1. Heard Sri B.B.Paul, Senior Advocate assisted by Sri A.P.Paul, learned counsel for the petitioner, learned Standing Counsel and Sri Saurabh Basu for the respondent.
2. Shri Teeka Ram Girls Inter College, Aligarh (hereinafter referred to as "College") is admittedly an Intermediate college governed by U.P.Intermediate Education Act, 1921 (hereinafter referred to as "1921 Act") and in the matter of payment of salary it is governed by Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (hereinafter referred to as "1971 Act"). For the purpose of recruitment it is regulated by Uttar Pradesh Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as "1982 Act") .
3. It is said that due to death of one teacher on 25.1.1988 a vacancy arose in which the petitioner was appointed by Committee of Management by advertising the vacancy and making selection. The petitioner was appointed by letter dated 27.12.1989 pursuant whereto she joined on 1.1.1990 and since then she is continuously working. It is stated that since thereafter since no person from Commission is selected and recommended, the petitioner has continued and is entitled to be considered for regularization.
4. Once it is admitted that vacancy in question, on which petitioner claim appointment due to death of incumbent holding the post, was a substantive vacancy, undisputedly it could have been filled by following the procedure prescribed in para 5 of Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as "First Order"). The provision as it was on the statute book in 1989 when the petitioner claims to have been appointed, ought to have been followed. It reads as under:
"5. Ad hoc appointment by direct recruitment.- (1) Where any vacancy cannot be filled 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)(a) 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.
(b) Where two or more candidates obtain equal quality points, the candidate obtaining higher percentage of marks in all examinations (High School, Intermediate, Graduate Degree and Post-Graduate Degree) essential for the particular grade, shall be placed higher and if such percentage is also equal, the candidate obtaining higher percentage of marks in the last essential examination of degree, as the case may be, shall be placed higher. In case percentage of marks in the last essential examination degree is also equal, the candidate senior in age shall be placed higher.
(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 names of the institution shall be arranged in Hindi alphabetical order. The candidate whose name appears on the top of the list shall be allotted to the institution the name whereof appears on the top of the list of the institution. This process shall be repeated till both the lists are exhausted."
5. The effect and consequence of non compliance of procedure prescribed in First Order issued under the Act 1982 has been considered by a Full Bench of this Court in Radha Raizada Vs. Committee of Management, 1994 (2) ESC 345 (FB) and confirming the said judgment the Apex Court in Prabhat Kumar Sharma & Others Vs. State of U.P. & Others, A.I.R. 1996 SC 2638, held that any appointment made without following the procedure under the Removal of Difficulties Order is void ab initio and would not confer any right upon the incumbent either to hold the post or to claim salary. This decision was reiterated and followed by the Apex Court in Shesh Mani Shukla Vs. D.I.O.S., Deoria & Others, JT 2009 (10) SC 309.
6. In the entire writ petition there is no averment showing that aforesaid procedure was followed. In a vague manner this much has been said that vacancy was advertised and thereafter petitioner was appointed. In the counter affidavit filed by respondent-Committee of Management it is said that since vacancy remained unfilled for two months hence Committee of Management was competent to make appointment and it has made the appointment. It is nowhere pleaded that any procedure prescribed in First Order was ever observed.
8. Thus, from the pleadings of the petitioner 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 was void ab initio. Since procedure for ad hoc appointment prescribed in the First Order was not followed therefore provisions applicable for regularization is also not applicable.
9. Learned counsel for the petitioner placed reliance on Division Bench judgment in Daya Shanker Mishra Vs. District Inspector of Schools and others 2011(1) ESC 221 but the aforesaid judgment has no application to the facts of this case. Reliance is also placed on a decision of this Court in Smt. Shashi Saxena and others Vs. Dy. Director of Education and others 2000(3) ESC 1990 which was a case of short term vacancy converted into substantive vacancy but in the present case vacancy, as stated by the petitioner herself was substantive from its commencement and therefore the aforesaid decision has no application.
10. Rakesh Chandra Mishra Vs. State of U.P. and others 2004(3) UPLBEC 2671 and Om Prakash Misra Vs. DIOS Allahabad and Anr. 2006(5) AWC 4681, on which learned counsel for the petitioner placed reliance, are also matters relating to short term vacancy which have no application in this case.
11. In any case, this issue has further been considered and decided by a Division Bench of this Court in Surendra Kumar Srivastava Vs. State of U.P. and others 2007(1) ESC 118 and Full Bench decision in Smt. Pramila Misra Vs. Deputy Director of Education 1997(2) ESC 1284 and both the above judgments have ben followed by thi sCourt in Anil Kumar Singh Vs. Joint Director of Education (Writ Petition No.18650 of 1998) decided on 21.5.2009.
12. Now the only submission advanced on behalf of petitioner left to be touched is the so called sympathetic view in the matter since petitioner in one or the other way has been successful in continuing to work in the College for last more than two decades.
13. It is true that in some of the precedents without laying down any principle of law the Courts have shown a lenient view and have allowed the incumbent concerned to continue but 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 sanctify 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. It is next contended that since petitioner has continued to work for the last more than 20 years, some kind of right must be read to have germinated in him and this Court may refrain from making such order or observation which may result in depriving the very employment of petitioner and that would be violative of his fundamental right under Article 21 of the Constitution.
16. In fact even this aspect stands answered by the Apex Court in State of Orissa Vs. Mamata Mohanty (supra) by observing:
"The concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence. Therefore, continuation of a person wrongly appointed on post does not create any right in his favour."
17. In an earlier decision also in Dr. M.S. Patil Vs. Gulbarga University (supra) which has been followed by Apex Court in State of Orissa Vs. Mamata Mohanty (supra) the Apex Court considered a similar argument in para 11 and 12 of the judgement and rejecting the same said:
"11. But at this stage once again a strong appeal is made to let the appellant continue on the post where he has already worked for over 17 years. Mr. Patil, learned senior counsel, appearing for the appellant, submitted that throwing him out after more than 17 years would be very hard and unfair to him since now he cannot even go back to the college where he worked as lecturer and from where he had resigned to join to this post.
12. We are unimpressed. In service law there is no place for the concepts of adverse possession or holding over. Helped by some University authorities and the gratuitous circumstances of the interim orders passed by the Court and the delay in final disposal of the mater, the appellant has been occupying the post, for all these years that lawfully belonged to someone else. The equitable considerations are, thus, actually against him rather than in his favour. The matter can also be looked at from a slightly different angle. It is noted above how the appellant was able to secure the appointment and how he managed to continue on the post. By notification dated August 13, 2004, the appellant was discharged from the service of the University on the post of Reader in Kannada but was asked to continue on ad-hoc basis until the appointment of the new incumbent to the post. His position is, thus, only ad- hoc till the appointment of the new incumbent and in that position he is continuing on the basis of the direction of this court to maintain status quo. We see no reason to continue this ad-hoc arrangement any further and we do not wish to stand any longer in the way of the post being filled up on a regular basis."
18. These observations very aptly apply in this case also where this Court has no hesitation in observing that flagrant illegality committed by College Management as well as the educational authorities in committing breach of statute has resulted in conferring an undue illegal advantage in favour of petitioner and someone in public at large who otherwise may have been more suitable and eligible but under carpet approach has denied the right of consideration and consequently the right to earn livelihood by seeking employment on the post in question even on ad hoc basis though actually it has continued for decades together. The situation is really not only highly dissatisfactory but unfortunate and justify a serious disapproval and strictures of this Court.
19. I have looked into this matter in full detail so as to curtail more than two decades litigation and also to save the educational institutions from the bounds of management of scrupulous persons who somehow get over the things managed by keeping the matter pending or undecided or unadjudicated in one or the other manner.
20. In view of above discussion and exposition of law, the writ petition is dismissed.
21. Interim order, if any, stands vacated.
Order Date :- 17.2.2012 KA