Hon'ble Dr. Devendra Kumar Arora, J
1. Heard Mr. Ramesh Pandey, learned Counsel for the petitioner and Mr. Prashant Jaiswal, learned Additional Chief Standing Counsel for the State.
2. Petitioner, who is said to be working as Assistant Teacher (L.T. Grade) in C.L. Inter College, Chhitepatti, District Sultanpur, has approached this Court under Article 226 of the Constitution of India, seeking a writ of Mandamus against the respondents to pay salary and arrears for the post of Assistant Teacher (L.T. Grade).
3. Shorn off unnecessary details of facts of the case are as under:
C.L. Inter College, Chhitepatti, District Sultanpur (in short 'Institution) is a non-Government recognized Institution and is governed by U.P. Intermediate Education Act, 1921 and U.P. Secondary Education Services Commission Act, 1982.
According to the petitioner, one Mr. Rajendra Prasad Srivastava, who was working on the post of Assistant Teacher (L.T. Grade) in the Institution, was promoted to the post of Lecturer (Hindi) on regular basis, as a result thereof, one Mr. Satyadeo Dubey, who was working in C.T. Grade, was promoted as Assistant Teacher (L.T. Grade) by the Committee of Management of the Institution and his promotion was approved by the District Inspector of Schools vide order dated 30.12.1997 on ad hoc basis till the availability of regularly selected candidate from the Uttar Pradesh Secondary Education Service Commission.
4. Submission of learned counsel for the petitioner is that on account of ad hoc promotion of Mr. Satyadeo Dubey, a post of Assistant Teacher (L.T. Grade) fell vacant on short term basis, therefore, the Manager of the Institution vide letter dated 18.07.1997 informed the District Inspector of Schools with regard to advertisement of short term vacancy occurred in the Institution. Thereafter, the Manager of the Institution had published advertisement dated 24/25 and 26.07.1997 in the daily newspapers. Pursuant to the advertisement, the petitioner applied for the said post. The Selection Committee, after due process, prepared select list in which the name of the petitioner was placed at Serial No.1. Subsequently, on the basis of recommendation of the Selection Committee, the Manager of the Institution, vide order dated 05.08.1997, appointed the petitioner on the post of Assistant Teacher (L.T. Grade). The petitioner, in response to the appointment letter, joined the Institution on 14.08.1997.
5. Further submission of learned counsel for the petitioner is that on joining of the petitioner on the post in question, the Manager of the Institution, vide letter dated 07.11.1997, requested the District Inspector of Schools, Sultanpur to grant financial approval with respect to appointment of the petitioner on short term vacancy but inspite of several applications/reminders having been sent, the District Inspector of Schools did not grant financial approval with respect to the short term vacancy. Therefore, the petitioner is constrained to approach this Court by filing the instant writ petition.
6. Mr. Ramesh Pandey, Counsel for the petitioner has contended that Clause 2 (3) (iii) of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 provides that the District Inspector of Schools shall communicate his decision within seven days of the receipt of particulars by him, failing which, the Inspector will be deemed to have given his approval. His submission is that as there is no decision of the District Inspector of Schools in the matter despite receipt of requisite papers, the appointment of the petitioner stands approved in view of the said deeming provision in the Statute. Therefore, it is the liability of the State Government to pay salary to the petitioner as he has been appointed validly in accordance with statutory provisions contained in the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981.
7. To strengthen his arguments, Mr. Pandey has placed reliance upon Full Bench decision rendered in the case of Radha Raizada and others Vs. Committee of Management, Vidyawati Darbari Girl's Inter College and others;1994 (3) UPLBEC 1551, Charu Chandra Tiwari Vs. District Inspector of Schools, Deoria and others : (1990) 1 UPLBEC 160, Prem Prakash Singh Vs. State of U.P. and others : 2012 (30) LCD 1354, Devendra Pratap Singh Vs. State of U.P. and others : 2004 (22) LCD 127, District Inspector of Schools, Kanpur Nagar and others Vs. Diwakar Lal & others : (2000) 3 UPLBEC 2494, Rakesh Kumar Shukla Vs. Joint Director (Education) & others : 2007 (25) LCD 445 and Udai Raj Misra Vs. State of U.P. And others (writ petition No. 89 of 1999 (SS), decided on 12.3.2014.
8. Refuting the submissions of the learned Counsel for the petitioner, Mr. Prashant Jaiswal, learned Additional Chief Standing Counsel appearing on behalf of the State has submitted that on promotion of Mr. Rajendra Prasad Srivastava on the post of Lecturer (Hindi), the post of Assistant Teacher (L.T. Grade) had fallen vacant and on that post, Mr. Satyadeo Dubey was promoted on ad hoc basis, therefore, no such post of Assistant Teacher (L.T. Grade) was vacant for appointment as claimed by the petitioner. Thus, the plea of the petitioner with regard to his appointment on short term vacancy in L.T. Grade has no substance.
9. Mr. Prashant Jaiswal, learned Standing Counsel has further submitted that Radha Raizada (supra), which has been relied by the petitioner, is not applicable in the facts and circumstances of the case, as the appointment of the petitioner was made by the Committee of Management of the Institution against non-existing post in the Institution, therefore, provisions of Clause 2(3)(iii) of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 cannot be applied in the case of the petitioner.
10. To strengthen his submission, Mr. Jaiswal has placed reliance towards judgment of this Court in Committee of Management Gandhi Inter College, Mathura and another Vs. Regional Deputy Director of Education and others : (2015) 4 UPLBEC 3231.
11. There is no quarrel on the point that a Government Order dated 11.8.1989 was issued whereby the C.T. Grade was declared as dying cadre w.e.f. May, 1980 in the aided institution. Similarly vide Government Order dated 19.2.1991, similar provision was made with respect to the Government College. After declaration of CT Grade as Dying Cadre, the Government Orders dated 4.10.1989 and 19.10.1989 were issued providing therein that the C.T. Grade Teachers who have completed 10 years of service on 1.1.1986 or thereafter they shall be given L.T. Grade. Subsequently, State Government has issued Government Order dated 22.5.2004 with respect to the Assistant Teachers of the Government College as well as with regard to Assistant Teachers of the aided Institution whereby five years benefit has been granted to the teachers w.e.f. 19.2.1991.
12. Having heard the rival submissions of the learned Counsel for the parties, factual situation that has so emerged in the present case are that services of Mr. Satyadeo Dubey, who was appointed on ad hoc basis in C.T. Grade on 25.8.1986, were regularized in C.T. Grade w.e.f. 6.4.1991 vide order of District Inspector of Schools, Sultanpur dated 11.8.1995. The stand of the writ petitioner is that petitioner has been appointed on the post of Assistant Teacher (L.T. Grade) against short term vacancy fell vacant on account of ad hoc promotion of Sri Satyadeo Dubey in L.T. Grade vide order of the Management of the Institution dated 5.8.1997. Whereas stand of the respondent is that there was no vacancy of Assistant Teacher either in C.T. Grade or in the L.T. Grade in the Institution between July, 1997 to 30.12.1997, therefore, the plea of the petitioner that he was working in the Institution w.e.f. 24.8.1997 as Assistant Teacher (L.T. Grade) in the Institution and as such, he is entitled to get salary and arrears for the post in question, has no substance. In these background, this Court proceed to examine the claim of the petitioner.
13. Admittedly, the appointment of Sri Satyadeo Dubey has been made on ad hoc basis in C.T. Grade on 25.8.1986, which was prior to the decision of the State Government declaring C.T. Grade as a dying cadre. Selection/appointment against short term vacancy is governed under the provisions of U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order 1981 (hereinafter referred to as "Order 1981". The petitioner has disclosed in the writ petition, the way and manner he has been appointed and same was clearly in the teeth of the provisions of Second Removal of Difficulties Order, 1981, therefore, it is apt to reproduce the Order 1981, which is as under :
"1. Short title and commencement- (1) This order may be called the Uttar Pradesh Secondary Eduction Services Commission (Removal of Difficulties)(Second) Order, 1981
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 alongwith 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 alongwith 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-7-1 (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 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 Inspector of Girls Schools.'
(iii) short term vacancy which is not substantive and is of a limited duration."
3. Duration of ad hoc appointment- Every appointment of a teacher under paragraph 2 of this Order shall cease from the earliest of the following dates, namely:
(a) when the teacher, who was on leave or under suspension joins the post; or
(b) when the period of six months from the date of such ad hoc appointment expires; or
(c) when the short term vacancy otherwise ceases to exist."
14. A perusal of the aforesaid provisions reveals that for filling short term vacancy by way of direct recruitment, Management is obligated to intimate the vacancies to the District Inspector of Schools, and further obligated to notify the same on notice board, requiring the candidates to apply to Manager alongwith particulars given in Appendix "B" of Order. Selection has to be necessarily made, on the basis of quality point marks specified in the Appendix specified under First Removal of Difficulties Order 1981. Compilation of quality points marks is to be done under the supervision of Head of Institution. The names and particulars of candidate selected and also of the other candidates and the quality point marks allotted to them has to be forwarded by the Manager to the District Inspector of Schools for his prior approval. The District Inspector of Schools is obligated to communicate his decision within seven days of receipt of particulars by him failing which Inspector will be deemed to have given his approval. After receipt of approval of District Inspector of Schools or in the event of failure to communicate his decision within seven days of receipt of papers, as the case may be Management is free to make appointment. Life span of short term appointment is to come to an end when the short term vacancy otherwise would cease to exist.
15. "Short term vacancy" means a vacancy which is not substantive and is of limited duration. It is true that subsequent to 14.7.1992 when Section 18 of the U.P. Secondary Education Service Selection Board Act, 1982 have been amended, no ad hoc appointment could be made by the Committee of Management on substantive vacancy but the ad hoc appointment could be made on short term vacancy which was governed by the provisions of Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties ) (Second) Order, 1981. The power to make ad hoc appointment on short term vacancy remained with the Committee of Management. This has been specifically laid down by the Full Bench in Radha Raizada and others Versus Committee of Management, Vidyawati Darbari Girls Inter College and others (supra). Para 43 of the report is reproduced as under :
"43. Neither Section 18 of the Principal Act nor the First Removal of Difficulties Order envisaged for ad hoc appointment against the short term vacancy. As earlier noticed, Section 18 and the First Removal of Difficulties Order provided for ad hoc appointment either by promotion or by direct recruitment only against substantive vacancy which has been notified to the Commission. Since short term vacancy is not a substantive vacancy, the State Government by notification dated 7-9-1981 came out with a Second Removal of Difficulties Order providing procedure for filling the short term vacancies. The short vacancy as envisaged in the Second Removal of Difficulties Order is which arises on account of teachers going on leave granted to him or on account of suspension of a teacher pending disciplinary proceedings which is duly approved by the District Inspector of Schools. The power to appoint teachers either by promotion or by direct recruitment under the Second Removal of Difficulties Order is open only against short term vacancies and not against substantive vacancy. Paragraph 2 of the Second Removal of Difficulties Order provides that if short term vacancy in the post of teacher caused by grunt of leave to him or on account of his suspension duly approved by the District Inspector of Schools or other wise arises the same is required to be filled by the management of the institution by promotion of permanent senior most teacher of the institution from lower grade. The Management is further required to immediately inform the District Inspector of Schools of such promotion along with particulars of the teaches who is promoted. Thus if the short term vacancy arises the said vacancy has to be filled in by the promotion from amongst the permanent senior most teacher of the institution in the next lower grade and such promotion has to be intimated to the District Inspector of Schools. Paragraph 2 of the Order further-provides that the short term vacancy, if cannot be filled by promotion due to non-availability of a teacher in the lower grade possessing the prescribed minimum qualification, the same may be filled by the direct recruitment in the manner laid down in sub-paragraph (3) of paragraph (2) of the Order which provides that the management shall intimate the vacancy to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution requiring the candidate to apply to the Manager of the institution along with particulars. The advertisement of short term vacancy on the notice board of the institution according to me, n fact no notice to the prospective eligible candidates as no prospective candidate is expected to visit each institution to see the notice board for finding out whether, any short term vacancy has been advertised. Since the payment of salary to the teachers appointed against the short term vacancy is the liability of the State Government, the advertisement of short term vacancy must conform to the requirement of Article 16(1) of the Constitution which prohibit the State from doing anything whether by making rule or by executive order which would deny equal opportunity to all the citizens. The provision contained in sub-paragraph (3) of paragraph 2 of the Second Removal of Difficulties Order which provides that the short term vacancy shall be notified on the notice board of the institution does not give equal opportunity to all the eligible candidates of the District, Region or the State to apply for consideration for the appointment against the said short term vacancy. Such kind of notice is an eye-wash for the requirement of Article 16 of the Constitution. This aspect can be examined from another angle. If the notice of short term vacancy, through the notice board of the institution is accepted, it will throw open the doors for manipulation and nepotism. A management of an institution may or may not notify the short term vacancy on the notice board of the institution and yet may show to the authority that such vacancy has been notified on the notice board of the institution and may process the application of its own candidate for the appointment against the short term vacancy I am, therefore, of the view that the procedure for notifying the short term vacancy should be the same as it is for the ad hoc appointment by direct recruitment under the First Removal of Difficulties Order. The management after intimating such vacancy to the District Inspector of Schools advertise such short term vacancy at least in two Newspapers having adequate circulation in Uttar Pradesh in addition to notifying the said vacancy on the notice board of the institution and further the application may also be invited from the local employment exchange. Thus, the procedure provided for notifying the short tern vacancy should be the same as contained in sub-paragraph (2) of paragraph 5 of the First Removal of Difficulties Order. Thereafter, the procedure provided in sub-paragraph (3) (i, ii, iii, iv) of paragraph 2 of the Second Removal of Difficulties Order has to be followed for making such appointment. As seen the procedure provided under sub-paragraph (3) of paragraph 2 of the Second Removal of Difficulties Order, the selection is required to be made on the basis of quality point marks specified in the Appendix to the First Removal of Difficulties Order. The name and particulars of the candidates of selected and other candidates along with quality point marks allotted to them as required to be forwarded by the Manager to the District Inspector of Schools for the prior approval. The District Inspector of Schools is under obligation to communicate his decision within seven days of submission of such particulars failing which the District Inspector of Schools is deemed to have given his approval. The duration of such ad hoc appointment is till the teacher who was on leave or under suspension joins the post or When the short term Vacancy otherwise ceases to exist. This ad hoc appointment by direct recruitment against short term vacancy can only be resorted only after it is found that the said vacancy cannot be filled in by promotion. This ad hoc appointment against the short term vacancy is not an appointment either under Section 18 of the Act or under the First Removal of Difficulties Order as the power and procedure provided for the ad hoc appointment against the short term vacancy is under the Second Removal of difficulties Order and further is not against the substantive vacancy. After the procedure Provided in paragraph 2 of the Second Order has gone through no further approval of the district Inspector of Schools is required for such appointment. However it has come to notice that sometimes the Management resort to unfair practice in case of such appointments. For that contingency there is adequate safeguard provided in the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971."
16. At this juncture, relevant provisions as contained in Section 18 of U.P. Act No. V of 1982 and U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981 are being looked into:
"Section 18- Ad hoc Principals or Headmasters -(1) Where the Management has notified a vacancy to the Board in accordance with sub-section (1) of Section 10 and the post of the Principal or the Headmaster actually remained vacant for more than two months, the management shall fill such vacancy on purely ad hoc basis by promoting the senior most teacher-
(a) in the lecturer's grade in respect of a vacancy in the post of the Principal.
(b) in the trained graduate's grade in respect of a vacancy in the post of the Headmaster.
(2) Where the Management fails to promote the senior most teacher under sub-section (1) the Inspector shall himself issue the order to promotion of such teacher and the teacher concerned shall be entitled to get his salary as the Principal or the Headmaster, as the case may be, from the date he joins such post is pursuance of such order of promotion.
(3) Where the teacher to whom the order of promotion is issued under sub-section (2) is unable to join the post of the Principal or the Headmaster, as the case may be due to any act or omission on the part of the management, such teacher may submit his joining report to the inspector, and shall thereupon be entitled to get his salary as the Principal or the Headmaster, as the case may be, from the date he submits the said report.
(4) Every appointment of an ad hoc Principal or Headmaster under sub-section (1) shall cease to have effect from when the candidate recommended by the Board joins the post."
U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981.
"2. Vacancies in which ad hoc appointment can be made.- The management of an institution may appoint by promotion or by direct recruitment a teacher on purely ad hoc basis in accordance with the provisions of this Order in the following cases, namely:-
(a) in the case of a substantive vacancy existing on the date of commencement of this Order caused by death retirement, resignation or otherwise;
(b) in the case of a leave vacancy where the whole or unexpired portion of the leave is for a period exceeding two months on the date of such commencement;
(c) where a vacancy of the nature specified in clause (a) or clause (b) comes into existence within a period two months subsequent to the date of such commencement.
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 envelops bearing postal stamp for purposes of registration.
(4) The District Inspector of Schools shall cause the best candidates selected on the basis of quality specified in Appendix. The compilation of quality points may be done on remunerative basis by the retired Gazetted Government servants under the personal supervision of such Inspector.
(5) If more than one teacher of the same subject or category is to be recruited for more than one institution, the names of the selected teachers and the names of institutions shall be arranged in Hindi alphabetical order. The candidate whose name appears on the top of the list shall be allotted to the institution the name whereof appears on the top of the list of the institution. This process shall be repeated till both the lists are exhausted.
Explanation.-In relation to an institution imparting instruction to women the expression "District Inspector of Schools" shall mean the "Regional Inspectress of Girls Schools".
17. In view of these provisions, the ad hoc appointment of a teacher by direct recruitment can be resorted to only when the condition precedent for exercise of such powers as stated in Section 18 of the Act are present and only in the manner provided for in paragraph 5 of the Removal of Difficulties Order, 1981. When a teacher is appointed on ad hoc basis in accordance with the paragraph 5 of the First Removal of Difficulties Order, there is no requirement of approval or prior approval of the District Inspector of Schools for such appointment. However, it goes without saying that if a Management without following the procedure indicated above makes an ad hoc appointment the District Inspector of Schools possess general power under the Payment of Salaries Act to stop payment of salary to such teacher.
18. The word "vacancy" has been defined in Rule 2(11) of U.P. Secondary Education Services Commission Rules 1983. 'Vacancy' means 'a vacancy arising out as a result of death, retirement resignation, termination, dismissal, creation of new post or appointment/promotion of the incumbent to any higher post in substantive capacity'. Thus, both under Section 18 of the Act and under the Removal of Difficulties Order, the Management of an institution is empowered to make ad hoc appointment by direct recruitment, in the manner laid down in paragraph 5 of the First Removal of Difficulties Order only when such vacancy cannot be filled in by promotion and for a period till a candidate duly selected by the Commission joins the post. Thus, if contingency arises for ad hoc appointment of teacher by direct recruitment the procedure provided under the first Removal of Difficulties Order has to be followed. Paragraph 5 of the First Removal of Difficulties Order provides that the management shall, as soon as may be, inform the District Inspector of Schools about the details of vacancy and the District Inspector of Schools shall invite applications from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh. Sub paragraph (3) of paragraph 5 further provides that every such application shall be addressed to the District Inspector of Schools. Sub paragraph (4) of paragraph 5 of the Removal of Difficulties Order provides that the District Inspector of Schools shall cause the best candidate selected on the basis of quality point specified in Appendix. The complication of quality point may be done by the Retired Government Gazetted Officer, in the personal supervision of the Inspector. Paragraph 6 of the First Removal of Difficulties Order further provides for appointment of such teacher under paragraph 5, who shall possess such essential qualification as laid down in Appendix A referred to in the Regulation 1 of Chapter II of the Regulations made in the Intermediate Education Act.
19. It is pertinent to mention here that after the enforcement of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982, the Committee of Management had no right to select or appoint candidates against substantive vacancies in the posts of Assistant Teachers or Lecturers, whereas case of the petitioner is that since the Board constituted under the Act, 1982 has not been able to send selected candidates, the institutions were entitled to appoint persons on an ad hoc basis until regularly selected candidates become available and the State would be liable to pay salaries to these teachers out of grant made available to the institutions.
20. The issue which emerges out from the aforesaid submissions of the learned Counsel for the petitioner has already been dealt with by a Division Bench of this Court in Committee of Management, Gandhi Inter College, Mathura and another Vs. Regional Deputy Director of Education and others : (2015) 4 UPLBEC 3231, wherein a Division Bench of this Court, while considering the provisions of U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order 1981, Section 33-B of U.P. Act No. 5 of 1982 as inserted by Act No.1 of 1993 w.e.f. 7.8.1993, and law laid down by the Full Bench of this Court in Km. Radha Raizada (supra), which has been approved by the Apex Court in Prabhat Kumar Sharma and others Vs. State of U.P. : 1996 (10) SCC 62, Smt. Pramila Mishra Vs. Deputy Director of Education : 1997 (2) UPLBEC 1329, has held as under:
"The inevitable conclusion is that even in the matter of selection and appointment on adhoc basis made against the substantive vacancy under Section 18 of U.P. Act No. V of 1982, procedural front has to be adhered to as is provided under First Removal of Difficulties Order wherein the Committee of Management of the institution concerned is obligated to inform the vacancy to the District Inspector of Schools and thereafter the District Inspector of Schools is obligated to advertise the vacancy in question and carry out the selection based on quality point marks.
On this parameter once claim of Hari Ram respondent-appellant no. 2 is being examined. As far as appointment of Hari Ram is concerned, his appointment has been claimed to have been made in exercise of authority vested under Section 18 of U.P. Act No. V of 1982 and accepted position is that the procedure prescribed under First Removal of Difficulties Order, 1981 has not at all been adhered to as First Removal of Difficulties Order, clearly talks of advertisement and also clearly talks about the fact that selection is to be made on the basis of quality point marks awarded on the basis of marks obtained in High School, Intermediate, Graduate level and Post Graduate level and here without following the procedure prescribed purported selection has been made based on the strength of interview in question. Under First Removal of Difficulties order, there is no provision to make selection/appointment on the post of teacher by way of interview, rather selection is to be made on the basis of quality points marks as specified in the Appendix to the First Removal of Difficulties Order. In view of this, procedure that has been adopted and adhered to by the Committee of Management is not at all in consonance with the procedure prescribed under Para-5 of the First Removal of Difficulties Order. District Inspector of Schools at the point of time when he has proceeded to accord approval, at no point of time has ever considered all these aspect of the matter and to the contrary has proceeded to mention that advertisement has been made and appointment has been made without going into this aspect of the matter, as to whether requisite procedure as prescribed stand fulfilled or not.
Consequently selection and appointment of appellant-defendant appellant no. 2 made under purported exercise of authority under Section 18 of U.P. Act No. V of 1982 read with Para-5 of First Removal of Difficulties Order is void and cannot be subscribed. Learned Single Judge, has rightly quashed the order passed in favour of Hari Ram by District Inspector of Schools."
21. Keeping in mind the aforesaid legal provisions and law, this Court finds in the present case that services of Mr. Satyadeo Dubey, who was appointed on ad hoc basis in C.T. Grade on 25.8.1986, was regularized w.e.f. 6.4.1991 vide order dated 11.8.1995 passed by the District Inspector of Schools, Sultanpur. The criteria for promotion from C.T. Grade to L.T. Grade under 50% quota is five years satisfactory service in C.T. Grade subject to rejection of unfit. But the Committee of Management, before the aforesaid period of five years, is said to have appointed Sri Satyadeo Dubey as Assistant Teacher (L.T. Grade) from C.T. Grade and subsequently, sent a proposal on 10.3.1993 to the District Inspector of Schools, Sultanpur to the effect that Sri Satyadeo Dubey, M.A. (Sanskrit), Assistant Teacher C.T. Grade is the only such eligible and senior teacher who possesses eligibility for promotion to the post of graduate pay grade, therefore, on the vacancy caused due to promotion of Sri Rajendra Prasad Srivastava, Assistant Teacher (L.T. Grade) to the post of Lecturer (Hindi), the promotion of Sri Satyadeo Dubey has been made in the graduate pay scale under 50% quota according to Government Order dated 16.7.1992. In these backgrounds, the Committee of Management has requested the District Inspector of Schools to grant financial approval for disbursing the salary of Sri Satyadeo Dubey in L.T. Grade.
22. As per record, Mr. Satyadeo Dubey was to complete five years services in C.T. Grade on 30.12.1997, therefore, in order to fill up the vacancy caused due to promotion of Sri Rajendra Prasad Srivastava to the post of Lecture (Hindi), the name of Satyadeo Dubey was forwarded to the Secretary, U.P. Secondary Education Service Commission, Allahabad on 22.10.1997 for grant of approval of his promotion to L.T. Grade. But as the Secretary, U.P. Secondary Education Services Commission, Allahabad did not sent the approval in time, therefore, the District Inspector of Schools accorded approval under Rule vide letter dated 30.12.1997, which is contained in Annexure No.1 to the writ petition.
23. The petitioner himself has stated in the present writ petition with regards to filling up the vacant post of the Assistant Teacher in L.T. Grade on ad hoc basis and his appointment as an ad hoc teacher in L.T. Grade having been made in place of Sri Satyadeo Dubey, Assistant Teacher in C.T. Grade, who was promoted under 50% promotion quota to L.T. Grade and approval thereof was obtained from the District Inspector of Schools vide order dated 30.12.1997 and this was to become effective from the date of joining. These facts can be substantiated on perusal of Annexure No.1 to the writ petition, which relates to promotion of Mr. Satyadeo Dubey in L.T. Grade from C.T. Grade. A perusal of the said order dated 30.12.1997 shows that on account of vacancy caused due to promotion of one Sri Rajendra Prasad Srivastava, Assistant Teacher (L.T. Grade) to the post of Lecturer (Hindi), which was approved by the Commission, Mr. Satyadeo Dubey was granted promotion from C.T. Grade to L.T. Grade under 50% quota w.e.f. the date of joining after passing of the order under the conditions that (1) whenever any candidate selected by the Commission takes over the charge or (2) if the Commission disapproves the selection of Mr. Dubey, then, this financial approval shall have no effect; (3) if any facts have been concealed and if the same comes in light, this order shall itself be nullified. In these backgrounds, it is crystal clear that no short term or substantive vacancy either in C.T. Grade or L.T. Grade in the Institution had arisen when the petitioner has been given appointment on the post of Assistant Teacher L.T. Grade by the Committee of Management. Apparently, substantive vacancy had arisen in the cadre of L.T. Grade against the post which became vacant due to promotion of Sri Satyadeo Dubey from C.T. Grade to L.T. Grade vide order dated 30.12.1997 and merger of C.T. Grade to L.T. Grade.
24. In the counter affidavit, it has been specifically mentioned that vacancy in L.T. Grade was occurred when Shri Satyadeo Dubey was promoted and approved by the District Inspector of School, Sultanpur vide order dated 30.12.1997 but the Committee of Management, on its own without there being any post of C.T. Grade or L.T. Grade in the institution, appointed the petitioner on 24.8.1997. It is also mentioned that the Committee of Management of the Institution had sent the proposal for promotion of Sri Satyadeo Dubey in the year 1993 and at that time, Sri Satyadeo Dubey was not eligible for promotion against 50% quota. However, after completion of required period, the District Inspector of Schools forwarded his name and when approval was not received in time from the Commission, the District Inspector of Schools, Sultanpur has accorded approval for promotion of Shri Satyadeo Dubey on 30.12.1997 in L.T. Grade. Thus, the post of L.T. Grade Teacher, on which the petitioner was appointed by the Committee of Management, was not vacant as vacancy occurred in L.T. Grade was due to the promotion of Shri R.P. Srivastava in Lecturer Grade, on which post Sri Satyadeo Dubey, who was working in C.T. Grade, was promoted vide order dated 30.12.1997 and the resultant vacancy in C.T. Grade became L.T grade on substantive basis after C.T. Grade being declared dying cadre and merger of C.T. Grade into L.T. Grade.
25. It is also relevant to point out that Satyadeo Dubey has not challenged his promotion order at any point of time. Moreso, as per the service record of Mr. Satyadeo Dubey, the salary for the promoted post has been given to him only on 1.1.1998 when Satyadeo Debey joined on the post of L.T. Grade. Thus, the appointment of the petitioner on the post of L.T. Grade is not only in breach of the provisions of law but also against a non-existing post.
26. There is nothing on record, which indicates that the post of C.T./L.T. Grade which fell vacant due to promotion of Satyadeo Dubey as L.T. Grade teacher vide order dated 30.12.1997, the Committee of Management has taken any steps for filling up the same by sending requisition to the Commission as after promotion and joining of Sri Satyadeo Dubey as L.T. Grade teacher in pursuance of the order dated 30.12.1997, post of C.T. Grade became vacant since CT Grade has already been merged to L.T. Grade by that time. Therefore, vacancy caused on account of promotion of Sri Satyadeo Dubey in L.T. Grade would fall in L.T. Grade in substantive capacity.
27. It is pertinent to mention that the Committee of Management is required to send requisition to the Board, requesting therein to send the name of the selected candidates for appointment against the vacancy and if the Board fails to recommend the name of the selected candidates, option is available for the Committee of Management to approach this Court, seeking direction against the Board concerned for sending the name of the selected candidates as held by this Court in Pradeep Kumar (supra) . Thus, this Court, on due consideration, came to the conclusion that no post in C.T. Grade was fell vacant in the institution except the post in the L.T. Grade on account of the promotion of Mr. Rajendra Prasad Srivastava as Lecturer (Hindi) on 19.3.1990 and also when Mr. Rajendra Prasad Srivastava was confirmed in Lecturer (Hindi) Grade after his promotion was approved by the Commission by a letter dated 1.10.1990. As per record of the writ writ petition, at that moment, no one was eligible in the institution for promotion against 50% quota, therefore, the Management of the Institution ought to have sent requisition to the Commission for direct recruitment on the post of L.T. Grade but the Management of the Institution allegedly promoted Sri Satyadeo Dubey on ad hoc basis and his promotion was affirmed vide order dated 30.12.1997 from the date of taking over charge after passing of the order (Annexure No.1 to the writ petition), on attaining the requisite experience in C.T. Grade teacher. Thus, any appointment made against the post occupied by Sri Satyadeo Dubey on 5.8.1997 by the Committee of Management terming as short term vacancy by invoking the provisions of Second (Removal of Difficulties) Order, 1981, was misplaced and void and the Committee of Management has exceeded its jurisdiction by appointing the petitioner against the non-existing post as the post become vacant on substantive basis after 30.12.1997.
28. It is relevant to add here that the conflict between two judgments passed by the learned Single Judge i.e. Sanjay Singh Vs. State of Uttar Pradesh and others : (2013) 1 UPLBEC 758 and Pradeep Kumar Vs. State of Uttar Pradesh and others: Writ-A No.22520 of 2013 (decided on 1 May 2013), has been referred to a Division Bench of this Court in Writ Petition No. 655 (S/S) of 2014 : Abhishek Tripathi Vs. State of U.P. & others, for adjudication of the following questions :
"1. Which of the two cases namely Sanjai Singh Vs. State of U.P. and others in writ petition No. 3348 (SS) of 2012 or Pradeep Kumar Vs. State of U.P. and others in writ petition No. 22520 of 2013, lays down the correct law.
2. Scope of Section 16-E(11) of the Intermediate Act, 1921 read with Sections 16, 22, 32 and 33-E of the U.P. Secondary Education Service Selection Board Act, 1982."
29. While considering the aforesaid questions, the Division Bench, vide judgment and order dated 17.12.2015, has answered the reference in favour of the dictum laid down in Pradeep Kumar (supra), wherein a writ of mandamus was sought to the State to ensure the payment of salary to an Assistant Teacher in an Intermediate College governed by the Act of 1921 and the Act of 1982. In Pradeep Kumar's case, upon retirement of an Assistant Teacher, the Management made a requisition to the Board. Since the Board did not provide a candidate, the Management proceeded to advertise the vacancy and made a selection which was forwarded to the District Inspector of Schools for approval. Not having obtained an approval, the Management filed a writ petition in which reliance was placed on the decision in Sanjay Singh (supra). The learned Single Judge took notice of the provisions of Section 16 of the Act 1982 under which, an appointment of a teacher, after the enforcement of the provisions, can be made only on the recommendation of the Board failing which the appointment made would be void. In the view of the learned Single Judge, an appointment by the Committee of Management against a substantive vacancy was without any authority and hence, a direction for the payment of salary from the public exchequer could not be issued. The conclusion of the learned Single Judge was in the following terms:
"Appointment on substantive vacancy in a recognized intermediate college is regulated by the provisions of Act,1982. Section 16 of Act, 1982 declares that appointment shall only be made on the recommendation of the Selection Board and any appointment otherwise would be void. The Act as on date contains no provision for any ad-hoc/temporary appointment being made. Consequently, so far as the Act, 1982 is concerned, no selection for appointment can be made by the Committee of Management.
This Court may record that Section 16-E (11) of Act, 1921 permits appointment on temporary vacancy by the Committee of Management only for a period not exceeding six months or till the end of academic session, otherwise, Act, 1921 does not contemplate any ad-hoc/temporary appointment.
In view of the aforesaid, there being no statutory provision permitting such appointment as has been made by the Committee of Management of the institution, against the substantive vacancy. There cannot be a direction to the State Government to make payment of salary through public exchequer."
30. The learned Single Judge in Pradeep Kumar's case held that if a delay occurs in making a selection by the Board and there is a shortage of teachers in the institution, the Management cannot adopt its own procedure for appointment and the proper remedy available to the Management is to approach the High Court for a mandamus against the Board to make an appointment at the earliest possible. However, if the Management makes an appointment on its own accord, that would be contrary to law and in the view of the learned Single Judge, the liability for payment of salary to such a teacher would fall only upon the Management. In the decision in Pradeep Kumar (supra), the learned Single Judge took notice of the earlier judgment in Sanjay Singh (supra), but held that the decision does not provide what procedure is to be followed and what method is to be adopted for selection nor can the High Court issue such a direction under Article 226 of the Constitution. The conclusion of the learned Single Judge was in the following terms:
"In these circumstances, merely because the management has made appointment of a person, who is qualified in terms of the Appendix-A, it will not mean that the said appointment is in accordance with law. In view of Section 16 of Act, 1982, it would be a nullity. No appointment against substantive vacancy can be made except on the recommendation of the Selection Board in view of the law as it stands today. Reference Smt. Prameela Mishra vs. State of U.P. & others; 1997 (2) UPLBEC 1329 and Surendra Kumar Srivastava vs. State of U.P. & others; 2007 (1) ESC 118."
31. The legal proposition propounded above also makes it clear that appointment of the petitioner was illegal/void, therefore, the claim of the petitioner for payment of salary from the State Exchequer based on an alleged appointment by the Management against a substantive vacancy treating it to be short term which occurred on account of promotion of Mr. Satyadeo Dubey is misconceived and is de hors the Rules.
32. In view of the above detailed discussions, the judgments which have been relied upon by the learned Counsel for the petitioner are not applicable under the facts and circumstances of the case.
33. The writ petition lacks merits and is, accordingly, dismissed. Costs easy.
Order Date : 9 June, 2016 Ajit/-