JUDGMENT D. K. Seth, J.
1. The refusal of approval of appointment of the petitioner, made against a short term vacancy, has since been challenged in this writ petition. The grounds of refusal are three fold. The first ground is that the vacancy was notified only at the notice board and it was not published in a widely circulated newspaper. The second ground was that the appointment was made against a vacancy meant for reserved quota and the third ground was that there were only two applications.
2. Mr. V. K. Singh, learned counsel for the petitioner contends that the first ground cannot be sustained since the notice was also published in 'Sanmarg' which has wide circulation which is apparent from Annexure-8. The said 'Sanmarg' has been accepted as a widely circulated newspaper by order dated 24th June, 1996 passed by the Sahayak Suchna Nirdeshak contained in Annexure-8 to the writ petition. Therefore, according to him, the first ground cannot be sustained. He then contends that by reason of the decision in the case of Krishna Nand Dwivedi v. District Inspector of Schools, Ghazipur, (1994) 1 UPLBEC 461, declaring the provision of recruitment only through advertisement in the notice board as ultra vires, appointments made prior to the said judgment are saved by reason of the declaration contained in paragraph 25 of the said decision. Therefore, even if there is an infraction in the matter of publication, the same could not invalidate the appointment. So far as the decision in the case of Radha Raizada and others v. Committee of Management, Vidyawati Darbari Girls Inter College and others, 1994 (3) UPLBEC 1551, restating the provision and saving it from vires and observed that it has to be published in two widely circulated newspapers one in Hindi and other in English. It has been held to be inapplicable in cases where such appointments are approved or deemed to have been approved before the decision in the case of Radha Raizada (supra). Therefore, according to him, publication in one newspaper, as in the present case, would be saved as has been held in the case of Ashika Prasad Shukla v. District Inspector of Schools, Allahabad and another, 1998 (3) UPLBEC 1722 (DB). He then contends that if there is proper advertisement whether there were only two applicants or more is immaterial. It is publication for advertisement which we are concerned not the number of the response to such advertisement. Therefore, the third ground, according to him, cannot be sustained. He then contends that since the appointment was against a short term vacancy, provision of reservation quota cannot be applied as has been held in the case of Chatur Singh and another v. Regional Deputy Director of Education. Agra, Writ Petition No. 34097 of 1996, decided by this Court, on 3rd December, 1996 since been followed in the case of Smt. Pratima Chauhan and another v. Regional Deputy Director of Education and others, 1991 (1) LBESR 953 (All), Therefore, the impugned order cannot be sustained and is liable to be quashed since the petitioner's appointment shall be deemed to have been approved by reason of the provision of clause (iv) of paragraph 2 (3) of the U. P. Secondary Education Services Commission (Removal of Difficulties) Second Order). 1981. On these grounds, he prays that the writ petition be allowed.
3. Mr. K. R. Singh, learned standing counsel on the other hand contends that after the decision in the case of Radha Raizada (supra), all cases where approval has been granted if there is any infraction in the matter of advertisement in that event, the question cannot be covered by the decision in the case of Ashika Prasad Shukla (supra). According to him, after the decision in the case of Radha Raizada, all appointments made in violation of the principle laid down therein cannot be accepted unless it falls within the scope and ambit of the decision in the case of Ashika Prasad Shukla (supra). In the present case, there having been no approval or deemed approval in view of the various infraction the ratio laid down in Ashika Prasad Shukla (supra) cannot be attracted. According to him, there has been gross infraction, the appointment made thereby appears to be non-est. If such appointment has no existence in the eye of law, then there cannot be any question of attracting the ratio decided in the case of Ashika Prasad Shukla (supra). He then contends that there were only two applicants itself shows that the advertisement was not properly published. Thus, it becomes a matter of suspicion in which the Court should not come in aid of the petitioner. He then contends that it has to be borne in mind that even such ad hoc appointment may entitle a candidate to be considered either under Section 33B or under Section 33C of the U. P. Secondary Education Services and Selection Board Act, 1982. Having regard to this question of regularisation, the impact of reservation has to be examined. In case the quota is made inapplicable in respect of short-term vacancy which is normally made by the Committee of Management, there would be serious consequence by filling up such vacancies without adhering to the reservation quota and thereby bringing a complete disorder in the law relating to reservation and disbalance in the filling up of the posts maintaining the balance of reservation having regard to the question of regularisation at a later point of time. Therefore, the decision in the case of Chatur Singh (supra) requires reconsideration in the matter of observation as to whether reservation quota has to be adhered to in the matter of short-term vacancy or not. According to him, in the said decision this aspect of the question has not been taken into consideration. Therefore, the said ratio decided in the case of Chatur Singh (supra) cannot be attracted in the present facts and circumstances of the case in view of the argument advanced by him having regard to the question of regularisation. On these grounds, he prays that the writ petition be dismissed.
4. I have heard both the counsel at length.
5. So far as the question of reservation against short term vacancy is concerned. It was dependent on the question of date when the short term vacancy is filled up by ad hoc appointment. Such appointment is ad hoc in nature and is of the duration for the very limited period. Whether there could be any question of regularisation or not at a future date is not relevant for the purpose. The regularisations are being made by regularising the irregular appointments. It is something extraordinary by which the irregularities in the appointment are being rectified. If it is a question of regularisation of irregularities in that event, it cannot be said to be a law which is substantive in nature. Unless the law is substantive, it cannot have any impact. Whether at a later point of time, the State will accept the question of regularisation was not known at the time when the appointment is being made and all such regularisation contains a cut off date. If other irregularities could be rectified and regularised, then the irregularities in respect of reservation quota can also be rectified. There cannot be any distinction in between irregularity in the matter of procedure and those of reservation when regularisation is being made as a matter of policy not because of any legal right but because of certain situation that gives rise to an emergent position which requires immediate rectification in order to save a particular situation. Therefore, I am unable to hold the contention of Mr. Singh with regard to the question of regularisation being taken note of in the case of deciding as to whether reservation would be applicable in respect of ad hoc appointment. Therefore, I do not find any reason to differ with the view taken in Chatur Singh (supra). Though, however, this question was not consciously gone into but in effect, it was an interpretation of the meaning of ad hoc appointment against a short term vacancy which does not create any right in law in favour of a candidate appointed in a short term vacancy on ad hoc basis except by reason of the provision for regularisation enacted or promulgated by the State at a later point of time with certain objects. As such refusal of the appointment on the ground that the appointment was made in favour of a general candidate against reserved quota cannot be sustained.
6. With regard to the next question, in paragraph 25 in the case of Krishna Nand Dwivedi (supra), appointments, made prior to the date of the said decision have been saved while declaring the advertisement by notifying the vacancy in the notice board as ultra vires. Admittedly, the petitioner's appointment was made before the decision in the case of Krishna Nand Dwivedi (supra), rendered on 13th January, 1994. Therefore, by reason of paragraph 25 thereof, appointment of the petitioner is not hit by the ratio laid down in the case of Krishna Nand Dwivedi (supra). So far as the decision in the case of Radha Raizada (supra), is concerned, it prescribes publication in two widely circulated newspapers, one in Hindi and other in English in order to save the provision from being hit by Article 16 and has also been held to apply prospectively, namely, in respect of appointments made after the decision in the case of Radha Raizada (supra), as propounded in the decision in the case of Ashika Prasad Shukla (supra). Admittedly, the appointment was made before the decision in the ease of Radha Raizada (supra), rendered by the Full Bench. In the present case, the vacancy was notified in the notice board as well as in 'Sanmarg' which has been declared to be a widely circulated newspaper by the 'Sahayak Suchna Nirdeshak vide his letter dated 24th June, 1996 contained in Annexure-8 to the writ petition. Thus, it appears that there were publications in one widely circulated newspaper and as well as on the notice board. Therefore, the finding that the vacancy was notified only in the notice board and not in any newspaper also cannot be sustained. In the said order, it has not been pointed out that it was not notified in two newspapers, one In Hindi and other in English. The ground was only that it was not notified in any newspaper. Thus, the same is factually incorrect.
7. Apart from this, the question-has to be looked into on the basis of the ratio decided in the case of Ashika Prasad Shukla (supra), wherein it has been held that the cases where the appointments are approved or deemed to have been approved, the principle of Radha Raizada (supra), would not reopen those cases and cannot be challenged once again on the ground of infraction of the procedure held in the case of Radha Raizada (supra).
8. In the present case, after the ad hoc appointment, the papers were forwarded to the District Inspector of Schools. Admittedly, the District Inspector of Schools has not granted any, approval. There is no dispute that the papers were received in the Office of the District Inspector of Schools. Therefore, on the date of receipt of the papers in the Office of the District Inspector of Schools and on the expiry of seven days, the appointment of the petitioner's shall be deemed to have been approved by reason of the clause (iv) of paragraph 2 (3) of the Second Removal of Difficulties Order. Thus, the petitioner's appointment having been deemed to have been approved, the same is saved by reason of the decision in the case of Ashika Prasad Shukla (supra).
9. It is rightly contended by Mr. V. K. Singh that it is the question of advertisement that is material. Whether it is responded by two candidates or more is immaterial. Response of two candidates would not vitiate the appointment if it is advertised. The advertisement in the notice board has not been excepted by the decision in the case of Krishna Nand Dwivedi (supra) and Ashika Prasad Shukla (supra), if those were prior to the respective dates of the decision in the case of Krishna Wand Dwivedi (supra) and Radha Raizada (supra). In that view of the matter, the third ground also cannot be sustained. I am unable to persuade to agree with the contention of Mr. K. R. Singh, learned standing counsel to the effect that the response by two applicants Is suspicious. Suspicion is not an objective assessment but is a subjective opinion. While deciding the writ petition, the High Court is not supposed to note the subjective opinion unless there is any objectivity. One may say that there is suspicion and the other may disagree. In such disputed question purely on the basis of subjective opinion of one, it would be unsafe for this High Court to place itself in a situation for deciding a disputed question without existence of any objectivity on the anvil of which the disputed question could be decided. Therefore, the third ground also cannot be sustained.
10. For all these reasons, this writ petition succeeds and is allowed.
11. The order dated 27th April. 1998 contained in Annexure-5 and the order passed on 8th September. 1998 contained in Annexure-7 are hereby quashed. Let a writ of certiorari do accordingly issue. The District Inspector of Schools is hereby directed to treat the petitioner's appointment as deemed to have been approved and grant all such benefits as may be available in law to the petitioner. Let a writ of mandamus do accordingly issue. However, such deemed approval will not confer any legal right on the petitioner except what is admissible in law irrespective of this decision.
12. However, there will be no order as to costs.