JUDGMENT
1. Heard Sri R. G. Padia, Senior Advocate appearing for the appellant and Sri Ravn Vijay Singh, the learned standing counsel appearing for the respondents.
2. This is an appeal against the judgment and order dated 24th November, 2003 by which judgment the writ petition filed by the appellant has been disposed of.
3. Brief facts necessary for deciding the appeal are;--
Bapu Inter College Pipriganj, Gorakhpur is a recognised institution receiving grant in aid. On retirement of one Kali Parasad Singh on 30th June, 1991 a substantive vacancy arose on the post of Assistant Teacher L.T. Grade. The petitioner's case is that the vacancy was notified by the Manager by the letter dated 10th June, 1991. On 22nd June, 1991 he amended the requisition. It is claimed that the Committee of Management authorised the manager to fill up the post on 2.8.1991 and on 10th August, 1991 the Notice Board of the Institution and thereafter the petitioner was selected on 23rd August, 1991 and appointed on 26th August, 1991. The petitioner's papers were sent to the Inspector for payment of salary. The salary was not paid by the Inspector. Consequently, writ petition was filed by the petitioner praying for a writ of mandamus directing the respondents to pay the petitioner's arrears of salary. The writ petition has been dismissed by the learned Single Judge. One of the grounds taken by the learned Single Judge for dismissing the writ petition is that the selection of the petitioner on ad hoc basis by way of direct recruitment was made prior to expiry of sixty days of sending the requisition sent to the Commission.
4. Dr. R. G. Padia, learned Counsel for the appellant submitted that the period of sixty days as mentioned in Section 18 of the U.P. Secondary Education Service Commission and Selection Board Act, 1982 ( U. P. Act No. 5 of 1982 ) is not mandatory and the appointment of the petitioner before expiry of sixty days can at best be an irregularity not affecting the validity of the appointment. He has placed reliance on a Division Bench judgment of this Court reported in 1995 A.W.C. 71 Prabhu Dayal and Ors. v. District Inspector of Schools, Firozabad and Ors. .
5. Sri Ran Vijay Singh, learned standing counsel appearing for the respondents has submitted that the requirement of period sixty days as mentioned in Section 18 is mandatory. He further submitted that the appointment of the appellant as an ad hoc Assistant Teacher L.T. Grade was void ab-initio and Allahabad Bank initio having been made contrary to the provisions of Act and rules. According to the own case of the petitioner his appointment was made after advertising the vacancy on the Notice Board. There being no advertisement in two news papers, the petitioner is not entitled for any mandamus by this Court. Reliance has been placed by the learned standing counsel on Full Bench judgment of this Court in 1994 (3) UPLBEC 1551 Radha Rani Raizada and Ors. v. Committee of Management, Vidyawati Parbati Girls Inter College and Ors. and the Division Bench judgment of this Court reported in 2003 (3) E.S.C. (Allahabad ) 1357 Anilesh Pratap Singh v. State of U.P. and Ors.. Dr. Padia refuting the submission of the learned standing counsel submitted that the appointment of the petitioner was made by the Committee of Management within its jurisdiction and the power under Section 18 of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982. He contended that prior to 14.7.1992 there was no requirement of publication of any advertisement in two news papers for ad hoc appointment under Section 18. Me has placed reliance on the judgment of the Division Bench of this Court reported in 1988 UPLBEC 640 Chhatrapal v. District inspector of Schools, Bareilly and Ors..
6. We have considered the submissions of counsel for the parties and perused the record.
7. The first question which has been raised in the case is as to whether the period of sixty days as mentioned in Section 18 is mandatory; and what is the effect of the appointment if made prior to sixty days. According to Section 18 of the U. P. Act No. 5 of 1982 the Committee of Management was empowered at the relevant time to make ad hoc appointment where a vacancy has been notified to the Commission and period of one year has expired or the post had actually remained vacant for more than two months to Management can fill up the vacancy absolutely on ad hoc basis. The Division Bench judgment relied by the learned Counsel for the appellant in Prabhu Dayal's case (supra) has taken the view that the Management is competent to initiate process even before expiry of two moths. The Division Bench held that what is required to be done after two moths is the appointment, issuing advertisement inviting applications for such appointment within the period of two months, is not prohibited. Paragraph 3 of the judgment is quoted below:
Under Section 18(1) (b) the appointment can be made if the post of a teacher, which has been notified to the Commission, has remained vacant for more than two months. What is required to be done after two months is the appointment. Issuing advertisement inviting applications for such appointment within the period of two months, is not prohibited. As the process of selection on the basis of which the appointment is to be made, is likely to take time, there is no prohibition in the law against inviting applications for such appointment even before expiry of two months.
8. The present case is not similar to above. Not only process was initiated before expiry of two months but the appointment had been made before expiry of two months. The Division Bench judgment in Anilesh Pratap Singh 's case (supra) relied by the learned standing counsel do support the contention of the learned standing counsel. Paragraph 15 of the judgment is quoted below:
15. Applying the principles laid down in the aforementioned cases, we are of the considered opinion that the provisions of Section 18 of the 1982 Act is mandatory and unless and until the period of two months expires from the date if notifying the vacancy to the Commission, the Committee of Management does not get any power to fill up the vacancy on ad hoc basis.
9. We however, do not rest our judgment only on above issue. One of the questions which has been raised by the learned standing counsel is that the appointment of the appellant is void.
10. The submission raised by Dr. Padia is that for the appointment under Section 18 there was no requirement of advertisement in news paper. He submitted that Section 18 does not mention or refer to notification of the vacancy in two news papers and the vacancy notified only on the Notice Board was sufficient. The question raised has already been settled by the Apex Court vide its Judgement reported in Judgement Today 1996 (6) S.C. 579 Prabhat Kumar Sharma and Ors. v. State of U.P. and Ors.. The Apex Court in the said judgement has held that any ad hoc appointment of teachers under Section 18 can be made in accordance with the procedure prescribed in paragraph 5 of the Uttar Pradesh Secondary Education Service Commission (Removal of Difficulties) Order, 1981 which is extract below:
5. Ad hoc appointment by direct recruitment,-- (1) Where any vacancy cannot be filled by promotion under paragraph 4, the same may be filled by direct recruitment in accordance with Clauses (2) to (5).
(2) The management shall, as soon as may be, inform the District Inspector of Schools about the details of the vacancy and such Inspector shall invite applications from the local Employment Exchange and also through public advertisement in at least two news papers 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 basis of quality points specified in Appendix. J 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 be arranged in Hindi Alphabetical order. The candidate whose name appears on the top of the list shall be allotted to the institution the name whereof appears on the top of the list of the institution. This process shall be repeated till both the lists are exhausted.
Explanation:- In relation to an institution imparting instruction to women the expression " District Inspector of Schools " shall mean the "Regional Inspector of Girls' Schools:.
11. Similar view has already been taken by the Full Bench of this Court in Radha Raizada and Ors. v. Committee of Management Vidyawati Darbari Girls Inter College and Ors. (supra) case. Section 18 does not provide the procedure of selection of ad hoc Assistant Teacher but Section 18 has to be harmonised with the Difficulties Order. Thus wherever the ad hoc appointment is made on substantive vacancy paragraph 5 of the Uttar Pradesh Secondary Education Service Commission (Removal of Difficulties ) Order, 1981 shall be applicable and for any ad hoc appointment the Inspector has to invite applications from from the local Employment Exchange and also through public advertisement in at least two news papers having adequate circulation in Uttar Pradesh. The Division Bench Judgement in Chhatrapal's case (supra) relied by the counsel for the appellant was a case where the Division Bench took the view that for substantive vacancy in C.T. Grade approval of the District Inspector of Schools is not necessary and such teacher is to be treated in C.T. Grade till the selection is made by the Board. What shall be the procedure for ad hoc appointment under Section 18 has not been expressly considered nor it has been held in the said Judgement that for ad hoc appointment advertisement only on the Notice Board is sufficient. The said Judgement does not support the contention raised by the learned Counsel for the appellant in the present case.
12. In view of the aforesaid the appointment of the appellant having been made without advertisement in two news papers which is the case of the petitioner himself, the petitioner has expressly, in paragraph 9 of the writ petition, stated that the Manager of the Institution advertised the post on the Notice Board of the Institution, no relief can be granted to the appellant. We do not find any good ground to interfere with the Judgement of the learned Single Judge. In the event the appellant has performed any duties at the instance of the Management it is for the Management to consider the claim of the appellant for payment of salary if any.
13. Subject to above observation the appeal is dismissed.