Court No. - 34
Case :- WRIT - A No. - 9805 of 2003 Petitioner :- Sunil Kumar Srivastava Respondent :- Joint Director Of Education Vth Region, Varanasi And Others Counsel for Petitioner :- Kshetresh Chandra Shukla,Girish Chandra Maurya Counsel for Respondent :- C.S.C.
Hon'ble Sudhir Agarwal,J.
1. Present Sri G.C. Maurya, learned counsel for petitioner.
2. There was a short term vacancy on the post of Lecturer in Physics for which management took steps for filling up said post on adhoc basis. After holding an interview on 11.08.1996, issued letter of appointment of joining. Thereafter, papers were sent to District Inspector of Schools on 26.8.1996. Since no salary was paid to petitioner as no approval was granted hence petitioner has come to this Court seeking following relief:-
"i) issue writ, order or direction in the nature of mandamus commanding the respondents to not interfere in the peaceful working of petitioner on the post of Lecturer in Physics in Nagar Palika Inter College, Jaunpur and to pay his regular monthly salary for the post of Lecturer in Physics regularly every month."
3. Before passing any order for payment of salary from State Exchequer, this Court has to see whether appointment of petitioner was made validly in accordance with relevant statutory provisions.
4. The vacancy being short term, ad hoc appointment could not have been made without following the procedure prescribed in U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as “Second Order”) read with Section 18 of Act, 1982. The averments made in writ petition clearly show that the said procedure was not followed. Para 2 of Second Order 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-1993/XV-7(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 under-graduate (C.T.) grade or J.T.C. or B.T.C. grade as the case may be;
(ii) in relation to institution imparting instructions to women, the expression ‘District Inspector of Schools’ shall mean the Regional Inspectress of Girls’ Schools;
(iii) short-term vacancy which is not substantive and is of a limited duration.”
5. It is not stated anywhere that the said procedure was followed. Apex Court in Prabhat Kumar Sharma and others Vs. State of U.P. and others, (1996) 10 SCC 62 held 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 the Apex Court in Prabhat Kumar Sharma (supra) is as under:
"Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees."
6. 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."
7. 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 the Apex Court has 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."
8. In the circumstances, it cannot be said that appointment of petitioner was made validly. No relief, therefore, as sought in the writ petition can be granted.
9. Dismissed.
10. Interim order, if any, stands vacated.
Order Date :- 27.4.2018 Siddhant Sahu