Allahabad High Court
Ram Sadan Yadav & Another vs State Of U.P. & Others on 28 September, 2012
Bench: Arun Tandon
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 53
Case :- WRIT - A No. - 31001 of 1992
Petitioner :- Ram Sadan Yadav & Another
Respondent :- State Of U.P. & Others
Petitioner Counsel :- R.K.Jain,Sunil Kumar Singh
Respondent Counsel :- S.C.
Hon'ble Arun Tandon,J.
Heard Shri M.D.Singh Shekhar, Senior Advocate assisted by Shri Sunil Kumar Singh, Advocate on behalf of the petitioner and the Standing Counsel on behalf of the state-respondents.
Petitioners before this Court seek a writ of mandamus directing the respondents to ensure payment of salary to the petitioners as ad hoc C.T. Grade teacher.
Facts in short leading to the present petition are as follows :
Panchayat Inter College, Sarain Meer, District Azamgarh is an aided and recognized Intermediate College (herein after referred to as the Institution). Provisions of Intermediate Education Act, 1921, those of U.P. Secondary Education Services Selection Board Act, 1982 (herein after referred to as the Act, 1982) and those of U.P. Act No. 24 of 1971 are fully applicable to the teachers and staff of the said institution.
According to the petitioners, Julmi Yadav and Prithvi Raj Singh who were working as C.T. Grade teacher in the institution were promoted as L.T. Grade teacher. As a result whereof two vacancies in C.T. Grade were caused in the institution. In paragraph 3 it is stated that the vacancies were clear vacancies. The Committee of Management notified the two vacancies in C.T. Grade on the Notice Board of the institution on 01.05.1990 for ad hoc appointment. The petitioners applied and were selected. They were appointed on 30.06.1990.
It is on the strength of these allegations the petitioners seeks payment of salary from the State exchequer.
In the opinion of the Court the claim set up by the petitioners is wholly misconceived. The appointment of the petitioners is in violation of Article 14 of the Constitution of India and in teeth of Act, 1982.
This Court may clarify that the Full Bench of this Court in the case of Km. Radha Raizada vs. Committee of Management, V.D.B.I.C. and others reported in 1994 UPLBEC, 1551 has explained the law on the subject with reference to various amendments made in U.P. Act No. 5 of 1982 from time to time. It has specifically been laid down that notification of a substantive vacancy on notice board for ad hoc appointment is no Advertisement. Such vacancies even for the purpose of ad hoc appointment have to be advertised in at least two newspapers having adequate circulation. This according to the Full Bench judgment is the procedure to be followed under U.P. Act No. 5 of 1982. Even otherwise C.T. Cadre had been declared a dying cadre under the Government Order dated 04.12.1989 i.e. the C.T. Grade post on becoming vacant stood converted into L.T. Grade. The contention raised on behalf of the petitioners to the effect that two clear vacancies were caused in C.T. Grade due to promotion of the two incumbents against which ad hoc appointment in C.T. grade could be made is wholly misplaced.
Although the petitioners have worked for years together under the interim order of this Court but it must be brought to an end now. Their appointment has been found to be bad in law, as a matter of fact void in view of Section 16 of Act 5 of 1982.
The Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi and others, reported in 2006 (4) SCC 1, (Paragraph 43) has specifically laid down that any amount of service by an illegal appointment because of an interim order of the High Court will not confer any right upon the petitioner to seek absorption or to be made permanent. The High Court shall not issue any order perpetuating any illegal appointment. (Ref. Paragraph 4 and 13 of the judgment). Paragraph 13 reads as follows :
?What is sought to be pitted against this approach, is the so called equity arising out of giving of temporary employment or engagement on daily wages and the continuance of such persons in the engaged work for a certain length of time. Such considerations can have only a limited role to play, when every qualified citizen has a right to apply for appointment, the adoption of the concept of rule of law and the scheme of the Constitution for appointment to posts. It cannot also be forgotten that it is not the role of courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution. The approving of such acts also results in depriving many of their opportunity to compete for public employment. We have, therefore, to consider the question objectively and based on the constitutional and statutory provisions. In this context, we have also to bear in mind the exposition of law by a Constitution Bench in State of Punjab Vs. Jagdip Singh & Ors. (1964 (4) SCR 964). It was held therein, "In our opinion, where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give, he will not in law be deemed to have been validly appointed to the post or given the particular status."
In view of the aforesaid, the present writ petition is dismissed.
Interim order, if any, stands discharged.
Dated :28.09.2012
VR/ W.P. 31001/92
