Head learned counsel for the petitioner, learned Additional Chief Standing Counsel for the State and Shri Raj Kumar Singh Suryvanshi, learned counsel for the opposite party no. 4.
The petitioner has relied upon the order dated 21.12.2015 passed by this Court at Allahabad in Writ-A No. 68167 of 2015 (Smt. Poonam Singh Vs. State of U.P. And others). The petitioner claims salary on the ground that he was appointed by the Committee of Management on the post of Lecturer (Geography) on 04.12.2014 and joined his services on 11.12.2014. She has also challenged the Government Order dated 10.05.2002 which according to her put a bar on approval of short term of appointments against any vacancy occurring on 30.06.2002.
The legal position in this regard is now settled by the Full Bench's decision of this Court at Allahabad in the case of Santosh Kumar Singh Vs. State of U.P. and others reported in 2015 (33) LCD 2402 wherein one of the questions which arose for consideration was as under:-
"(c) Whether under Section 16-E of the Intermediate Education Act 1921 (Act of 1921), there is a power with the Committee of Management to make ad-hoc appointment against short term vacancies and if so then for what period."
The relevant discussion in respect thereto is contained in Para No. 18 and 19 of the said judgment which reads as under:-
"18. Section 16-E of the Act of 1921 provides for the procedure for selection of teachers and heads of institutions. Sub-section (11) of Section 16-E is to the following effect:
"(11) Notwithstanding anything contained in the foregoing sub-sections, appointments in the case of a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or by death, termination or otherwise of an incumbent occurring during an educational session, may be made by direct recruitment or promotion without reference to the Selection Committee in such manner and subject to such conditions as may be prescribed:
Provided that no appointment made under this sub-section shall, in any case, continue beyond the end of the educational session during which such appointment was made."
19. Sub-section (11) of Section 16-E has thus made a specific provision in regard to appointments in the case of temporary vacancies caused by (i) the grant of leave to an incumbent for a period not exceeding six months; or (ii) by death, termination or otherwise of an incumbent occurring during an educational session. The object of the provision is to ensure that where a temporary vacancy arises as a result of fortuitous circumstances, such as leave, death, termination or otherwise, the educational needs of students should not be disturbed. The purpose of making an arrangement in the case of a temporary vacancy is to protect the interest of education so that students are not left in the lurch by the absence of a teacher in the midst of an academic session. The proviso to sub-section (11), however, stipulates that an appointment which is made under the provisions of sub-section (11) shall, in no case, continue beyond the end of the educational session during which the appointment was made. The proviso is intended to ensure that the purpose of appointment against a temporary vacancy caused due to the absence of a teacher in the midst of an academic session is met by continuing the appointment during and until the end of the academic session but not further. This is a provision which has been made by the state legislature in its legislating wisdom. The statutory provision provides both for the circumstances in which a temporary vacancy can be filled up and the length of an appointment made against a temporary vacancy. The difficulty which arises is because the Board, which has been constituted under the Act, does not fulfill its mandate of promptly selecting teachers for regular appointment. The District Inspector of Schools is in possession of necessary factual data in regard to the dates of appointment and retirement of teachers of aided institutions. This can be summoned by the Board even if the management does not comply with its duty to intimate vacancies. There can be no justification for the Board not to discharge its duties with dispatch and expedition. This is liable to result in a situation where the educational needs of students are seriously disturbed due to the unavailability of duly selected teachers. Ad hoc appointments in temporary vacancies also cause a state of uncertainty for teachers and lay them open to grave exploitation at the hands of certain managements of educational institutions. Thus, considering the matter both from the perspective of the interest of education as well as the welfare of teachers, it is necessary that the Board must take due and proper steps well in advance of an anticipated vacancy to initiate the process of selection. Similarly, the State Government would do well to streamline the procedure for making appointments in respect of temporary vacancies consistent with the mandate of Section 16-E (11) so that, while the interest of students is protected, the teachers are not exposed to exploitation.
The reference made to the Full Bench in respect of the aforesaid question No. (c) has been answered in Paragraph No. 20 thereof in the following terms:-
"20. We consequently answer the reference in the following terms:
(a) .................
(b) ................
(c) Under Section 16-E of the Intermediate Education Act, 1921, the Committee of Management is empowered to make an appointment against a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or in the case of death, termination or otherwise, of an incumbent occurring during an educational session. An appointment made under sub-section (11) of Section 16-E as provided in the proviso thereto shall, in any case, not continue beyond the end of educational session during which the appointment was made; and
(d) The judgment of the Division Bench in Subhash Chandra Tripathi (supra) is affirmed as laying down a correct interpretation of the judgment in A A Calton (supra)."
Considered in the light of the aforesaid pronouncement it is quite evident that against a vacancy which arose in the year 2008 on account superannuation of then incumbent, the petitioner could not have been appointed by the Committee of Management. The vacancy was a substantive one. Nevertheless even if it was treated as short term vacancy for the purposes mentioned in Section 16-E (11) of the Uttar Pradesh Intermediate Education Act, 1921 (For short 'the Intermediate Act, 1921') as explained in the Full Bench's decision, such appointment against such vacancy, assuming it arose during the academic session, could have only been made in the academic session in which the vacancy arose i.e. 2008 or 2009, as the case may be, thereby giving rise to a corresponding need for appointment of a teacher so that the studies of the students do not suffer for the remaining period of such session. This is the purport of Section 16-E (11) the Intermediate Act, 1921 as explained by the Full Bench in Paragraph 19 of its judgment quoted herein above. It being so, the appointment of the petitioner in the year 2014 against such a vacancy of 2008 or 2009 can not be said to have been made in consonance with the provisions of Section 16-E (11) of the the Intermediate Act, 1921.
Moreover, a subsequent Division Bench judgment in the case of Abhishek Tripathi Vs. State of U.P. and Ors. has considered two questions which, referred to it, were as under:-
"1. Which of the two cases namely Sanjai Singh Versus State of U.P. and others in Writ Petition No. 3348 of (SS) of 2012 or Pradeep Kumar Versus State of U.P. and others in Writ Petition No. 22520 of 2013, lays down the correct law.
2. Scope of Section 16-E(11) of the Intermediate Act, 1921 read with Sections 16, 22, 32 and 33-E of the U.P. Secondary Education Service Selection Board Act, 1982."
While considering the aforesaid questions, this Court after considering the relevant provisions of law and the judgments on the subject matter and taking note of paragraph nos. 19 and 20 of the Full Bench decision in Santosh Kumar Singh's case (supra) has held as under:-
"We hence, find merit in the contention which has been urged on behalf of the State that the general considerations which weighed with the learned Single Judge in the decision in Sanjay Singh (supra) cannot form the foundation of a sustainable direction in law, that the State can be issued a writ of mandamus to pay salaries from the public exchequer in respect of an appointment made by the management against a substantive vacancy on an ad hoc basis. The scope and ambit of the power of the management to fill up temporary vacancies is clearly defined by the provisions of Section 16-E (11) of the Act of 1921 and its regulations. The legislature in its wisdom has enacted the Act of 1982 so as to provide in Section 16 that notwithstanding anything contained in the Act of 1921, an appointment shall be made by the management only on the recommendation of the Board. The legislature further specified that any appointment made in contravention of the provisions of sub- section (1) of Section 16 would be void. During the period when the Removal of Difficulties Orders held the field, which contained a provision for making ad hoc appointments, the law was well settled both by the Supreme Court and by this Court that any appointment made in violation of the provisions contained in those orders would be void and that a direction for the payment of salary could not be sustained on the basis of such an appointment. After Section 18 was amended successively, a procedure was provided initially for making ad hoc appointments but, as we have noticed, Section 18, in its present form is confined only to Principals and Headmasters. The only source of power then for making appointments of an ad hoc nature is relatable to the provisions of Section 16-E (11) of the Act of 1921 read with regulations. Any appointment which is de hors the provisions of the Act of 1921 and the regulations cannot be countenanced in law. A mandamus cannot be issued to the State for the payment of salary where the appointment by its very nature is in contravention of law and void.
There can be no dispute about the basic principle of interpretation which was sought to be emphasized by the petitioner that, in the course of interpreting a statute, it would be open to the Court to adopt an interpretation which, while being in accord with the terms of the statute, makes the statute workable. But equally in this process, it would not be open to the Court to re-write statutory provisions or to mandate an act such as the payment of salary in respect of an appointment which is made otherwise than in accordance with the statutory provisions and the rules. Article 21-A of the Constitution upon which reliance has been placed by the learned Single Judge in Sanjay Singh's case (supra) mandates that the State shall provide free and compulsory education to all children between ages of six to fourteen in such manner as the State may, by law, determine. The law undoubtedly, has to be fair, just and reasonable.
This Court in repeated judgments has drawn the attention of the State to the need to streamline the procedures in a line of precedent from this Court culminating in the judgment of the Full Bench in Santosh Kumar Singh (supra). The observations of this Court shall be taken up by the State with a sense of the highest priority and with all seriousness to ensure that a situation does not emerge where vacancies of a substantive nature are left unfilled over a long period of time to the detriment of education. The State Government must take up the matter with necessary alacrity and immediacy.
Conclusion For these reasons, we have come to the conclusion that the view of the learned Single Judge in Sanjay Singh's case (supra) cannot be upheld as laying down the correct position in law. The view of the learned Single Judge shall stand, accordingly, overruled. The judgment in Pradeep Kumar (supra) is upheld subject to the principles which, we have enunciated in this judgment.
The second issue which has been referred for decision before the Division Bench is the scope of Section 16-E (11) when read in the context of Sections 16, 22, 32 and 33-E of the Act of 1982. We have already dealt with the interpretation of these provisions in the course of the judgment.
The reference to the Division Bench shall stand answered in the aforesaid terms. The record of these proceedings shall now be remitted back to the learned Single Judge, according to roster, for disposal in the light of the questions answered."
Thus, in view of the aforesaid Division Bench, this Court can not issue a writ of mandamus to pay salary from the Public Exchequer in respect of an appointment made by the Committee of Management against a substantive vacancy on an ad-hoc basis.
It further opined that after Section 18 was amended successively, a procedure was provided initially for making ad hoc appointments but, as we have noticed, Section 18, in its present form is confined only to Principals and Headmasters. The only source of power then for making appointments of an ad hoc nature is relatable to the provisions of Section 16-E (11) of the Intermediate Act, 1921 read with regulations. Any appointment which is de hors the provisions of the Act of 1921 and the regulations cannot be countenanced in law. A mandamus cannot be issued to the State for the payment of salary where the appointment by its very nature is in contravention of law and void. This Court has disapproved the statement of law contained in Sanjay Singh Vs. State of Uttar Pradesh and Ors.
Hence, in view of the above, this Court is of the view that the appointment of the petitioner, not being in accordance with the statutory provisions contained in the Intermediate Act, 1921 or the Uttar Pradesh Secondary Education Services Selection Board Act of 1982 and the Rules and Regulations made thereunder, no such direction for payment of salary from the State Exchequer can be issued.
As far as the Government Order dated 10.05.2002 referred herein above is concerned, apart from the fact that is related to vacancies occurring on 30.06.2002, in view of the clarified legal position, the same has also to be read, understood and implemented in the light of Full Bench decision in Santosh Kumar Singh's case (supra) and the Division Bench judgment in Abhishek Tripathi's case (supra) and not otherwise, therefore, with these observations, this Court does not find any justification for granting the relief claimed.
As far as the reliance placed by the learned counsel for the petitioner upon the judgment rendered in Smt. Poonam Singh' case (supra) is concerned, the Court therein has only directed the District Inspector of Schools to consider the matter in the light of the Full Bench's decision and has not taken any other view of the matter. In the instant case, this Court has already considered the validity of the appointment of the petitioner based on the aforesaid Full Bench's decision as also the subsequent Division Bench's decision referred herein above, as, it is a prerequisite for any claim for salary and for issuance of any direction for payment of salary. Not having found the appointment to be in accordance with statutory provisions and rules made thereunder no benefit of the said judgment rendered in Smt. Poonam Singh's case (supra) can be extended in this case.
Accordingly, the writ petition is dismissed. There shall be no orders as to costs.
Order Date :- 09.02.2016 (Rajan Roy) R.K.P.