Heard Sri S.S. Chauhan, learned counsel for the petitioner and Ms. Suman Sirohi, learned Standing Counsel, appearing on behalf of respondent nos. 1 to 4.
By means of the present petition, the petitioner is seeking the direction, in the nature of mandamus, to the respondents to pay the salary to the petitioner for the post of L.T. Grade teacher since 1.8.1992.
The brief facts, giving rise to the present petition, are that on account of retirement of one Smt. Hema Tiwari, a L.T. Grade teacher, on 30.6.1992, a vacancy arose in Arya Putri Inter College, Subhash Nagar, Bareilly, a recognised institution under the U.P. Intermediate Education Act, 1921. The said Institution was a Government aided institution. According to the petitioner, the committee of management has intimated the vacancy to the U.P. Secondary Education Service Commission in the month of September or October, 1991. To fill up the vacancy, the committee of management advertised the post in the news paper. In pursuance thereof, the petitioner applied for the post of L.T. Grade Teacher.
The contention of the petitioner is that the Committee of Management, by the resolution No. 4(Ba) dated 14.7.1992 has appointed her as an adhoc L.T. Grade teacher under Section 18 of the U.P. Secondary Education Services Commission Act and in this regard issued an appointment letter on 27.7.1992. In the appointment letter, it has been mentioned that the appointment of the petitioner has been made subject to the availability of the candidate selected by the U.P. Secondary Education Service Commission. After receiving the appointment letter, the petitioner joined the institution on 1.8.1992 and since then, the petitioner is working. The papers with regard to entire selection proceeding and the appointment of the petitioner has been forwarded to the Regional Inspectress of Girls School for her approval, but nothing has been communicated.
When the petitioner did not get the salary with effect from 1.8.1992, the present writ petition has been filed seeking a direction to the respondents to pay salary to the petitioner.
The writ petition was entertained vide order dated 14.10.1993. Respondent nos. 1, 2 and 3 were directed to ensure payment of salary to the petitioner. They were further directed to pay the current salary to the petitioner.
Sri Anand Prasad Chaudhary, Deputy Director of Education, Madhyamik, Bareily, filed the counter affidavit annexing the copy of the order dated 2nd September, 1992 by which the approval for payment of salary has been refused on the ground that in view of Ordinance No. 21 of 1992, the Committee of Management had no right to fill up the vacancy and make the selection and the papers in this regard have been returned to the Manager of the Institution.
Learned counsel for the petitioner submitted that the petitioner is working since 1.8.1992 and is also receiving salary regularly in view of the interim order passed by this Court. He submitted that the appointment made by the Committee of Management was in accordance to law against the substantive vacancy. He submitted that as the petitioner is working since long, her services are liable to be regularised and she may be permitted to continue to hold the post and the salary be also directed to be paid. Reliance is being placed on the decision of the Apex Court in Civil Appeal No. 4895 of 1989, Uttar Kumar vs. U.P. Higher Education Service Commission, Allahabad and others. He also placed reliance on a decision of this Court in the case of Praveen Misra vs. District Inspector of Schools, reported in (1998) 1 UPLBEC 629.
Learned Standing Counsel submitted that, after commencement of the U.P. Secondary Education Service Selection Board Act, 1982 (in short Act of 1982), amended time to time, and in view of the U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981, the Committee of Management has no right to invite the application and to fill up the vacancy by appointing adhoc teacher. The Act of 1982 came into force with effect from 14th July, 1981. Section 10 of the Act provides procedure for selection by direct recruitment. Section 18 provides for appointment of the adhoc teacher. Section 16 provides that the appointment to be made only on the recommendation of the Board. Section 33 empowers the State Government to remove difficulties. It provides that the State Government, for the purposes of removing any difficulty, by a notified order, direct that the provisions of this Act shall, during such period as may be specified in the order, have effect, subject to such adaptations, whether by way of modification, addition or omission, as it may deem to be necessary or expedient. Section 18 of Act 1982 has been amended by the Act No. 24 of 1992. w.e.f. 14.7.1992. Therefore in the present case, ad hoc appointment was to be made in accordance to substituted Section 18 whereas in the present case the ad hoc appointment was not made in accordance to substituted Section 18.
I have considered the rival submissions and perused the record.
It would be appropriate to refer the relevant provisions relating to the appointment of the adhoc teachers.
In the year 1981, an Ordinance, named as U.P. Secondary Education Service Commission and Selection Board (Second Ordinance), 1981 (U.P. Ordinance No. 23 of 1981) was introduced with effect from 14th July, 1981. The said Ordinance has been substituted by the U.P. Secondary Education Service Commission and Selection Board Act, 1982 (U.P. Act No. 5 of 1982). It was enforced on 14th July, 1981. Section 18 of the said Act provides procedure for appointment of the adhoc teacher, which reads as follows:
18. Ad hoc teachers.--(1) Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and --
(a) the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher specified in the Schedule within one year from the date of such notification ; or
(b) the post of such teacher has actually remained vacant for more that two months, then, the management may appoint, by direct recruitment or promotion, a teacher on purely ad hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder.
(2) The provisions of sub-section (1) shall also apply to the appointment of a teacher (other than a teacher specified in the Schedule) on ad hoc basis with the substitution of the expression 'Board' for the expression "Commission".
(3) Every appointment of an ad hoc teacher under sub-section (1) or sub-section (2) shall cease to have effect from the earliest of the following dates, namely--
(a) when the candidate recommended by the Commission or the Board, as the case may be, joins the post;
(b) when the period of one month referred to in sub-section (4) of section 11 expires;
(c) thirteen day of June following the date of such ad hoc appointment.
It would also be appropriate to refer Sections 16, 33, 34 and 35 of the said Act.
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 thereunder but subject to the provisions of 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 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 Intermediate Education Act, 1921.
(2) Any appointment made in contravention of the provisions of sub-section (1) shall be void.
Section 33 gives power to the State Government to notify the orders for the purposes of removing any difficulties, which reads as under:-
(33) Power to remove difficulties.-- (1) The State Government may, for the purpose of removing any difficulty, by a notified order, direct that the provisions of this Act shall, during such period as my be specified in the order, have effect subject to such adaptations, whether by way of modification, addition or omission, as it may deem to be necessary on expedient :
Provided that no such order shall be made after two years from the date of commencement of this Act.
(2) Every order made under sub-section (1) shall be laid before both the Houses of State Legislature.
(3) No order under sub-section (1) shall be called in question in any court on the ground that no difficulty as is referred to in sub-section (1) existed or required to be removed.
Section 34 gives power to the Commission to make regulation with the previous approval of the State Government. Section 34 reads as follows:-
34. Power to make regulations.--(1) The Commission may, with the previous approval of the State Government, make or amend regulations prescribing fees for holding selections, for conducting examinations where necessary, or for holding interviews and laying down the procedure to be followed by the Commission for discharging its duties and performing its functions under this Act:
Provided that the first regulation under this sub-section shall be made by the State Government by notification in the official Gazette.
In exercise of power under Section 33 of the Act of 1982, the State Government notified U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as the 'Order, 1981') because the State Government found that the establishment of the Commission and the Selection Board may likely to take some time and even after establishment of the said Commission and the Board, it may not be possible to make the selection of the teachers in the first few months and whereas a number of vacancies in the post of teachers in various institutions, recognised under the U.P. Intermediate Education Act, 1921, exist and failure or delay in filling up of such vacancies is likely to create difficulties.
The said order was introduced by Notification no. Ma-4993/XV-7-1(79)-81, dated 31st July, 1981. The relevant Paragraphs of the Order of 1981 are being reproduced below:-
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 cases, 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 unexpired 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 two months subsequent to the date of such commencement.
3. Duration of ad hoc appointments.-Every appointment of an ad hoc teacher under Paragraph 2 shall cease to have effect from the earliest of the following dates, namely:-
(a) when the candidate recommended by the Commission or the Board joins the post; or
(b) when the period of six months from the date of such ad hoc appointment expires.
4. Ad hoc appointment by promotion.- (1) Every vacancy in the post of the Head of an institution may be filled by promotion:
(a) in the case of an Intermediate College, by the senior most teacher of the institution in the lecturer's grade;
(b) in the case of a High School raised to the level of an Intermediate College, by the Headmaster of such High School;
(c) in the case of a Junior High School raised to the level of a High School, by the Headmaster of such Junior High School.
(2) Every vacancy in the post of a teacher in Lecturer's grade may be filled by promotion by the senior most teacher of the institution in the trained graduate (L.T.) grade.
(3) Every vacancy in the post of a teacher in the trained graduate (L.T.) grade shall be filled by promotion by the senior most teacher of the Institution in the trained undergraduate (C.T.) grade.
(4) Every vacancy in the post of a teacher in the trained undergraduate (C.T) grade shall be filled by promotion by the senior most teacher of the Institution in the J.T.C. Grade or B.T.C. Grade.
Explanation.-For the purposes of clauses (1) to (4) of this paragraph the expression "senior most teacher" means the teacher having longest continuous service in the institution in the lecturer's grade or the trained graduate (L.T.) grade, or trained undergraduate (C.T.) grade or J.T.C. Or B.T.C. Grade, as the case may be.
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 newspapers 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 envelops bearing postal stamp for purposes of registration.
(4) The District Inspector of Schools shall cause the best candidates selected on the basis of quality specified in Appendix. 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 the names of institutions 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 Inspectress of Girls Schools".
In exercise of power under Section 33 of the Act of 1982, the State Government has notified U.P. Secondary Education Services Commission (Removal of Difficulties) Second Order, 1981, which provides procedure for adhoc appointment against short term vacancy. In the present case, we are not concerned about the adhoc appointment against the short term vacancy.
Section 18 of the Act No. 5 of 1982 has been substituted by Act No. 24 of 1992, with effect from 14.7.1992. Amended Section 18 reads as follows:
18. Ad hoc teachers.-- (1) Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and the post of such teacher has actually remained vacant for more than two months, the management may appoint by direct recruitment or promotion a teacher, on purely ad hoc basis, in the manner hereinafter provided in this section.
(2)A teacher, other than a Principal or Headmaster, who is to be appointed by direct recruitment, may be appointed on the recommendation of the Selection Committee referred to in sub-section (9).
(3) A teacher, other than a Principal or Headmaster, who is to be appointed by promotion, may in the manner prescribed be appointed promoting the senior-most teacher possessing prescribed qualifications--
(a) in the trained graduate's grade, as a lecturer, in the case of a vacancy in lecturer's grade;
(b) in the Certificate of Teaching grade, as a teacher in this trained graduate's grade, in the case of vacancy in trained graduate's grade.
(4)A vacancy in the post of a Principal may be filled by promoting the senior most teacher in the lecturer's grade.
(5)A vacancy in the post of a Headmaster may be filled by promoting the seniormost teacher in the trained graduate's grade.
(6) For the purposes of making appointments under sub-sections (2) and (3), the Management shall determine the number of vacancies, as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories of persons in accordance with the rules or orders issued by the State Government in this behalf. If in determining the vacancies it is found that persons belonging to such categories are not holding such number of posts as should have been held by them in accordance with such rules or orders, then the vacancy shall be so determined that first and every alternate vacancy shall be reserved for the persons of such categories until the required percentage of posts is held by them.
(7) After determining the number of vacancies as provided in sub-section (6) the Management shall within fifteen days from the date of the commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Board (Second Amendment) Act, 1992 intimate the vacancies to be filled by direct recruitment to the District Inspector of Schools. If the management fails to intimate such vacancies within the said period of fifteen days, the District Inspector of Schools may, after verification from such institution or form his own records, determine such vacancies himself.
(8) The District Inspector of Schools shall, on receipt of intimation of vacancies or as the case may be, after determining the vacancies under sub-section (7), invite applications, from the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations, made thereunder, for ad hoc appointment to be post of teachers, other than Principal or Headmaster in such manner as may be prescribed.
(9) (a) For each district, there shall be a Selection Committee for selection of candidates for ad hoc appointment by direct recruitment comprising
(i) District Inspector of Schools, who shall be the Chairman;
(ii) Basic Shiksha Adhikari;
(iii) District Inspectress of Girls' Schools, and where there it no such Inspectress, the Principal of the Government Girls' Intermediate College and where there are more than one such college, the seniormost Principal of such Colleges and where there is no such College, the Principal of the Government Girls' Intermediate College as nominated by the State Government.
(b) The Selection Committee constituted under clause (a) shall make selection of the candidates, prepare a list of the selected candidates, allocate them to the institutions and recommend their names to the Management for appointment under sub-section (2).
(c)The criteria and procedure for selection of candidates and the manner of preparation of list of selected candidates and their allocation to the institutions shall be such as may be prescribed.
(10)Every appointment of an ad hoc teacher under sub-section (1) shall cease to have effect from the date when the candidate recommended by the Commission or the Board joins the post.
The provisions of Section 21-D shall, mutatis mutandis, apply to be teachers who are to be appointed under the provisions of this section.
Subsequently, by Act No. 1 of 1993, Section 18 has been omitted. Section 18 has been omitted by Section 13 of the amending Act, but the same has not been given effect to as a result of which Section 18 continued in the Act and Section 33-B has been inserted, providing regularisation of the appointments made during the period mentioned therein. A new Section 16 has also been substituted which reads as follows:
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 thereunder but subject to the provisions of Sections 21-B, 21-C, 21-D, 33, 33-A and 33-B, every appointment of a teacher, shall on or after the date of the 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.
The U.P. Secondary Education Service Commission Rules 1983, was introduced by Notification No. Ma-Shee-Vi-1/XV-7-2(15)-81-U.P.A.-5-82-Rules 1983, dated 10th January, 1983. Rule of 1983 has been amended by the U.P. Secondary Education Service Commission (First Amendment) Rule, 1992. By the said amendment, Rules 9-A and 9-B have been inserted. Rule 9-A provides procedure for the appointment of ad hoc teachers. Rule 9-A reads as follows:-
9-A. Procedure for ad hoc appointment by direct recruitment.--(1) (a) The District Inspector of Schools shall, in respect of the vacancies to be filled by direct recruitment, advertise the vacancies subject-wise, separately for lecturer and trained graduate (L.T.) grade, along with the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other category of persons in at least two newspapers one of which having wide circulation in the district and the other in the State, and invite applications for ad hoc appointment in the proforma given in Appendix 'C'. Such advertisement shall, inter alia, mention the pay and allowances admissible to the posts, minimum academic qualifications for appointment and such other things as may be considered necessary.
(b) The applications referred to in clause (a) shall be sent, by registered post, to the District Inspector of Schools within fifteen days from the date of publication of advertisement in the newspaper so as to reach the office of the District Inspector of Schools on or before the last date of receipt of application mentioned in the advertisement.
(c) The application referred to in clause (a) shall be accompanied with-
(i) a fee if fifteen rupees in the form of crossed postal order payable to the concerned District Inspector of Schools:
Provided that such fee shall, in the case of candidates belonging to the Scheduled Castes and Scheduled Tribes, be five rupees.
(ii)a self-addressed envelope; and
(iii)other documents as may be required.
(d)No application not sent in accordance with clause (b) or (c) shall be taken into consideration.
(2)The District Inspector of Schools shall scrutinize the applications and shall cause this lists of candidates prepared, on the basis of quality points specified in Appendix 'D'. The compilation of of quality points may be done on payment basis by a computer or by retired Gazette Government servants under the personal supervision of such Inspector. The payment for publication of advertisement under sub-rule (1) and for preparation of lists under this sub-rule may be made from the amount of fee received with the applications. The District Inspector of Schools shall place the lists along with the applications before the Selection Committee.
(3) The Selection Committee shall after considering the case of candidates on the basis of lists referred to in sub-rule (2) prepare subject-wise lists of selected candidates for appointment in lecturer and trained graduate (L.T.) grade in order of merit as disclosed by the quality points compiled under sub-rule (2). If two or more candidates obtain equal quality points, then the name of the candidate who is older in age shall be placed higher in the list.
The number of names in the list shall be larger but (not larger than twenty five percent) than the number of vacancies advertised under sub-rule (1).
(4)The Selection Committee shall also prepare lists of the institutions, in respect of which vacancies have been notified to the Commission, by arranging their names in Hindi alphabetical order. If the names of two or more institutions begin with the same alphabet then the name of the institution which was recognized earlier shall be placed higher in the list.
(5)The Selection Committee shall allocate the selected candidates to the institutions in such manner that the candidate whose name appears on top of the list prepared under sub-rule (3) shall be allocated to the institution the name whereof appears on top of the list prepared under sub-rule (4). This process shall be repeated till the vacancies in such institutions are filled. The Selection Committee shall recommend the names of the allocated candidates to the Management of such institution for appointment.
(6) The Management shall, under its resolution, issue an order of appointment to the candidate by registered post, within fifteen days from the date of receipt of his name from the Selection committee, requiring him to join the duty within ten days of the order or within such extended time, as may be allowed to him by the Management and also intimating him that on his failure to join within the specified time, his appointment will be liable to be cancelled.
(7) The Management shall comply with the provisions of sub-rule (6) and report compliance to the District Inspector of Schools.
Where a candidate, referred to in sub-rule (6), fails to join the post within the time allowed in the order of appointment or within such extended time as the Management may allow in this behalf or where the candidate is not available for appointment, the Selection Committee may, on the request of the Management, recommend candidate or candidates standing next in order of merit in the list prepared under sub-rule (3) and the provisions of sub-rules (6) and (7) shall mutatis mutandis apply.
By the U.P. Secondary Education Services Selection Boards (Amendment) Act, 1995 (U.P. Act No. 15 of 1995), Section 18 has been substituted with effect from 28th December, 1994, which reads as follows:-
9. Substitution of Section 18.--For Section 18 of the principal Act, the following section shall be substituted, namely:-
"18.Ad hoc teachers.--(1) Where the Management has notfied a vacancy to the Commission in accordance with sub-section (1) of Section 10 and the post of a teacher actually remained vacant for more than two months, the Management may appoint by direct recruitment or promotion a teacher on purely ad hoc basis, in the manner hereinafter provided in this section.
(2)A teacher other than a Principal or Headmaster, who is to be appointed by direct recruitment may be appointed on the recommendation of the Selection Committee referred to in sub-section (8).
(3) A teacher other than a Principal or Headmaster, who is to be appointed by promotion, may in the prescribed manner be appointed by promoting the seniormost teacher, possessing prescribed qualifications--
(a) in the trained graduate's grade, as a lecturer, in the case of a vacancy in the lecturer's grade;
(b) in the Certificate of Teaching grade, as teacher in the trained graduate's Grade, in the case of a vacancy in the Trained graduate's grade.
(4)A vacancy in the post of a Principal may be filled by promoting the seniormost teacher in the lecturer's grade.
(5) A vacancy in the post of a Headmaster may be filled by promoting the seniormost teacher in the trained graduate's grade.
(6) For the purposes of making appointments under sub-sections (2) and (3), the Management shall determined the number of vacancies, as also number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, the Scheduled Tribes and Other Backward Classes of citizen in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and, as soon as may be thereafter, intimate the vacancy to be filled by direct recruitment to the District Inspector of Schools and if the Management fails to intimate the vacancies and the post of a teacher has actually remained vacant for more than three months, the District Inspector of Schools may, subject to such directions as may be issued by the Director and after verification from such institution or from his own record, determine such vacancies himself.
(7) The District Inspector of Schools shall, on receipt of intimation of vacancies or as the case may be, after determining the vacancies under sub-section (6), forward the same to the Deputy Director of Education in charge of Region, who shall invite applications from the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder, for ad hoc appointment to the post of teachers other than Principal or Headmaster in such manner as may be prescribed.
(8) (a) For each region there shall be a Selection Committee for selection of candidates for ad hoc appointment by direct recruitment comprising--
(i) Regional Deputy Director of Education;
(ii) Regional Deputy Director of Education (Second);
(iii) Regional Assistant Director of Education (Basic).
The Regional Deputy Director of Education who is senior shall be the Chairman.
(b) The Selection Committee constituted under clause (a) shall make selection of the candidates, prepare a list of the selected candidates, allocate them to the Institutions and recommend their names to the Management for appointment under sub-section (2).
(c) The criteria and procedure for selection of candidates and the manner of preparation of list of selected candidates and their allocation to the Institution shall be such as may be prescribed.
(9) Every appointment of an ad hoc teacher under sub-section (1) shall cease to have effect from the date when the candidate recommended by the Commission joins the post.
The provisions of Section 21-D shall mutatis mutandis apply to the teachers who are to be appointed under the provisions of this section.
By the U.P. Secondary Education Services Commission (Amendment) Act, 1998 (U.P. Act No. 25 of 1998), following amendments have been made in Section 18:-
9. Amendment of Section 18- In Section 18 of the principal Act.-
(a)in sub-section (1) for the word "Commission", the word "Board" shall be substituted:
(b)in sub-section (a), for clause (a) the following clause shall be substituted, namely:-
(a) For each region, there shall be a Selection Committee for selection of candidates for ad hoc appointment by direct recruitment comprising-
(i) Regional Joint Director of Education;
(ii) Regional Deputy Director of Education (Secondary);
(iii) Regional Assistant Director of Education (Basic).
The Regional Joint Director of Education shall be the Chairman.
(c) in sub-section (9) for the words "Commission" the word "Board' shall be substituted.
By the U.P. Secondary Education Services Selection Board (Amendment) Act, 1999 (U.P. Act No. 13 of 1999), Section 33-E has been inserted and by Section 33-E all the Removal of Difficulties Orders, namely, U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981, U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, U.P. Secondary Education Services Commission (Removal of Difficulties) (Third) Order, 1982, and U.P. Secondary Education Services Commission (Removal of Difficulties)(Fourth) Order, 1982 have been rescinded.
Sections 16 and 18 of the Act of 1982 and various Removal of Difficulties Orders, amended from time to time, came up for consideration before the Full Bench of this Court, with reference to the adhoc appointment of the teacher and Principal, in the case of Radha Raizada vs. Committee of Management, V.D.G.I.C and others, reported in 1994 (3) UPLBEC 1550. The Full Bench in the said case held as follows:
Adhoc appointment of Teachers by direct recruitment (During the Period 1982 to 13.7.1992):
"41. It has already been noticed that Section 18 of the Principal Act provides for power to appoint a teacher purely on ad hoc basis either by promotion or by direct recruitment against the substantive vacancy in the institution when the condition precedent for exercise of powers exist namely that the Management has notified the said 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 a teacher within one year from the date of such notification of the post of such teacher has actually remained vacant for more than two months. However, since the State Government was alive to the situation that the establishment of the Commission may take long time and even after it is established, it may take long time to make available the required teacher in the institution and as such issued three Removal of Difficulties Orders namely Removal of Difficulties Order dated 11-9-81, Removal of Difficulties Order, dated 30-1-82 and Removal of Difficulties Order dated 14-4-1982. In fact these Removal of Difficulties Orders were issued to remove the difficulties coming in the way of a Management in running the institution in absence of teachers. This power to appoint ad hoc teachers by direct recruitment, thus, is available only when pre-conditions mentioned in Section 18 of the Act are satisfied, secondly, the vacancy is substantive vacancy and thirdly, the vacancy could not be filled by promotion. Neither the Act nor the Removal of Difficulties Order defines vacancy. However, the vacancy has been defined in Rule 2(11) of U.P. Secondary Education Services Commission Rules, 1983. 'Vacancy' means a vacancy arising out as a result of death, retirement, resignation, termination, dismissal, creation of new post or appointment/promotion of the incumbent to any higher post in substantive capacity. Thus, both under Section 18 of the Act and under the Removal of Difficulties Order the Management of an institution is empowered to make ad hoc appointment by direct recruitment, in the manner laid down in paragraph 5 of the First Removal of Difficulties Order only when such vacancy cannot be filled by promotion and for a period till a candidate duly selected by the Commission joins the post. As noticed earlier both Section 18 of the Act and the provisions of First Removal of Difficulties Order provide for ad hoc appointment of teacher in the institution, later further providing for method and manner of such appointments are part of one scheme. Scheme being provision for ad hoc appointment of teacher in the absence of duly selected teachers by the Commission. The provisions may be two but the power to appoint is one and the same and therefore, the provisions contained in Section 18 and Removal of Difficulties Order are to harmonized. It is, therefore, not correct to say that appointment of a teacher on ad hoc basis is either under Section 18 of the Act or under the Removal of Difficulties Order. Thus, if contingency arises for ad hoc appointment of teacher by direct recruitment, the procedure provided under the First Removal of Difficulties Order has to be followed. Paragraph 5 of the First Removal of Difficulties Order provides that the management shall, as son as may be, inform the District Inspector of Schools about the details of vacancy and the District Inspector of Schools shall invite application from the local Employment Exchange and also through public advertisement in atleast two news papers having adequate circulation in Uttar Pradesh. Sub paragraph (3) of paragraph 5 further provides that every such application shall be addressed to the District Inspector of Schools. Sub-paragraph (4) of paragraph 5 of the Removal of Difficulties Order provides that the District Inspector of Schools shall cause the best candidate selected on the basis of quality point specified in Appendix. The complication of quality point may be done by the Retired Government Gazetted Officer, in the personal supervision of the Inspector. Paragraph 6 of the First Removal of Difficulties Order further provides for appointment of such teacher under paragraph 5 who shall possess such essential qualification as laid down in Appendix A referred to in the Regulation I of Chapter II of the Regulations made in the Intermediate Education Act.
42. In view of these provisions the ad hoc appointment of a teacher by direct recruitment can be resorted to only when the condition precedent for exercise of such powers as stated in paragraph 18 of the Act are present and only in the manner provided for in paragraph 5 of the Removal of Difficulties Order. This view of mine finds support in a number of decisions, namely, Rang Bahadur Singh and others v. District Inspector of Schools, Saharanpur, 1991 (2) UPLBEC page 1079 and Lalta Prasad Yadav and others v. State of U.P., 1988 UPLBEC page 345. When a teacher is appointed on ad hoc basis is in accordance with the paragraph 5 of the First Removal of Difficulties Order there is further no requirement of approval or prior approval of the District Inspector of Schools for such appointment. However, it goes without saying that if a management without following the procedure indicated above makes an ad hoc appointment the District Inspector of Schools possess general power under the Payment of Salaries Act to stop payment of salary to such teacher."
The question has been answered as follows:
The substantive vacancy in the post of teacher is firstly required to be filled by promotion. If not available, then by direct recruitment in the manner laid down in paragraph 5 of the First Removal of Difficulties Order. Short term appointments are to be made in accordance with the provisions of Second Removal of Difficulties Order only after advertising the vacancy in the manner laid down under sub paragraph (2) of paragraph 5 of the First Removal of Difficulties Order in addition to notifying the short term vacancy on the notice board of the institution. Ad hoc appointment of head of institution is to be made by promotion on the basis of seniority subject to rejection of the unfit.
Adhoc appointment of Teachers by direct recruitment (During the Period 14.7.1992 to 7.8.1993):
"A perusal of this new section would show that it is substantially the same provisions excepting the provision for constitution of Selection Committee for selection of candidate for ad hoc appointment in place of giving quality point marks as contained in the First Removal of Difficulties Order. In fact what was contained in the First Removal of Difficulties Order has not been brought in the Act, by this amending Act. Thus, the method of ad hoc appointment by promotion of teacher remained the same as it was during the period 14-7-1981 to 13-7-92. The method of ad hoc appointment of Principal and Head Master in the institution also remains the same as it was in the period 14-7-1981 to 13-7-1992 (first period). Similarly, the provision in respect of appointment against the short term vacancy also remains as it was in 14-7-1981 to 13-7-1992. The only change that has been brought by the new Section 18 is in respect of method of ad hoc appointment by direct recruitment. Under sub-section (8) of Section 18 the District Inspector of Schools on receipt of intimation of vacancy or as the case may be after determining the vacancy in sub-section (7) is required to invite application from the person possessing qualification prescribed in the Intermediate Education Act or the regulations framed thereunder ad hoc appointment to the post of teacher. Under sub-section (9) of Section 18 a Selection Committee is to be constituted for selection of candidate for adhoc appointment by direct recruitment comprising of District Inspector of Schools as Chairman, Basic Shiksha Adhikari and District Inspectress of Girls Schools. The Selection Committee so constituted is further required to make selection of the candidate and prepare a list of selected candidate and allocate them to the institution and recommend their name to the management for appointment. This is in brief the procedure which is required to be undergone where the ad hoc appointment is to be made by the direct recruitment. If the ad hoc appointment by direct recruitment is made under sub-section (9) of Section 18, no further approval of the District Inspector of Schools for such appointment is required."
The question has been answered as follows:
The method of ad hoc appointment of teacher, Principal against the short term vacancy remains the same as it was in the first stage. The direct recruitment of ad hoc teacher is required to be done in accordance with the procedure laid down in Section 18 of the Act.
Adhoc appointment of Teachers by direct recruitment beginning from 7.8.1993 onward:
"....It is interesting to note that reference of Section 18 in sub-section (1) of Section 16 has been omitted with the result that Section 16 is no longer subject to Section 18 of the Act. By Section 13 of U.P. Act No. 1 of 1993, Section 18 of the principal Act has been omitted. In exercise of powers under sub-section (2) of Section 1 of U.P. Secondary Education Service Commission and Selection Board (Amendment) Act 1992 being U.P. Act No. 1 of 1993, the Governor of Uttar Pradesh pleased to appoint 7th August, 1993 as the date on which the said Act except Section 13 thereof shall come into force. The notification dated 7-8-1993 is reproduced below:
"In exercise of the powers under sub-section (2) of Section 1 of the Uttar Pradesh Secondary Education Service Commission and Selection Boards (Amendment) Act, 1992 (U.P. Act No. 1 of 1993), the Governor is pleased to appoint 7 August, 1993 as the date on which the said Act, except Section 13 thereof, shall come into force."
After enforcement of U.P. Act No. 1 of 1993 except Section 13 thereof the situation that emerges is that by new Section 11 of Amendment Act which has substituted Section 16 of the Principal Act, has come into force whereas the omission of Section 18 from the principal Act by Section 13 of the amending Act has not been enforced which means Section 18 still continues in the Principal Act. In view of this legislative development a peculiar situation has arisen that new Section 16 which has come into force is no longer subject to Section 18 of the Act which means that no appointment on ad hoc basis can be made under Section 18 of the Act. New Section 16 begins with a non-obstante clause which means inspite of other provision, no appointment shall be made except on the recommendation of the Board. Where a section begins with a non-obstante clause, it indicates that the provision should prevail despite anything to the contrary in the provisions in the Act. Thus after omission of Section 18 from Section 16 no ad hoc appointment is permissible under Section 18 and if made, would be void under sub-section (2) of Section 16 of the Act. It has not been brought to my notice that First Removal of Difficulties Order, 1981 issued by the State Government has either been revoked or rescinded. On the contrary, it was asserted that the said Removal of Difficulties Order is continuing.
49.Now the question for consideration is that if no ad hoc appointment of teacher or Principal can be made under Section 18 of the Act, whether it is permissible to appoint a teacher or Principal on ad hoc basis under the First Removal of Difficulties Order? A perusal of Section 16 would show that Section 16 is still subject to Section 33 of the Act which empowers the State Government to issue Removal of Difficulties Order. Since Removal of Difficulties Orders have been issued under Section 33 of the Act, an ad hoc appointment either by direct recruitment or by promotion under the Removal of Difficulties Order would be a valid appointment. While answering question No.(b) I have already held that it is open to State Government to issue Removal of Difficulties Order providing for ad hoc appointment either by promotion or by direct recruitment as this ad hoc appointment is not a permanent appointment but a short term appointment which does not confer any right on a teacher or the Principal so appointed. I have further held that the Removal of Difficulties Order which empowers for ad hoc appointment either by promotion or by direct recruitment does not violate the essential feature of the Act as it only thinkers or smoothen the edges of the Act. In view of this ad hoc appointment of teacher or Principal can be made either by promotion or by direct recruitment under the Removal of Difficulties Orders issued under Section 33 of the Act. Omission of Section 18 has not yet been enforced with a result the conditions precedent namely notification of substantive vacancy to the Commission and further the post has remained vacant for more than two months are still there and if these two conditions are fulfilled, it is only then the management can appoint ad hoc teacher either by promotion or by direct recruitment in accordance with the procedure laid down in the First Removal of Difficulties Order."
The question has been answered as follows Ad hoc appointment of teacher/Principal either by promotion or by direct recruitment is permissible under the First Removal of Difficulties Order and the procedure of such appointment remains the same as it was during the first stage. Ad hoc appointment against the short term vacancy remains the same as it was in the first stage. The ad hoc appointment of Principal is required to be done under paragraph 4 of the First Removal of Difficulties Order on the basis of seniority subject to rejection of the unfit.
The Full Bench of this Court further held that after commencement of Act of 1982 and the Order 1981, as amended time to time, there was no requirement to take financial approval from the District Inspector of Schools.
A similar issue came up for consideration before the Apex Court in the case of Prabhat Kumar Sharma vs. State of U.P. and others, reported in 1996 (10) SCC 62. The Apex Court has upheld the view taken by the Full Bench of this Court in the case of Radha Raizada v. Committee of Management, VDGIC and others (Supra). After affirming the view of the Full Bench of this Court, the Apex Court has observed as follows:
"7. It would thus be clear that any ad hoc appointment of the teachers under Section 18 shall be only transient in nature, pending allotment of the teachers selected by the Commission and recommended for appointment. Such ad hoc appointments should also be made in accordance with the procedure prescribed in para 5 of the First 1981 Order which was later streamlined in the amended Section 18 of the Act with which we are not presently concerned. Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees. The removal of difficulties envisaged under Section 33 was effective not only during the period when the Commission was not constituted but also even thereafter as is evident from the second para of the preamble to the First 1981 Order which reads as under:
"And whereas the establishment of the Commission and the Selection Board is likely to take some time and even after the establishment of the said Commission and Boards, it is not possible to make selection of the teachers for the first few months."
[Emphasis Provided]
10. ... It is seen that when intimation was given by the college to the Commission for allotment of the teachers, the Act envisaged that within one year the recommendation would be made by the Commission for appointment; but within two months from the date of the intimation if the allotment of the selected candidates is not made to obviate the difficulty of the Management in imparting education to the students, Section 18 gives power to the Management to make ad hoc appointments. Section 16 is mandatory. 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 an aided institution. It is obvious that when the salary is paid by the State to the government-aided private educational institutions, public interest demands that the teachers' selection must be in accordance with the procedure prescribed under the Act read with the First 1981 Order. Therefore, the Order is a permanent one but not transient as contended for. The Full Bench of the High Court has elaborately considered the effect of the Order and for cogent and valid reasons it has held that the Order will supplement the power to select and appoint ad hoc teachers as per the procedure prescribed under Section 18 of the Act......."
[Emphasis Provided] In the case of Satya Prakash Ojha vs. District Magistrate, Ballia and others, reported in 2001 (2) UPLBEC 1882, this Court held that the Order clearly provides that the Management has to give information about the vacancy to the District Inspector of Schools, who has to invite the applications from the Employment Exchange and also through public advertisement in at least two news papers having adequate circulation in Uttar Pradesh. The selection of a candidate has to be done on the basis of quality points specified in the Appendix as per Paragraph 5 of the Order. Therefore, the entire selection has to be done by the District Inspector of Schools and the Committee of Management of the institution has no authority at all to advertise the vacancy or make any kind of selection.
Having regard to the provisions, relating to the adhoc appointment of the teachers, noticed by the Full Bench of this Court, referred hereinabove, for the period 1982 to 13.7.1992, the Full Bench has held that the substantive vacancy in the post of teacher is firstly required to be filled by promotion. If not available, then by direct recruitment in the manner laid down in paragraph 5 of the First Removal of Difficulties Order.
Thus, the ad hoc appointment of the teacher was to be made in accordance to Paragraph 5 of the Order of 1981. Paragraph 5 (2) provides that 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 newspapers having adequate circulation in Uttar Pradesh. Therefore, under Paragraph 5, the management's job was confined to provide the details of the vacancies to the District Inspector of Schools and nothing beyond that. It is the District Inspector of Schools, who, after having the details of the vacancies, had a power to invite the applications from the local Employment Exchange and also through public advertisement. The Committee of Management has no power to invite the application, make the selection and appoint any teacher on ad hoc basis.
Having regard to the provisions, relating to the adhoc appointment of the teachers, noticed by the Full Bench of this Court, referred hereinabove, for the period 14.7.1992 to 7.8.1992, the Full Bench has held that the method of ad hoc appointment of teacher remains the same as it was during the period 1982 to 13.7.1992. Therefore, recruitment of ad hoc teacher was to to be made in accordance with the procedure laid down in Section 18 of the Act.
Amended Section 18, substituted by Act No. 24 of 1992 with effect from 14th July, 1992, provides that where the management has notified a vacancy to the Commission in accordance with the provisions of this Act and the post of such teacher has actually remained vacant for more than two months, the management may appoint, by direct recruitment or promotion, a teacher on purely ad hoc basis in the manner hereinafter referred in this Section.
Section 18(2) provides that a teacher, who is to be appointed by direct recruitment, may be appointed on the recommendation of the Selection Committee referred to in sub-section (9). Thus, if the Commission and Selection Committee would have been constituted, then the vacancy was to be notified to the Commission and the appointment would only be made by the management on the expiry of two months on the recommendation of the Selection Committee. In case of the non-establishment of the Commission or the Selection Committee, the appointment of ad hoc teacher would have to be made in accordance to Paragraph 5 of the Order 1981.
Rule 9-A provides procedure for ad hoc appointment of teachers. Rule 9-A (1)(a) provides that the District Inspector of Schools, in respect of the vacancies to be filled by the direct recruitment, advertise the vacancies subject wise, separately, for lecturer and trained graduate (L.T.) grade, along with the number of vacancies to be reserved for the candidates belonging to the Scheduled Caste, Scheduled Tribes and other category of persons in at least two newspapers one of which having wide circulation in the district and the other in the State, and invite applications for ad hoc appointment in the pro forma given in Appendix 'C'. This Rule also gives power to the District Inspector of Schools to advertise the vacancies. It does not give any power to the Committee of Management to advertise the vacancies.
Having regard to the provisions, relating to the adhoc appointment of the teachers, noticed by the Full Bench of this Court, referred hereinabove, for the period 7.8.1993 onward, the Full Bench has held that the appointment of the ad hoc teacher, either by promotion or by direct recruitment, is permissible under the First Removal of Difficulties Order and the procedure of such appointment remains the same as it was during the period 1982 to 13.7.1992. This position would continue till commencement of U.P. Act No. 13 of 1999, with effect from 25th January, 1999.
By the Act No. 15 of 1995, Section 18 has again been substituted. Perusal of the substituted Section 18 reveals that it is almost the same as has been substituted by the U.P. Act No. 24 of 1992.
The First Removal of Difficulties Order of 1981 and other Removal of Difficulties Orders, issued from time to time, referred hereinabove, have been rescinded by insertion of Section 33-E in Act No. 5 of 1982 by the Amendment Act No. 15 of 1999. Thus, it appears that after deletion of Removal of Difficulties Orders, the ad hoc appointment, against the substantive vacancy, has to be made in accordance with the substituted Section 16 read with Section 18 and Rule 9-A. Since this case relates to the period prior to 1999, I do not think to examine the provisions relating to the ad hoc appointment in detail after commencement of Act No. 13 of 1999 by which various Orders, issued in exercise of power under Section 33 of Act No. 5 of 1982, have been rescinded.
It may be mentioned here that Section 16 of Act No. 5 of 1982 provides that notwithstanding anything to the contrary contained in U.P. Intermediate Education Act, 1921 or the Regulations made thereunder, subject to the provisions of Sections 17, 18, 21B, 21C, 21D, 33, 33A, 33B, 33C and 33D, every appointment of the teacher shall be made by the Management only on the recommendation of the Board. Section 16(2) provides that any appointment made in contravention of the provisions of sub-section (1) shall be void. Therefore, after commencement of Act No. 5 of 1982, the appointment of the teachers could not be made under the U.P. Intermediate Education Act, 1921 or the Regulations made thereunder. Section 16 was subject to Section 18, which provides for adhoc appointment. However, by Act No. 1 of 1993, Section 18 has been deleted. Thus, it means that Section 16 was not subject to Section 18.
In view of the above, it is apparent that at no point of time, after 1982, the Committee of Management had any power to appoint ad hoc teachers. Any appointment made thereafter was without jurisdiction and nullity.
In the counter affidavit, it is stated that the appointment was to be made in accordance to the provisions of the Ordinance 21 of 1992, which has been substituted by Act No. 25 of 1992, with effect from 14.7.1992, while the appointment has not been made in accordance to the provisions of the Act of 25 of 1992. The appointment was made on 27.7.1992. Section 18 was available. Section 18(1) provides that where the Management has notified a vacancy to the Commission in accordance to the provisions of this Act and the post of such teacher has actually remained vacant for more than two months, the Management may appoint, by direct recruitment or promotion, a teacher, on purely ad hoc basis in the manner provided in this Section. Section 18(2) provides that a teacher, who is to be appointed by direct recruitment, may be appointed, on a recommendation of the Selection Committee referred to in sub-section (9). Admittedly, in the present case, the vacancy arose on 30.6.1992 and the Management appointed the petitioner by the resolution dated 14.7.1992 and a letter of appointment was issued on 27.7.1992, that is, before expiry of two months. Thus, the appointment of the petitioner was made in violation of Section 18(1) of the Act. Further, in the counter affidavit, it is stated that no such recommendation was made by the Selection Committee as required under sub-section (9). This averment has not been rebutted. There is nothing on record to show that the recommendation was made by the Selection Committee. Thus, on this count also, the appointment of the petitioner was invalid.
Learned Standing Counsel further submitted that the petitioner has only sought the mandamus to the respondents to pay the salary. The order of the District Inspector of Schools dated 2nd September, 1992 by which he has refused to grant approval has not been challenged. Therefore, the petitioner is not entitled for any relief. The decision of the Apex Court in the case of Uttam Kumar vs. State of U.P. and others (Supra), relied upon by the learned counsel for the petitioner, is not applicable in the facts of the present case and is distinguishable. In the said case, the appellant joined the services as a Lecturer in the College on 8.11.1979 on adhoc basis, but later on he was placed on probation and was confirmed as the Lecturer by the College by order dated 15th December, 1982. His appointment as Lecturer was prior to promulgation of the U.P. Higher Education Service Commission Act, 1982 and Order 1981, while in the present case, the appointment of the petitioner has been made by the Committee of Management after commencement of the Act of 1982 and Order 1981.
In view of the discussions made above, the writ petition fails and is dismissed.
31.8.2012 bgs/-