Santosh Kumar vs State Of U.P. And Others
2015 Latest Caselaw 1734 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Court No. - 39
 
Case :- SPECIAL APPEAL No. - 1629 of 2012
 
Appellant :- Santosh Kumar
 
Respondent :- State Of U.P. And Others
 
Counsel for Appellant :- Siddharth Khare,Ashok Khare,D.K. Singh,Rajesh Kumar,V.K. Singh
 
Counsel for Respondent :- C.S.C.,Santosh Kumar Yadav
 

 
Hon'ble Dilip Gupta,J.

Hon'ble Vinod Kumar Misra,J.

This Special Appeal is directed against the judgment and order dated 27 August 2012 of a learned Judge of this Court by which Writ Petition No.10251 of 1993 that was filed by the appellant to assail the order dated 17 February 1993 of the District Inspector of Schools was dismissed.

It transpires from the records that Raja Ram Yadav, who was working as a Lecturer in Economics in Shri Purshottam Singh Inter College, Rajendra Nagar, Farrukhabad1, retired on 30 June 1991. This substantive vacancy was sought to be filled up on ad- hoc basis by the Committee of Management of the College by promoting Bireshwar Singh, who was working as an Assistant Teacher in the College. Thereafter, the Committee of Management claims to have filled up the resultant short term vacancy on the post of Assistant Teacher by granting ad-hoc appointment to the writ petitioner on 26 August 1991. The District Inspector of Schools, however, denied payment of salary to the writ petitioner as a result of which a writ petition was filed which was disposed of on 20 October 1992 by directing the District Inspector of Schools to decide the representation submitted by the writ petitioner. This representation was rejected by the District Inspector of Schools by order dated 17 February 1993. The District Inspector of Schools after recording that approval was granted to the ad-hoc promotion of Bireshwar Singh on the post of Lecturer only on 4 January 1992, concluded that a short term vacancy on the post of Assistant Teacher on which Bireshwar Singh was working at the time of his promotion could not have arisen prior to that date and, therefore, the appointment of the writ petitioner on 26 August 1991 prior to that date was illegal. The District Inspector of Schools also noted in the order that a ban had been imposed on appointments during the period the petitioner was granted ad-hoc appointment.

Learned Judge dismissed the writ petition for the reason that the Committee of Management could not have resolved on 30 June 1991 to grant ad-hoc promotion to Bireshwar Singh as the substantive vacancy was notified to the Uttar Pradesh Secondary Education Services Selection Board by the Committee of Management only on 20 August 1991 and for the reason that a short term vacancy could not have arisen on the post of Assistant Teacher prior to 4 January 1992 as the ad-hoc appointment of Bireshwar Singh on the post of Lecturer was approved by the District Inspector of Schools on that date. Thus, it was held that the writ petitioner, who claims to have been appointed against that short term vacancy, could not have been appointed on 26 August 1991 and that too without compliance of the conditions stipulated in paragraph 5 (2) of the The Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 19812.

Learned counsel for the appellant has submitted that the view taken by the learned Judge that a short term vacancy could have arisen only after 4 January 1992 when approval was granted to the promotion of Bireshwar Singh on the post of Lecturer on account of the retirement of Raja Ram Yadav on 30 June 1991 is not correct in view of the decision of the Full Bench of this Court in the case of Radha Raizada and others vs. Committee of Management, Vidyawati Darbari Girl's Inter College and others3. It is also his submission that a ban on making appointment was imposed on 30 August 1991 but the writ petitioner had been appointed as an Assistant Teacher on 26 August 1991 prior to that date. The submission, therefore, is that the writ petitioner was entitled to payment of salary as he had been duly appointed in accordance with the procedure prescribed and, accordingly, the impugned order dated 17 February 1993 passed by the District Inspector of Schools to reject the representation filed by the petitioner for payment of salary deserved to have been set aside by the learned Judge.

Learned Standing Counsel appearing for the respondents has, however, pointed out from the averments made in the counter affidavit and the documents annexed thereto that Bireshwar Singh was actually granted ad hoc promotion on the post of Lecturer by the Committee of Management only on 8 September 1991 and this resolution was submitted to the District Inspector of Schools with a letter dated 19 November 1991. It is, therefore, the submission of the learned Standing Counsel that a short term vacancy on the post of Assistant Teacher could not have arisen prior to 8 September 1991 and, as such the writ petitioner could not have been appointed against that short term vacancy on 26 August 1991. It is also the submission of the learned Standing Counsel that the procedure as contemplated under the provisions of The Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 19814, particularly that contained in paragraph 2 was not followed and, therefore, the appointment of the writ petitioner was void.

We have considered the submissions advanced by learned counsel for the parties.

It is not in dispute that on the retirement of Raja Ram Yadav, who was working as a Lecturer in the College, on 30 June 1991 a substantive vacancy had arisen on the post of Lecturer. The case of the writ petitioner is that immediately thereafter this vacancy was filled up on 1 July 1991 by the Committee of Management by granting ad-hoc promotion to Bireshwar Singh, who was working as an Assistant Teacher in the College. Thus, according to the writ petitioner, a short term vacancy arose on the post of Assistant Teacher and it is against this short term vacancy that the writ petitioner was appointed on ad-hoc basis as an Assistant Teacher on 26 August 1991, whereafter papers were submitted to the District Inspector of Schools for granting approval for payment of salary.

Section 18 of the U.P. Secondary Education Services Commission and Selection Board Act, 19825 at the relevant time dealt with ad-hoc appointments of teachers in the Institutions till the availability of a selected candidate by the Commission.

Section 18 of the Act as it stood prior to its substitution by UP Act No. 24 of 1992 is reproduced below:

"18.- (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 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) thirtieth day of June following the date of such ad hoc appointment.

Since the Commission had not been established when the Act was enforced, the First Order was issued by the State Government under Section 33 of the Act on 31 July 1981. It provided that the Management of an Institution could appoint by promotion or by direct recruitment a teacher purely on ad-hoc basis in accordance with the provisions of the Order in the case of a substantive vacancy caused by death, retirement, promotion or otherwise. Soon thereafter the Second Order was issued on 11 September 1981. It provided for ad-hoc appointment against a short term vacancy on the post of a teacher caused by grant of leave or on account of suspension duly approved by the District Inspector of Schools or otherwise. Thus, the provisions of Section 18 of the Act, the First Order and the Second Order independently empowered the Management of the Institution to make ad hoc appointments of teachers in the Institution. Section 18 at the relevant time did not provide the method and manner of such appointment, while the First Order and the Second Order provided a procedure for such ad-hoc appointments of teachers.

A Full Bench of this Court in Radha Raizada (supra) held that ad-hoc appointments of teachers either under Section 18 of the Act or under the provisions of the First Order or the Second Order have to be made in the manner provided. The Full Bench also pointed out that the First Order dealt with ad-hoc appointment either by promotion or direct recruitment only against a substantive vacancy which had been notified to the Commission and the Second Order dealt with short term vacancies which could arise on account of a teacher going on leave or on account of suspension pending disciplinary proceedings. The Full Bench also observed that by merely notifying the short term vacancy on the Notice Board did not give equal opportunity to all eligible candidates and would, therefore, not satisfy the requirements of Article 16 of the Constitution. The Full Bench, therefore, held that the procedure for notifying a short term vacancy under the Second Order should be the same as provided for under the First Order, namely that the Management after intimating the vacancy to the District Inspector of Schools should also advertise such short term vacancy in at least two newspapers having adequate circulation in the State.

What we find from the averments made in the counter affidavit filed by the District Inspector of Schools is that it is only on 20 August 1991 that the Committee of Management of the Institution submitted a proposal to the Uttar Pradesh Secondary Education Services Selection Board for filling up the substantive vacancy arising out of the retirement of Raja Ram Yadav on 30 June 1991. This vacancy could have been filled up on ad-hoc basis under Section 18 of the Act only when the post had remained vacant for more than two months after the Management had notified the vacancy to the Board. In other words, the ad-hoc appointment under Section 18 of the Act on the post of Lecturer could not have been made prior to 20 October 1991. However, what we find from the averments made in the counter affidavit is that even earlier on 8 September 1991, the Committee of Management had proceeded to grant ad-hoc appointment to Bireshwar Singh under Section 18 of the Act by merely recording in the resolution that the post of Lecturer had remained vacant for more than two months. However, in this Special Appeal we are not concerned with the ad-hoc promotion of Bireshwar Singh.

It is also seen from the averments made in the counter affidavit filed by the District Inspector of Schools that the papers for granting approval to the ad-hoc promotion of Bireshwar Singh on the post of Lecturer were sent to the District Inspector of Schools by letter dated 1 October 1991. However, the District Inspector of Schools sent a letter dated 12 November 1991 seeking information regarding the ad-hoc promotion of Bireshwar Singh on the post of Lecturer and it is then that the Committee of Management sent a communication dated 12 November 1991 enclosing the copy of the resolution dated 8 September 1991 by which Bireshwar Singh was appointed on ad-hoc basis on the post of Lecturer under Section 18 of the Act. A copy of the resolution of the Committee of Management has also been enclosed as Annexure-2 to the counter affidavit filed by the District Inspector of Schools.

The dispute in this Special Appeal is about the ad-hoc appointment of the writ petitioner against a short term vacancy on the post of Assistant Teacher that would have arisen on account of ad-hoc promotion of Bireshwar Singh from the post of Assistant Teacher to the post of Lecturer. As noted above, a short term vacancy could not have arisen on the post of Assistant Teacher on account of ad-hoc promotion of Bireshwar Singh on the post of Lecturer before the expiry of two months period starting from 20 August 1991. However, even if it is taken that the Committee of Management had resolved on 8 September 1991 to grant adhoc promotion to Bireshwar Singh from the post of Assistant Teacher to the post of Lecturer, a short term vacancy on the post of Assistant Teacher could have arisen only on 8 September 1991. According to the writ petitioner, he was appointed as an ad-hoc Assistant Teacher against the said short term vacancy on 26 August 1991 even prior to the date when a short term could have come into existence.

This apart, a short term vacancy can be filled up only in accordance with the procedure contemplated under the provisions of the Second Order. Paragraph 2, which deals with the procedure for filling up short term vacancies, is reproduced below :-

"2. Procedure for filling up short-term vacancies.--

(1)A 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 alongwith 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 alongwith 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, 1982, 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 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' means a vacancy which is not substantive and is of a limited duration."

All that has been stated in the writ petition is that a notice was put on the Notice Board of the Institution. There is no averment that the Management had intimated the vacancy to the District Inspector of Schools or that selection was made on the basis of quality point marks or that the names and particulars of the selected and other candidates and the quality point marks allocated to them were forwarded by the Manager to the District Inspector of Schools for his prior approval. What is also important to notice is that it is only on 20 November 1991 that the papers relating to the ad-hoc appointment of the writ petitioner were received in the Office of the District Inspector of Schools.

Thus, neither a short term vacancy had arisen on 26 August 1991 on which date the writ petitioner claims to have been appointed on ad-hoc basis nor the procedure contemplated in paragraph 2 of the Second Order was followed.

A Full Bench of this Court in Radha Raizada (supra), though in respect of an ad-hoc appointment made under the First Order, held that any ad-hoc appointment made without following the procedure laid down in the First Order would be void and would not confer any right on such appointees.

The Supreme Court also had an occasion to examine the validity of ad-hoc appointments which were not made in accordance with the procedure provided for under paragraph 5 of the First Order in the case of Prabhat Kumar Sharma and others Vs. State of U.P. and others6. The Supreme Court held that any ad-hoc appointment not made in accordance with paragraph 5 of the First Order would be illegal and void and would not confer any right on the appointee.

In Shesh Mani Shukla vs. The District Inspector of Schools, Deoria7, the Supreme Court reiterated what was earlier observed in Prabhat Kumar Sharma (supra).

The legal position clarified by the Supreme Court in regard to the First Order would equally apply for the Second Order. Thus, the appointment of the writ petitioner as ad-hoc Assistant Teacher was void ab-initio and would not confer any right on him to claim salary.

Learned counsel for the appellant has, however, submitted the aforesaid facts should not be taken note of by the Court as the District Inspector of Schools had not rejected the claim of the writ petitioner for these reasons.

In our opinion, the issue as to whether the ad-hoc appointment of the writ petitioner was in accordance with the procedure prescribed under the Second Order goes to the root of the matter and the petitioner can claim salary only on the basis of a valid appointment. The writ petitioner would, therefore, have to satisfy the Court that the essential requirements contained in Paragraph 2 of the Second Order were fulfilled and that a short term vacancy actually existed when ad-hoc appointment was granted to the writ petitioner on 26 August 1991. The District Inspector of Schools did also find that a short term vacancy had not come into existence when the writ petitioner claimed that he had been appointed as an ad-hoc Assistant Teacher.

At this stage, it needs to be stated that the learned Judge has relied on the provisions of the First Order for the purpose of finding out whether the ad-hoc appointment of the writ petitioner was valid. As noted above, the First Order deals with ad-hoc appointment against a substantive vacancy. It would not be applicable in the present case as a short term vacancy had arisen which vacancy is required to be filled up in accordance with the provisions of the Second Order. This, in our opinion, will not make any difference as we have examined the validity of the ad-hoc appointment of the writ petitioner on the basis of the Second Order. We have also considered the existence of a short term vacancy on the post of Assistant Teacher when Bireshwar Singh could have been granted promotion on ad-hoc basis as a Lecturer and not from the date approval was granted by the District Inspector of Schools for payment of salary.

Learned counsel for the writ petitioner also submitted that the petitioner had continued to work for a long time under the interim order passed by the Court and, therefore, the Court should take a sympathetic view in the matter.

A similar submission was made before the High Court in the writ petition filed by Shesh Mani Shukla but it was not accepted. The decision is reported in (2004) 3 UPLBEC 25608. While rejecting the aforesaid contention, this Court held as follows :-

"In my opinion, the petitioner is not entitled to a relief from this Court merely on the ground that an interim order had been passed in his favour under which he continued to receive salary. The petitioner has to give way to the candidate who had been appointed in accordance with the procedure then prescribed for making an ad-hoc appointment. In this context it may be useful to reproduce a passage from the judgment of the Supreme Court in the case of State of Madhya Pradesh and another Vs. Dharam Bir reported in JT 1998 (4) SC 363 wherein it has been observed as follows:-

"The plea that the Court should have a "human approach" and should not disturb a person who has already been working on this post for more than a decade also cannot be accepted as the Courts are hardly swayed by emotional appeals. In dispensing justice to the litigating parties, the Courts not only go into the merits of the respective cases, they also try to balance the equities so as to do complete justice between them. Thus the Courts always maintain a human approach. In the instant case also, this approach has not been departed from. We are fully conscious that the respondent had worked on the post in question for quite a long time but it was only in ad-hoc capacity. We are equally conscious that a selected candidate who also possesses necessary educational qualification is available. In this situation, if the respondent is allowed to continue on this post merely on the basis of his concept of "human approach", it would be at the cost of a duly selected candidate who would be deprived of employment for which he has striven and had ultimately cleared the selection. In fact, it is the "human approach" which requires us to prefer the selected candidate over a person who does not possess even the requisite qualification."

The Supreme Court in the case of Kishorilal Charmakar and another Vs. District Education Officer and another reported in (1998) 9, SCC 395 examined the termination of persons who had been appointed under a bona fide mistake by considering them as Scheduled Tribes candidates and the mistake had not occurred on their account. It was submitted on their behalf that they had worked for 10 years as teachers under the interim orders granted by the Court in their favour and since they were not responsible for the mistake they should be allowed to continue. The Court rejected this contention holding that this alone could not entitle them to retain the undeserved benefit which had accrued to them. In yet another case the Supreme Court in the matter of State of Rajasthan Vs. Hitendra Kumar Bhatt (1997) 6 SCC 574 examined the effect of an interim order on the dismissal of the petition. In the said case the respondent was not called for an interview since he did not possess the technical qualification. However, pursuant to the interim order passed by the High Court requiring the appellant to call him for interview he was interviewed and his name was included in the list of selected candidates. He was also appointed on a provisional basis and was also subsequently confirmed. The writ petition was ultimately dismissed by the High Court holding that on the cut of date, he did not possess the requisite qualification. It was submitted by the respondent before the Supreme Court that since he had been continued in service and had also been confirmed, the Court should not disturb his appointment and his case should be considered sympathetically. The Supreme Court observed that the appellants had taken the correct stand right from the beginning and the respondent's application was not considered and he was not called for interview. It was only on account of the interim orders, which were obtained by the respondent that he was given an appointment and continued. He was aware that his appointment was subject to the out come of the petition. As such a sympathetic view could not be taken.

In view of the aforesaid facts and in view of the principles laid down by the Supreme Court in the aforesaid cases I am unable to accept the argument put forth by the learned counsel for the petitioner that even if it is held that the appointment of the petitioner was made in violation of the provisions of the First Removal of Difficulties Order, 1981, the Court should take a sympathetic view and allow the petition since he had received salary on the basis of the interim order which he has enjoyed for all these 11 years."

The Special Appeal filed against the aforesaid decision was dismissed by a Division Bench of the High Court.

These two judgements were challenged before the Supreme Court. The Supreme Court did not accept the contention and the decision is reported in JT 2009 (10) SC 3099. The observations are as follows :-

"Both the learned Single Judge as also the Division Bench have found that the institution has not complied with the provisions of the 1981 Act as amended as also para 5 of the 1981 order. If the appointment of the appellant was not valid, the question of granting any approval thereto did not arise. Action, on the part of the Committee of the Management to hold selection, being not consistent with para 5 of the Order has rightly been held to be wholly unsustainable. 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 correspondent legal duty in the State. {See Food Corporation of India & ors. V. Ashish Kumar Ganguly & ors. [2009 (8) Scale 218]}. Sympathy or sentiments alone, it is well settled, cannot form the basis for issuing a writ of or in the nature of mandamus. { See State of M.P. & Ors. v. Sanjay Kumar Pathak & Ors. [JT 2007 (12) SC 219: (2008) 1 SCC 456]}"

Thus, merely because the writ petitioner had worked for a substantial period of time on the basis of an interim order passed by the Court would not confer a right to the writ petitioner to contend at the time of final hearing that relief should be granted on the basis of equity. The appointment of the petitioner was void ab-initio. The writ petitioner is, therefore, not entitled to any relief.

The Special Appeal is, accordingly, dismissed.

Order Date :- 10.8.2015

m.a.

(Vinod Kumar Misra, J.) (Dilip Gupta, J.)