JUDGMENT Sabhajeet Yadav, J.
1. Feeling aggrieved against the order dated 23.1.1996 passed by Deputy Director of Education (Madhyamik) Azamgarh Region Azamgarh/the respondent No. l contained in Annexure 5 to the writ petition, the petitioner has filed the above noted writ petition. A further relief in the nature of mandamus was sought for directing the Committee of Management to proceed to fill up the post of lecturer in English in the institution in question afresh.
2. The relief sought in the writ petition rests on the allegations that the institution in question namely D.A.V.Inter College Maunath Bhanjan District Mau hereinafter referred to as the Institution is recognised under the provisions of U.P. Intermediate Education Act, 1921, hereinafter referred to as the Act, 1921. The institution is also receiving grants in-aid out of state fund, and is recognised under the provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other employees) Act, 1971, hereinafter referred to as Payment of salaries Act, 1971. The provisions of U.P. Secondary Education Services Selection Board Act, 1982 hereinafter referred to as U.P. Act No. 5 of 1982, and various Removal of Difficulties Orders issued thereunder from time to time are also applicable in connection of appointment, promotion and disciplinary control of the teachers of the institution. The petitioner was appointed as Assistant Teacher in C.T. Grade on 19.1.1978 in the institution and similarly the respondent 4 Amar Nath Misra was also appointed as Assistant Teacher C.T.Grade in the same institution on 19.1.1978 itself. The petitioner was senior in age therefore he was senior to the respondent 4 as per Regulation 2 of Chapter 2 of the Regulations framed under the 1921 Act. It is also alleged that the petitioner has passed his M.A. Examination in English and was also trained while he was appointed on the aforesaid post. So far as the respondent 4 is concerned it is stated that he passed his M.A. Examination in English in the year 1981 after his appointment as C.T. Grade teacher in the institution. One post of lecturer in English fell vacant on 30.6.1985 on account of retirement of one Sri Bhagwat Lal Srivastava. There was no English teacher available in the L.T. Grade in the institution who could be promoted on the aforesaid vacant post of lecturer in English in the institution, consequently the Committee of Management had filled up the aforesaid vacancy by way of direct recruitment. It is alleged that the Committee of Management of the institution was interested in appointing the respondent 4 as lecturer in English on adhoc basis consequently the Committee of Management without intimating the vacancy to the U.P. Secondary Education Services Commission/Selection Board hereinafter referred to as the Commission/Selection Board as required under Section 18 of the U.P. Act No. 5 of 1982 and without following the procedure prescribed under Section 18 of the U.P. Act No. 5 of 1982 and First Removal of Difficulties Order, 1981 proceeded to appoint the respondent 4 on adhoc basis by way of direct recruitment. It is further alleged that as per the case set up by the respondent 4 himself before the Deputy Director of Education (Madhyamik), the vacancy in question was allegedly notified to the Commission by the Managing Committee on 25.6.1985. The Committee of Management thereafter passed a resolution on 20.8.1985 whereby a sub-Committee of three persons namely Brij Bihari Tandon the Manager, Raj Narain and Sri Narain Misra the Principal was constituted for selecting the candidates for appointment on the post in question in accordance with the provisions of U.P. Act No. 5 of 1982. The Committee of Management in its resolution dated 20.8.1985 also resolved that candidature of the respondent 4 for appointment on the post in question shall also be considered keeping in view the fact that he was teaching English in Intermediate Classes. The aforesaid sub-committee which was constituted by Managing Committee met on 1.9.1985 and had passed a resolution in favour of the respondent 4 selecting him for appointment on the post of lecturer in English. In pursuance of the aforesaid decision taken by the sub-committee the Manager of the institution issued an order of appointment in favour of the respondent No. 4 appointing him as lecturer in English on adhoc basis on 4.9.1985. After his appointment as lecturer in English the respondent No. 4 was not paid the salary.
3. Being aggrieved he filed a writ petition before this Court which was numbered as writ petition No. 2215 of 1986 Amar Nath Mishra v. District Inspector of Schools and Ors.. Initially as interim measure on 10.3.1986 a direction to pay salary to the respondent No. 4 on the post of ad hoc lecturer or show cause was issued to the respondents of the aforesaid writ petition, later on vide interim order dated 21.1.1987 the aforesaid interim mandamus was made absolute and in compliance of which the respondent No. 4 (petitioner of aforesaid writ petition) was paid his salary on the post of Lecturer. In the aforesaid writ petition counter affidavit was filed on behalf of the District Inspector of Schools, in which it was categorically stated that the appointment of the respondent No. 4 i.e. the petitioner in that case was never approved by the District Inspector of Schools, and alleged order of approval was not available on records in the office of District Inspector of Schools, therefore was doubtful. On the original order of approval dated 22.9.1995 no dispatch number was mentioned and it appears that the said order was procured by the respondent No. 4 from the outgoing District Inspector of Schools. In the aforesaid writ petition an impleadment application was filed by the petitioner of instant writ petition along with detailed counter affidavit. After hearing the counsel for the parties this Court dismissed the writ petition vide order dated 16.8.1995 (Annexure-3 of the writ petition) with the direction that the Deputy Director of Education (Madhyamik) shall examine the rival contention of aforesaid petitioner (respondent No. 4 herein) and present petitioner on merits after affording opportunity to them and further the this Court was pleased to direct that the respondent No. 4 should be paid salary in L.T. Grade keeping in view the fact that he had completed more than 10 years of service in the scale of C.T. Grade but the respondent No. 4 is not entitled to receive salary on the post of lecturer in English. Being aggrieved by the order passed by the learned Single Judge the, respondent No. 4 filed Special Appeal before the Division Bench of this Court, which was dismissed on 25.9.1995. As per the direction given by this Court the Deputy Director of Education (Madhyamik) Azamgarh after hearing the parties concerned has ultimately decided the matter vide impugned order dated 23.1.1996 (Annexure 5 to the writ petition) whereby the respondent 1 has allowed the claim set up by the respondent No. 4 and he has further held that the respondent No. 4 is entitled to be regularised on the post of lecturer in English under Section 33-A of U.P. Act No. 5 of 1982 hence this petition.
4. Two detail counter affidavits have been filed in the writ petition one by Sri Deo Bhushan Pandey Manager of the institution on behalf of the respondent No. 3 of the writ petition and another by the respondent 4 himself. No counter affidavit was filed on behalf of the State Government. The averments contained in the counter affidavit filed by the respondent No. 3 virtually supports the claim of the respondent No. 4 and it is in repetition of averments made in the counter affidavit filed on behalf of the respondent No. 4. Therefore I would like to mention the facts stated in the counter affidavit filed by the respondent No. 4 In para 4 of the counter affidavit it is not disputed that the post in question i.e. post of lecturer in English fell vacant on account of retirement of Bhagwat Lal Srivastava on 30.6.1985. It is further alleged that Shri Bhagwat Lal had taken voluntary retirement because of the reason that for the last about 3 years he was not feeling well and in fact he was not teaching the classes and during his absence the respondent No. 4 taught the classes as English lecturer for a period of about 2 years i.e. during year 1983-84 as well as in the year 1984-85. His work and conduct was found to be satisfactory by the Committee of Management. The Committee of Management had duly made Adhiyachan and thereafter duly considered the case of deponent/the respondent No. 4 for appointment as adhoc lecturer in English in the institution especially in view of his past two years teaching experience at Intermediate level, which was found fully satisfactory. Since no recommendations were made by the Commission as such the Management appointed a sub-committee and delegated its power to make adhoc appointment. The sub-committee has duly approved the appointment of the respondent No. 4 in terms of the aforesaid delegation and thereafter appointment order was also issued on 4.9.1985. In pursuance thereof he joined the duty on the post of lecturer in English on the same day on adhoc basis. It is further alleged that the papers regarding the appointment and selection of the respondent No. 4 were sent to the District Inspector of Schools, who approved the appointment of the respondent No. 4 vide order dated 22.9.1985, a true copy of the letter of appointment is on record as Annexure CA-2 to the counter affidavit. It is alleged that mere having no dispatch number on the approval order does not mean that such approval order is a wrong paper. In fact the approval order as communicated to the Management by the District Inspector of Schools, in the year 1985 itself was shown in original to the Deputy Director of Education and Deputy Director of Education was fully satisfied with the said approval order. In para 11 of the counter affidavit it is stated that thereafter the respondent No. 4 has been paid his salary throughout as lecturer in English for a period of about 10 years w.e.f. 4.9.1985 to 31.8.1995 and the respondent No. 4 has worked as lecturer in English without any break even for a single day. It is further stated that in view of the aforesaid facts and circumstances of the case the respondent No. 4 is entitled to be regularised as lecturer under Section 33-A of U.P. Act No. 5 of 1982. In para 13 onwards of the counter affidavit it is also stated that the petitioner has no locus standi to challenge the appointment of the respondent No. 4. In para 23 of the counter affidavit it is admitted that the respondent No. 4 was duly paid his salary for a period of 10 years in view of interim order granted by this Court, which was also duly confirmed.
5. I have heard learned Counsel for the petitioner and the learned standing counsel for the State and respective counsel appearing for the private respondents.
6. The submission of the learned Counsel for the petitioner in nut-shell is that the adhoc appointment of the respondent No. 4 was made by the Committee of Management of the institution contrary to the provisions of Section 18 of U.P. Act No. 5 of 1982 in as much as provisions of First Removal of Difficulties Order, 1981 therefore void abinitio. While elaborating his argument the learned Counsel for the petitioner has urged that admittedly the vacancy was caused on account of retirement of one Bhagwat Lal Srivastava who was lecturer in English and retired on 30.6.1985. In the institution no L.T. Grade teacher was eligible and qualified to be promoted on the post lecturer in the institution therefore the vacancy was liable to be filled up by way of direct recruitment on adhoc basis. The procedure for appointment against substantive vacancy has been provided under Section 18 of U.P. Act No. 5 of 1982 read with First Removal of Difficulties Order, 1981. Aforesaid Section 18 requires intimation of such substantive vacancy to Commission/Selection Board and when the commission fails to recommend any name for period of one year or the post remains actually vacant for more than 60 days, as stipulated in the aforesaid section from the date of intimation of vacancy, then Committee of Management is required to inform the Inspector about the details of vacancy for filling up on adhoc basis. Paragraph 5 of First Removal of Difficulties Order, 1981 provides that the management shall as soon as possible may inform the District Inspector of Schools, about the details of vacancies and District Inspector of Schools, shall invite application from the local employment exchange and also shall make public advertisement in at least two news papers 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 provides that District Inspector of Schools, shall cause the best candidate selected on the basis of quality point specified in Appendix. The compilation of quality point may be done by Gazetted Officers in personal supervisions of the Inspector. In this regard learned Counsel for the petitioner has further submitted that since the selection was not done by District Inspector of Schools, as provided under paragraph 5 of First Removal of Difficulties Order, 1981. Instead thereof admittedly the selection of the respondent No. 4 has been done by subcommittee constituted by the Committee of Management of the institution without advertising the vacancy in any newspapers and without inviting the applications from desirous eligible candidates in as much as no other candidate has been considered by the sub-committee. Even the subcommittee did not consider the candidature of any other candidate and the candidature of only respondent No. 4 has been considered by sub-committee therefore the entire procedure adopted by sub-committee while holding the selection of the respondent No. 4 is in utter violation of statutory provisions of law therefore the selection of the respondent No. 4 is void abinitio. Consequently the appointment of the respondent No. 4 pursuant to the aforesaid selection is vitiated under law.
7. The learned Counsel for the petitioner has further submitted that the appointment of the respondent No. 4 was also not approved by the District Inspector of Schools. The letter of approval dated 22.9.1985 filed by the respondent Nos. 3 and 4 is not genuine document as the same does not bear any dispatch number of the office of District Inspector of Schools. Besides this the respondent No. 4 was not paid his salary on the post of lecturer in English in the institution. He filed a writ petition before this Court, which was numbered as writ petition No. 2215 of 1986 Amar Nath Misra v. District Inspector of Schools, and Ors.. In pursuance of the interim order granted by this Court in the aforesaid writ petition, the respondent No. 4 was paid his salary as lecturer during the pendency of the aforesaid writ petition and the said writ petition was ultimately dismissed on 16.8.1995 after hearing the counsel for the parties with the direction that the Deputy Director of Education (Madhyamik) shall examine the rival contention of the parties after hearing them on merits. This Court was further pleased to direct that the respondent No. 4 should be paid salary in L.T. Grade keeping in view the fact that he had completed more than 10 years of service in C.T. Grade, Feeling aggrieved against the aforesaid order of learned Single Judge the respondent No. 4 filed Special Appeal before the Division Bench of this Court, which was dismissed on 25.9.1995. Thereafter he filed representation before the Deputy Director of Education who decided the same vide impugned order dated 23.1.1996.
8. The learned Counsel for the petitioner has further urged that the impugned order passed by the Deputy Director of Education is absolutely illegal and is in the teeth of the several judgments given by this Court. From the bare perusal of the impugned order it would show that the respondent No. 1 has recorded a finding to the effect that condition precedent for making adhoc appointment under Section 18 of U.P. Act No. 5 of 1982 had not been fulfilled in much as 60 days as required under the aforesaid provisions has not been expired therefore the Committee of Management was not at all entitled and empower to proceed with the adhoc appointment. He has also recorded finding to the effect that the post in question was not advertised by the Committee of Management. It has also been held by the Deputy Director of Education that procedure as prescribed under the Act for making adhoc appointment was not followed by the Committee of Management while appointing the respondent No. 4 and after recording these finding the obvious conclusion to which the respondent No. 1 was to reach is that appointment of the respondent No. 4 was illegal, therefore he was not entitled to get salary under the Payment of Salary Act nor he was entitled to be regularised on the post in question but instead thereof the respondent No. 1 has allowed the claim of respondent No. 4 merely by saying that it was not the fault of respondent No. 4 and in fact it was the fault of Committee of Management. The aforesaid conclusion therefore reached by the respondent No. l is absolutely illegal and perverse. In support of his submission the learned Counsel for the petitioner has also placed reliance upon several decisions of this Court including Radha Raizada and Ors. v. Committee of Management, Vidyawati Darbari Girls Inter College and Ors. (1994) 3 UPLBEC 1551.
9. Contrary to it the learned Counsel appearing for the respondent Nos. 3 and 4 have made serious attempt to justify the impugned order passed by the Deputy Director of Education (Madhyamik) the respondent No. l and supported the stand taken in the counter affidavit. Besides this learned Counsel appearing on behalf of the respondent has submitted that the decision of the Full Bench of this Court rendered in Radha Raizada's case is prospective in operation and cannot affect the appointments made earlier to the aforesaid decision. Admittedly the appointment of the respondent No. 4 has been made in the year 1985 much earlier to the decision rendered by the Full Bench of this Court therefore the same would not affect and apply in the case of the respondent No. 4. The respondent No. 4 has already been permitted to work on the post and also paid his salary for a period more than 10 years therefore at this stage mere irregularity in the process of selection cannot vitiate his selection and pursuant appointment, consequently he was entitled for regularisation under Section 33-A of U.P. Act No. 5 of 1988 as he has worked as ad hoc lecturer in the relevant period covered by the aforesaid provisions of law.
10. On the basis of rival submissions of learned Counsel for the parties following questions arise for consideration of this Court:
(1) As to whether the selection and appointment of respondent No. 4 made on the post of lecturer in English on adhoc basis in the institution on 4.9,1985 against the vacancy caused due to retirement of incumbent on 30.6.1985 was well in accordance with the provisions of law, particularly as law declared by Full Bench of this Court in Radha Raizada case (supra) and if not what would be its effect in given facts and circumstances of the case?
(2) As to whether decision rendered by Full Bench of this Court in Radha Raizada's case has retrospective or prospective operation and/or as to whether the appointment of respondent No. 4 which was prior in time can be affected by the decision rendered by Full Bench of this Court in aforesaid case.
(3) As to whether the respondent No. 4 is entitled for regularisation under Section 33-A (1-c) of U.P. Act No. 5 of 1982?
11. To find out accurate answer to the question No. 1, referred herein before, it is necessary to examine relevant statutory provisions of law, having material bearing with the question. In this connection it is necessary to point out that the provisions of Section 18 of U.P. Act No. 5 of 1982 and para 5 of the U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981, hereinafter in short called as First Removal of Difficulties Order, 1981 as it stood on the relevant date of selection and appointment of respondent No. 4 are as under:
18. Ad hoc Teachers.- (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 cease 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 11 expires;
(c) thirtieth day of June following the date of such ad hoc appointment.
5. Ad hoc appointment by direct recruitment- (1) Where, any vacancy cannot be filled by promotion under Paragraph 4, the same may he 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) The District Inspector of Schools shall cause the best candidates selected on the has is 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.
(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 he 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 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 Girl's Schools ".
12. The law regarding adhoc appointment against substantive vacancy by way of direct recruitment on the post of teacher/lecturer has been clarified and authoritatively settled by the Full Bench of this Court in Radha Raizada's case (supra). In paragraph 41 and 42 of the decision this Court has held as under:
41. It has already been noticed that Section 18 of U.P.Act No. 5 of 1982 of the Principal Act provides for power to appoint a teacher purely on adhoc basis either by promotion or by direct recruitment against the substantive vacancy in the institution when the condition precedent for exercise of powers exist namely that the Management has notified the said vacancy to the Commission in accordance with the provisions of the Act and the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher within one year from the date of such notification of the post of such teacher has actually remained vacant for more than two months. However, since the State Government was alive to the situation that the establishment of the Commission may take long time and even after it is established, it may take long time to make available the required teacher in the institution and as such issue three Removal of Difficulties Orders namely Removal of Difficulties Order dated 11.9.1981, Removal of Difficulties Order dated 30.1.82 and Removal of Difficulties Order dated 14.4.1982. In fact these Removal of Difficulties Orders were issued to remove the difficulties coming in the way of a Management in running the institution in absence of teachers. This power to appoint adhoc teachers by direct recruitment thus, it available only when pre-conditions mentioned in Section 18 of U. P. Act No. 5 of 1982 of the Act are satisfied, secondly, the vacancy is substantive vacancy and thirdly, the vacancy could not he filled by promotion. Neither the Act nor the Removal of Difficulties Order defines vacancy. However, the 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 U.P. .Act No. 5 of 1982 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 by promotion and for a period till a candidate duly selected by the Commission joins the post. As noticed earlier both Section 18 of the Act and the provisions of First Removal of Difficulties Order provide for ad hoc appointment of teacher in the institution, later further providing for method and manner of such appointments are part of one scheme. Scheme being provision for ad hoc appointment of teacher in the absence of duly selected teachers by the Commission. The provisions may be two but the power to appoint is one and the same and therefore, the provisions contained in 18 and Removal of Difficulties Order are to harmonized. It is, therefore, not correct to say that appointment of a teacher on ad hoc basis is either under Section 18 of the Act or under the Removal of Difficulties Order. Thus, if contingency arises for ad hoc appointment of teacher by direct recruitment the procedure provided under 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 application from the local Employment Exchange and also through public advertisement in atleast two news papers having adequate circulation in Uttar Pradesh. Sub paragraph (3) of paragraph 5 further provides that every such application shall i.e. 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 compilation 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.
42. In view of these provisions the adhoc appointment of a teacher by direct recruitment can be resorted to only when the condition precedent for exercise of such powers as stated in paragraph 18 of the Act are present and only in the manner provided for in paragraph 5 of the Removal of Difficulties Order. This view of mine finds support in a number of decisions namely, Rang Bahadur Singh and Ors. v. District Inspector of Schools, Saharanpur 1991 (2) UPLBEC page 1079 and Lalta Prasad Yadav and Ors. v State of U.P., 1988 UPLBEC page 345. When a teacher is appointed on adhoc basis is in accordance with the paragraph 5 of the First Removal of Difficulties Order there is further 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.
13. The aforesaid decision of Full Bench of this Court rendered in Radha Raizada's case has also been approved by Hon'ble Apex Court in Prabhat Kumar Sharma and Ors. v. State of U.P. and Ors. and it was held that any ad hoc appointment of teacher made contrary to the provision of Section 18 of the Act, read with para 5 of the First Removal of Difficulties Order 1981 against substantive vacancy through direct recruitment is illegal and void and confers no right on the appointees.
14. In view of aforesaid legal position and from a careful examination of provisions of Section 18 of U.P. Act No. 5 of 1982 it is clear that where the management notified a vacancy to the commission in accordance with the provisions of aforesaid Act, and the commission has failed to recommend the name of suitable candidate for being appointed within one year from the date of such notification or the post of such teacher 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, thus it is clear that power to make ad hoc appointment either by direct recruitment or by promotion lies with the management of the institution, but the procedure for such recruitment is not provided under the Act, instead thereof the procedure for such recruitments has been provided under the Removal of Difficulties orders issued under the aforesaid Act. Under First Removal of Difficulties Order, it is provided that every vacancy may be filled by promotion in the manner given under para 4 and where any vacancy cannot be filled by promotion the same may be filled by direct recruitment in accordance with Clause (2) to (5) of para 5 of said First Removal of Difficulties Order, 1981. Having regard to the scheme of Act 1982, no other vacancy except the substantive vacancy required to be notified and to be filled up by the Commission/Selection Board. Therefore, it is categorically clear that ad hoc appointment against substantive vacancy can be made only in the contingencies stipulated under Section 18 of the Act, in the manner and methods provided under the First Removal of Difficulties Order, At this juncture it is to be pointed out that to fill up substantive vacancy through direct recruitment, the power to hold selection is not with the Committee of Management, rather it is with the District Inspector of Schools who has to hold selection in the manner provided under Clause 2 to 5 of para 5 of the First Removal of Difficulties Order, 1981 on information received from the Management of the institution. Thus there can be no scope for doubt to hold that the provisions of Section 18 and First Removal of Difficulties Order constitutes an integrated scheme for ad hoc appointment of teachers against substantive vacancy as held by Full Bench of this Court in Radha Raizada's case.
15. It is also necessary to point out that from perusal of the observations made by the Full Bench of this Court it is clear that although prior or subsequent approval of ad hoc appointment of teacher against substantive vacancy through direct recruitment under Removal of Difficulties Order is not required but so far as the appointment is concerned the same must be in accordance with the provisions of Section 18 of the Act read with para 5 of the Removal of Difficulties Order. In case the Management appoints such teacher against substantive vacancy through direct recruitment without following the procedure laid down under Section 18 of U.P. Act No. 5 of 1982 read with para 5 of First Removal of Difficulties Order 1981, the District Inspector of Schools possess general power under the Payment of Salary Act to stop payment of salary to such teachers. In instant case, even assuming the fact that vacancy was communicated to the commission on 25.6.1985 and thereafter the Management has taken steps to fill up the vacancy by constituting a selection committee without informing D.I.O.S. to hold selection and in fact selection was done by such Selection Committee and not by D.I.O.S. as required under Clause 2 to 5 of para 5 of First Removal of Difficulties Order, 1981. Besides this, while holding selection of respondent No. 4 the Committee of Management did not advertise the vacancy in any daily newspapers, what to say of two daily newspapers having wide and adequate circulation in State of U.P.. Thus in my considered opinion such selection and appointment of respondent No. 4 cannot be held to be in accordance with the provisions of Section 18 of U.P. Act No. 5 of 1982 read with para 5 of Removal of Difficulties Order, 1981 therefore cannot be held to be legal and valid and does not confer any right on the respondent No. 4.
16. Now coming to the next question as to whether decision rendered by Full Bench of this Court in Radha Raizada's case has retrospective or prospective operation and/or as to whether the appointment of respondent No. 4 which was prior in time can be affected by the decision rendered by Full Bench of this Court in aforesaid case, it is necessary to point out that from the perusal of Full Bench decision of this Court in Radha Raizada's case there is nothing to indicate in the decision itself that the decision has any retrospective or prospective operation in legal parlance. Virtually the retroactivity and prospectivity are the terms used in the field of legislation. The legislation may be prospective or retrospective in operation but the decision of court normally pronounce upon the rights and obligations of the parties in litigation in a context of a particular legislation or law existing on the date on which cause of action arises and some times, legislation covers even pending cases by virtue of having being retrospective in operation in that event of the matter the court is bound to give effect to the intent of the legislation subject to certain limitations need not to be discussed here. Thus the decision of court covers the transaction or action taken under challenge, which are anterior or prior in point of time to the date of decision and the court pronounces upon legality or validity of such transaction or action under challenge, vis-a-vis, rights and obligations of parties in litigation and as such in both common and legal parlance it can be said to be declaratory in nature, therefore would be retrospective in operation, but the Hon'ble Apex Court has evolved the doctrine of prospective overruling of earlier decision tendered by Hon'ble Apex Court itself so that the transactions carried out and action taken on account of earlier existing legal position can be saved and may not be affected and exposed to attack or judicial scrutiny on account of decision rendered subsequently by the Apex Court, wherein the earlier legal position has been altered or changed by overruling its earlier decision.
17. In L.C. Golak Nath v. State of Punjab , in para 51 of the decision while dealing with the question as to whether the decision in that case should be given prospective or retrospective operation, eleven Judges Constitution Bench of the Hon'ble Apex Court laid down propositions to the effect that; (1) The doctrine of prospective overruling can be invoked only in matters arising under our Constitution; (2) It can be applied only by the highest court of the country i.e. Supreme Court as it has the constitutional jurisdiction to declare law binding on all courts in India; (3) The scope of retroactive operation of the law declared by the Supreme Court superseding its earlier decisions is left to its discretion to be moulded in accordance with the justice of the cause or matters before it. Hon'ble Apex Court then declared that the said decision will not affect the validity of (Seventeenth Amendment) Act, 1964 or other amendments made to the Constitution taking away or abridging the fundamental rights. Thereafter in Woman Rao v. Union of India , in Atma Prakash v. State of Haryana , in Orissa Cement Ltd. v. State of Orissa in Union of India v. Mohd. Ramzan Khan , the Hon'ble Apex Court has evolved and applied the same doctrine of prospective overruling.
18. Thus from a careful consideration of the observations made in the aforesaid decision it is clear that even doctrine of prospective overruling cannot be evolved and applied by this Court as held in Golak Nath's case that the doctrine of prospective overruling can be invoked only in matters arising under our Constitution and it can be applied only by the highest court of the country i.e. Supreme Court as it has the constitutional jurisdiction to declare law binding on all courts in India. The scope of retroactive operation of law declared by the Supreme Court superseding its earlier decisions is left to its discretion to be moulded in accordance with the justice of the cause or matters before it. Therefore, there can be no scope for doubt to hold that it is only in the competence of Hon'ble Apex Court to evolve the doctrine of prospective overruling and apply it suitably in facts and circumstances of the case to save the transactions and actions taken in the earlier law declared by Supreme Court which has been overruled by the Apex Court subsequently or transactions under taken in a legislation which is ultimately declared invalid piece of legislation or ultra-vires to any provisions of constitution or another law. Such power of Apex Court is because of the reason that the Hon'ble Apex Court is armed with the provisions of Articles 141 and 142 of the Constitution of India whereas having no such power, this Court can not evolve the doctrine of prospective overruling by postponing/halting/deferring the operation of its judgments leaving it to be applied only in connection of cases arising out after the decision rendered by this Court. If such a situation is contemplated there would be a serious anomalous situation as the litigant fighting before the court even after successful in litigation would be deprived of his earlier existing right determined by the court in his favour and other persons who may be litigating subsequently would get advantage of such a decision. Therefore, in my considered opinion the law declared by this Court is always retrospective in operation except in the cases where decision has effect of amending the statute whereby taking away the vested or accrued rights of individuals and this Court has no power or jurisdiction under our constitution to halt or postpone the effect of operation of law declared by it or to defer it for operation in future. However, civil court and this Court also have ample power to mould the relief claimed in the proceeding, but the aforesaid power should not be confused and equated with the power to halt/defer or restrict the operation of law declared by this Court itself in the sense that decision would apply prospectively or would have prospective operation.
19. At this juncture it is necessary to point out that while deciding the case in Smt. Ram Dulari Devi and Ors. v. Joint Director of Education, Varanasi Region, Varanasi and Ors. (1999) 3 UPLBEC 2069, a division Bench of this Court in para 7 of the decision has laid down a broad proposition to the effect that decisions unless specifically lay down, do not operate retrospectively in order to render all actions taken prior to such decisions void. In this connection it is noteworthy to mention that the aforesaid broad proposition laid down by this Court runs contrary to the decision of Hon'ble Apex Court in Golak Nath's case. Although the aforesaid decision of Apex Court has been subsequently overruled by Hon'ble Apex Court in Keshwanand Bharti v. State of Kerela , but the principle laid down in Golak Nath's case in respect of prospective overruling has not been touched in Keshwanand Bharti's case rather the same principle has been applied by Hon'ble Apex Court in cases referred herein before and also followed and discussed in Managing Director E.C.I.L., Hyderabad v. B. Karunakar , wherein the Hon'ble Apex Court has reiterated again the view taken in Golak Nath case. Therefore, with all respect to the learned Judges of this Court the aforesaid broad proposition laid down by this Court runs contrary to the decisions of Hon'ble Apex Court and as such, held to be per incuriam as given in ignorance of binding precedent, and law declared by the Supreme Court. The aforesaid observations of Division Bench, no doubt may be correct in field of legislation but can not be held to be good law in respect of prospective and retrospective operation of decision of this Court.
20. In this connection it is necessary to point out that in K.N. Dwivedi v. District Inspector of Schools 1994 (1) UPLBEC 461, a learned Single Judge of this Court while holding the provisions providing for ad hoc appointment by direct recruitment against short term vacancy by merely notifying the vacancy on the notice board of the institution to be repugnant to the fundamental right guaranteed by Article 16 of the Constitution gave prospectivity to his judgment and saved the direct appointments already made against short term vacancies by merely notifying the same on the notice board of the institution. This question, however, was neither raised nor decided by the Full Bench in Radha Raizada's case and Radha Raizada's case has not overruled the aforesaid previous decision of this Court on the question as to whether the appointment of a teacher by direct recruitment in a short term vacancy by notifying the vacancy on notice board of the institution alone would be void. And some words have been read in the Statute i.e. Second Removal of Difficulties Order both in K.N. Dwivedi and Radha Raizada's case and it was held that procedure for notifying the short term vacancy can be same as it is for ad hoc appointment by direct recruitment in substantive vacancy under the First Removal of Difficulties Order, therefore, the same is tantamount to amending the statute by reading therein the requirement of public notice of the vacancy in addition to its notice on the notice board of the institution with a view to save the statute from being struck down as violative of Article 16(1) of the Constitution, on one hand and advancing the object of the Act on the other. The aforesaid view taken in K.N. Dwivedi's case has been reiterated by Division Bench of this Court in Ashika Prasad Shukla v. District Inspector of Schools, Allahabad and Anr. (1998) 3 UPLBEC 1722, but the aforesaid decisions were rendered by this Court in respect of direct recruitment on ad hoc basis against short term vacancy and no such question arises in this case.
21. In Smt. Ram Dulari Devi's case (supra) while dealing with the controversy in connection of effect of decision rendered by Full Bench in Radha Raizada's case a Division Bench of this Court has further held in para 8 of the decision that the orders which have attained finality prior to the decision of Full Bench in Radha Raizada's case decided on 12th July, 1994 cannot be reopened to attack on the ground that the selection and appointment were made contrary to the law laid down in Radha Raizada's case but further question arises as to when the appointment can be said to have attained finality? While deciding the issue, this Court held that the Full Bench decision may not reopen an appointment made prior to the Full Bench and expose them to scrutiny and cancellation, after appointment having been approved or deemed to have been approved in case of direct appointment against short term vacancy. Whereas in case of adhoc appointment against substantive vacancy there being no scope of approval, grant of financial sanction to such appointment without the aid of any interim order passed in a Court proceeding pending after decision in Radha Raizada's case shall be treated to be deemed approval. Such a deemed approval shall also include those cases where financial sanction was granted pursuant to interim order or otherwise in a proceedings concluded before the decision in Radha Raizada case (supra) making such interim order or direction absolute. In this connection it is necessary to point out that so far as the observations of Division Bench of this Court in context of adhoc appointment through direct recruitment against short term vacancy is concerned there is no quarrel with the proposition laid down by the Division Bench of this Court earlier in Ashika Prasad Shukla case and decision rendered by the learned Single Judge in K.N. Dwivedi's case which was also approved by the Full Bench in Radha Raizada's case, but so far as the observation made by the Division Bench in respect of adhoc appointment through direct recruitment against substantive vacancy is concerned it is pointed out that the observations made by the division Bench to the effect that such deemed approval shall also include those cases where financial sanction was granted pursuant to the interim order or otherwise in a proceedings concluded before the decision in Radha Raizada's case making such interim order or direction absolute, is concerned in my considered opinion the observations of the Division Bench of this Court runs contrary to the decision rendered by the Supreme Court and Full Bench of this Court to be referred hereinafter, thus the observations made by the Division Bench of this Court to that extent cannot be said to be good law and has to be held that the decision rendered as per incuriam. Besides, this the observation of Division Bench, to the effect that in case of ad hoc appointments against substantive vacancy, which does not require approval but grant of financial sanction without the aid of interim order passed by a court in a proceeding pending after decision of Radha Raizada's case, shall also be treated to be deemed approval is concerned, with all respect to the learned Judges, does not convey any clear and workable meaning.
22. In N. Mohanan v. State of Kerala and Ors. . In para 3 of the decision the Hon'ble Apex Court has held that appointment made by interim order does not create any right to be appointed as interim order is always subject to the outcome of final adjudication and if the petitioner is not successful in the final decision, the interim order would stand set aside. For ready reference para 3 of the decision is reproduced as under:
3. Sri T.L.V. Iyer, learned senior counsel contends that the list was not published and so the life of the panel did not expire. We find no force. The fact that candidates were appointed from the panel is proof of its publication. It is then contended that even though the petitioner has no right to be appointed since he was appointed on the basis of the order of the Court provisionally, the appointment already made should be allowed to be continued and should be regularised. The High Court has negatived this contention and in our view rightly. The interim order is subject to result of outcome of the final adjudication. If the petitioner is not successful in the final decision, the interim order would stand set aside. So appointment by interim order does not create any right nor the petitioner gets any right to regularisation on that basis....
23. Similarly in Committee of Management, Arya Nagar Inter College, Arya Nagar, Kanpur through its Manager and Anr. v. Sree Kumar Tiwary and Anr. , the first respondent came to be appointed as an ad hoc teacher on 12 July 1985 against a short term vacancy caused by promotion of incumbent on ad hoc basis to the next higher post. His appointment came to be terminated on May 30, 1988 w.e.f. 30 June 1988. The respondent challenged the order of termination in writ petition. Pending writ petition an interim order of stay though vacated by learned Single Judge, the same was granted by Division Bench. The learned Single Judge on merits dismissed the writ petition. On appeal it appears that while taking note of provisions of regularisation under Section 33-B(1) (a) (i) of U.P. Act No. 5 of 1982, vide impugned order Division Bench has held that the first respondent came to be regularised. However on consideration of entire matter Division Bench further held that impugned order passed by learned Single Judge will not stand on the continuation in service of the appellant before the High Court and first respondent before the Apex Court in pursuance of the order dated 27.10.1995 passed by D.I.O.S. regularising his services till an order contrary is passed by competent authority in accordance with law. The said order was subject matter of appeal before the Apex Court, wherein the questions involved have been dealt with by the Hon'ble Apex Court in para 6 and 7 as under:
6. In view of the respective contentions, the question that arises for consideration is; whether the respondent is entitled to the benefit of the Third Removal of Difficulties Order as indicated hereinbefore? Section 33-B(1) (a)(i) of U.P. Secondary Education Services Commission Act, 1982 postulates among Ors., regularisation of a candidate who was appointed by promotion or by direct recruitment in the certificate of teaching grade before May 13, 1989 against a short term vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 and such vacancy was subsequently converted into a substantive vacancy. It is seen that the regular incumbent retired from service on June 30, 1988. Consequently, the temporary vacancy was deemed to have been converted into a substantive vacancy w.e.f. June 30, 1988. But the crucial question is: whether the respondent was continuously serving the institution under Clause (c) of Section 33-B(i)? Admittedly, the service of the respondent came to be terminated w.e.f. June 30, 1988. Though he had obtained the stay order and continued to he in service, it was not by virtue of his own, right under an order of appointment, he continued in the office with permission of the management In fact, in the recommendation made before the Selection Committee, they have stated as under:
Adhoc appointment of Shri Sri Kumar Tiwari was made on 1.8.1986 L.T. Grade and vide notice dated 30.5.88 his services were terminated. On the basis of the above order Shri Sri Kumar Tiwari obtained stay order No. 13565 dated 29.7.1988 from Hon'ble High Court. Therefore, appointment is disputed.
7. In fact, the regularisation order passed by the District Inspector of Schools also says that it was subject to the result in the writ petition. The appeal being the continuation of the writ petition, the question arises; whether the respondent is entitled to claim the benefit of Section 33-B(1)(a)(i) of the U.P. Secondary Education Services Commission Act, 1982. We have seen that his services came to be terminated on May 30, 1988 and the Amendment Act has no application. Hence, the Division Bench was not right in giving direction that his regularisation will be subject to the future orders since the regularisation order itself means that it was subject to the result of the writ petition.
24. In Surya Deo Mishm v. State of U.P. and Ors. (2006) 1 UPLBEC 399 a Full Bench of this Court while dealing with the question as to whether salary paid to an employee who continued in service beyond the age of superannuation of 58 years under an interim order of the Court can be recovered from his post retiral benefit or as to whether he was entitled to salary for the period he had worked under the interim order passed by the Court or not? While placing reliance on some decision of Hon'ble Apex Court and this Court, in para 7,8,9,11,12,13 and 17 of the decision this Court has held as under:
7. The interim orders cannot but merge with the final orders passed in the proceedings as has been held by the Apex Court in the case of Shree Chamundi Mopeds Limited v. Church of South India Trust . The three Judges Bench was considering whether the rent decree against a company wound up can be enforced where winding up order of the Appellate Authority under Sick Industrial Companies (Special Provision) Act has been stayed. The Court, finding that interim order slaying operation of an order under challenge, and quashing of an order are two different things, held:
Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The Stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not he operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from the existence.
8. In the case of State of U.P. v. Harendra Kunwar 1995 A.L.J. 1603, the Apex Court sounded a note of caution considering that a large number of unscrupulous employees go scot free by availing the benefits under the interim order even after the dismissal of the petition as infructuous. It throws considerable light on the first question. In this case, on the strength of an interim order, the incumbent had continued in service uptil 60 years though the actual retirement age was 58 years, hut he got the writ petition dismissed as infructuous with an observation for payment of retiral benefits after continuing till 60 years on the strength of the interim order. The Apex Court held that the High Court should have considered whether the incumbent deserved benefits under the Rules and the issue whether the retirement age was 60 years or 58 years ought to have been decided because that will directly relate to the settlement of retiral benefits and thus, it allowed the appeal and remanded the matter to the High Court to consider deduction of the salary already paid for those two years to deter people from questioning their date of birth at belated stages.
9. More than three and a half decades ago a Division Bench of our Court in the case of Shyam Lal v. State of U.P. , was considering whether an incumbent who had been compulsorily retired but was being paid his salary on the strength of an interim order without actually working, could retain the amount so paid even after dismissal of the writ petition. The Bench held that the interim order merges in the final order and it does not exist by itself and once the writ petition is dismissed the order of compulsory retirement would take effect from the date it was passed and therefore, the incumbent could not retain the amount. This view was consistently reiterated by our Court in the case of Sri Ram Charan Das v. Pyare Lal ; Shyam Manohar Shukla v. State of U.P. 1986 (4) LCD 196 and Karoria Chemicals and India Limited v. U.P.S.E.B. and Ors. .
11. In the case of State of J&K v. Pirzada Ghulam Nabi (1998) 8 S.C.C. 102, the Apex Court was considering the claim of salary by an incumbent who continued to render service on the strength of an interim order but was not paid after the dismissal of the petition even on the basis of two earlier judgments of that Court in Collector of Madra and Burn Standard Company (supra). It refuted the claim, after distinguishing the two decisions and held:
In the present case, however, no amount has been paid by the appellant to the respondent for the service rendered by the respondent after the date of superannuation. The department was throughout contesting the claim of the respondent. It agreed to hold a fresh inquiry regarding his date of birth, but did not agree to payment of any salary after the respondent's superannuation as per their records. We fail to see how we can direct any payment for any service rendered during the period this inquiry after the date of superannuation. When salary is already paid under any misapprehension the Court may be reluctant to recovery from a retired employee who may be put to hardship if he has to repay the amount. But, these considerations do not operate in present situation. Hence, the appeal is allowed and the impugned order is set aside. The writ petition is dismissed.
12. In Kerala State Electricity Board K.M.R.F. Limited (1996) 1 SCC 597, the Apex Court while upholding a notification enhancing the electricity tariff, while considering whether the consumer was liable to pay penal charges for the period the interim order operated in their favour, though it found that they were liable but it held that such action by way of restitution was not an inflexible rule and the relief would depend on facts of each case, it went on to hold:
But in giving such relief, the Court should not be oblivious of any unmerited hardship to he suffered by the party against whom action by way of restitution is taken. In deciding appropriate action by way of restitution, the Court should take pragmatic view and frame relief in such a manner as may be reasonable, fair and practicable and does not bring about unmerited hardship to either of the parties.
13. But in the case of Collector, Madras and Anr. K.K. Rajamallikkam 1995 (2) S.C.C. 98, while considering the case of an employee who remained in office on the strength of an interim order even after his superannuation on the basis of the recorded date of birth in the service record, the Apex Court directed that the salary already paid for the said period when he had worked would not be recovered but the retiral benefits should be computed from the date on which he stood superannuated on the strength of the service record. This case was noted and considered subsequently in Pirzada's case (supra), but distinguished on the ground that no salary had been paid in Pirzada's case.
17. Thus, broadly speaking, the principle which can be culled out from these decisions is that in commercial matters, the successful party is not only entitled to the amount withheld on the basis of the interim order, but it is also entitled to interest thereon. However, in service matters, if the incubent has worked and has been paid, unless his claim was fraudulent, based upon frivolous grounds or upon acute factual dispute, the amount so paid ought not to be recovered, Even in cases of excess payment, it cannot be recovered unless said payment is result of the employee's mistake or on his showing But, if the employee has been paid without working or has not been paid though has worked, he would not be entitled to it if the petition is dismissed as infructuous. We hasten to add, that the Court cannot draw an exhaustive list of such situation, as each case is to be decided on its facts.
25. In view of the aforesaid settled legal position it is clear that if the writ petition is dismissed, the interim order passed therein would be merged in such final order of dismissal and order under challenge in the writ petition would take effect from the date on which it was passed and such interim Older so passed during the pendency of the writ petition does not confer any independent right. Similar is also case in respect of interim order passed in suits or other proceedings wherein at the most interim order shall continue till the suit or proceeding would continue and it would be lost at the end of such proceeding, but on account of continuance of such interim order no other service benefits except payment of salary in situation envisaged in Surya Deo Misra's case as held by the Full Bench of this Court, can be given to the employees therefore, the order of financial sanction passed by the departmental authority, unless attained finality, and remained unchallenged till the decision of Full Bench in Radha Raizada case the same cannot be treated to be immune from scrutiny in light of law laid down in Radha Raizada case or in concluded court proceeding the order of financial sanction reached at finality prior to the decision of aforesaid Full Bench except in aforesaid situation in other situation the decision can be examined and tested on the touch stone of principle and law laid down by Full Bench of this Court in Radha Raizada's case. The observations made by Division Bench of this Court in Smt. Ram Dulari's case, runs contrary to the dictum of Apex Court and this Court in the cases, referred herein before, therefore, held to be per in curiam as given in ignorance of binding precedent and as such cannot be said to remain as still good law on the point in issue.
26. In view of aforesaid discussion, there can be no scope for doubt to hold that only those orders of financial sanction for ad hoc appointment against substantive vacancy by departmental authorities should be treated to be final which have attained finality as remained unchallenged prior to the date of judgement rendered by full Bench of this Court in Radha Raizada case. If any such decision by departmental authority is challenged prior to 12th July 1994 and if any proceeding is pending in connection thereof and during the pendency of such proceeding even if any interim order is passed and become absolute directing the authority to grant such financial sanction and pursuant sanction is given by the departmental authority even prior to the Full Bench decision of this Court the same cannot be treated to be final so as to scape from scrutiny in light of law laid down by this Court in the aforesaid full Bench decision. The order of courts proceeding cannot be said to be final in respect of grant of financial sanction for such appointment unless such order passed by the court concluded the proceeding and remain unchallenged further in courts proceeding at forum available under law prior to the aforesaid decision of full Bench. So far as approval or deemed approval of ad hoc appointment against short term vacancy is concerned, it is to be pointed out as earlier that no such question has arisen in this case, therefore, I need not to express any opinion in this regard.
27. Now applying the law enunciated hereinbefore it is noteworthy to mention that although the respondent No. 4 was appointed against substantive vacancy through direct recruitment on adhoc basis as Lecturer in English in the year 1985 much earlier to the decision of Full Bench of this Court rendered in Radha Raizada's case but the appointment of the respondent No. 4 cannot be said to have attained finality by the time the decision has been rendered by the Full Bench of this Court in aforesaid case. As indicated herein before the appointment of respondent No. 4 was made on 4.9.1985 in pursuance of selection made by Selection Committee constituted by Management on 20.8.1985, without advertisement of vacancy. No. Financial sanction of aforesaid ad hoc appointment was granted by D.I.O.S.. Although the respondent No. 4 has claimed that such financial sanction approving the appointment of respondent No. 4 was granted by D.I.O.S. on 22.9.1985 but no salary was paid to the respondent No. 4, and it appears that aforesaid approval order was found not correct and the said document was found as false or not genuine paper. That is why the respondent No. 4 was compelled to file writ petition No. 2215 of 1986 Amar Nath Mishra v. D.I.O.S. and Ors., Initially on 10.3.1986 as interim measure a direction to pay or show cause was issued in the aforesaid writ petition, but subsequently on 21.1.1987 the aforesaid interim mandamus was made absolute by this Court keeping the aforesaid writ petition pending and ultimately after exchange of counter and rejoinder affidavits and hearing the petitioner also impleaded respondent (petitioner herein). This Court has finally dismissed the writ petition vide order dated 16.8.1995 (Annexure-3 of the writ petition) with a direction to the Deputy Director. Education, to examine the matter on merits after hearing the parties and pass reasoned order within a month. So far as payment of salary to the respondent No. 4 is concerned, this Court did not allow him to receive salary as ad hoc lecturer hut allow him salary of L.T. Grade teacher on account of fact that by that time the respondent No. 4 has already completed ten years service as C.T. grade teacher and was entitled to receive salary of only L.T. grade teacher under law. Thus on account of dismissal of aforesaid writ petition of respondent No. 4 on 16.8.1995 the interim order dated 10.3.1986 and interim mandamus dated 21.1 1987 which was made absolute stood merged in the final order of dismissal of writ petition and has lost its existence thereby, in such situation it cannot be said at all that since in pursuance of interim mandamus dated 21.1.1987 the respondent No. 4 was paid salary of ad hoc lecturer for a period of ten years from the date of his ad hoc appointment, therefore, the same may be treated as deemed financial sanction to his such appointment and same has also attained the finality prior to the decision of Full Bench of this Court in Radha Raizada case. In my considered opinion, such financial sanction at the strength of interim order cannot be treated to be deemed sanction or approval of appointment of respondent No. 4 prior to aforesaid decision Therefore, the validity of ad hoc appointment of respondent No. 4 was required to be examined by Deputy Director of Education in accordance with law laid down by Full Bench of this Court in aforesaid case.
28. Now testing the facts of the instant case on touch stone of the law laid down by this Court in Radha Raizada's case, it seems that although the Management has communicated the vacancy of lecturer in English to the U.P. Secondary Education Service Commission now Selection Board on 25,6.1985, but no information to the D.I.O.S. appears to have been given requesting him to hold selection and provide a teacher/lecturer in English as required under First Removal of Difficulties Order, 1981, rather the Committee of Management itself proceeded to hold selection without authority of law and further selection was held without advertisement of vacancy, thus whole procedure for such selection and appointment was adopted contrary to the law laid down by Full Bench of this Court, as such aforesaid selection and appointment of the respondent no 4 is held to be in utter disregard of the provision of law and contrary to the law laid down by full Bench of this Court, as such void ab initio and the same does not confer any right upon the respondent No. 4. From the perusal of findings of Deputy Director of Education, there is nothing to indicate that the selection and appointment of respondent No. 4 was found to be according to law laid down by Full Bench but while concluding his finding he has held that since the respondent No. 4 was not in fault in his faulty selection and appointment, rather Committee of Management was responsible for such faulty selection, therefore, he cannot be to suffer, such conclusion drawn by Dy. Director of Education, in the impugned order dated 23.1.1996 in my considered opinion is not sustainable in the eye of law. Besides this, there is nothing to indicate that Deputy Director of Education, has recorded any finding with regard to the genuineness or correctness of alleged approval or financial sanction of appointment of respondent No. 4 dated 22.9.1985. In absence of such positive finding constrained to hold that no financial sanction of appointment of respondent No. 4 as alleged by him was given by D.I.O.S. on 22,9,1985, therefore, on this count also his ad hoc appointment on the post in question did not reach to finality prior to 12th July 1994 i.e. date of decision of full Bench of this Court in Radha Raizada case. Therefore, the selection could not be saved from exposer of judicial scrutiny from the aforesaid angle. Thus the question No. 2 referred herein before answered accordingly.
29. Now next question arises for consideration, as to whether the respondent No. 4 is entitled for regularisation under Section 33-A(1-c) of U.P. Act No. 5 of 1982? In given facts and circumstances of the case, as held earlier that since the selection and appointment of respondent No. 4 on 4.9.1985 was not made in accordance with the provisions of law, rather it was made contrary to the statutory provisions of law and law laid down by full Bench of this Court in Radha Raizada case as such void ab initio and does not confer any right upon the appointee, therefore, being de hors to the statutory provisions of law can not be regularised under Section 33-A (1-c) of U.P. Act No. 5 of 1982 as held by Hon'ble Apex Court in State of U.P. and Ors. v. Neeraj Awasthi and Ors. . It is also noteworthy to mention that only those ad hoc appointee can be regularised under the aforesaid provisions of Act whose appointment is in accordance with the provisions of law. The continuance of the respondent No. 4 at the strength of interim order dated 10.3.1986 and 21.1.1987 on the post of lecturer in English on ad hoc basis, passed in writ petition filed by him covering the cut of dates contemplated by the aforesaid provisions of Act, would be of no avail to him for regularisation of his services as the aforesaid writ petition was ultimately dismissed on 16.8.1995 and the aforesaid interim order of this Court stood merged in the final order of dismissal passed by this Court as such in view of law laid down by Hon'ble Apex Court in N. Mohanan case (supra) and Shree Kumar Tiwari's case (supra) the services of respondent No. 4 could not be regularised on account of his continuance on the aforesaid post, at the strength of interim order during the relevant period.
30. However, having regard to the facts and circumstances of the case, since the respondent No. 4 has actually worked on the post of lecturer in English on ad hoc basis at the strength of the interim order referred herein before passed by this Court and also paid his salary on the aforesaid post, therefore, in view of settled legal position by Full Bench of this Court in Surya Deo Misra's case (supra), I am of the considered opinion that payment of salary made to the respondent no 4 against the post of lecturer, above and over from the salary of L.T. grade teacher cannot be recovered from him, but at the same time the respondent No 4 cannot be held to be entitled for computation of his continuous service on the aforesaid post at the strength of the interim order granted by this Court in writ petition earlier filed by the respondent No. 4 Thus in my considered opinion the respondent No. 1 has committed serious illegality in permitting the respondent No. 4 to work on the post of lecturer and further directed his regularisation on the post in question under the relevant provisions of U. P. Act No. 5 of 1982 therefore the impugned order dated 23.1.1996 (Annexure-5 of the writ petition) passed by the respondent No. 1 is wholly erroneous and not sustainable in the eye of law, accordingly the same is liable to be quashed and it is hereby quashed.
31 Now further question arises to be considered that what relief can be granted in the writ petition? In this connection it is necessary to point out that although at the time of adhoc appointment of the respondent No. 4 the post of lecturer in English in the institution was determined to be filled up by way of direct recruitment on adhoc basis but since a period of more than 20 years have passed therefore in the given facts and circumstances of the case it cannot be firmly held as to whether the post is still liable to be filled up through direct recruitment or by way of promotion under the quota of promotion under relevant rules therefore the Committee of Management is required to determine as to whether the post in question is liable to be filled up by direct recruitment or by promotion on regular basis . It is needless to say that regular recruitment has to be made either by direct recruitment or by promotion through U.P. Secondary Education Services Commission/Selection Board under the provisions of U.P. Act No. 5 of 1982 but so long as the selection by either method is not made by the said selection Board the teaching affairs of the institution cannot be left to suffer, therefore till the regular selection is made by the Selection Board, the Committee of Management is further required to take steps to make adhoc appointment on the post in question in accordance with the provisions of Jaw.
32. In view of the aforesaid direction and observations, the writ petition succeeds to the extent indicated hereinabove and is allowed.
33. There shall be no order as to costs.