1. Heard Sri Rahul Jain, learned counsel for petitioner and perused the material available on record.
2. This writ petition under Article 226 of Constitution of India has been filed by sole petitioner Smt. Nirmala Mishra praying for a writ of certiorari quashing order dated 27.05.1992, which is a notification issued by U.P. Secondary Service Commission, now, U.P. Secondary Education Service Commission Board, Allahabad (hereinafter referred to as "Board") notifying panel of selected candidates for the post of Lecturer (Education) for the vacant post of Lecturer in Zila Parishad Balika Inter College, Sirsa, Allahabad (hereinafter referred to as "College") placing respondent-4 at Serial No. 1 and respondent-5 at Serial No. 2. A further writ of mandamus has been prayed directing respondents to treat petitioner as regularized on the post of Lecturer (Education) in College with effect from 06.04.1991 and stood confirmed on 05.04.1992 and not to interfere in her functioning as Lecturer.
3. Facts in brief, giving rise to the present writ petition, are that College is a secondary educational institution recognized by Board of High School and Intermediate Education, Allahabad and governed by U.P. Intermediate Education Act, 1921 (hereinafter referred to as "Act, 1921"). For the purpose of recruitment, it is governed by U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as "Act, 1982") and for the purpose of payment of salary to teaching and non-teaching staff, it is governed by U.P. High Schools and Intermediate Colleges (Payment Of Salaries Of Teachers And Other Employees) Act, 1971 (hereinafter referred to as "Act, 1971").
4. It is claimed that a substantive vacancy of Lecturer (Education) fell vacant which was notified to Board but for two months no recommendation was received from Board. Committee of Management then proceeded to make ad hoc appointment under Section 18 of Act, 1982 and invited applications from eligible candidates. Petitioner applied and was selected by Selection Committee. Apar Mukhya Adhikari, Zila Parishad, Allahabad (hereinafter referred to as "A.M.A.Z.P.") vide letter dated 01.12.1983 sought approval from Regional Inspectress of Girls School, Allahabad (hereinafter referred to as "RIGS") for ad-hoc appointment of petitioner for the period till regularly selected candidate recommended by Board is available or till 20.05.1984 whichever is earlier. Said approval was granted by RIGS, vide letter dated 22.12.1983 whereafter it was clarified that only one ad-hoc appointment in the College of Zila Parishad has been approved by RIGS and that was of petitioner. Appointment letter dated 22.12.1983 was issued by A.M.A.Z.P. appointing petitioner on ad-hoc basis as Lecturer (Education) in College. Consequently, petitioner joined on 23.12.1983. Subsequently, period of appointment was extended vide letter dated 18.05.1984 issued by A.M.A.Z.P. till regularly selected candidate recommended by Board is available. However, vide letter dated 24.11.1984, Management of College informed RIGS that appointment of petitioner vide letter dated 18.11.1984 was extended for the period 09.07.1984 to 20.05.1985 or till a candidate recommended by Board is available, whichever is earlier and approval was sought for said extension. Extension was further granted and approved by RIGS vide letter dated 02.04.1986 upto 20.05.1986 or till regularly selected candidate recommended by Board is available. Petitioner, however, was not paid salary from 01.07.1984 and onwards. She filed a Writ Petition No. 13580 of 1986 seeking a writ of mandamus directing respondents to treat petitioner in continuous service and pay her salary. In the aforesaid writ petition, interim order was passed on 12.08.1986 as under:-
"Issue notice Till further orders of the Court the petitioner's services shall not be deemed to have come to an end on 20th May, 1986 unless the post stands converted or regularly selected candidate is appointed. The petitioner shall be deemed to continue in service."
5. In the meantime, Board advertised the vacancy of Lecturer (Education) in College on 11.08.1984 pursuant whereto respondents-4 and 5 also applied and interview was held on 15.06.1989. Since result of selection was not declared by Board, respondent-4 filed Writ Petition No. 32247 of 1991 (Km. Prabhawati Dixit Vs. U.P. Secondary Education Services Commission and State of U.P.) challenging Government Orders' (hereinafter referred to as "G.O.") dated 22.09.1989 and 30.07.1991 whereby fresh appointment/selections were banned and sought a writ of mandamus commanding Board to declare result of selection for which interview was held in 1989.
6. By U.P. Ordinance No. 28 of 1991, Act, 1982 was amended. Section 33-A was amended by inserting Sub-sections (1-A), (1-B) and (1-C). As per Sub-section (1-C), all ad-hoc teachers appointed by promotion or direct recruitment before 31.07.1988 were declared as deemed appointed in a substantive capacity provided that they were continuously working from the date of ad-hoc appointment till the date of commencement of Ordinance i.e. 06.04.1991.
7. Aforesaid Writ Petition No. 32247 of 1991 was allowed vide order dated 18.02.1992 and operative part of order reads as under:-
"I have not been shown any provision under which such a general ban can be issued for stopping selection of lecturers and L.T. grade teachers. There is no such provision in the U.P. Secondary Education Services Commission and Selection Board Act, 1982. In fact, the government orders dated 22.9.89 and 30.7.91 are contrary to the provisions of the U.P. Secondary Education Services Commission Act. A bare perusal of the provisions of the said Act shows that appointments have to be made only on the recommendation of the Commission except as provided in Section 18, Section 4(B) to (D) to Section 33 and 33-A. There is no power conferred by the said Act on the State Government which permits the State Government to ban selections by the Commission. The State Government has no power to stop the Commission from performing its functions which have been entrusted to it by the legislature. Hence, the government orders dated 22.9.89 and 30.7.91 are illegal and ultra vires.
The government orders dated 22.9.89 and 30.7.91 are also, in my opinion, arbitrary, and hence violative of Article 14 of the Constitution. It is wholly unreasonable to ban ad-hoc appointments of teachers in High Schools and Intermediate Colleges, particularly since it is well known that the Secondary Education Commission often does not select regular teachers even long after the vacancy is notified. Hence, unless ad-hoc appointments are made the teaching work will suffer. To ban such appointments is, therefore, clearly arbitrary.
For these reasons, the government orders dated 22.09.89 and 30.7.1991 are declared illegal and arbitrary, and are hereby quashed. The Commission shall now consider the case of the petitioner, and give its decision within six weeks of production of a certified copy of this judgment before it.
The writ petition is allowed. There shall be no order as to costs.
A copy of this order may be given to the learned counsel for the parties on payment of usual charges within a week."
(Emphasis added)
8. Consequently, Board issued a Notification dated 27.05.1992 wherein a panel of teachers, selected and recommended for appointment on the post of Lecturer (Education) in the College, was notified placing Km. Prabhawati Dixit at Serial No. 1 and respondent-5 Smt. Shashi Bala Devi at Serial No. 2.
9. Petitioner claimed that there was a decision taken by Government to bifurcate Board into four units and dissolve existing Commission as communicated vide letter dated 28.03.1992. There was no power vested in the Board to notify any panel after Government's letter dated 28.03.1992. It is further pleaded that in any case, petitioner having been appointed prior to cut off date prescribed in Section 33-A (1-C), therefore, she is entitled to be treated as become substantively appointed and that being so, respondents-4 and 5 could not have been recommended for appointment to the post in question.
10. A counter affidavit has been filed by respondent-4 stating that petitioner has concealed the date on which requisition was made by College to Board. As per her best knowledge, said requisition in prescribed format was given on 01.12.1983, therefore, ad-hoc appointment of petitioner by itself was void and illegal. It is further said that post of Lecturer (Education) for ad-hoc appointment was never advertised and ad-hoc appointment of petitioner was made illegally without following the procedure prescribed in law, hence, she is not entitled to any benefit under Section 33-A (1-C) as inserted by U.P. Amendment Act No. 26 of 1991.
11. A separate counter affidavit has been filed on behalf of College wherein virtually the averments made in the writ petition are admitted but it is said that petitioner is not entitled for regularization as her continuance was not approved by Competent Authority.
12. In the counter affidavit of College, neither the date of occurrence of vacancy has been stated nor the date on which requisition sent to Board, for making regular appointment.
13. Two separate rejoinder affidavits have been filed; one in reply of counter affidavit filed by College wherein virtually petitioner has reiterated what she has said in writ petition. In the second rejoinder affidavit, filed in reply to counter affidavit filed by respondent-4, it has been stated that vacancy was notified to Board vide letter dated 10.02.1983 sent through RIGS. It is denied that vacancy on the post of Lecturer (Education) for ad-hoc appointment was not advertised and it is said that it was notified on Notice Board of College inviting applications and pursuant thereto petitioner applied. Other averments made in the counter affidavit have been denied and what has been said in the writ petition are reiterated.
14. Before Court, when matter was taken up for hearing, learned counsel for parties could not dispute that petitioner's claim for regularization under Section 33-A (1-C), if found justified, then panel, having been notified by Board subsequently, will have no legal consequences and respondents-4 and 5 cannot claim any right of appointment since vacancy is deemed to be substantively filled in by petitioner.
15. Therefore, the only question up for consideration in this Writ Petition, as per learned counsel for parties, is "whether petitioner was validly appointed on ad hoc basis on the post of Lecturer (Education) in College so as to justify her claim for deemed substantive appointment under Section 33-A (1-C).
16. In order to adjudicate the above question, it would be necessary to have a brief retrospect of relevant legislative development of provisions pertaining to selection and appointment of teachers in secondary educational institutions.
17. Prior to 07.04.1991, appointment in secondary educational institutions governed by provisions of Act, 1921 used to be made as per procedure prescribed in Sections 16-E and 16-F of Act, 1921. However, State Government issued a Radiogram on 07.04.1991 stopping all fresh selection and appointment of Teachers including Principals in all non-Government added College which includes College in question also. Validity of the said Government order (in fact Radiogram) has been upheld by Supreme Court in Dr. Ramji Dwivedi vs. State of U.P. And Others 1983 (3) SCC 52.
18. The aforesaid Radiogram followed by enactment of U.P. Secondary Education Services Commission and Selection Board Ordinance, 1981 (U.P. Ordinance No. 8 of 1981)(hereinafter referred to as "First Ordinance") published in U.P. Gazette (Extraordinary) dated 10.7.1981. It contemplated composition of a Commission, namely, U.P. Secondary Education Services Commission vide Section 3. It also provided for selection and recruitment of Teachers for Secondary Educational Institutions by the said Commission. The term 'Institution' was defined in Section 2(e) which comprised of all schools recognized under Act, 1921 including Institutions maintained by a local authority. It, however, excluded an 'Institution' maintained by State Government. Section 16 declares that any appointment made in violation of the provisions of First Ordinance would be void and reads as under:-
"16. Appointments to be made only on recommendations of the Commission or the Board. - (1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the Regulations made thereunder -
(a) every appointment of a teacher specified in the scheduled shall, after the date of promulgation of this Ordinance, be made by the management only on the recommendation of the Commission;
(b) every appointment of a teacher (other than a teacher specified in the Schedule) shall, after the date of such promulgation, be made by the management only on the recommendation of the Board.
(2) Every appointment of a teacher, in contravention of the provisions of sub-section (1), shall be void." (emphasis added)
19. Section 3 contemplated establishment of a Commission while Section 12 contemplated establishment of Regional Selection Boards which may have jurisdiction over such local area as State Government may specify. It also permitted ad-hoc appointment of Teachers vide Section 18 where vacancy has been notified to Commission but no recommendation has been made within six months from the date of such notification. Sub-section (3) of Section 18, however, provided that every appointment of an ad-hoc Teacher under sub-section (1) or sub-section (2) of Section 18 shall cease to have effect from the earliest of the following dates:
(a) when the candidate recommended by 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) thirtieth day of June following the date of such ad-hoc appointment.
20. Section 32 provided that Act, 1921 and Regulations made thereunder, insofar as not consistent with First Ordinance or Rules or Regulations made thereunder, shall continue to be enforced for the purpose of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a Teacher.
21. Section 33 conferred power upon State Government to issue orders removing difficulties and read as under:-
"33. Power to remove difficulties. - (1) The State Government may, for the purposes of removing any difficulty, by a notified order, direct that the provisions of this Ordinance shall during such period as may be specified in the order, have effect subject to such adaptations, whether by modification, addition or omission, as it may deem to be necessary or expedient :
Provided that no such order shall be made after two years from the date of promulgation of this Ordinance.
(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." (emphasis added)
22. After enactment of First Ordinance, for more than six month, neither Commission or Selection Board was constituted nor Ordinance came to be replaced by Act. Since delay in selection and appointment of Teachers was causing grave loss to educational institutions and in particular, students in their studies, State Government intervened and issued a Removal of Difficulties Order i.e. U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as "First Order"), vide notification dated 31.07.1981. It clearly stated that there was likelihood to take some time in the establishment of Commission/ Selection Boards and even functioning thereof would take further time. Further, it is said that a number of vacancies of Teachers were existing and continuing in Educational Institutions and delay in filling all such vacancies may create difficulties, hence First Order is being issued.
23. Para 2 of First Order conferred power upon Management to make ad-hoc appointments and reads as under:-
"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 of two months subsequent to the date of such commencement."(emphasis added)
24. Para 3 talks of duration of ad-hoc appointments and reads as under:
"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 dates, namely:-
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 envelope bearing postal stamp for purposes of registration.
(4) The District Inspector of Schools shall cause the best candidates selected on the basis of quality points specified in Appendix. 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 the 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 Inspectors of Girls Schools". (emphasis added)
26. State Government issued another order i.e. U.P. Secondary Education Services Commission (Removal of Difficulties) Second Order, 1981 i.e. Second Order, vide notification dated 11.9.1981. Second Order firstly substituted para 2 of First Order and deleted Sub-clauses (b) and (c), permitting ad-hoc appointment in leave vacancy. In fact, para 2 of First Order was substituted by virtue of para 5 of Second Order, as follows -:
"5. Substitution of Paragraph 2 of the (First) Removal of Difficulties Order, 1981. - In the First Removal of Difficulties Order, 1981, for Paragraph 2, the following paragraph shall be substituted, namely -
"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 case of a substantive vacancy caused by death, resignation or otherwise." (emphasis added)
27. Second Order separately deals with ad-hoc appointments to fill up short term vacancies. Para 2 of Second Order lays down procedure for filling up short term vacancies and reads as under:
"2. Procedure for filling up short term vacancies. - (1) If short term vacancy in the post of a teacher, caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise, shall be filled by the Management of the institution, by promotion of the permanent senior most teacher of the institution, in the next lower grade. The Management shall immediately inform the District Inspector of Schools of such promotion along with the particulars of the teacher so promoted.
(2) Where any vacancy referred to in clause (1) cannot be filled by promotion, due to non-availability of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualifications, it shall be filled by direct recruitment in the manner laid down in clause (3).
(3)(i) The management shall intimate the vacancies to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution, requiring the candidates to apply to the manager of the institution along with the particulars given in Appendix 'B' to this Order. The selection shall be made on the basis of quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, issued with Notification No. Ma-4993/XV-7-1(79)-1981, dated July 31, 1981, hereinafter to be referred to as the First Removal of Difficulties Order, 1981. The compilation of quality point marks shall be done under the personal supervision of the Head of Institution.
(ii) The names and particulars of the candidate selected and also of other candidates and the quality point marks allotted to them shall be forwarded by the manager to the District Inspector of Schools for his prior approval.
(iii) The District Inspector of Schools shall communicate his decision within seven days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval.
(iv) On receipt of the approval of the District Inspector of Schools or, as the case may be, on his failure to communicate his decision within seven days of the receipt of papers by him from the manager, the management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager.
Explanation.- For the purpose of this paragraph -
(i) 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;
(ii) in relation to institutions imparting instructions to women, the expression 'District Inspector of Schools' shall mean the 'Regional Inspectress of Girls Schools';
(iii) 'short term vacancy' means a vacancy which is not substantive and is of a limited duration." (emphasis added) 28. Para 3 of Second Order talks of duration of ad-hoc appointment made against short term vacancies and reads as under:- "3. Duration of ad-hoc appointment. - Every appointment of a teacher under Paragraph 2 of this Order shall cease from the earliest of the following dates, namely : (a) when the teacher, who was on leave or under suspension joins the post; or (b) when the period of six months from the date of such ad-hoc appointment expires; or (c) when the short-term vacancy otherwise ceases to exit." (emphasis added)
29. Para 4 of Second Order provides that in respect of appointment of a Teacher in Para 2 of Second Order, it shall be subject to conditions laid down in Para 6 of First Order, which talks of "eligibility for appointment". In other words, even for ad-hoc appointment in a short term vacancy, same eligibility conditions were made applicable to ad-hoc appointment to be made in a substantive vacancy under First Order.
30. The Appendix of First Order providing process of quality point marks was also amended but I am skipping the same having no relevance for the purpose of issue in the present case.
31. Then comes U.P. Secondary Education Services Commission (Removal of Difficulties) (Third) Order, 1982 (hereinafter referred to as "Third Order") vide notification dated 30.1.1982. This Order made amendments in para 3 and 4 of First Order and para 3 of Second Order by para 2 and 3 which read as under:-
"2. Substitution of Paragraph 3 and amendment in Paragraph 4 of the U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981. - In the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, issued vide Notification No. Ma-4993/XV-7 - 1(79)- 1981, Lucknow, dated July 31, 1981, -
(i) for paragraph 3, the following paragraph shall be substituted namely :
"3. Every appointment of an ad-hoc teacher under paragraph 2 shall cease to have effect when a candidate recommended by the Commission or the Board, as the case may be, joins the post."
(ii) in paragraph 4, for sub-clause (a) of clause (1), the following sub-clause shall be substituted, namely :
"(a) in the case of an Intermediate College, by the senior most teacher of the institution in the Lecturers' grade and in the case of a High School, by the senior most teacher of the institution in the Trained Graduate (L.T.) Grade;"
3. Amendment of Paragraph 3 of the U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981. - In the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, in paragraph 3, clause (b) shall be omitted." (emphasis added)
32. Next is U.P. Secondary Education Services Commission (Removal of Difficulties) (Fourth) Order, 1982 (hereinafter referred to as "Fourth Order") vide notification dated 14.4.1982. This Order made amendment of paras 5 and 7 of First Order and not relevant for the issues in question. However, Statement of Object and Reasons given in Fourth Order show that even till 14.4.1982, when Fourth Order was issued, Commission or Selection Boards were not established.
33. Then we move to U.P. Secondary Education Services Commission (Removal of Difficulties) (Fifth) Order 1982 (hereinafter referred to as "Fifth Order"), issued vide notification dated 13.7.1983. The aforesaid Order dealt with the appointments of Teachers in Schools/Colleges maintained by Zila Parishad through a Selection Committee to be constituted by Appointing Authority.
34. Last in chain is U.P. Secondary Education Service Commission (Removal of Difficulties) (Sixth) Order, 1983 (hereinafter referred to as "Sixth Order") vide notification dated 13.7.1983. It deals with the appointments in schools and colleges maintained by Nagar Maha Palika Parishad.
35. The provisions of First Ordinance except Section 21 were given effect from 14.7.1981. Since First Ordinance could not be transformed in an Act, hence, another Ordinance i.e. U.P. Ordinance No. 23 of 1981 (hereinafter referred to as "Second Ordinance") was issued. It was also given effect from 14.7.1981, except Section 21. The Second Ordinance also contained similar provisions as were in First Ordinance. Second Ordinance was published in U.P. Gazette (Extraordinary) dated 27.10.1981.
36. The Second Ordinance came to be replaced by Act, 1982 which received assent of President on 25.2.1982 published in U.P. Gazette (Extraordinary) dated 26.2.1982. It was given effect from 14.7.1981, except Section 21, which was left to be enforced on a date to be notified by State Government.
37. Section 16 of Act, 1982 provided that subject to the provisions of Section 18 and 33, every appointment of a Teacher, on or after 10.7.1981, shall be made on the recommendation of Commission/Board (as the case may be). Sub-section 2 of Section 16 declares appointment of a Teacher, made in contravention of Section 16(1), void. Section 18 permitted appointment of ad-hoc Teacher which is similar to Section 18 of First and Second Ordinance. Section 33 of Act, 1982 conferred power upon State Government to notify orders to remove difficulties for implementation of Act, 1982. Second Ordinance was repealed vide Section 36 of Act, 1982 but acts done or actions taken under both Ordinances, were preserved and it was declared that same shall be deemed to have been done or taken under Act, 1982. Relevant Sections 16, 18, 33, and 36 of Act, 1982 as initially existed are reproduced as under:
"16. Appointments to be made only on recommendations of the Commission or 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 18 and 33-
(a) every appointment of a teacher specified in the Schedule shall, on or after July 10, 1981, be made by the management only on the recommendation of the Commission ;
(b) every appointment of a teacher (other than a teacher specified in the Schedule) shall, on or after July 10, 1981, 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 apply with the modification that in sub-section (2) of the aforesaid section, for the words 'six months' the words 'two years' shall be deemed to have been substituted.
(2) Every appointment of a teacher, in contravention of the provisions of sub-section (1), shall be void."
"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 than 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 provision 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) thirtieth day of June following the date of such ad hoc appointment.
"33. Power to remove difficulties.- (1) The State Government may, 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:
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."
"36. Repeal and savings.-- (1) The Uttar Pradesh Secondary Education Services Commission and Selection Boards (Second) Ordinance, 1981 (U.P. Ordinance No. 23 of 1981, is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the Ordinance referred to in sub-section (1) or the Uttar Pradesh Secondary Education Services Commission and Selection Boards Ordinance, 1981 (U.P. Ordinance No. 8 of 1981), shall be deemed to have been done or taken under this Act, as if this Act were in force at all material times." (emphasis added)
38. Act, 1982 underwent a series of amendments. The first such amendment germane to the issues is U.P. Secondary Education Services Commission and Selection Boards (Amendment) Ordinance 1985 (U.P. Ordinance No. 12 of 1985). It was published in U.P. Gazette (Extraordinary) dated 12.06.1985. It made amendments in Sections 16 and 21 of Act, 1982 and inserted Chapter IV-A containing Sections 21-A to 22-D. Besides, it also inserted Section 33-A which provided for substantive appointment of ad-hoc appointments made against substantive vacancies in accordance with Para 2 of First Order. This Ordinance was replaced by U.P. Secondary Education Services Commission and Selection Boards Amendment Act, 1985 (U.P. Act No. 19 of 1985) (hereinafter referred to as "U.P. Act 19 of 1985") published in U.P. Gazette (Extraordinary) dated 23.8.1985. It came into force from on 12.6.1985 i.e. the date when Ordinance was given effect to. Section 33-A inserted in Act, 1982 by Section 5 of U.P. Act 19 of 1985 reads as under:
"33-A. Regularization of certain appointments.- (1) Every teacher directly appointed, before the commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Ordinance, 1985, on ad-hoc basis against a substantive vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, as amended from time to time, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with, the provisions of the Intermediate Education Act, 1921, shall, with effect from the date of such commencement, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such appointment up to the date of such commencement.
(2) Every teacher deemed to have been appointed in a substantive capacity under sub-section (1), shall be deemed to be on probation from the date of such commencement.
(3) Nothing in this section shall be construed to entitle any teacher to substantive appointment-
(a) If on the date of such commencement, such post had already been filled or selection for such post had already been made in accordance with this Act, or
(b) If such teacher was related to any member of the Committee of Management or the Principal, or Head Master of the institution concerned.
Explanation- For the purposes of this sub-section a person shall be deemed to be related to another if-
(i) they are members of a Hindu undivided family ; or
(ii) they are husband and wife ; or
(iii) the one is related to the other in the manner indicated in the Second Schedule to the Intermediate Education Act, 1921." (emphasis added)
39. Section 33-A talked of regularization of certain appointments. A reading thereof would show that ad-hoc appointments made before the commencement of Amendment Act, 1985 i.e. 12.6.1985 against substantive vacancies were declared as "deemed substantive appointments" provided conditions mentioned therein were satisfied. Therefore, all those who were appointed on ad hoc basis against substantive vacancies, till 11.06.1985, and fulfilled other conditions stated in Section 33-A, became substantive appointee as per declaration made vide Section 33-A except the cases covered by Section 33-A(3).
40. Then came U.P. Secondary Education Services Commission and Selection Boards (Amendment and Validation) Act, 1991 (U.P. Act No. 8 of 1991) (hereinafter referred to as "Amendment Act 8 of 1991") published in U.P. Gazette (Extraordinary) dated 19.3.1991. By Section 2 of amendment Act 8 of 1991, a 'Proviso' was inserted in Section 16 of Act, 1982 permitting appointment of a Teacher by transfer from one institution to another. It also validated appointments already made by transfer on or after 14.7.1981 but before commencement of Act No. 8 of 1991.
41. Another Amendment Act i.e. Uttar Pradesh Secondary Education Services Commission Act Selection Boards (Amendment) Act, 1991 (U.P. Act No. 26 of 1991) (hereinafter referred to as "U.P. Act 26 of 1991") was published in U.P. Gazette (Extraordinary) dated 21.8.1991. Section 2 of U.P. Act 26 of 1991 was given effect from 6.4.1991 and remaining provisions at once i.e. from the date of publication in gazette i.e. 21.8.1991. Thereby Section 33-A, which was inserted by U.P. Act No. 5 of 1982, was amended by insertion of sub-sections 1-A, 1-B, 1-C; sub-section 2 was substituted and 3 was amended.
42. Section 33-A(1-A), (1-B), (1-C), (2) and (3) as stood amended vide Amendment Act No. 26 of 1991 with effect from 06.04.1991 reads as under:
"33-A. Regularization of certain appointments.- ......
(1-A) Every teacher appointed by promotion, on ad hoc basis against a substantive vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, as amended from time to time, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of, the Intermediate Education Act, 1921 shall, with effect from the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1991, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such ad hoc appointment to the date of such commencement.
(1-B) Every teacher directly appointed after June 12, 1985 and before May 13, 1989 on ad hoc basis against a substantive vacancy in the Certificate of Teaching grade, in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, as amended from time to time, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of, the Intermediate Education Act, 1921 shall, with effect from the commencement of the Uttar Pradesh Secondary Education and Services Commission and Selection Boards (Amendment) Act, 1991, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such ad hoc appointment to the date of such commencement.
(1-C) Every teacher appointed by promotion or by direct recruitment before July 31, 1988 on ad hoc basis against a substantive vacancy in accordance with Section 18, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of the Intermediate Education Act, 1921 shall, with effect from the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1991 be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such ad hoc appointment to the date of such commencement;
(2) Every teacher deemed to have been appointed in a substantive capacity under sub-section (1) or (1-A) or (1-B) or (1-C), shall be deemed to be on probation from the date of commencement referred to in sub-section (1) or (1-A) or (1-B) or (1-C) as the case may be.
(3) Nothing in this section shall be construed to entitle any teacher to substantive appointment-
(a) If on the date of commencement referred to in sub-section (1) or (1-A) or (1-B) or (1-C), as the case may be, such post had already been filled or selection for such post had already been made in accordance with this Act, or
(b) If such teacher was related to any member of the Committee of Management or the Principal, or Head Master of the institution concerned.
Explanation- For the purposes of this sub-section a person shall be deemed to be related to another if-
(i) they are members of a Hindu undivided family ; or
(ii) they are husband and wife ; or
(iii) the one is related to the other in the manner indicated in the Second Schedule to the Intermediate Education Act, 1921."
43. Section 33-A as initially enacted and then amended w.e.f. 06.04.1991 by Amendment Act No. 26 of 1991 contemplated different kinds of ad hoc appointments made under different provisions and sought to convert such appointments in substantive. These may be summarized as under:
(A) Sub-section (1)
(i) Sub-section (1) was applicable to the appointments of teachers made directly on ad hoc basis in accordance with Para 2 of First Order till 11.06.1985. Such teachers who possessed requisite qualification at the time of ad hoc appointments or were exempted from such qualification, appointed in accordance with procedure prescribed in Para 2 of First Order, were declared as deemed to have been appointed in substantive capacity provided they were continuously serving institution from the date of ad hoc appointments till 12.06.1985.
(ii) Exception for not attracting sub-section (1) of Section 33-A are:
(a) where such vacancy on which ad hoc appointment was made, stood already filled by candidate recommended by Commission/Board till 12.06.1985 or selection for such post by Commission/Board was already made; and/or
(b) if such teacher was related to any member of committee of management or teacher/headmaster.
Sub-section (1-A)
(i) It talks of teachers appointed by promotion on ad hoc basis against substantive vacancies in accordance with procedure prescribed in Para 2 of First Order.
(ii) All such promotions made before 06.04.1991 were declared as deemed to be appointed in substantive capacity provided the teacher was continuously serving institution from the date of ad hoc appointment till 06.04.1991.
(iii) The exceptions as mentioned in sub-para A(ii) above, applicable to sub-section (1) are also applicable to sub-section (1A).
Sub-section (1-B)
(i) It deals with ad hoc teachers appointed against substantive vacancies in CT Grade from 13.06.1985 to 12.05.1989.
(ii) All such teachers who were appointed against substantive vacancies following the procedure prescribed in Para 2 of First Order, and possessed requisite qualification or exempted on the date of such ad hoc appointments, were declared as deemed appointed in substantive capacity w.e.f. 06.04.1991 provided such teachers were continuously serving from the date of ad hoc appointment till 06.04.1991.
(iii) The exceptions as mentioned in sub-para A(ii) above, applicable to sub-section (1) are also applicable to sub-section (1B).
Sub-section (1-C)
(i) It deals with promotion or direct recruitment on ad hoc basis against substantive vacancies made till 30.07.1988 in accordance with Section 18.
(ii) If such teacher possessed requisite qualification or exempted, he was also declared as "deemed substantive appointed" w.e.f. 06.04.1991, provided such teacher was continuously serving institution from the date of ad hoc appointment till 06.04.1991.
(iii) The exceptions as mentioned in sub-para A(ii) above, applicable to sub-section (1) are also applicable to sub-section (1C).
44. There are subsequent legislative amendments and provisions but the same are not relevant for the case in hand. In the present case, as per her own case set up by petitioner, requisition for substantive appointment on the post of Lecturer (Education) in College was forwarded by College to Board in February, 1983 and when Board failed to recommend any candidate for two months then process of ad-hoc appointment was initiated in November, 1983. Therefore, amendment made in Section 33-A, by insertion of Section (1-C) is not at all applicable in the case in hand for the reason that petitioner either would be covered by Section 33-A (1), else, she would have to fail. Section 33-A (1) deals with all ad-hoc appointments made against substantive vacancies till 11.06.1985. Therefore, this Court has to examine whether petitioner was validly appointed on ad-hoc basis in December, 1983, as has been claimed by her, in accordance with law.
45. Admittedly, ad-hoc appointment was permitted vide Section 18 of Act, 1982 but procedure for ad-hoc appointment on a substantive vacancy was provided by First Order. Section 33-A (1) also talks of ad-hoc appointment made in accordance with para-2 and 5 of First Order. Therefore, it has to be seen whether petitioner was appointed on ad-hoc basis following the procedure laid down in Para-2 and 5 of First Order. Ad-hoc appointment is permitted by para-2 of First Order and duration thereof is provided in para-3 but procedure for ad-hoc appointment by direct recruitment against substantive vacancy is provided in Para-5 of the First Order, which shows that Management shall inform District Inspector of Schools (hereinafter referred to as "DIOS") (in the present case RIGS) about the details of vacancy and thereafter it is DIOS who will invite applications from local Employment Exchange and also through public advertisement in at least two newspapers having wide circulation in Uttar Pradesh. As per para-5(3) applications have to be submitted to DIOS along with requisite fee. Then it is DIOS who has to examine the quality points of candidates, who have applied, and then the person whose name appears in the top of the list shall be allotted to Institution concenred and then College shall make appointment.
46. In the present case, record shows very clearly that above procedure was not followed. Petitioner herself has admitted in para-5 of rejoinder affidavit, in reply to the counter affidavit of respondent-4, that vacancy was notified on Notice Board of College and pursuant thereto petitioner applied. The relevant reply contained in para-5 of rejoinder affidavit reads as under:-
"5. ... It is wrong to state that the vacancy in the post of Education lecturer was not notified. It was notified on Notice Board in the College inviting applications. It is further stated that the petitioner applied in pursuance of the said notice and appeared for interview before the Mukhya Vikas Adhikari, Allahabad who was working as the Chairman, Zila Parishad, Allahabad as the Zila Parishad, Allahabad was superseded and the entire powers of Zila Parishad, including the Chairman were vested in the Mukhya Vikas Adhikari, Allahabad."
47. The above reply clearly shows that vacancy was allegedly put on the Notice Board of College and, thereafter, selection was made by A.M.A.Z.P., Allahabad. Annexure-1 to the writ petition which is letter of A.M.A.Z.P. to RIGS dated 01.12.1983 also shows that petitioner was the only applicant and her appointment was approved by Chairman, Zila Parishad on ad-hoc basis on its own. The relevant extract of Annexure-1 to the writ petition showing that petitioner was the sole applicant reads as under:-
^^Jherh fueZyk feJk dk gh ,d ek= vkosnu i= miyC/k gqvk Fkk vkSj oks LFkkuh; efgyk rFkk mDr in ds fy;s iw.kZr;k vgZ gSaA** "The only application of Smt. Nirmala Mishra was received and she is local lady and is wholly eligible for aforesaid post."
(English Translation by Court)
48. When this Court required learned counsel for petitioner to demonstrate that petitioner was given ad-hoc appointment after following the procedure laid down in First Order, after some argument, he could not dispute that said procedure was not followed at all.
49. An Ad-hoc appointment, if was to be made under Section 18 of Act, 1982 read with First Order, the procedure prescribed therein being mandatory has to be followed else any appointment made on ad-hoc basis would be a nullity and this is what has been observed by Supreme Court in Prabhat Kumar Sharma and others Vs. State of U.P. and others, (1996) 10 SCC 62 holing 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 abinitio and will not confer either any right upon the incumbent to hold the post or to continue in service or to claim salary from State exchequer. The relevant observations made by 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."
50. Again in para 11 of the judgment the Court held as under:
"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."
51. This 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 it has been held as under:
"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."
52. That being so, petitioner does not satisfy the requirement of Section33-A(1) that an ad-hoc appointment if made under para-2 of First Order, only then it would be entitled for deemed substantive appointment thereunder. An appointment contemplated in Section 33-A(1) has to be a valid appointment and not an illegal ad-hoc appointment made in violation of procedure prescribed in law.
53. Counsel for petitioner submitted that Section 33-A (1-C) is very wide and covers all appointments made on ad-hoc basis before 01.07.1988. I have no objection in accepting even this contention but here again, I find that petitioner would face the same obstacle as has been discussed above for application of Section 33-A(1) of Act, 1982. Here also, appointment was to be made in accordance with Section 18. As I have already said, Section 18 confers power of making ad-hoc appointment when Board fails to make recommendation after due selection of candidate within two months from date of receipt of requisition but procedure for making ad-hoc appointment is prescribed in Removal of Difficulties Orders. For ad-hoc appointment against substantive vacancies, it is the First Order which is applicable and on this aspect learned counsel for petitioner also could not raise any dispute.
54. That being so and as I have already discussed above, since procedure prescribed in First Order was not followed at all, it cannot be said that petitioner was appointed by direct recruitment before 31.07.1988 on ad-hoc basis against a substantive vacancy, in accordance with Section 18 of Act, 1982. One of the conditions to attract Section 33-A (1-C) is that appointment should have been made in accordance with Section 18 and not otherwise. Since ad-hoc appointment itself was not made validly in accordance with Section 18 as discussed above, the right of substantive appointment under Section 33-A (1-C) for which such valid ad-hoc appointment is a condition precedent will not be attracted, hence, petitioner can claim no advantage thereunder.
55. There is one more aspect. By Amendment Act of 1991, Section 33-A (3)(a) was also amended and it clearly says that if on the date of commencement of sub-section (1-C) the post in question had already been filled or selection for such post has already been made in accordance with Act, 1982, then Section 33-A(1-C) shall not be applicable. This Amendment Act came into force on 06.04.1991 and before that respondent-4 had already undergone selection and selection was completed by Board but in view of the two Government Orders banning recruitment, panel was not issued by Board. In the present case, therefore, in my view, applicability of Section (1-C) of Section 33-A has to be negated with reference to Section 33-A(3)(a) also since selection was already made by Board in 1989, as is admitted by petitioner that interview was held in 1989 but panel was not declared due to Government Orders dated 22.09.1989 and 30.07.1991 banning appointment and selection which orders were subsequently struck down by this Court in Km. Prabhawati Dixit Vs. U.P. Secondary Education Services Commission and State of U.P. (supra), (For the sake of clarification, I may notice hereat that Single Judge judgment in Km. Prabhawati Dixit Vs. U.P. Secondary Education Services Commission and State of U.P. (supra) was subsequently overruled by Division Bench in Durgesh Kumari V. State of U.P. and others 1995(3) UPLBEC 1387).
56. In the entirety of the facts and circumstances, I am clearly of the view that firstly, petitioner was not validly appointed on ad-hoc basis against substantive vacancy in accordance with Section 18 of Act, 1982 read with First Order; and, secondly, even otherwise, Section 33-A(1-C) is not attracted by virtue of Section 33-A(3)(a) since selection for the post in question was already over in 1989 and, therefore, petitioner cannot be deemed to have been substantively appointed and this Court finds no reason to cancel the panel published by Board, pursuant to judgment of this Court dated 18.02.1992.
57. In view of above discussion, I find no merit in the writ petition. It is, accordingly, dismissed.
Order Date :- 31.1.2019 Siddhant Sahu