1. Heard Sri Arjun Singhal, Advocate, for petitioner and learned Standing Counsel for respondents.
2. The sole petitioner, Om Prakash Pathak, during pendency of this writ petition has died and substituted by legal heirs. However, I would refer to the deceased petitioner hereinafter as "petitioner" for the purpose of convenience.
3. This writ petition has been filed by petitioner under Article 226 of Constitution of India being aggrieved by order dated 31.07.2004 passed by District Inspector of Schools, Azamgarh (hereinafter referred to as "DIOS") whereby Management of Yashoda Lal Misra Uchchattar Madhyamik Vidyalaya, Baragaon, Azamgarh was directed to appoint Amal Kishore Singh (respondent-3) as a Teacher (L.T.Grade) in Physical Training pursuant to recommendation made by U.P. Secondary Education Services Selection Board, Allahabad (hereinafter referred as "Board") vide letter dated 18.05.2004.
4. Facts in brief giving rise to present dispute are that Yashoda Lal Misra Uchchattar Madhyamik Vidyalaya, Baragaon, Azamgarh (hereinafter referred to as "College") is a Secondary Educational Institution governed by the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as "Act, 1921"). With respect to payment of salary of teaching and non teaching staff of the College, it is governed by U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as "Act, 1971") and for recruitment of Teachers, provisions of U.P. Secondary Education Service Selection Board Act, 1982 (hereinafter referred to as "Act, 1982") are applicable.
5. Petitioner was appointed as Assistant Teacher (C.T. Grade) in Physical Training by Management's order dated 18.02.1983 on ad hoc basic pursuant to approval granted by DIOS's letter dated 17.02.1983. The aforesaid ad-hoc appointment of petitioner was till the candidate selected by Board is available. Petitioner joined the College as Assistant Teacher (C.T. Grade) in Physical Training on 18.02.1983. Principal of College vide letter dated 22.05.1984 informed petitioner that his salary has been stopped from April, 1984 pursuant to letter dated 21.05.1984 issued by DIOS till clear instructions are received. Petitioner came to this Court in Writ Petition No. 15892 of 1984 wherein an interim order was passed on 03.04.1985 as under:
"Issue notice.
In view of the admitted position in counter affidavit, we direct the District Inspector of Schools to pay the salary of petitioner till June 1984 within a period of two months from the date of production of a copy of this order before him."
6. No response was given by respondents in the aforesaid Writ Petition, hence Court, on 17.08.1986, passed following interim order in the above Writ Petition:
"In spite of time granted by this Court no counter affidavit has been filed and, therefore, I issue an interim mandamus directing the respondent no. 1 to permit the petitioner to function as C.T. Grade teacher in Sri Yashoda Lal Misra Uchchatar Madhyamik Vidyalaya, Baragaon, Azamgarh and pay his salary or show cause within six weeks from the date of production of this order on respondent no 1."
7. Petitioner thereafter continued to serve in the College as Assistant Teacher (C.T. Grade) (Physical Education). Section 33-A was inserted in the Act, 1982 by U.P. Act No. 19 of 1985 with effect from 12.06.1985. Petitioner claimed that in view of Section 33-A, he stood 'deemed regularized' and there ceased to be any vacancy on the post of Assistant Teacher (C.T. Grade) in Physical Education in the College on and after commencement of Section 33A i.e. 12.06.1985. However, Management, it appears, that without realizing above position of law, notified vacancy to Board who made selection and recommended respondent-3 for appointment on the post of Physical Training Teacher in the College vide letter dated 18.05.2004 and pursuant thereto DIOS has issued impugned order dated 13.07.2004 directing Management of College to appoint respondent-3 thought there is no such vacancy, hence impugned order is patently illegal.
8. Respondent-1 has contested writ petition by filing a counter affidavit stating that one Devta Lal Srivastava was working as Assistant Teacher (L.T. Grade) in College. Due to his death, a vacancy arose on the post of Assistant Teacher (L.T. Grade). Consequently one Vidya Sagar Tiwari, Physical Training Teacher (C.T. Grade) was promoted by Management of the College on 03.02.1983. In the resultant vacancy of Physical Training Teacher (C.T. Grade), Management made ad-hoc appointment of petitioner. Management also promoted one Shiv Poojan Singh, a C.T. Grade Teacher in L.T. Grade though there was only one vacancy in L.T. Grade due to death of Devta Lal Srivastava. When this mistake was realized, Vidya Sagar Tiwari, Physical Training Teacher, was reverted back as Physical Training Teacher (C.T. Grade) and petitioner's services were terminated by Management by order dated 30.06.1984. Subsequently, Sri Vidya Sagar Tiwari, Physical Training Teacher (C.T. Grade) died on 13.04.1999 causing a substantive vacancy which was notified by College to Board and pursuant thereto Board recruited and recommended respondent-3 for appointment on the post of Physical Training Teacher (C.T. Grade) vide letter dated 18.05.2004. Hence DIOS issued letter dated 13.07.2004 directing Management to appoint respondent-3 on the said post.
9. In the Rejoinder Affidavit filed by petitioner, he has stated in para-4 that due to death of Devta Lal Srivastava, an Assistant Teacher (L.T. Grade), Vidya Sagar Tiwari, Physical Training Teacher (C.T. Grade) was promoted on 03.02.1983. Petitioner was appointed on ad-hoc basis as Physical Training Teacher (C.T. Grade) on 19.02.1983 pursuant to approval letter dated 17.02.1983 issued by DIOS. Another Teacher Shiv Poojan Singh, who was also given wrong promotion in L. T. Grade, was reverted to his post on 30.06.1984 and in his place one Ratan Lal Yadav, who was also given ad hoc promotion, terminated on 30.06.1984. The letter dated 29.06.1984 of Management of College giving this information is placed on record as Annexure RA-1.
10. A Supplementary Counter Affidavit has also been filed by DIOS reiterating that on 03.02.1983 Management promoted two C.T. Grade Teachers. One Vidya Sagar Tiwari, Assistant Teacher (C.T. Grade) to L.T. Grade and another Shiv Poojan Singh was promoted in L. T. Grade. Subsequently Management cancelled promotion of Vidya Sagar Tiwari. Ad-hoc appointment of petitioner which was made pursuant to promotion of Vidya Sagar Tiwari was terminated by Management by order dated 30.06.1984 sine Sri Tiwari stood reverted in C.T. Grade. It is further stated that respondent-3 was appointed by Management of College vide appointment letter dated 04.08.2004 and since then he is working and getting salary having joined on 05.08.2004. It is also said that petitioner is not in service from 01.07.1984 hence not entitled for any salary.
11. In the supplementary rejoinder affidavit, it is said that Management has no right to cancel promotion of Vidya Sagar Tiwari, who was appointed with the approval of DIOS and further that petitioner continued to serve and stood deemed regularized under Section 33-A of Act, 1892, till 2006 when he died.
12. Without entering into the question whether promotion of Vidya Sagar Tiwari was cancelled by Management or not, first of all in my view the foremost question which needs be examined in this case is "whether petitioner was appointed on ad hoc basis after following the procedure laid down under Act, 1982 read with Removal of difficulties Order.
13. It is not stated anywhere, either in the Writ Petition or Rejoinder or Supplementary Rejoinder Affidavit as to whether Vidya Sagar Tiwari was given promotion on substantive basis or on ad hoc basic. If promotion would have been given on substantive basis, vacancy of Physical Training Teacher (C.T. Grade) would have been a substantive vacancy and for ad hoc promotion procedure prescribed under Section 18 of Act, 1982 read with Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as "First Order") had to be complied with. If promotion of Vidya Sagar Tiwari was ad hoc, then it would have been resulted in a short term vacancy on the post of Physical Training Teacher and in that case procedure prescribed in U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as "Second Order") must have been complied with.
14. From the own statement of petitioner made in Para-4 of rejoinder affidavit, it is admitted that Vidya Sagar Tiwari was given promotion on 03.02.1983. Therefore, vacancy on the post of Physical Training Teacher (C.T. Grade) according to own showing of petitioner had occurred on 03.02.1983 and not earlier thereto.
15. Now first of all I would examine the matter treating as if promotion of Vidya Sagar Tiwari was substantive causing a substantive vacancy on the post of Physical Training Teacher (C.T. Grade). In that case, Section 18 of Act, 1982, as it stood then, provided as under:
"18. (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 cased 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) thirteen day of June following the date of such ad hoc appointment."
16. Section 18 provides, where vacancy is notified to the Board and has actually remained vacant for more than two months, only then Management would have a right to fill in the vacancy on purely ad hoc basic and not otherwise. This provision is mandatory.
17. An appointment made without sending any requisition and in violation of Section 18 is patently illegal and void. This has been held 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 expiry of a period of two months 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:
"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) (emphasis added)
18. 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) (emphasis added)
19. Again a Division Bench in Anilesh Pratap Singh Vs. State of U.P., 2003 (5) ALR 674 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) (emphasis added)
20. 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)
21. 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.
22. If vacancy of Physical Training Teacher after promotion of Vidya Sagar Tiwari occurred on 03.02.1983, no appointment on 19.02.1983 could have been made, i.e., 16 days from occurrence of vacancy for the reason that neither there could have been any possibility of sending any requisition under Section 18 of Act, 1982 to the Board nor there could have been any occasion for the vacancy having been remained unfilled actually for a period of more than two months.
23. Moreover, petitioner's appointment letter, Annexure-1 to the writ petition, refers to DIOS's approval dated 17.02.1983 and approval letter (Annexure-2 to the writ petition) shows that Management's resolution dated 10.01.1983 was approved. On 10.01.1983 there was no vacancy of Physical Training Teacher (C.T. Grade) since Vidya Sagar Tiwari, as per own admission of petitioner, was promoted only on 03.02.1983. Therefore, entire facts show that petitioner's appointment was fictitious and manipulated one and not in accordance with Statute as stands demonstrated hereinabove.
24. Now I would consider the matter further assuming that promotion of Vidya Sagar Tiwari was ad hoc as Assistant Teacher (L.T. Grade) causing a short term vacancy on the post of Physical Training Teacher (C.T. Grade). Here also vacancy admittedly occurred on 03.02.1983. An ad hoc appointment on short term vacancy could have been made as per procedure prescirbed in Second Order. Para-2 of Second Order provides procedure for filling up short term vacancy and 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."
25. It requires that first of all Management shall proceed to fill in the vacancy by ad hoc promotion of senior most Teacher in the College in next lower grade. If no senior most qualified teacher is available, then Management is required to intimate vacancy to DIOS and thereafter to notify the same inviting applications and then make selection on the basis of quality point marks and forward documents to DIOS for his approval.
26. It is not stated anywhere that vacancy was notified inviting applications and candidates applied were considered by Selection Committee and procedure laid down in Para 2 of Second Order was followed. Non compliance and non observance of abovesaid procedure is evident from the fact that DIOS's letter dated 17.02.1983 shows that he approved Management's resolution dated 10.01.1983 on which date even vacancy on the post of Physical Training Teacher, whether substantive of short term, was not in existence. Therefore, it is a clear case where procedure under Para-2 of Second Order was not followed at all and the alleged appointment of petitioner was made with the blessings of Management, in a wholly illegal and arbitrary manner.
27. This Court also could not find any occasion of approval being granted by DIOS to ad hoc appointment of petitioner by letter dated 17.02.1983 referring to Management's resolution dated 10.01.1983 when on that date there was no vacancy on the post of Physical Training Teacher (C.T. Grade) since Vidya Sagar Tiwari was promoted as per own showing of petitioner on 03.02.1983. This fact also shows that story set up by petitioner regarding his appointment by Management is patently illegal and in the teeth of Statute.
28. Question of benefit under Section 33-A (1) or (1-A) would have arisen if ad hoc appointment of concerned Teacher would have been made validly, in accordance with Removal of Difficulties Order applicable to the case. Therefore, question of deemed regularization as claimed by learned counsel for petitioner has no application to the case in hand.
29. Moreover, appointment of respondent-3 was already made by Management on 04.08.2004 and the said letter of appointment is not under challenge. The said appointment letter was issued after death of Vidya Sagar Tiwari on 13.04.1999, working of post of Physical Training Teacher. This also shows that Vidya Sagar Tiwari was not working as Assistant Teacher (L.T. Grade) at the time of his death and therefore case set up by respondent-1 that promotion of Vidya Sagar Tiwari was cancelled, deserves to be believed. However, for the purpose of deciding this writ petition, this aspect may not have much relevance in view of my findings in regard to validity of ad hoc appointment of petitioner. Hence, no relief, as claimed by petitioner, can be granted.
30. The writ petition lacks merits. Dismissed.
Dt. 31.10.2018 PS