JUDGMENT Pradeep Kant, J.
1. The controversy involved in this Bunch of writ petitions being one and the same, is being answered by one common order.
2. The petitioners who are the teachers (Assistant Teachers or. Lecturers) appointed directly in different Intermediate Colleges allegedly on short-term vacancies on ad hoc basis have been refused approval of their appointment by the District Inspector of Schools either expressly or impliedly and thus were not being paid salary, which compelled them to file the present writ petitions.
3. It is not necessary to give details of the qualifications of the petitioners or their eligibility for holding the post of teachers (Assistant Teachers or Lecturers) nor the seniority or the date of their appointment as all the petitioners were appointed on the post of Lecturers by the Committee of Management of their colleges during the period when the Committee of Management of all the institutions was allegedly bereft of its power to make ad hoc appointments or even appointment on short-term vacancies on the post of Lecturers.
4. The Petitioners have raised various please in respect of their claim for payment of salary in the given pay-scale of Lecturers which broadly are as under :
(a) In all the cases appointments have been made by their respective Committee of Management on the post of Lecturer on ad hoc basis by direct recruitment.
(b) The appointments so made are protected being made on short-term vacancies, under the provisions of Regulation 9, Chapter II of the U.P. Intermediate Education Act, 1921 and that Section 16-E (11) of the Act also protects appointments made during the mid-academic session which appointments may be continued, till a regularly selected candidate is made available by the Selection Board.
(c) Requisition was sent to the Commission through District Inspector of Schools for making regular appointment but the Commission having failed to make appointments within the time prescribed gave liberty to the Committee of Management to make ad hoc appointments.
(d) In some cases requisition has been sent to the District Inspector of Schools but the appointments having not been made compelled the Committee of Management to make the appointments.
(e) In the absence of teachers being appointed by the Commission or by the Regional Selection Committee or by the District Inspector of Schools, as the case may be, neither the regularly selected candidates were made available nor the ad hoc teachers could be appointed by the authority concerned with the result, it adversely effected the studies of the students who were to be imparted instructions in respective subjects for appearing in the examination, and therefore, in the interest of the students, such appointments were made by the respective Committee of Management.
5. The vacancies occurred during the mid-academic- session either because of the promotion of the regular incumbent as officiating Principal or because of the retirement of the regular incumbent or otherwise, but were not filled in through the Agency of the Commission or through the Regional Selection Committee, therefore, the said vacancies are said to be short-term vacancies which were filled in by the Committee of Management to keep the college functioning and to protect the interest of the students.
6. The prayer for declaration of Section 33-E of U.P. Secondary Education Service Commission and Selection Board Act, 1982 (UP. Act No. 5 1982), (hereinafter referred to as the Selection Board Act), as invalid, has also been made.
7. Before proceeding further it would be appropriate to mention that though in the writ petition a plea has been raised challenging the vires of the aforesaid provision but no arguments on the invalidity of the same were advanced by the Counsel for the petitioners. It is, therefore, nor necessary for the Court to dwell upon the sustainability or invalidity of the aforesaid provision. That being so. The writ petitions are being considered on the basis of the Scheme of the Act and the Rules and Regulations as they are applicable and the right of the Committee of Management to appoint Lecturers in short-term vacancies or on ad hoc basis or otherwise during the period when the present appointment were made.
8. The appointments on short-term vacancies on the post of teachers were allowed to be made under various Removal of Difficulties Orders as issued from time to time in the manner and for the period prescribed therein but after induction of Section 33-E all the said (Removal of Difficulties) Orders stood rescinded and the learned Counsel for the petitioners have not been able to substantiate their plea that the said Removal of Difficulties Orders may be treated to be still in force for the purposes of meeting the exigencies of requirements of the teachers for imparting instructions in particular subject during the academic Session or till a regular selected candidate becomes available.
9. Section 32 of the Selection Board Act says that the provisions of U.P. Intermediate Education Act and the Regulations made therein in so far as they are not inconsistent with provisions of this Act or the Rules made there under shall continue to be in force for the purposes of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher.
10. The aforesaid provision makes it clear that the provisions of the U.P. Intermediate Education Act, which are inconsistent with the provisions of Selection Board Act would have to give way to the provisions of the later Act.
11. All the institutions which are recognized under the provisions of U.P. Intermediate Education Act, 1921 and are governed by the said Act and the Regulations framed there under, are governed for the purposes of Payment of Salary, by U.P. High School and Intermediate College (Payment of Salaries to the Teachers and other Employees) Act, 1971.
12. The argument of the petitioners that their appointments would still be protected by referring them to the provisions of Regulation 9 of Chapter II or Section 16-E (11) of the U.P. Intermediate Education Act, has to be considered in the light of the Scheme of the Selection Board Act, 1982, as it stood amended from time to time and the Rules and Regulations framed there under and at the same time, the provisions of U.P. Intermediate Education Act and the Rules and Regulations framed there under.
13. Prior to the issuance of U.P. Ordinance No. 8 of 1981 promulgated on 10th July, 1981 the UP. Intermediate Education Act, 1921 and the Rules and Regulations framed there under were completely holding the field in the matter of appointment of Teachers, Headmasters, and Principal and other Staff of the College and also with regard to their conditions of service. On 10.7.1981, The U.P. Ordinance No. 8 of 1981 was promulgated. It was repeated by U.P. Ordinance No. 23 of 1981. This ordinance was repeated by U.P. Act No. 5 of 1982 (Selection Board Act, 1982) which came into effect on 14,7.1981. Section 36 of the Act provided that anything done or any action taken under U.P. Ordinance 8 of 1981 and U.P. Ordinance No. 23 of 1981 shall be deemed to have been done or taken under the Act as if the Act was in force at all particular time.
14. The Commission for selecting the teachers was constituted by U.P. Ordinance No. 8 of 1981 but since its establishment was likely to take some more time, therefore, the necessity arose for issuing Removal of Difficulties Order, (First) Order, 1981. The Removal of Difficulties (First) Order, 1981 was issued, to facilitate the making of appointments on the vacancies already existing which could have been filled in under the provisions of U.P. Intermediate Education Act, the same having been repeated and the difficulty in making the selection of teacher was to be removed in the interest of the students as well as in the interest of the institution. This was the reason for issuance of the aforesaid (Removal of Difficulties) Order. This order was issued on 31st July, 1981. The Order permitted the Committee of Management to make ad hoc appointments either by promotion or by direct recruitment under the circumstances mentioned in paragraph 2 of the said order, which read as under, in the manner prescribed in the aforesaid order, from amongst the candidates, who fulfilled the eligibility conditions provided therein, for the duration specified :
"2. Vacancies in which ad hoc appointment can be made. The Management of an institution may appoint by promotion or by direct recruitment a teacher on purely ad hoc basis in accordance with the provisions of this Order in the following case, namely :
(a) in the case of a substantive vacancy existing on the date of commencement of this Order caused by death, retirement, resignation or otherwise;
(b) in the case of a leave vacancy, where the whole or un-expired portion of the leave is for a period exceeding two months on the date of such commencement;
(c) where a vacancy of the nature specified in clause (a) or clause (b) comes into existence within a period of two months subsequent to the date of such commencement."
15. Thereafter U.P. Secondary Services Commission (Removal of Difficulties) (Second) Order, 1981, was issued on 11.9.1981 which provided for filling up short-term vacancies by the Committee of Management by promotion of the permanent Senior most teacher of the institution, and where the short-term vacancies could not be filled in by promotion due to non-availability of the teacher in the next lower grade possessing the minimum prescribed qualification the same was to be filled in by direct recruitment.
16. The vacancies caused by grant of leave of the teacher or on account of his suspension duly approved by the District Inspector of Schools or otherwise, were known as short-term vacancies where such appointments were permitted to be made. The appointments either by promotion or by direct recruitment were to be made in accordance with the manner, prescribed in the Order itself and for the duration given therein.
17. Paragraph 4 of the Order said that every appointment of the teacher under paragraph 2 shall be subject to conditions laid down in paragraph 6 of the First Removal of Difficulties Order, 1981 By virtue of (Removal of Difficulties) (Second) Order, 1981 paragraph 2 of the (First) (Removal of Difficulties) Orders, 1981 was substituted by the following paragraph :
"2. The Management of an institution may appoint by promotion or by direct recruitment, a teacher on purely ad hoc basis in accordance with the provisions of this Order in the case of substantive vacancy caused by death, retirement, resignation, or otherwise."
18. The U.P. Secondary Education Services Commission (Removal of Difficulties) (Third) Order, 1982 was issued on 31st July, 1981, which made a little variation in Paragraphs 3 and 4 of the (Removal of Difficulties Order) (Second), 1981 but they are not material for the present controversy.
19. Another order known as U.P. Secondary Education Services Commissions (Removal of Difficulties) (Fourth) Order, 1982 was issued on April 14, 1982, and thereafter Fifth and Sixth Orders were issued.
20. The (Removal of Difficulties) (First Order) allowed the Management to appoint a teacher by promotion or by direct recruitment on purely ad hoc basis in accordance with the provisions of the Order against substantive vacancies caused on the date of commencement of the Order, due to the death, retirement or otherwise and also against the leave vacancies, where the whole or expired period of leave did not exceed two months on the commencement of the (Removal of Difficulties) (First) Order or where the vacancy in the nature of substantive as mentioned above came into existence within two months subsequent to the date of commencement of the said Order.
21. The (Removal of Difficulties) (Second) Order allowed the Committee of Management to make appointments by promotion or by direct recruitment or ad hop basis against short-term vacancies namely, caused by grant of leave to a teacher or on account of suspension duly approved by the District Inspector of Schools or otherwise. However, paragraph 5 of the (Removal of Difficulties) (Second) Order, in which an amendment was made to paragraph 2 of the (Removal of Difficulties) (First) Order, allowed the appointment by the Committee of Management on ad hoc basis against the substantive vacancies also caused by death, retirement, or otherwise.
22. U.P. Act No. 5 of 1982 was notified namely, the U.P. Secondary Education Services Commission and Selection Boards Act, 1982, on 2.6.1982 which came into force with effect from 14th July 1981. The said Act was enacted to give more fairness and transparency in the matter of selection of teachers in secondary institutions recognized by Board of High School and intermediate Examinations which appointments since were being earlier made under the provisions of U.P.. Intermediate Education Act, 1921 and the Rules and Regulations framed there under but which appointment were found to be at times not free and fair. The Act was also enacted with an intention to widen the field of selection and to enhance the availability of the suitable teachers. The Act provided besides various other provisions, provisions regarding constitution of Selection Board and its functions which of course included the selection of the teachers. It also provided special provision for reserved quota backlog and made the appointment of the teachers solely dependent on the recommendation of the Selection Board.
23. Section 16 (2) specifically provided that any appointment made in contravention of sub-section (1) shall be void whereas sub-section (1) prescribed that appointment shall be made only on the recommendations of the Board.
24. Section 18 gave power to the Committee of Management to make ad hoc appointment in the given circumstances and in the manner prescribed therein. It besides, other conditions, gave the requisite conditions, the eligibility criteria and the duration for, which the Committee of Management of the Institution, could make ad hoc appointment of its own.
25. Section 34 is the power to make Regulations with the prior approval of the State Government for holding the selections and interview and the procedure to be followed by Commission whereas Section 35 empowered that State Government to make Rules for carrying out the said purpose of the Act. In exercise of power under Section 34 the U.P. Secondary Education Service Commission, First Regulations, 1983 were framed in the year 1983 and thereafter certain more Regulations were framed. State Government also framed U.P. Secondary Education Service Commission Rules, 1983, 1985 and 1998.
26. The Act was further amended in the year 1985 by inserting Section 33-A by U.P. Act, No. 19 of 1985 with effect from 12.6.1985 and thereafter sub-section (1-A), (1-B) and (1-C) have been inserted by U.P. Act No. 26 of 1991 with effect from 6.4.1991 for regularization of the teachers who were appointed by promotion on ad hoc basis. The eligibility conditions and the manner and procedure for regularizing the appointments of teachers either appointed directly or by promotion on ad hoc basis were also detailed in the various sub-clauses of the aforesaid provisions. Later on the prescribed cut of date was extended from time to time.
27. U.P. Secondary Education Services and Selection Board (Second Amendment) Act, 1992 (U.P. Act No. 24 of 1992) was notified on 29th November, 1992. By means of this amendment Section 18 of the Principal Act was amended and was substituted by provisions mentioned in the aforesaid arnending Act.
28. The substituted provisions of Section 18 though also allowed making of appointment purely on ad hoc basis either by direct recruitment or by promotion in accordance with the provisions contained in the sub-clauses mentioned therein but provided totally a different procedure for making ad hoc appointments, wherein the Committee of Management, was denuded with the power of making any appointment.
29. In substance, it provided that in case the Institution has already notified the vacancies but the Commission has failed to fill up the said vacancies within two months thereof, the Management was required to intimate the vacancies to the District Inspector of Schools, within a given time and in case the Institution fails in giving the aforesaid intimation in the manner prescribed, the District Inspector of Schools was obliged to determine the vacancies of his own after verifying the records. On the determination of such vacancies the Management would invite applications from all willing and eligible candidates in the manner prescribed. Sub-clause 9 of the aforesaid Section 18 provided for constitution of selection Committee for making appointment on ad hoc basis consisting of the following namely, (1) District Inspector of Schools, (Chairman), (2) Basic Shiksha Adhikari, (3) District Girls Inspectress of Schools and where such an Inspector was not available the Principal of the Government Girls Higher Secondary Schools and where there were more than one such institutions then Senior most Principal of such School and where there is no such institution also then the Principal nominated by the State Government of the Government Girls Higher Secondary School. The aforesaid Selection Committee was to make selection of the teachers who would prepare a list of the selected candidates and forward the same to the Managing Committee of the institution for making appointment.
30. With a view to give effect to the provision of Regularization of appoint- ments as laid down in the U.P. Act No. 5 of 1982 the U.P. Secondary Education Services Commission and Selection Boards (Amendment) Act, 1992 was published in the U.P. Gazette, Part 1 (ka), dated 6.1.1993 (U.P. Act No. 1 of 1993). The aforesaid Act came into force on 17th December, 1993. In-the said amending Section 16 of the Principal Act was substituted by the following provision:
"16. Appointment to be made only on the recommendation of the Board.- (1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the regulations made there under but subject to the provisions of Section 21-B, 21-C, 21-D, 33, 33-A, and 33-B, every appointment of a teacher shall, on or after the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1992, be made by the Management only on the recommendation of the Board :
Provided that in respect of retrenched employees, the provisions of Section 16-EE of the Intermediate Education-Act, 1921, shall mutatis mutandis apply.
Provided further that the appointment of a teacher by. transfer from one Institution to another, may be made in accordance with the regulations made under clause (c) of sub-section (2) of Section 16-G of the Intermediate Education Act, 1921.
(2) Any appointment made in contravention of the provisions of sub-section (1) shall be void."
31. The Act apart from making certain other amendments in the Principal Act, omitted Section 18 of the said Act Section 34 and the Schedule to the Principal' Act were also omitted.
32. Later on by means of U.P. Secondary Education Services Selection Boards (Amendment) Act, 1995 the Principal Act was again amended and by virtue of Section 5 of the Amending Act, 1995, after Section 2 of the Principal Act, the Chapter II containing Sections 3 to 11 was inserted.
33. Section 9 of the Amendment Act, 1995 again substituted Section 18 in the Principal Act and laid down the condition which should exist for making ad hoc appointments, either direct or by promotion and also the manner and the procedure for making such appointments.
34. This provided for appointment of an ad hoc teacher by direct recruitment or promotion on failure on the part of the Commission to fill up the post by the Committee of Management for two months despite intimation being given to the Commission and also laid down specifically that the provisions of Reservation Act would apply white making the appointment on intermittent vacancies. Also it prescribed the constitution of the Selection Committee for each Region for selection of candidates for ad hoc appointment by direct recruitment comprising Regional Deputy Director of Education, Regional Deputy Director of Education (Second), and Regional Assistant Director of Education (Basic). The Regional Deputy Director of Education was to be the Chairman. On the recommendation of the aforesaid Committee the appointment should have been made as given therein.
35. The Act was further amended by U.P. Secondary Education Services Commission (Amendment) Act, 1998 (U.P. Act No. 25 of 1998). This Act was published in U.P. Gazette (Extra), dated 27.7.1998 and came into force on April 20, 1998. This amendment besides making other amendments, by virtue of Section 8, again substituted Chapter II and Sections 3 to 11 of the Amendment Act by means of provisions contained therein.
36. Sections 10 and 11 of Chapter II related to appointment to be made on the recommendation of the Board by direct recruitment, whereas Section 12 of Chapter III provided for selection for appointment by promotion. Section 16 of the Principal Act was also amended by virtue of Section 8 of the aforesaid Act, which read as under :
"8. Amendment of Section 16.-In Section 16 of the Principal Act in sub- section (1), for the words and figures "Sections 18,21 -B, 21 -C, 21 -D, 33, 33-A and 33-B every appointment of a teacher, shall on or after the date of commencement of the Uttar Pradesh Secondary Education Services Selection Boards (Amendment) Act, 1955, be made by the" Management only on the recommendation of the Commission" the words and figures "Sections 12, 18, 21-B, 21-C, 21-D, 33, 33-A, 33-B, 33-C and 33-D every appointment of a teacher, shall on or after the date of the commencement of the Uttar Pradesh Secondary Education Services Commission (Amendment) Act, 1998 be made by the" Management only on recommendation of the Board" shall be substituted."
37. Section 18 of the Principal Act was again amended by virtue of Section 9 of the aforesaid Act, wherein the word Commission was substituted by the word 'Board' and sub-section (a) of Section 9 prescribed the following Selection Committee- for ad hoc appointment by direct recruitment namely consisting of Regional Joint Director of Education, Regional Deputy Director of Education (Secondary), Regional Assistant Director of Education (Basic), and the Regional Joint Director of Education the Chairman."
38. It also provided for regularizatibn of certain more appointments under Section 33-C, the appointments being made within the period prescribed therein,
39. The (Removal of Difficulties Orders) (First), (Second), (Third) and (Fourth), were rescinded by insertion of new Section 33-E, in U.P. Act No. 5 of 1982 by virtue of U.P. Secondary Education Services Selection Board (Amend- ment) Act, 1999, which was published in the Extra-Ordinary Gazette on 24th March, 1999 but it was deemed to have come into force on 25.1.1999 Section 2 of the aforesaid Act 13 of 1999 which reads as under, rescinded all the Removal of Difficulties Orders, mentioned therein :
(2) Insertion of new Section 33-E in U.P. Act No. 5 of 1982.-After Section 33-D of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 hereinafter referred as the principal Act, the following Section shall be inserted namely :
"33-E. Rescission of orders.-The Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Third) Order, 1982 and the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Fourth) Order, 1982 are hereby rescinded."
It also repeated the U.P, Ordinance No. 5 of 1999.
40. After repeat of the aforesaid (Removal of Difficulties) Orders by virtue of insertion of Section 33-E in the principal Act, a further amendment was made by U.P. Secondary Education Services Selection Board Act, 2001 (U.P. Act No. 5 of 2001) which came into force on December 30, 2000. This Act amended Section16 of the principal Act by virtue of Section 2 which substituted the word in sub- section (l)'for the words and figures "Sections 12, 18, 21-B, 21-C, 21-D, 33, 33- A, 33-B, 33-C and 33-D every appointment of a teacher shall on or after the date of commencement of the Uttar Pradesh Secondary Education Services Commission (Amendment) Act, 1998 be made by the Management only on the recommendation of the Board" by the following :
"Sections 12, 18, 21-B, 21-C, 21-D, 33, 33-A, 33-B, 33-C, 33-D and 33-F, every appointment of a teacher, shall on or after the date of the commencement of the Uttar Pradesh Secondary Education Services Selection Board (Amendment) Act, 2001 be made by the Management only on the recommendation of the Board."
41. Section 18 was again substituted by virtue of Section 3 of the Act, 2001 which made a provision, only, for making ad hoc appointment on the post of Principal or the Head Master on purely ad hoc basis by promoting senior most teacher in case the Management had intimated the vacancies to the Board in accordance with sub-section (1) of Section 18 and the said vacancies actually remained vacant for more than two months.
42. This Act did not make any provision for making any ad hoc appointment on the post of lecturers or teachers other than the Principal or Headmasters. The Act further made provisions for insertion of Section 33-F.
43. Thus by virtue of Amending Act, 2001 (U.P. Act No. 5 of 2001), the power to make ad hoc appointments of teachers either by direct appointment or by promotion other than the Principal and Headmasters of the institution was taken away completely. Neither the Educational Authorities nor the Committee of Management could make any ad hoc appointment of teacher, thereafter under the Selection Board Act. Under the circumstances, no institution was allowed to have any ad hoc teacher either by direct appointment or by promotion irrespective of the fact as to whether the vacancy has been notified by Commission and there are no selected candidates available for imparting instructions to the students despite the subject being sanctioned and duly approved by the Educational Authorities.
44. The right of the Committee of Management of an institution to make appointment of teachers against substantive or on short-term vacancies on ad hoc basis, prior to the enforcement of U:P. Act No. 5 of 1982 was governed by the Provisions of the Act, of 1921 and the Rules-and regulations framed there under. In regard to the appointments to be made on short-term vacancies, the power of the Committee of Management was referable to the provisions of Regulation 9 of Chapter II and Section 16-E (11) of the Act but after the enforcement of the Selection Board Act, 1982, the said Act held the field and appointment on short- term basis could be or could have been made only under the various (Removal of Difficulties) Orders referred to above or under the provisions of the Act itself viz; Section 18, as it stood amended from time to time.
45. There is no difficulty in holding that the various (Removal of Difficulties) Orders gave power to the Committee of Management to make appointments on substantive or short-term vacancies as the case may be. The power could have been exercised by the Committee in the manner prescribed by making the appointments from amongst the eligible candidates on the criteria, and the procedure detailed therein. The appointments were also allowed to be made on ad hoc basis under Section 18 of the Act in the given circumstances, though the said provision had gone under frequent changes as is apparent from the various amendments referred to above.
46. Initially the principal Act, authorized the Committee of Management to make appointments by direct recruitment or promotion on ad hoc basis from amongst the persons possessing qualification prescribed under the Act or the Regulations framed there under, in case, the Management has notified the 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 teacher specified in the Schedule within one year from the date of Notification, or if the post of such teacher has actually remained vacant for more than two months. Thereafter by virtue of U.P. Act No. 24 of 1992, Section 18 was substituted by another provision which apart from prescribing certain other conditions in making appointment on ad hoc basis also laid down the criteria for determination of vacancies and provided for constitution of Selection Committee consisting of the officers of the Education Department who where given the exclusive power to make selection for making appointment and Management was bound to give effect to the said selection so made. However, by means of UP. Act o. 1 of 1993 Section 18 was completely omitted from the statute and again by means of Amendment Act, 1995 Section 18 was re-substituted but it did not again give power to the Committee of Management to make selection of its own. It was the Selection Committee prescribed under the aforesaid provision that was to make the selection in accordance with the procedure prescribed which selection was to be given effect to by the concerned institution.
47. Section 18 was again slightly changed or amended by means of U.P. Act No. 25 of 1998 but again it did not give any power to the Committee of Management to make appointment of its own. Thus it is evident that Committee of Management of the Institution though initially had the power to make appointment on ad hoc basis either by direct recruitment or by promotion under Section 18 of the principal Act, but on the enforcement of the amending Act No. 24 of 1992 with effect from 14-7-1992 though the power to make ad hoc appointment was retained but the procedure for making such ad hoc appointment was retained but absolutely changed. The Management was stripped off, of all its powers of making such appointments of its own, instead a detailed procedure was prescribed and a different Selection Committee other than the Selection Committee as envisaged in the provisions of U.P. Intermediate Education Act or the Regulations and Rules framed there under, was constituted. The Committee of Management of the concerned institution was not represented in this Selection Committee.
48. In view of the aforesaid amendment in Section 18 of the Act, the Committee ceased to have any power to make ad hoc appointment either by direct recruitment or by promotion. The amendment thereafter made by U.P. Act No. 1 of 1993 completely omitted Section 18 of the Act from the Statute by virtue of Section 13 of the said Amending Act which came into effect on August 17, 1992. Latter on by means of the Amendment Act, 1995, though the power to make ad hoc appointment was given therein but the Committee was not empowered to make any such appointment by following it own procedure or the procedure provided under the provisions of the U.P. Intermediate Education Act. This Section 18 gave a detailed procedure including constitution of Selection Committee for the purpose of making ad hoc appointment of teachers. Subsequent amendments in the Act also did not give any power to the Committee to make any appointment on short-term vacancies or on ad hoc basis.
49. The power to make appointment of a teacher in an institution duly recognized under the Act can be exercised only by such authority or body which has been conferred with such power. The Committee of Management could not have made any appointment unless statutorily authorized to make such an appointment. In the UP. Act, of 1921 and the Regulations and Rules framed there under, a detailed procedure was prescribed for inviting applications from the eligible candidates against the vacancy of a teacher existing in an institution or' which was likely to fall vacant, and thereafter the Selection Board Act, namely U.P. Act No. 5 of 1982 dominated the field. Unless the power flows either from the provisions of the U.P. Act of 1921 which power of course should not be in consistent to the provisions of U.P. Act No. 5 of 1982 as amended from time to time or from U.P. Act No. 5 of 1982 itself or the rules and Regulations framed there under, the Committee of Management shall not be a liberty to make any appointment of teachers. -
50. There cannot be any dispute that though in the principal Act the power for appointment of ad hoc teachers was given to the Committee of Management in accordance with Section 18 of the principal Act but later on by means of UP. Act No. 24 of 1992 the said power was taken away from the Committee of Management and since then the power has not been conferred upon the Committee of Management despite the Act having been amended number of times.
51. The question that whether the appointment made under the provisions of the (Removal of Difficulties) Orders would continue after the said Orders have been rescinded was considered in the case of Daya Shanker Pandey v. State of U.P. and Ors., reported in (2001) 1 UPLBEC 741, wherein a learned Single Judge (V.M. Sahai, J.) held "that the absence of any saving clause in the Section, resulted in bringing an end to the appointments made on short-term vacancy. The Court further observed that the petitioner cannot claim that even though the Difficulty Orders have been rescinded he would continue in the short-term vacancy. He further held that in law, a person usually has a right under the Statute or a right which accrues to him under law or he has a vested right. A vested right is one which has so completely and definitely accrued, or settled in a person that it is not subject to be defeated or cancelled or deprived arbitrarily without injustice and an accrued right is a matured cause of action as legal authority to demand redressal and a statutory right is one, which is conferred by an Act. A vested right or an accrued right cannot be taken away or curtailed except by retrospective operation of law. But a right under a statute comes to an end on the repeal of the statute unless such right is saved. Distinction between vested and accrued right under the statute was explained by the Apex Court in the case of Thyseen Stahlunion Gmbh v. Steel Authority of India Ltd., reported in (1999) 9 SCC 334.
52. Relying upon the ratio of the said judgment and on consideration of provisions of Section 24 of the U.P. General Clauses Act, 1904 and in the absence of a saving clause in the Act the Court found that the appointment made under the (Removal of Difficulties) Order would come to an end on the same being rescinded in view of Section 33-E of the Act
53. There is no denial of the fact from the side of the petitioners except in one or two writ petitions that their appointments were made after insertion of Section 33-E of the Act and probably therefore, they are relying upon the Regulation 9, Chapter II and Section 16-E(11) of the U.P. Intermediate Education Act for defending their appointments. Regulation 9 of Chapter II reads as under :
"9. (1) Where a vacancy in the post of teacher is caused by grant of leave to him for a period exceeding six months or where a teacher is placed under suspension which has been approved in writing by the Inspector under sub-section (7) of Section 16rG and the period of such suspension is likely to exceed six months from the date of such approval the vacancy may, subject to the provisions of the regulations be filled temporarily by direct recruitment or promotion, as the case may be.
(2) Where any vacancy is of the nature referred to in clause (1) or is caused as a result of promotion under Regulation 2 and the period of such vacancy exceeds thirty days but does not exceed six months, it may be filled by the Committee of Management by promotion of a duly qualified permanent teacher of the institution in the next lower grade on the basis of seniority.
(3) If any, vacancy under clause (2) cannot be filled due to the non- availability of any teacher of the institution in the next lwer grade, possessing the prescribed minimum qualifications for the post, it may be filled on ad hoc basis by the Committee of Management by the direct appointment for a period not exceeding six months in aggregate.
(4) All vacancies filled under clause (2) or clause (3) shall be reported to the Inspector in the proforma prescribed in Appendix 'B' within a week of being filled up."
54. The aforesaid Regulation came up for consideration in the case of Mukesh Kumar Sharma v. District Inspector of Schools, Aligarh, reported in 2000 (2) LBESR 1006 (All) wherein similar plea was raised by the petitioner seeking protection of the aforesaid provisions the plea of the petitioner was rejected on the ground that he having appointed against the vacancy caused because of ad hoc promotion of the teacher in the lecturer's grade, the vacancy so caused was not a vacancy which would fall within the definition of vacancy categorized in Regulation 9 sub-regulation (1) or sub-rule (2).
55. Section 32 of the Selection Board Act gives limited application to the provisions of U.P. Intermediate Education Act, in the matter of making selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher namely to the extent of the provisions of the said act, which are not inconsistent to the provisions of U.P. Act No. 5 of 1982. Section 32 of the Act reads as under :
Section 32 of the Selection Board Act reads as under :
"32. Applicability of U.P. Act II of 1921.-The provisions of the U.P. Intermediate Education Act, 1921 and the Regulations made thereunder in so far as they are not inconsistent with the provisions of this Act or the Rules made thereunder shall continue to be in force for the purposes of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher".
56. As argument has been raised that in the absence of any provision for making ad hoc appointment on short-term vacancies either by direct recruitment. or by promotion under the Selection Board Act, 1982 as amended from time to time, the authority to make such appointment under the provisions of Regulation 9 of Chapter II of UP. Intermediate Education Act cannot be said to be taken away as the said provision does not run contrary to any of the provisions of Selection Board Act and at the same time also makes the functioning of the institution possible when short-term vacancies occur.
57. Similar argument has been raised for making appointment under Section 16-E (11) of the U.P. Intermediate Education Act, 1921 against temporary vacancies caused by the grant of leave for a period not exceeding 6 months or by death, termination or otherwise of an incumbent occurring during an educational session, either by direct recruitment or promotion without reference to the Selection Committee. This provision which reads as under permits such appointment which would not continue beyond the end of the academic session during which the appointment was made :
"16-E (11). Notwithstanding anything contained in the foregoing sub- sections, appointments in the cause of 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 sessions, may be made by direct recruitment or promotion without reference to the Selection Committee in such manner and subject to sub-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).
58. The aforesaid provision initially did not have any provision for making appointment without reference to the Selection Committee in case of death, termination or otherwise but by means of Section 18 of the U.P. Act No. 12 of 1978 which came into force on 21.1.1978 such provision was inserted in the aforesaid section.
59. So far the appointment of a teacher against substantive vacancy is concerned, the Committee of Management cannot have any fight to make any regular appointment of its own as all such appointments are to be made on the selection made by the Board only. The appointment so made on the selection made by the Board, would be a regular appointment. The embargo placed in Section 16 of the Act that all appointments, of the teachers shall be made only on the recommendation of the Board with the given clear consequence of rendering any appointment made in the absence of the recommendation of the Board void, does not call for any adjudication to hold that such an appointment would be void and of no consequence. It may be taken note of, that the Board is empowered to make only regular appointments. The U.P. Act No. 5 of 1982 viz., Selection Board Act does not provide any where that the ad hoc appointments on any short-term vacancies have also to be made by the Board or they require approval of the Board.
60. The power, duties and functions of the Board as given in Section 14 of the Act also do not give any such power to the Board. The short-term appointments which are commonly known as adhoc appointments are, governed by the specific provision either given under U.P. Intermediate Education Act, 1921 or in the Regulations and the Rules framed thereunder, or the (Removal of Difficulties) Orders issued under the U.P. Act No. 5 of 1982 or under the provisions of the Act itself namely; Section 18. No such appointment made on adhoc basis either by virtue of direct appointment or by promotion is either to be approved or informed to the Board.
61. It is a different matter that the manner in which the Committee of Management would have appointed an adhoc teacher against the short-term vacancies, kept on varying by means of different Amendments made in the Selection Board Act. Nonetheless the power to make adhoc appointments on short-term vacancies did flow from the provisions of U.P. Intermediate Education Act and Regulations framed thereunder and also from the (Removal of difficulties) Orders issued under the Selection Board Act and Section 18 of the Act as amended from time to time. In the absence of any provision of making such appointment in the Selection Board Act, the provisions of Regulation 9, Chapter II can be pressed into service, the same being not inconsistent with the provision of U.P. Act No. 5 of 1982. The aforesaid Regulation would only be attracted, when, the Selection Board Act is silent on the question of making short-term appointments against short-term vacancies. But during all the period, when either the removal of Difficulties Orders issued under Act No. 5 of 1982 were in force or there existed a provision for making such appointments under Section 18 of the Act, the power for making adhoe appointments could not have been exercised under the said Regulation 9 of Chapter II of U.P. Act of 1921.
62. The learned Counsel for the State and private respondents could not dispute and rather admitted that the provisions of Regulation 9 would still be applicable in so far as they are not inconsistent with the provisions of U.P. Act No. 5 of 1982 and the Rules and Regulations framed thereunder. The aforesaid legal position was admitted to them during the course of the arguments, adopting the reasoning given by S.R. Singh, J. and on reading of the provisions of Regulation 9, Chapter II and complete omission of such provision against short- term vacancies in the Selection Board Act. ,.'...
63. Looking to the scheme of the aforesaid provision viz., Regulation 9, it cannot be disputed that power to make appointment on short-term vacancies given to the Management under the said provision was only for a limited purpose with a view to provide a teacher for imparting instructions, as against such unforeseen vacancies which occur because of the teacher going on leave for the period given therein or he is placed under suspension. It was only to protect the academic atmosphere of the institution and to save it from getting it polluted and for providing proper teaching to the students or imparting instructions against a sanctioned subject that such a provision was made.
64. Section 16-E (11) was also enacted with a view to meet immediate requirement of a teacher in case the vacancy occurs because of the teacher having been granted leave during mid of the academic session for the period mentioned therein or the vacancy occurs because of the death termination or otherwise which term would also include resignation, promotion, dismissal, "removal or reduction in rank of a teacher and a like. Section 16-E (11) is a provision which has been placed as sub-section of Section 16-E. Section 16-E lays down a procedure for selection of a teacher and the Head of the Institution under the provisions of U.P. Intermediate Education Act, 1921. Sub-section (2) to sub-section (9) of Section 16-E, lays down the procedure, which was to be followed in making the regular appointment of the Head of the Institution or a teacher of the Institution by means of direct recruitment whereas sub-section (10) of Section 16-E gives power to the State Government or the Director to look into the validity of the appointment made either on the post of Head of the Institution or on the post of a teacher, respectively. Sub-section (11) of the aforesaid provision which starts with a non-obstante clause allows the Committee of Management to make appointment of a teacher either by direct recruitment or by promotion without reference to the Selection Committee. The intention behind the enactment of the aforesaid provision is to control the damage which would occur in ease the incumbent either leaves service or a temporary vacancy is caused because of the death, termination or otherwise during mid of the academic session. To meet the emergent requirement and unforeseen contingency and with a view to continue the studies of the students, power was given to the Committee of Management to make appointment, against such vacancy, in the manner and subject to the condition prescribed.
65. The said provision was made, doing away with the requirement of following the procedure for making regular appointment as prescribed under Section 16-E sub-section (2) to sub-section (9) by giving power to the Committee of Management of the Institution to make short-term appointment in the educational session during which such temporary vacancy has occurred subject to such conditions and in the manner prescribed.
66. Learned Counsel for the petitioners have not been able to indicate any procedure or the manner which may have been prescribed for making such appointment against such a temporary vacancy but have asserted that the appointments could be made only of a eligible and qualified candidate, possessing the qualifications prescribed, after inviting applications from all eligible and willing candidates.
67. Section 16-E (11). is an independent provision though it exists as a sub- section of Section 16-E, which is evident by the fact that it starts with a non-obstante clause and does away with all requirement of making a selection on the post of a teacher by following the procedure of facing the statutory Selection Committee. The aforesaid provision thus being a separate and independent provision having its operation in a different field as against the rest of the provisions of Section 16-E would stand saved in view of the provisions of Section 32 of the U.P. Act No. 5 of 1982 as the same cannot be said to be inconsistent with any of the provisions of the said Act. The appointment against temporary vacancy which occurred during the mid academic session can be made under the said provision but such appointments were to be made only for the remaining period for such academic session. There is no provision under the U.P. Act No, 5 of 1982 which could render the aforesaid provision nugatory or ineffective or repugnant to any such provision nor there is any such provision which would make the aforesaid section as inconsistent with any of the provisions of the U.P. Act No. 5 of 1982.
68. Apparently aforesaid power was given only to make a stop gap arrangement with the expectation that in the meantime the regular selection will be made but notice can be taken of the fact that regular selection in many cases is not made before the Commencement of next academic session and the vacancy continues even thereafter. To meet the aforesaid exigency, the appointment so made on purely stop gap arrangement, may be allowed to be continued, till the availability of a regularly selected candidate. Reliance can be placed in this regard on the case of Rottan Lal v. State of Haryana and Ors., (1985) 4 SCC 43 and on the case of Robinarin Mahapatra v. State of Orissa, reported in (1991) 2 SCC 599.
69. Regulations 9(1) and (2) though gave power to make appointment against the vacancies which matched to the vacancy defined therein, but the said provision would not be applicable in the case of temporary vacancy being caused during the mid of the academic session because of the death termination or otherwise of an incumbent during mid-educational session.
70. When a statute confers powers or put riders or creates obligations, the Courts neither can enlarge the meaning of such statute nor would curtail the powers given therein. The statutory rights and statutory powers are the creation of the Statute and they have to be strictly adhered to. Regulation 9 does not encompass in itself the vacancies which occur because of retirement of a permanent teacher or because of permanent teacher is promoted as ad hoc Principal or if a regular promotion is made in the next higher grade, the vacancy arising in the grade, from where the promotion has been made eta etc., meaning thereby if an existing vacancy or vacancy which assumes the nature of vacancy as described in the Regulations 9(1) and (2), the Committee of Management would have power to make appointment on such short-term vacancy. No adhoc appointment can be made, under the regulation, against a vacancy, which does not fall, within the meaning of 'vacancy' as mentioned herein.
71. An understanding of the provisions of (Removal of Difficulties) Orders, UP. Act No. 5 of 1982 as amended from time to time and the Regulation 9 of Chapter II of the Act 1921 makes it clear that during the period when either the (Removal of Difficulties) Orders issued under the provisions of Selection Board Act, were in force or when the provisions of Section 18 of the said Act were in force, the appointment against short-term vacancies and the adhoc appointments could have been made only in the manner prescribed for making adhoc/short-term appointments. The provisions of Regulation 9 of Chapter II of the Act, 1921 could not have been used for making such appointment during the aforesaid period but during all such period when there existed no such provision either under the (Removal of Difficulties) Orders aforesaid or Selection Board Act No. 5 of 1982 as amended from time to time, the Committee of Management could have made the appointments or could make the appointments strictly in accordance with the provisions of Regulations 9(1) and 9(2).
72. Likewise at all times when there existed no such power to make appointment on temporary vacancy caused because of death, termination or otherwise during mid of the academic sessions the recourse could be taken to the provisions of Section 16-E(11) of U.P. Intermediate Education Act, 1921 for making such appointment which could lost till the end of such academic session in which such appointment was made, but this provision can be given a purposeful meaning, by keeping the appointment intact till a regularly selected candidate is made available.
73. It calls for no ambiguity that adhoc appointments, which could have been made under Section 18 of the Act were in respect of the vacancies which had to be notified to the Board for making regular appointment, whereas, under Regulation 9 appointments were to be made against short-term vacancies, on which no regular selection could be made, unless it is converted into a regular vacancy. Section 16- E(ll) also speaks of appointments against temporary vacancies for a limited period.
74. A note of caution has to be put, inviting the attention of Committees of Management that the power to make appointment on short-term vacancy would strictly be either in accordance with the provisions of Regulation 9 or Section 16- E(l 1) and any short-term appointment made in violation of the aforesaid provisions, would not stand protected and would be of no consequence.
75. After the Amendment Act, 2001 the power to make adhoc appointment has been completely taken away, even from the hands of the Educational Authorities and the power of the Committee of Management to make appointment was already taken away by virtue of U.P. Act No, 24 of 1992 by conferring the power upon the Selection Committee constituted under theprovisions of amended Section 18. This power has also been taken away by the aforesaid Amendment of the year 2001-Thus after the Amending Act, 2001 came into force with effect from 30th December, 2000 there remains no power either with the Committee of Management or with the Educational Authorities or the Selection Committee constituted under the Act for making such appointment under the provisions of the Selection Board Act, 1982. The power to make adhoc appointment under various (Removal of Difficulties) Orders has already ceased by insertion of Section 33-E of the Act by means of Amending Act of 1999 which came into force on 25.1.1999.
76. On appreciation of Regulations 9(1) and 9(2), Section 16-E(11) of the Act and the Selection Board Act and the (Removal of Difficulties). Orders, it is hereby concluded that only those appointments made against short-term vacancies or on adhoc basis either by direct recruitment or by promotion of a teacher would be protected which have been made as per the provisions of the relevant Act, Regulations and Rules then in force, which have already been dealt with in detail in this judgment hereinbefore. Any other appointment on short-term vacancy or adhoc appointment which is not in consonance with the observation made in the judgment, would be thus illegal and bad, which would not confer any right upon the teacher who had been appointed, nor such appointment could confer any right to claim salary or continuance in service.
77. Learned Counsel for the respondents has also raised a plea that while making appointment of the petitioners on adhoc basis, allegedly on short-term vacancies, the Committee of Management has not intimated the vacancies to the District Inspector of Schools, and even in those cases where the vacancies have been intimated to the District Inspector of Schools or a requisition has been sent to the Commission the Rule of Reservation, has not been followed. It does not require any detailed discussion regarding the applicability of the Rule of Reservation in the matters of appointment of the teachers in the recognized institutions. Even for making adhoc appointment, the vacancies available in the reserved category candidates could not be allowed to be filled in by general category candidates.
78. Any appointment made even on adhoc basis without following the Rules prescribed for and in violation of the Rules of reservation would also be bad in law and not in accordance with the principle enunciated above.
79. While concluding I hold that in the circumstances detailed in the judgment all the appointments made by the Committee of Management, on the vacancy, if the vacancy is/was in the nature of vacancy as specified in Regulations 9(1) and 9(2) of the U.P. Act of 1921 has been filled during the period when either U.P. Act of 1921 was in force or when neither the (Removal of Difficulties) Orders issued under U.P. Act No. 5 of 1982 were available nor there was a provision under the Selection Board Act or the Rules framed there under to make such appointment the Committee of Management would have the power to make such appointment on short-term vacancy in accordance with the Regulation 9, which appointment would be in the nature of adhoc appointments as given under the said provisions.
80. The Committee of Management would also have power to make appointment against the temporary vacancy caused because of the death, termination or otherwise in terms of Section 16-E(11) of the Act till such time any alternate provision is made in the Act No. 5 of 1982 or is otherwise provided by the State.
81. In the light of the discussion made above and the reasons given above this Court requires the concerned District Inspector of Schools to scrutinize the appointments of the petitioners and if it is found by the District Inspector of Schools that the appointments made stand covered either by the provisions of Regulations 9(1) and (2) of Chapter II or Section i6-E(ll) of the Act, the said appointments shall be allowed to continue till a regularly selected candidate is available and such teachers shall also be paid salary regularly. The appointment so made or their continuance, as such, would not give any legal right to hold the post on the availability of a regularly selected candidate. Even in cases where the appointments of the petitioners are not found to be protected either under the Regulations 9(1) and (2) of Chapter II or Section 16-E (11) of the Act the petitioners shall be allowed to continue till the end of present academic session and shall be paid salary in the interest of the students whose interest would be adversely effected in case such teachers are restrained from imparting instructions during the mid of the academic session irrespective of the manner in which their appointments have been made but such appointments shall not continue and shall automatically cease on the completion of the current academic session.
82. The District Inspector of Schools shall undertake this exercise immediately on receipt of the certified copy of the order and shall complete the same within a maximum period of two months. He shall also give opportunity to the Committee of Management and the teachers concerned in the matter.
83. In view of the findings recorded above the Committee of Management would be capable to make appointment either under Regulations 9(1) or (2) of the Act and also under also Section 16-E(11) of the U.P. At, of 1921, under the circumstances mentioned therein and more expressly detailed in this judgment. Beyond this, the Committee of Management could not have and can not make any adhoc or short-term appointment.
84. Before parting, the Court finds that it is expedient to draw the attention of the State Government on the anomalous and precarious situation which has been created by the enforcement of the aforesaid Acts which have been discussed in extenso by me causing a complete vacuum in the Selection Board Act and the Regulation framed thereunder, in the matter of making appointments against the vacancies of teachers which occur during the mid-academic session or in case where the shortrterm vacancies do not answer to the description given of the vacancies in Regulations 9(1) and 9(2) and also against such vacancies which occur because of retirement of a permanent incumbent or because of dismissal, removal, termination, or reduction in rank of a teacher or because of death or otherwise. The short-term vacancies, the temporary vacancies, or the permanent vacancies have to be filled in accordance with the Rules as in force.
85. It has been brought to the notice of the Court that in the entire State, in large number of cases where even the vacancies have been notified by the Committee of Management to the Board, the selection has not been held or could not be held for various reasons, resulting into non-availability of Suitable candidates.
86. Vacancies can arise either during academic session or at the end of academic session but in all such cases it is the obligation of the State to provide mechanism for making appointment at the earliest as non-making of appointment of the teacher for any reason whatsoever, and, not providing the students a teacher for imparting education, instructions and training is causing immense, difficulty and draw back in the field of education. Section 16-E(11) of the Act of 1921 can not be used as a substitute to a regular appointment.
87. The existing gap, if not immediately is filled in, it will cause gave depredation to the society. An unseemingly unforeseen, piquant situation has been created by doing away with all the process of making adhoc appointment of teachers, leaving the genuinely admitted students, in particular subjects in lurch and at the same time compelling the Management to make arrangement by adopting unauthorized measures. The Management can not afford, losing its prestige and goodwill by not being able to provide teachers to the students, in the subject allotted to them and therefore, they sometimes under compelling circumstances and at times for bestowing favours on their near and dear ones, appoint teachers on adhoc basis, despite there being no authority with them for making such appointment, more so when the Selection Board in large number of cases has not been able to provide duly selected candidates, even against regular substantive vacancies.
88. there are various institutions in which the vacancy had occurred and on such vacancy, neither adhoc appointment could be made nor the regular selection has been made by the Board, which necessarily affects adversely the interest of the students. Take a case where in a duly approved sanctioned subject, students take admission and in the mid of the academic session, the vacancy occurs due to dismissalor termination or because of sudden death of a teacher, or for any other reason whatsoever but no arrangement can be made by the Committee of Management under any of the provisions of the UP. Act No. 5 of 1982 or Regulations, or Rules and the Selection Board would not be able to make selection or appointment so fast, putting the fate of the students in jeopardy. It may be in certain cases that a teacher of the subject is retired but the subject which he was teaching is duly approved and sanctioned in which subject fresh students are also admitted, but the institution would not have any teacher to instruct them except by taking recourse to either the provision of Regulations 9(1) and 9(2) or that Section 16-E(11) of the Act. These examples are only illustrative as there can be many more reasons for occurrence of the vacancy and incapability of the Management as well as that of the Educational Authorities to make any adhoc appointment and at the same time failure on the part of the Selection Board to provide any selected candidate, which necessarily would be prejudicial to the interest of students and would also lower-down the standards of education in the State.
89. Judicial notice can also be taken of the functioning of the Selection Board which has not been able to provide suitable candidates for filling up the post of regular principles in a large number of Institutions and in all such institutions, the senior most teacher has been entrusted the work of the officiating Principal causing a temporary vacancy on the post of Lecturer on which he was substantively appointed but in the absence of regular Principal being available, the fate of the said vacancy which is temporarily caused because of the officiating promotion to the post of Principal remains undecided and such a vacancy also would not fall within the meaning of the vacancy under the Regulation 9, Chapter II of the U.P. Act No. 5 of 1982 or under Section 16-E(11) so as to allow the Committee of Management events make any short-term appointment.
90. Keeping in mind the importance of the issue, the Court had called the then Principal Secretary, Education to explain as to in what manner the State Secretary Government intends to meet the aforesaid anomalous situation. The Principal informed the Court that in view of various amendments made in the Act, a note of which has been taken by me in this judgment, the adhoc appointments could have been made under the then existing provisions but no adhoc appointment could be made even by the Education Authorities after 30th December, 2000. He further informed that the State Government is conscious of the facts, therefore, a High Level Committee is considering the matter. Since that date till passing of the present order a considerable period has lapsed and there has also been a change of guard in the Government, but till date no such decision has been taken by the High Level Committee and in any case no such decision has been brought before this Court
91. The significance and the importance of the education is to be, the first preference of the State and this Court has no reason to believe that the State Government is oblivious of the aforesaid almost anomic situation prevailing in the educational institutions and, therefore, the Government must consider that it is high time when appropriate measures should be taken and necessary provisions be made for meeting the exigency of filling up the vacancy which can either be termed as unforeseen vacancies and also the vacancies, which are likely to occur in near future, including regular substantive vacancies by providing a mechanism for making adhoc appointments against such vacancies either by direct recruitment or by promotion till a duly selected candidate is made available by the Board. Effective steps be also taken for making regular appointments through the agency of the Board within the minimum possible time so that the education does not suffer and even the bonafide and sincere students do not start losing interest in attending the colleges. Making a provision for meeting the aforesaid existing void in the matter of appointment against short-term vacancies as also against the substantive vacancies would not only save the educational atmosphere in the institution but would also be a prudent Management of the system of education in the State.
92. The vacancy caused for any reason whatsoever may be, on account of death, dismissal, termination, removal or retirement or otherwise of a teacher need not be allowed to remain unfilled for long indefinite period and in case the appointment by regular selection through the Selection Board is likely to consume time, a provision may be made for making appointment for interregnum period i.e. till regularly selected candidate is available namely; the adhoc appointment, for such period with a specific provision that on the availability of selected candidates such appointments shall stand automatically ceased irrespective of the fact as to whether the Committee of Management allows joining of such candidate who has been selected by the Board or not but the moment the regularly selected candidate submits his joining, the adhoc arrangement made against such vacancy shall cease automatically without any requirement of passing of any further orders.
93. Provisions thus be made for filling up such vacancies by making adhoc appointment through some appropriate mechanism preferably under the supervision, guidance and instructions of Educational Authorities and if necessary by making selection through the Selection Committees consisting of the Educational Authorities on intimation of the vacancies as per the Rules to the District Inspector of Schools within a given time schedule. Under the circumstances the State Government is advised to make necessary provision either by amending the Act namely; U.P. Act No. 5 of 1982 or if necessary by issuing necessary Removal of Difficulties Order, or otherwise for filling up vacancies by appointing adhoc teachers till a regular selected teacher is made available by the Board. It is expected that the State Government shall take an early decision in the matter.
94. The Court expresses its hope and trust that the State Government would not be apathetic or reticent but shall take immediate action in issuing necessary direction as required, without any further delay.
95. All the writ petitions stand disposed of in terms of the directions issued above.
Let the copy of this order be sent to the Chief Secretary, Government of U.P, and the Legal Remembrancer.