Hon'ble Pradeep Kumar Singh Baghel,J.
1. The present appeal under Chapter VIII, Rule 5 of the Rules of the Court, 1952 has been preferred against the judgment dated 22nd March, 2012 in Writ Petition No. 24533 of 1989 whereby the petitioner's writ petition has been dismissed.
2. The writ petition was filed by the appellant petitioner (hereinafter referred to as "the petitioner) with a single prayer i.e. issue a writ in the nature of mandamus commanding respondents to pay salary to him.
3. The respondents impleaded in the writ petition are District Inspector of Schools; Account Officer, in the office of District Inspector of Schools, Farrukhabad; and Committee of Management, SNM Inter College, Kaimganj, Farrukhabad through its Manager.
4. It is stated that there was a short-term vacancy of Assistant Teacher L.T-grade, in S.N.M. Inter School, Kayamganj, Farrukhabad (hereinafter referred to as "the College") due to one Sri Devi Dayal Agarwal proceeding on leave granted upto 10.11.1988. In the aforesaid leave vacancy, the petitioner was appointed as Assistant Teacher, L.T. Grade on 30.07.1988 by the Committee of Management of the College. The approval was granted to the aforesaid appointment by District Inspector of Schools, Farrukhabad, (hereinafter referred to as "DIOS") vide order dated 10th July, 1989 for the period of 01.08.1988 to 10.11.1988.
5. Sri Devi Dayal Agarwal, permanent Teacher in the college, against whose leave vacancy petitioner was appointed, joined his post back on 14.11.1988. As a result thereof, the petitioner ceased to function. However, Sri Agarwal died on 30.11.1988. The Committee of Management thereafter issued another appointment letter on 16th January, 1989 appointing the petitioner as Assistant Teacher LT-Grade in the substantive vacancy (caused due to death of Devi Dayal Agarwal) for a period upto 30th June, 1989 or till candidate selected by Commission is available. This appointment letter is on record as annexure-1 to the writ petition ( at page 50 of the paper book of this appeal). Since appointment of petitioner was made till 30th June, 1989, the post was advertised by the Management to be filled in by fresh selection as per Section 18 of U.P. Secondary Education Service Section Act, 1981(hereinafter referred to as Act,1989 read with First Removal of Difficulties Order, 1981).
6. He filed writ petition no. Nil of 1989 assailing advertisement made by the Management for ad hoc appointment. It was disposed of at the admission stage on the very first day when it was taken as fresh vide judgment dated 28.07.1989 as under:
"Having heard the learned counsel for the petitioner we are of the opinion that the petitioner is entitled to continue on the post held by him till a regularly selected candidate is available. Consequently the advertisement given in Annexure-5 to the writ petition will not be given effect to.
The petitioner is disposed of."
7. The vacancy advertised by the Committee of Management, therefore, could not be given effect to. The petitioner on the basis of his continuance claimed salary from DIOS which was declined by order dated 06.10.1989 observing that petitioner's short-term appointment had ceased on 14.11.1988 after joining of Sri Devi Dayal Agarwal and, hence, no salary is payable to the him after 14.11.1988. Thereafter the petitioner filed writ petition no.24533 of 1989 seeking following relief:
a. Issue a writ, of Mandamus commanding the respondents to pay the due salary to the petitioner.
b. any other and further writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case.
c. Award cost of petition to the petitioner.
8. Though the petitioner was aware that DIOS has declined to pay salary vide order dated 06.10.1989, yet the said order was not challenged. While entertaining the aforesaid writ petition, this Court on 19.12.1989 passed following order:
"List in the week commencing 21st January, 1990. Learned Standing counsel may file Counter Affidavit in the meantime.
The petitioner is permitted to serve opposite party no. 3 within a period of one week from today. The office apart from issuing notice by Ordinary course, shall handover the necessary notices to learned Counsel for the petitioner indicating therein that petition shall be listed for admission in the week commencing 21.01.90 and that it may file Counter Affidavit in the meantime.
The D.I.O.S. Farrukhabad and Committee of Management S.N.M. Inter College, Kaimganj, Farrukhabad (Opposite party No. 1 and 3) are directed to pay salary to the petitioner for month of December 1989 in January, 1990 and continue to pay the same till further orders of this Court.
However, the question of payment of arrears of salary shall be considered after exchange of affidavits between the parties."
9. Since writ petition remain pending for quite a long time, the interim order also continued to operate.
10. Respondents filed counter affidavit in which it is specifically stated that at no point of time petitioner was appointed as Assistant Teacher LT-grade on 16.01.1989 after following procedure prescribed in law and his earlier appointment had already ceased on re-joining of Sri Devi Dayal Agarwal, permanent Assistant Teacher on 14.11.1988. Thereafter petitioner was not entitled to payment of salary. Reference was also made to order dated 06/12.10.1989 whereby petitioner was denied salary for the period subsequent to 14.11.1988. In para 4, 9, 12, 15,16,19 of the counter affidavit, it was specifically pleaded by DIOS that petitioner's appointment on 16th January, 1989 was illegal having been made without following the procedure prescribed in law and therefore he was not entitled for payment of any salary.
11. In the rejoinder affidavit filed by the petitioner, he has not stated anywhere as to what was the procedure followed for making his appointment on 16th January, 1989. The averments contained in counter affidavit have been denied but the petitioner himself has not disclosed about the procedure observed before for making his appointment on 16th January, 1989.
12. When an incumbent seeks a writ of mandamus commanding the State to pay salary from public exchequer, he is under an obligation to demonstrate that he is entitled to salary in law. For that purpose, the very first aspect which has to be demonstrated by such a person is that he was validly appointed. Hence at no point of time the validity of appointment of petitioner came to be considered and adjudicated by this Court. There was no adjudication on this aspect. In absence of anything to show that petitioner was appointed validly, he can not stake his claim for salary from State Ex-chequer. The salary is paid to the teaching and non-teaching staff in the institution under the provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as Act, 1971). The aforesaid act is applicable only when appointment has been made validly, whereas in the present case there is nothing to show that the appointment was made validly. Therefore, payment of salary from State Ex-chequer could not be directed. This question has been considered by this Court in catena of decisions. ( See: Gopal Dubey Vs. D.I.O.S. Maharajganj and Another 1999 (1) UPLBEC-1 (FB), Ram Chandra Yadav Vs. State of U.P. and others (W.P. No. 66958 of 2009) decided on 10.03.2011 and Ram Preeti Yadav Vs. State of U.P. and others (W.P. No. 44852 of 2008) decided on 29.08.2008).
13. Learned counsel for the petitioner could not dispute that appointment made against leave vacancy came to an end as soon as the short term vacancy ceased. Against substantive vacancy a fresh procedure of appointment consistent with Section 18 of Act, 1981 read with First Removal of Difficulties Order, 1981 has to be observed. These aspects have been considered in detail by a Division Bench of this Court (in which one of us Hon'ble Sudhir Agarwal, J also a Member) in Surendra Kumar Srivastava Vs. State of U.P. and others, 2007(1) ESC 118 (All) (DB). Paras 16 and 17 thereof are reproduced as under:
"16. The question as to whether a teacher appointed on short term basis pursuant to the provisions of Second Order has a right to continue if subsequently the vacancy becomes substantive, specifically came up for consideration before a Full Bench in Smt. Pramila Mishra Vs. Deputy Director of Education, 1997 (2) ESC 1284 (All)(FB) and on page 1291 the Court held that "from the provisions of the Acts, Rules, Regulations and Removal of Difficulties Orders discussed above, it is manifest that a clear distinction has been maintained between substantive vacancy and short term vacancy of the post of a teacher. The authority to make the appointment, the procedure to be followed in making the appointments and the considerations to be made in making the appointment in the two cases are distinct and different from each other. In each case the duration of ad hoc appointment is also laid down under the statutory provisions. In the case of ad hoc appointment in a short term vacancy paragraph 3 of the Second Order specifically lays down that the appointment will come to an end if the short term vacancy otherwise ceases to exist. It follows, therefore, that when a vacancy caused due to grant of leave to or suspension of the permanent incumbent becomes a substantive vacancy on account of his death, resignation or termination or removal from service, the short-term vacancy ceases to exist and a substantive vacancy is created in its place. On a perusal of the relevant provisions of the Acts, Rules, and Removal of Difficulties Orders and giving our anxious consideration to the matter, we do not find any provision which directly or even indirectly vests a right in a person appointed an ad hoc teacher in a short-term vacancy to continue even after the said vacancy has ceased to exist and a substantive vacancy has been created in its place. The contention raised on behalf of the respondents that such an appointee (in short-term vacancy) is entitled to continue in the post (substantive vacancy) till a candidate selected by the Commission/Board joins the post does not get any support from the statutory provisions and, therefore, cannot be accepted. The contention is also not acceptable for the reason that it runs counter to the intendment of the provisions of the Act, Rules and Regulations. We should not be understood to be saying that an ad hoc teacher in a short-term vacancy cannot be appointed in a substantive vacancy. He can be appointed in the substantive vacancy if he is selected in accordance with the procedure and in the manner laid down in the relevant provisions of the Acts, Rules, Regulations and Removal of Difficulties Orders. What we want to stress and which is clear to under section is that he cannot claim as a matter of right that he is entitled to continue in the post till the candidate selected by the Commission/Board joins even if the short term vacancy has ceased and a substantive vacancy in the post of teacher has been created in its place." (Emphasis added)
17. A careful reading of the law laid down by the Full Bench in Smt. Pramila Mishra (Supra) makes it clear that the Court specifically rejected the contention that a person has a right to continue when a substantive vacancy is created or occurred if he has been appointed as ad hoc teacher in a short term vacancy and held that there is no provision to support this contention. It has also specifically observed that acceptance of such contention would run counter to the specific provisions of the Act and the Rules framed thereunder. Further in the operative part of the judgment, the Full Bench, while discarding the contention that a teacher appointed by the Management on ad hoc basis in a short term vacancy which is subsequently converted into a substantive vacancy can claim a right to continue further held that however he has a right to be considered along with other eligible candidates for ad hoc appointment in the substantive vacancy, if he possess the requisite qualification. The Full Bench also overruled all the judgments taking contrary view as is apparent from the following: "Summing up our conclusions in the light of the discussions in the foregoing paragraphs, we hold that a teacher appointed by the management of the institution on ad hoc basis in a short term vacancy (leave vacancy suspension vacancy), which is subsequently converted into a substantive vacancy in accordance with the provisions of the Act, Rules and Orders, (on death, resignation, dismissal or removal of the permanent incumbent), cannot claim a right to continue. He has, however, a right to be considered along with other eligible candidates for ad hoc appointment in the substantive vacancy if he possesses the requisite qualifications. Consequent upon the view taken by us, as noticed above, we hold that the decisions of this Court like Km. Meena Singh's case (supra) and other cases taking contrary view, are declared to be no longer good law."
14. This Court also considered some judgments wherefrom a slight distinct interpretation was sought to be traced out by learned counsel for the petitioners in that case and after considering thereto this Court held in para 34 of the judgment in Surendra Kumar (supra) as under:
"Since the contingencies in which appointments are made under First and Second Order, i.e., on occurrence of substantive or short term vacancy, procedure is different and the rights of the persons appointed for the period they have to continue being different, we do not find any reason to interpret or read Clause-3 of Second Order in a manner which would do violence with otherwise clear and unambiguous procedure. Therefore, in view of the binding pronouncements of law by the Full Bench in Pramila Mishra (supra) are clear and unambiguous provisions contained in para-3 of the Second Order, we are of the considered opinion that an ad hoc appointee against the short term vacancy would seize on cessation of short term vacancy for any reason whatsoever including where vacancy is converted into a substantive one. In such a case, the appointment, therefore, whether ad hoc or regular has to be made in accordance with the provisions contained in 1982 Act read with the Rules and Regulations framed thereunder."
15. The view taken by learned Single Judge that appointment of petitioner having not been shown to be validly made, he is not entitled for salary is also consistent with the view taken by Apex Court in Prabhat Kumar Sharma and others Vs. State of U.P. and others, (1996) 10 SCC 62 that procedure laid down in Removal of Difficulties Order is mandatory and has to be observed in words and spirit. An appointment made inconsistent with the said procedure is void ab initio and will not confer either any right upon the incumbent to hold the post or to continue in service or to claim salary from the State exchequer. The relevant observations made by the Apex Court in Prabhat Kumar Sharma (supra) is as under:
"Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees."
(emphasis added)
16. Again in para 11 of the judgment the Court held:
"Any appointment in violation thereof is void. As seen prior to the Amendment Act of 1982 the First 1981 Order envisages recruitment as per the procedure prescribed in para 5 thereof. It is an inbuilt procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the Management to any posts in aided institution."
17. The aforesaid decision has been followed and reiterated in Shesh Mani Shukla Vs. District Inspector of Schools Deoria and others J.T. 2009 (10) SC 309 wherein the Apex Court said:
"It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State."
18. In the circumstances, we are satisfied that the alleged appointment of the petitioner being void ab initio, it conferred no right upon him at all which included claim for salary from State Exchequer.
19. We therefore find no error in the judgment under appeal warranting interference.
20. The appeal is accordingly dismissed.
21. No order as to costs.
Order Date :- 12.6.2012 Sanjeev Court No. - 34 (On application under Section 5 of Limitation Act.
Case :- SPECIAL APPEAL DEFECTIVE No. - 551 of 2012 Petitioner :- Ravendra Kumar Respondent :- District Inspector Of School And Others Petitioner Counsel :- V.K. Singh,G.K. Singh Respondent Counsel :- C.S.C.
Hon'ble Sudhir Agarwal,J.
Hon'ble Pradeep Kumar Singh Baghel,J.
Learned Standing counsel did not propose to file any counter affidavit but advanced his submission.
Heard There is delay of only 44 days in filing this appeal, which has been explained satisfactorily.
Delay in filing Special Appeal is, therefore, condoned.
Order Date :- 12.6.2012 Sanjeev