the writ petition, it is said that in fact the Management did not send any requisition on the prescribed proforma at any point of time and assertion that requisition has been sent is absolutely false and incorrect. The DIOS office itself reminded College to send requisition but it did not, hence office of DIOS made a requisition to the Board on its own. The letters and reminders sent by office of DIOS have been placed on record as Annexure C.A.1 and 2 to the counter affidavit.
7. The facts stated in the counter affidavit have not been controverted by petitioner either by filing rejoinder affidavit or by placing any other material before this Court. It is thus evident that appointment of petitioner is patently illegal.
8. It cannot be said that in the present case the Board has failed to make recommendation of a selected candidate under 1982 Act and therefore, Management in the interest of smooth functioning of College, find it expedient to make temporary arrangement by making ad hoc appointment. Here, the Management itself failed to comply with requirement of 1982 Act and therefore Section 16 would be clearly attracted in the case in hand, which bar any appointment, which has not been made in accordance with procedure prescribed under Act, 1982.
9. Counsel for the petitioner submitted that requisition was actually sent and Annexure 3 is the copy thereof. However, no acknowledge or endorsement of the office of DIOS has been placed on record to show as to when the document was received in the office of DIOS, as alleged by petitioner. Moreso, a perusal of Annexure 3 shows that it is signed and sent by the Principal. Under the statute, requisition for appointment on the post of a teacher has to be sent to the Board through DIOS by Committee of Management and not by the Principal. A requisition sent by Principal has been held illegal and bad.
10. This question as to the requisition sent by Principal instead of Managment whether would be legal or not has been considered by this Court in Civil Misc. Writ Petition No.24601 of 2003 (C/M Mewa Lal Ayodhya Prasad Gupta Inter College & Anr. Vs. State of U.P. & Ors.) decided on 24.02.2014, wherein this Court in paras 13 and 14, has said:
"13. Admittedly, the selection process commences with the requisition sent by Management to Commission through DIOS. In this case, no such requisition has been sent by Committee of Management. On the contrary, the requisition sent by Principal of College is the foundation of entire selection. Such requisition is patently illegal inasmuch the Principal has no jurisdiction or authority to send any such requisition. The DIOS has not applied its mind to this aspect of the matter and has forwarded the recommendation received from the Principal of the College without looking into the fact that it is not Principal, but Committee of Management who has to initiate the selection process and the requisition has to be sent by Management as contemplated in Rule 11 (2) of U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as "Rules, 1998"), which says that the statement of vacancies for each category of posts to be filled in by direct recruitment including the vacancies that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent in quadruplicate, in the proforma given in Appendix "A" by the Management to the Inspector. Before sending requisition, the power of determination of vacancy has also been conferred upon Management vide Rule 11 (1) of the Rules, 1998. In the entire procedure for appointment on the post of teaching staff, the Principal does not come in the picture.
14. In the present case, since the requisition in pursuance whereto the Commission has proceeded to make selection in respect to vacancy in question has been sent by a person, who had no jurisdiction or authority to do so, the entire selection, in my view, is illegal and deserves to be set aside."
11. The law laid down therein squarely apply to the facts of present case also. It is also well established that when law require something to be done in a particular manner, that has to be done in that manner alone and not otherwise else it is illegal and void. Under the statute, vacancy has to be notified and requisition has to be sent by Committee of Management. The Principal of College has no role in such matters. Therefore requisition sent by Principal of the College is patently without jurisdiction. The aforesaid principle was recognized initially in Nazir Ahmad Vs. King-Emperor AIR 1936 PC 253 and, thereafter it has been reiterated and followed consistently by the Apex Court in a catena of judgements, which I do not propose to refer all but would like to refer a few recent one.
12. In Dhananjaya Reddy Vs. State of Karnataka 2001 (4) SCC 9 in para 23 of the judgment the Court held :
"It is a settled principle of law that where a power is given to do a certain thing in a certain manner, the thing must be done in that way or not at all."
13. In Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala 2002 (1) SCC 633, it was held :
"It is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself."
14. The judgments in Anjum M.H. Ghaswala (supra) and Dhananjaya Reddy (supra) laying down the aforesaid principle have been followed in Captain Sube Singh & others Vs. Lt. Governor of Delhi & others 2004 (6) SCC 440.
15. In Competent Authority Vs. Barangore Jute Factory & others 2005 (13) SCC 477, it was held :
"It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning."
16. In State of Jharkhand & others Vs. Ambay Cements & another 2005 (1) SCC 368 in para 26 of the judgment, the Court held :
"It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way."
17. In view of the above, I find no difficulty in observing that requisition relied by petitioner in the case in hand would not help since it is patently illegal and without jurisdiction and it amounts to as if no requisition whatsoever under the provision of Act, 1982 read with rules framed thereunder has been sent so as to attract Section 18 thereof , in case the Board fails to make any recommendation within two months of such requisition.
18. Be that as it may, in para 7 of the counter affidavit, respondents DIOS has taken a clear stand that Annexure 3 to the writ petition was never received in the office of DIOS and no requisition has been sent by College and this fact has remained uncontroverted since petitioner has not filed any rejoinder affidavit.
19. Learned counsel for the petitioner placed reliance on a decision of this Court in Sanjay Singh Vs. State of U.P. & Ors., (2013) 1 UPLBEC 758. However, in the facts and circumstances of this case, I find that decision in Sanjay Singh (supra) would not help the petitioner in any manner. Here is a case where palpably illegal appointment was made without following the procedure prescribed in 1982 Act. In Sanjay Singh (supra) also this court has held that Management may make an adhoc appointment provided the Board has failed to make recommendation of a candidate within a reasonable time. In the present case, when the management did not make any requisition to the Board, it would not lie in its mouth to claim that ad hoc appointment has been made in the interest of College since the Board failed to make any requisition within a reasonable time and this fault caused serious loss to the students in particular and College in general. When the Management did not find any necessity or urgency to send requisition in prescribed manner to the Board, it would not have any authority or jurisdiction to make an appointment even on temporary basis since no such appointment is permitted under the statute in the year 2001.
20. An appointment made without sending any requisition and in violation of Section 18 is patently illegal and void. This aspect has been considered by Apex Court in Prabhat Kumar Sharma & Ors. Vs. State of U.p. & Ors., AIR 1996 SC 2638. The question up for consideration was the validity of appointment made before period of two months expired when a valid requisition was sent to the Board and its effect was considered by Apex Court and in paras 7 and 11, it held as under :
"Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees." (para 7) "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." (para 11)
21. Similar is the view taken by this Court in Dr. R.K. Pandey Vs. Sukh Ram Pal Singh Sahravat, 1995 (1) ESC 74 and in para 7 this Court has held as under: -
"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)
22. Again a Division Bench in the case of Anilesh Pratap Singh Vs. State of U.P., 2003 (5) ALR 674 has held in para 15 of the judgment as under: -
"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." (para 15)
23. 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 the 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 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."
24. 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 incumbent either to hold the post or claim salary.
25. It is in these facts and circumstances, I find that question, whether an ad hoc appointment made after 2001 is valid or not, would not arise in the case in hand since appointment made in this case is not conformity with Section 18 itself and therefore, is void ab initio.
26. In view thereof, I find no merit in the writ petition. It is accordingly dismissed.
27. Interim order, if any, stands vacated.
Order Date :- 24.9.2014 KA