C/M Gandhi Inter College And ... vs Regional Deputy Director Of ...
2015 Latest Caselaw 5207 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 29
 
Reserved on 27.11.2015
 
Delivered on 09.12.2015
 
Case :- SPECIAL APPEAL No. - 871 of 2015
 
Appellant :- C/M Gandhi Inter College And Another
 
Respondent :- Regional Deputy Director Of Education And 3 Ors.
 
Counsel for Appellant :- Sudhir Dixit,Chandra Bhushan Yadav
 
Counsel for Respondent :- C.S.C.,Siddharth Khare
 

 
Hon'ble V.K. Shukla,J.

Hon'ble Mahesh Chandra Tripathi,J.

Committee of Management, Gandhi Inter College, Chhata District Mathura through its Manager is before this Court assailing the validity of the decision dated 26.10.2015 passed by Learned Single Judge in Civil Misc. Writ Petition No. 34669 of 1997 (Deep Chand Vs. Regional Deputy Director of Education, Agra Region Agra wherein Learned Single Judge has allowed the writ petition by quashing the orders impugned in the writ petition dated 17.12.1996 and 02.07.1997 passed by District Inspector of Schools and remanded the matter back for fresh consideration of claim firstly in reference of Deep Chand and to consider the claim of Hari Ram respondent-appellant no. 2, only after claim of Deep Chand, petitioner-opposite party no. 4 is turned down.

In the District of Mathura there is a recognized institution known as Gandhi Inter College, Chhata District Mathura. Said institution is duly recognized institution and is governed by the provisions as contained under U.P. Act No. II of 1921and the Regulations framed thereunder. Said institution is in grant-in-aid list of the State Government and the provisions of U.P. Act No. 24 of 1971 are fully applicable to the said institution. Selection and appointment on the post of Principal /Headmaster/Teacher are to be made strictly as per the provision as contained under U.P. Act No. V of 1982 and the Rules framed thereunder.

In the institution concerned one Jagan Prasad Sharma retired from the institution who was substantively appointed Lecturer and Principal of the institution and after his retirement, vacancy occurred in lecturer's grade was filled up by adhoc promotion granted to one Ganesh Chandra Varsanay from L.T. Grade and in the resultant vacancy, adhoc promotion was offered to one Khem Raj Gaur, who was a confirmed Assistant Teacher in C.T. Grade. In consequence of the same a short term vacancy in C.T. Grade came into existence and at the said point of time Committee of Management appointed petitioner-opposite party no. 4, Deep Chand and an order of appointment was also issued to the him on 10.09.1988 and thereafter approval was also accorded to the said appointment by the District Inspector of Schools, vide order dated 30.06.1989 w.e.f. 12.09.1988 to 20.09.1989. Consequent to the same, petitioner-opposite party no. 4 was paid salary month by month but thereafter salary of the petitioner was not released in the next academic session 1990-91 and the said inaction of not paying salary, gave cause to petitioner-opposite party no. 4, Deep Chand to file Civil Misc. Writ Petition No. 31988 of 1990 and in the said writ petition interim mandamus has been issued either to pay salary or to show cause before this Court whereafter, as per petitioner salary was paid to the petitioner-opposite party no. 4 but was again stopped in August 1991 and thereafter it appears that petitioner-opposite party no. 4 has made representation before the District Inspector of Schools on which District Inspector of Schools passed order on 24.04.1992clarifying that the status of petitioner continues as before and that the Committee of Management was to ensure payment of salary to the petitioner. Thereafter, writ petition filed by the petitioner-opposite party no. 4 was disposed of on 28.04.1995 by following order:

"Having heard the learned counsel for the petitioner and having regard to the fact that the petitioner has already marked the District Inspector of Schools by means of an application dated 18.5.1993 and again by application dated 25.5.1993, I am of the view that the end of justice would be fully met if District Inspector of Schools is directed to look into the grievances of the petitioner and take appropriate decision in the matter in accordance with law as expounded by the Full bench of this Court in Km. Radha Raizada vs. Committee of Management 1994(3) UPLBEC 1551 within a period of three months if possible.

It may be observed that so far enforcement of the directions contained in the letter dated 24.4.1992 of the District Inspector of Schools addressed to the Manager is concerned sufficient it to say that the DIOS has ample powers under the Payment of Salary Act, 1971 to levy enforcement of his order but before the direction contained in the letter dated 24.4.1992 is enforced the DIOS shall examine the matter in accordance with law as stated supra.

Petition shall stand disposed of subject to above directions.

It is made clear that in case it is found that the petitioner was validly appointed in accordance with law, the District Inspector of Schools shall examine his claim for regularization also."

Record in question reflects that thereafter claim of the petitioner-opposite no. 4 has been examined and rejected by the District Inspector of Schools by order dated 02.07.1997, impugned in the writ petition before the Learned Single Judge.

During all these period, as CT grade has been declared to be a dying cadre vide Government Order dated 11.06.1989, in this background, Committee of Management has proceeded to send requisition of the said post in question to be filled as L.T. Grade post on 24.02.1992 before District Inspector of Schools and as no regularly selected candidate was made available by the Commission, an adhoc appointment was made by the Committee of Management of Hari Ram, respondent-appellant no. 2, in exercise of authority conferred under Section 18 of U.P. Act No. V of 1982 however as salary has not been released accordingly, Hari Ram, was impelled to file Civil Misc. Writ Petition No. 30056 of 1994 and the said writ petition was disposed of vide judgment and order dated 13.09.1994 asking the District Inspector of Schools to examine the claim of Hari Ram. Said order reads as follows:

"The petitioner shall make representation to the District Inspector of Schools, Mathura respondent no.1, who will consider the following question:-

1. Whether there was sanctioned and vacant post?

2. Whether the intimation of vacancy was given to the Commission before making the appointment?

3. Whether the procedure was followed in making the appointment in accordance with regulations and rules and order as provided under law?

4. Whether the petitioner was qualified for appointment?

The representation shall be decided within two months from the date ofmaking the representation as stated above, after giving an opportunity of hearing to the petitioner and the Committee of Management.

The writ petition is accordingly disposed of finally."

This much is also reflected that pursuant to judgment and order passed in Civil Misc. Writ Petition No. 30056 of 1994, claim of Hari Ram has been considered and District Inspector of Schools has proceeded to accord approval to the said appointment on 17.12.1996 and thereafter both the orders have been subject matter of challenge in Civil Misc. Writ Petition No. 34669 of 1997 and after exchange of pleadings, said writ petition in question has been allowed and thus, giving occasion to the Committee of Management of the institution as well as Hari Ram, respondent-appellant no. 2 to file present Special Appeal.

Sri P.N. Saxena, Senior Advocate appearing with Sri Sudhir Dixit, Advocate has contended that Learned Single Judge in the present case, not only misread the record in question, but has also misread the statutory provisions, while issuing directives for fresh consideration by Regional Level Committee to examine legality of petitioner's appointment and claim of regularization as per the provision as contained under Section 33-A (1-A) of U.P. Act No. V of 1982 whereas said provision in question is neither applicable nor attracted, qua the claim of petitioner-opposite party no. 4, Deep Chand, whereas fact of the matter is that life span of the appointment of Deep Chand has already come to an end by operation of law and he has no right to claim the said post in question, as such present special appeal is liable to be allowed.

Sri Ashok Khare, Senior Advocate, appearing for contesting opposite party no. 4-petitioner, Deep Chand alongwith Sri Sidharth Khare, Advocate submitted that in the present case as far as appointment of Hari Ram, respondent-appellant no. 2 is concerned, same is void appointment, in view of this, once Deep Chand, petitioner-opposite party no. 4 has been appointed in short term vacancy and the said short term vacancy has been converted into substantive vacancy then Deep Chand has every right to be extended the benefit of regularization and mentioning of wrong provision will not at all defeat the legitimate claim of petitioner-opposite party, Deep Chand, as such this Court should come to the rescue and reprieve of the petitioner-opposite party in the facts of the case.

After respective arguments have been advanced factual situation that has so emerged in the present case that Deep Chand has proceeded to assail the validity of the appointment of Hari Ram with impunity by contending that appointment of Hari Ram is void, in view of this, his claim is liable to be rejected whereas from the side of Hari Ram and the Committee of Management specific assertion has been made that rightful action has been taken by the Committee of Management of the institution and as far as Deep Chand is concerned, life span of his appointment has already come to an end..

In this backdrop, we at the very outset proceed to examine claim of Deep Chand. Accepted position is that appointment of Deep Chand has been made on 10.09.1988 which was prior to the decision of the State Government to declare C.T. Grade as a dying cadre. Selection/Appointment against short term vacancy is governed under the provisions of U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order 1981. Same provides for as follows:

Uttar Pradesh Secondary Eduction Services Commission (Removal of Difficulties)(Second) Order, 1981

1. Short title and commencement- (1) This order may be called the Uttar Pradesh Secondary Eduction Services Commission (Removal of Difficulties)(Second) Order, 1981

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 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-1993/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 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 Inspector of Girls Schools.'

(iii) short term vacancy which is not substantive and is of a limited duration."

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 exist.

"Short term vacancy" means a vacancy which is not substantive and is of limited duration. For filling short term vacancy by way of direct recruitment, Management is obligated to intimate the vacancies to the District Inspector of Schools, and further obligated to notify the same on notice board, requiring the candidates to apply to Manager alongwith particulars given in Appendix "B" of Order. Selection has to be necessarily made, on the basis of quality point marks specified in the Appendix specified under First Removal of Difficulties Order 1981. Compilation of quality points marks is to be done under the supervision of Head of Institution. The names and particulars of candidate selected and also of the other candidates and the quality point marks allotted to them has to be forwarded by the Manager to District Inspector of Schools for his prior approval. The District Inspector of Schools is obligated to communicate his decision within seven days to receipt of particulars by him failing which Inspector will be deemed to have given his approval. After receipt of approval of District Inspector of Schools or in the event of failure to communicate his decision within seven days of receipt of papers, as the case may be Management is free to make appointment. Life span of short term appointment is to come to an end when the short term vacancy otherwise would cease to exist.

Full Bench of our Court, in the case of Km. Radha Raizada and others Vs. Committee of Management VDGIC 1994 (3) UPLBEC 1551 has dealt with the procedure that is to be adhered to even in the matter of ad-hoc appointment of teacher against short term vacancies. Same provides for as follows:

43.Neither Section 18 of the Principal Act nor the First Removal of Difficulties Order envisaged for ad hoc appointment against the short term vacancy. As earlier noticed, Section 18 and the First Removal of Difficulties Order provided for ad hoc appointment either by promotion by direct recruitment only against substantive vacancy which has been notified to the Commission. Since short term vacancy is not a substantive vacancy, the state Government by notification dated 7-9-1981 came out with a Second Removal of Difficulties Order providing procedure for filling the short term vacancies. The short vacancy as envisaged in the Second Removal of Difficulties Order which arises on account of teachers going on leave granted to him or on account of suspension of a teacher pending disciplinary proceedings which is duly approved by the District Inspector of Schools. The power to appoint teachers either by promotion or by direct recruitment under the Second Removal of Difficulties Order is open only against short term vacancies and not against substantive vacancy. Paragraph 2 of the Second Removal of Difficulties Order provides that if short term vacancy in the post of teacher caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or other wise arises the same is required to be filled by the management of the institution by promotion of permanent senior most teacher of the institution from lower grade. The Management is further required to immediately inform the District Inspector of Schools of such promotion along with particulars of the teaches who is promoted. Thus if the short term vacancy arises the said vacancy has to be filled in by the promotion from amongst the permanent senior most teacher of the institution in the next lower grade and such promotion has to be intimated to the District Inspector of Schools. Paragraph 2 of the Order further-provides that the short term vacancy, if cannot be filled by promotion due to non-availability of a teacher in the lower grade possessing the prescribed minimum qualification, the same may be filled by the direct recruitment in the manner laid down in sub-paragraph (3) of paragraph of the Order which provides that the management shall intimate the vacancy to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution requiring the candidate to apply to the Manager of the institution along with particulars. The advertisement of short term vacancy on the notice board of the institution according to me, in fact no notice to the prospective eligible candidates as no prospective candidate is expected to visit each institution to see the notice board for finding out whether, any short term vacancy has been advertised. Since the payment of salary to the teachers appointed against the short term vacancy is the liability of the State Government, the advertisement of short term vacancy must conform to the requirement of Article 16(1) of the Constitution which prohibit the State from doing anything whether by making rule or by executive order which would deny equal opportunity to all the citizens. The provision contained in sub-paragraph (3) of paragraph 2 of the Second Removal of Difficulties Order which provides that the short term vacancy shall be notified on the notice board of the institution does not give equal opportunity to all the eligible candidates of the District, Region or the State to apply for consideration for the appointment against the said short term vacancy. Such kind of notice is an eye-wash for the requirement of Article 16 of the Constitution. This aspect can be examined from another angle. If the notice of short term vacancy, through the notice board of the institution is accepted, it will throw open the doors for manipulation and nepotism. A management of an institution may or may not notify the short term vacancy on the notice board of the institution and yet may show to the authority that such vacancy has been notified on the notice board of the institution and may process the application of its own candidate for the appointment against, the short term vacancy. I am, therefore, of the view that the procedure for notifying the short term vacancy should be the same as it is for the ad hoc appointment by direct recruitment under the First Removal of Difficulties Order. The management after intimating such vacancy to the District Inspector of Schools advertise such short term vacancy at least in two Newspapers having adequate circulation in Uttar Pradesh in addition to notifying the said vacancy on the notice board of the institution and further the application may also be invited from the local employment exchange. Thus, the procedure provided for notifying the short term vacancy should be the same as contained in sub-paragraph (2) of paragraph 5 of the First Removal of Difficulties Order. Thereafter, the procedure provided in subparagraph (3) (i, ii, iii, iv) of paragraph 2 of the Second Removal of Difficulties Order has to be followed for making such appointment. As seen the procedure provided under subparagraph (3) of paragraph 2 of the Second Removal of Difficulties Order, the selection is required to be made on the basis of quality point marks specified in the Appendix to the First Removal of Difficulties Order. The name and particulars of the candidates as selected and other candidates along with quality point marks allotted to them as required to be forwarded by the Manager to the District Inspector of Schools for the prior approval. The District Inspector of Schools is under obligation to communicate his decision within seven days of submission of such particulars failing which the District Inspector of Schools is deemed to have given his approval. The duration of such ad hoc appointment is till the teacher who was on leave or under suspension joins the post or When the short term Vacancy otherwise ceases to exist. This ad hoc appointment by direct recruitment against short term vacancy can only be resorted only after it is found that the said vacancy cannot be filled in by promotion. This ad hoc appointment against the short term vacancy is not an appointment either under Section 18 of the Act or under the First Removal of Difficulties Order as the power and procedure provided for the ad hoc appointment against the short term vacancy is under the Second Removal of difficulties Order and further is not against the substantive vacancy. After the procedure Provided in paragraph 2 of the Second Order has gone through no further approval of the district Inspector of Schools is required for such appointment. However it has come to notice that sometimes the Management resort to unfair practice in case of such appointments. For that contingency there is adequate safeguard provided in the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971..

On the touchstone of statutory provision holding the field what we find that short term vacancy came into existence on account of promotion of one Khem Raj Gaur, a C.T. Grade teacher as adhoc L.T. Grade Teacher. On the said short term vacancy, Deep Chand, petitioner-opposite party has been sought to be appointed and his appointment in question has been approved by the District Inspector of Schools vide order dated 30.06.1989 w.e.f. 12.09.1988 to 20.09.1989 with specific direction that in future no appointment be made without approval Appointment letter has been issued to Deep Chand and pursuant to the same, Deep Chand has been paid salary month by month but thereafter salary has not been released for the next academic session though his appointment stood extended unilaterally by the Management and thereafter he filed Civil Misc. Writ Petition No. 31988 of 1990 and therein interim mandamus has been issued by directing either to pay salary or to show cause to this Court and thereafter salary has been directed to be paid to the petitioner-opposite party but was again stopped in August 1991 and thereafter this much has also come on record that the Managing Committee of the institution concerned, as CT grade has been declared to be a dying cadre vide Government Order dated 11.06.1989 has proceeded to send requisition for substantive appointment on 24.02.1992 and against the said post in question another incumbent has been sought to be appointed. From the side of petitioner-opposite party, the fact that short term vacancy has been converted into substantive vacancy has not at all been disputed rather prayer has been made to accord benefit of regularization on the premises that there is substantive vacancy.

From the entire record of Deep Chand, and from the pleading set up by Deep Chand it is demonstrated that at no point of time Manager, ever notified the vacancy on the Board of the institution, for inviting application from eligible candidates, and how many candidates including the petitioner pursuant to said notice proceeded to apply and in the said selection on the basis of computation of quality points marks, petitioner-opposite party, Deep Chand on account of having highest quality points mark was entitled to be offered appointment. At the point of time when District Inspector of Schools has proceeded to pass order on 02.07.1997, precise mention has been made that appointment of petitioner-opposite party is contrary to the provisions of U.P. Act No. V of 1982, apart from other grounds. Deep Chand in his writ petition mentioned that against the vacancy so arisen a resolution of Committee of Management has been passed on 10.09.1988 and in pursuance of resolution of Committee of Management the petitioner-opposite party being suitable candidate and possessing requisite qualification for appointment in C.T. Grade accordingly appointment letter was issued by the Manager of College. Once selection is to be made on the basis of quality points marks, and such procedure has not at all been adhered to then merely because District Inspector of Schools has proceeded to accord approval to the same on 30.06.1989 is not the conclusive proof of the fact that appointment has been validly made, as at the point of time of ensuring salary, the District Inspector of Schools, pursuant to order passed by this court on the writ petition filed by petitioner was obligated to decide the matter as per the law expounded in the case of Radha Raizada Vs. Committee of Management, 1994 (3) UPLBEC 1551.(para-43) Learned Single Judge at no point of time ever examined the matter from the perspective and point of view that appointment of petitioner-opposite party Deep Chand on its face value was dehors the prescribed procedure as envisaged under second Removal of Difficulties i.e. at no point of time any computation of quality points mark has ever been done and straightway based on resolution, appointment had been offered. Learned Single Judge has proceeded to make mention that District Inspector of Schools has vaguely referred to non-compliance of provisions of U.P. Act No. V of 1982 in the appointment of petitioner, but the order is silent about the exact shortcoming of in the appointment of petitioner. Once District Inspector of Schools has proceeded to make mention that appointment has been made in violation of the provision of the U.P. Act No. V of 1982, then it was incumbent and obligatory on the part of petitioner to have disclosed before this Court, the procedure that has been adhered in making appointment.

Once requisite material particulars are lacking and missing, qua the prescribed procedure to be adhered in the matter of making selection and appointment then inevitable inference is that without following the said due process of law, dehors appointment has been made. Here the petitioner, has disclosed in the writ petition, the way and manner he has been appointed and same was clearly in the teeth of the provisions of Second Removal of Difficulties Order, 1981, as such order that has been passed by Learned Single Judge to consider the claim of Deep Chand is not all subscribed by law and on admitted position same would be an exercise in futility. In view of this said part of the order cannot be approved by us and the writ petition to that extent necessarily has to be dismissed.

Further issue in the present case is that once Deep Chand has been appointed against a short term vacancy and the said short term vacancy has been converted into substantive vacancy, does he has right to claim his continuance on the said post in question and claim regularization as has been directed to be considered by the Learned Single Judge by the impugned judgment and order.

Having considered the rival submissions, we find that the issue raised has already engaged the attention of the Full Bench of this Court in the case of Smt. Pramila Mishra Vs. Deputy Director of Education 1997 (2) UPLBEC 1329, as to whether a teacher appointed on ad hoc basis in a short-term vacancy, is entitled as of right to continue on the said post even if the short-term vacancy has been converted to a permanent vacancy due to death, resignation or retirement of the permanent incumbent.

While deciding the said issue, in paragraph 24 of the judgment, the Full Bench observed as follows:-

" 24. Summing up our conclusions in the light of the discussions in the foregoing paragraphs, we hold that a teacher appointed by the management of the institution on ad hoc basis in a short term vacancy (leave vacancy /suspension vacancy), which is subsequently converted into a substantive vacancy in accordance with the provisions of the Act, Rules and Orders, (on death, resignation, dismissal or removal of the permanent incumbent), cannot claim a right to continue. He has, however, a right to be considered along with other eligible candidates for ad hoc appointment in the substantive vacancy if he possesses the requisite qualifications. Consequent upon the view taken by us, as noticed above, we hold that the decisions of this Court like Km. Meena Singh's case (supra) and other cases taking contrary view, are declared to be no longer good law."

Law on the subject is clear that once short term vacancy has been converted into substantive vacancy then incumbent who is holding the post against short term vacancy shall cease to function. Full Bench decision of this Court in the case of Smt. Pramila Mishra v. Deputy Director of Education, Jhansi and others reported in (1997) 2 UPLBEC, 1329, has mentioned that the appointment stood automatically terminated and the benefit of regularization under Section 33-B (1) (a) (i) of the U.P. Act No. 5 of 1982 was not available. Said judgement has been followed in the case of Surendra Kumar Srivastava Vs. State of U.P. and others 2007(1) ESC 130. As there has been some conflicting views, reference has been made to Larger Bench in the case of Jahaj Pal Vs. District Inspector of Schools (Special Appeal 280 of 2013) and till date said reference in question has not been answered whereas said reference has been made on 31.05.2013 posing following questions:

For all the reasons detailed above, we are of the considered view that following questions arise for consideration by a larger bench:

(a) Whether an ad-hoc appointee, appointed against a short term vacancy, would automatically cease to be in employment upon conversion of the vacancy into a substantive vacancy?

(b) Whether the ad-hoc appointee against a short term vacancy is entitled to continue to serve, even though the vacancy is converted into a substantive vacancy, until appointment of either an ad-hoc teacher in accordance with the provisions of the U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 or till appointment of a regularly selected teacher recommended by the Commission/ Board, whichever is earlier?

(c) Whether the benefit of regularisation as provided under Section 33-B of the UP Act No.5 of 1982 is available only where the short term vacancy gets converted into a substantive vacancy after the commencement of U.P. Act No.1 of 1993 i.e. 7.8.1993 and not before?

(d) Whether the Full Bench decision in the case of Pramila Mishra (supra) lays down correct law as it fails to consider the legislative intent reflected by the insertion of Section 33-B in UP Act No.5 of 1982?

Till date said reference has not been answered and accordingly till said reference is not answered the earlier binding precedent in the case of Pramila Mishra (Supra) shall hold the field and same binds us.

Claim of Deep Chand has been directed to be decided for regularization as per Section 33-A(1-A) of U.P. Act No. V of 1982. Section 33-A (1-A) and 33-A (1-B) are being extracted below:

"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, 1988 on adhoc basis against a substantive vacancy in accordance with paragraph 2 of the Uttar Pradesh Education Service 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.

(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 adhoc 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 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.

A bare perusal of provision quoted above would go to show that said provisions deals with substantive vacancy appointments and not at all in reference to short term appointments.

Once claim of Deep Chand was not at all falling within the parameter of the same then by no stretch of imagination his claim could have been directed to be considered as has been done in the present case. However at this stage, it would be useful to reproduce the provisions of Section 33-B of U.P. Act No. 5 of 1982, as inserted by U.P. Act No. 1 of 1993 with effect from 07.08.1993, which reads as follows:-

" 33-B. Regularisation of certain other appointments.- (1) Any teacher, other than the Principal or Headmaster, who-

(a) (i) was appointed by promotion or by direct recruitment in the Lecturer grade or Trained Graduate grade on or before May 14, 1991 or in the Certificate of Teaching grade on or before May 13, 1989 against a short term vacancy in accordance with Paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 and such vacancy was subsequently converted into a substantive vacancy; or

(ii) was appointed by direct recruitment on or after July 14, 1981 but not later than June 12, 1985 on ad hoc basis against substantive vacancy in the Certificate of Teaching grade through advertisement and such appointment was approved by the Inspector; or

(iii) was appointed by promotion or by direct recruitment on or after July 31, 1988 but later than May 14, 1991 on ad hoc basis against a substantive vacancy in accordance with Section 18 (as it stood before its substitution by the Uttar Pradesh Secondary Education Service Commission and Selection Boards (Amendment) Act, 1992;

(b) possesses the qualification prescribed under or is exempted from such qualification in accordance with the provisions of the Intermediate Education Act, 1921;

(c) has been continuously serving the Institution from the date of such appointment upto the date of the commencement of the Act referred to in sub-clause (iii) of clause (a);

(d) is not related to any member of the management or the Principal or Head Master of the Institution concerned in the manner specified in the explanation to sub-section (3) of Section 33-A;

(e) has been found suitable for appointment in a substantive capacity by a Selection Committee constituted under sub-section (2) shall be given substantive appointment by the Management.

(2) (a) For each region, there shall be a Selection Committee comprising-

(i)Regional Deputy Director of Education of that region, who shall be the Chairman,

(ii)One officer holding a Group "A" post (specified as such by the State Government from time to time) in any department other than Education Department, to be nominated by the state Government,

(iii)Regional Inspectress of Girls Schools of that region:

Provided that the Inspector of the district shall be co-opted as a member while considering the case for regularisation of that district.

(b) The Selection Committee constituted under clause (a) shall consider the case of every such teacher and on being satisfied about his eligibility and suitability in view of the provision of sub-section (1) shall, subject to the provisions of sub-section (3) recommend his name to the management for appointment under sub-section (1) in a substantive vacancy.

(3) (a) The names of the teachers shall be recommended for substantive appointment in order of seniority as seniority from the date of their appointment.

(b) If two or more such teachers are appointed on the same date, the teacher who is older in age shall be recommended first.

(4) Every teacher appointed in a substantive capacity under sub-section (1) shall be deemed to be on probation from the date of such substantive appointment.

(5) A teacher who is not found suitable under sub-section (1) and a teacher who is not eligible to get a substantive appointment under that sub-section shall cease to hold the appointment on such date as the State Government may by order specify.

(6) Nothing in the Section shall be construed to entitle any teacher to substantive appointment if on the date of commencement of the Act referred to in sub-section (iii) of clause (a) of sub-section (1), such vacancy had already been filled or selection for such vacancy has already been made in accordance with this Act. "

A perusal of the aforesaid provisions would reveal that Section 33-B (1) (a) (i) comes to rescue of a teacher appointed by promotion or by direct recruitment in the C.T. Grade on or before May 13, 1989 against a short term vacancy in accordance with paragraph 2 of the U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order when such vacancy is subsequently converted into a substantive vacancy and such teacher possesses the qualification prescribed under or is exempted from such qualification in accordance with the provisions of the Intermediate Education Act and has been continuously serving the institution from the date of such appointment up to the date of commencement of the Act and is not related to any member of the Management or the Principal or Headmaster of the institution and has been found suitable for appointment in a substantive capacity by a Selection Committee.

Once judgment and order passed in the cases of Pramila Mishra (Supra) and Surendra Kumar Srivastava (Supra) holds the field and short term vacancy has come to an end then the incumbent appointed on the said post has to be accepted as having ceased to function and by no stretch of imagination, Deep Chand could claim his continuance on the said post in question and regularization, inasmuch as under the provision wherein benefit of regularization can be extended therein relevant date is 07.08.1993 and on the said date from the own pleading of Deep Chand, he was not at all functioning as vacancy in question has already been notified for making appointment against substantive vacancy.

In view of this from the own showing of petitioner, on 07.08.1993 he was not at all functioning and the per-requisite terms and condition for being considered for regularization in terms of Section 33-B (1) (a) (i) was not at all being fulfilled, as here on the face of it as he has not at all been appointed in terms of provision as contained under Second Removal of Difficulties Order 1981, and on the relevant date i.e 07.08.1993 petitioner Deep Chandra was not at all functioning in the institution and he has already ceased to function.

Now coming to the second facet of the matter i.e pertaining to appointment of Hari Ram as much emphasis has been placed on behalf of opposite party-petitioner that in the present case substantive appointment that has been so made is void on the face of it.

At this juncture, relevant provisions as contained in Section 18 of U.P. Act No. V of 1982 and U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981 are being looked into:

"Section 18 of U.P. Act No. V of 1982

Section 18 Ad hoc Principals or Headmasters -(1) Where the Management has notified a vacancy to the Board in accordance with sub-section (1) of Section 10 and the post of the Principal or the Headmaster actually remained vacant for more than two months, the management shall fill such vacancy on purely ad hoc basis by promoting the senior most teacher-

(a) in the lecturer's grade in respect of a vacancy in the post of the Principal.

(b) in the trained graduate's grade in respect of a vacancy in the post of the Headmaster.

(2) Where the Management fails to promote the senior most teacher under sub-section (1) the Inspector shall himself issue the order to promotion of such teacher and the teacher concerned shall be entitled to get his salary as the Principal or the Headmaster, as the case may be, from the date he joins such post is pursuance of such order of promotion.

(3) Where the teacher to whom the order of promotion is issued under sub-section (2) is unable to join the post of the Principal or the Headmaster, as the case may be due to any act or omission on the part of the management, such teacher may submit his joining report to the inspector, and shall thereupon be entitled to get his salary as the Principal or the Headmaster, as the case may be, from the date he submits the said report.

(4) Every appointment of an ad hoc Principal or Headmaster under sub-section (1) or sub-section 92) shall cease to have effect from when the candidate recommended by the Board joins the post."

U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981

2. Vacancies in which ad hoc appointment can be made.- The management of an institution may appoint by promotion or by direct recruitment a teacher on purely ad hoc basis in accordance with the provisions of this Order in the following cases, namely:-

(a) in the case of a substantive vacancy existing on the date of commencement of this Order caused by death retirement, resignation or otherwise;

(b) in the case of a leave vacancy where the whole or unexpired portion of the leave is for a period exceeding two months on the date of such commencement;

(c) where a vacancy of the nature specified in clause (a) or clause (b) comes into existence within a period two months subsequent to the date of such commencement.

5. Ad hoc appointment by direct recruitment.-(1) Where any vacancy cannot be filled by promotion under Paragraph 4, the same may be filled by direct recruitment in accordance with clauses (2) to (5).

(2) The management shall, as soon as may be, inform the District Inspector of Schools about the details of the vacancy and such Inspector shall invite applications from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh.

(3) Every application referred to in clause (2) shall be addressed to the District Inspector of Schools and shall be accompanied-

(a) by a crossed postal order worth ten rupees payable to such Inspector; (b) by a self addressed envelops bearing postal stamp for purposes of registration.

(4) The District Inspector of Schools shall cause the best candidates selected on the basis of quality specified in Appendix. The compilation of quality points may be done on remunerative basis by the retired Gazetted Government servants under the personal supervision of such Inspector.

(5) If more than one teacher of the same subject or category is to be recruited for more than one institution, the names of the selected teachers and the names of institutions shall be arranged in Hindi alphabetical order. The candidate whose name appears on the top of the list shall be allotted to the institution the name whereof appears on the top of the list of the institution. This process shall be repeated till both the lists are exhausted.

Explanation.-In relation to an institution imparting instruction to women the expression "District Inspector of Schools" shall mean the "Regional Inspectress of Girls Schools".

Full Bench of this Court in Radha Raizada and others Vs. Committee of Management, Vidyawati Darbari Girls Inter College and others, 1994 (3) UPLBEC 1551, in paragraph 41 held as follows:

"41. It has already been noticed that Section 18 of the Principal Act provides for power to appoint a teacher purely on ad hoc basis either by promotion or by direct recruitment against the substantive vacancy in the institution when the condition precedent for exercise of powers exist namely that the Management has notified the said vacancy to the Commission in accordance with the provisions of the Act and the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher within one year from the date of such notification of the post of such teacher has actually remained vacant for more than two months. However, since the State Government was alive to the situation that the establishment of the Commission may take long time and even after it is established, it may take long time to make available the required teacher in the institution and as such issued three Removal of Difficulties Orders namely Removal of Difficulties Order dated 11-9-81, Removal of Difficulties Order, dated 30-1-82 and Removal of Difficulties Order dated 14-4-1982. In fact these Removal of Difficulties Orders were issued to remove the difficulties coming in the way of a Management in running the institution in absence of teachers. This power to appoint ad hoc teachers by direct recruitment, thus, is available only when pre-conditions mentioned in Section 18 of the Act are satisfied, secondly, the vacancy is substantive vacancy and thirdly, the vacancy could not be filled by promotion. Neither the Act nor the Removal of Difficulties Order defines vacancy. However, the vacancy has been defined in Rule 2(11) of U.P. Secondary Education Services Commission Rules, 1983. 'Vacancy' means a vacancy arising out as a result of death, retirement, resignation, termination, dismissal, creation of new post or appointment/promotion of the incumbent to any higher post in substantive capacity. Thus, both under Section 18 of the Act and under the Removal of Difficulties Order the Management of an institution is empowered to make ad hoc appointment by direct recruitment, in the manner laid down in paragraph 5 of the First Removal of Difficulties Order only when such vacancy cannot be filled by promotion and for a period till a candidate duly selected by the Commission joins the post. As noticed earlier both Section 18 of the Act and the provisions of First Removal of Difficulties Order provide for ad hoc appointment of teacher in the institution, later further providing for method and manner of such appointments are part of one scheme. Scheme being provision for ad hoc appointment of teacher in the absence of duly selected teachers by the Commission. The provisions may be two but the power to appoint is one and the same and therefore, the provisions contained in Section 18 and Removal of Difficulties Order are to harmonized. It is, therefore, not correct to say that appointment of a teacher on ad hoc basis is either under Section 18 of the Act or under the Removal of Difficulties Order. Thus, if contingency arises for ad hoc appointment of teacher by direct recruitment, the procedure provided under the First Removal of Difficulties Order has to be followed. Paragraph 5 of the First Removal of Difficulties Order provides that the management shall, as soon as may be, inform the District Inspector of Schools about the details of vacancy and the District Inspector of Schools shall invite application from the local Employment Exchange and also through public advertisement in atleast two news papers having adequate circulation in Uttar Pradesh. Sub paragraph (3) of paragraph 5 further provides that every such application shall be addressed to the District Inspector of Schools. Sub-paragraph (4) of paragraph 5 of the Removal of Difficulties Order provides that the District Inspector of Schools shall cause the best candidate selected on the basis of quality point specified in Appendix. The complication of quality point may be done by the Retired Government Gazetted Officer, in the personal supervision of the Inspector. Paragraph 6 of the First Removal of Difficulties Order further provides for appointment of such teacher under paragraph 5 who shall possess such essential qualification as laid down in Appendix A referred to in the Regulation I of Chapter II of the Regulations made in the Intermediate Education Act.

42. In view of these provisions the ad hoc appointment of a teacher by direct recruitment can be resorted to only when the condition precedent for exercise of such powers as stated in paragraph 18 of the Act are present and only in the manner provided for in paragraph 5 of the Removal of Difficulties Order. This view of mine finds support in a number of decisions, namely, Rang Bahadur Singh and others v. District Inspector of Schools, Saharanpur, 1991 (2) UPLBEC page 1079 and Lalta Prasad Yadav and others v. State of U.P., 1988 UPLBEC page 345. When a teacher is appointed on ad hoc basis is in accordance with the paragraph 5 of the First Removal of Difficulties Order there is further no requirement of approval or prior approval of the District Inspector of Schools for such appointment. However, it goes without saying that if a management without following the procedure indicated above makes an ad hoc appointment the District Inspector of Schools possess general power under the Payment of Salaries Act to stop payment of salary to such teacher."

The judgment of Full Bench of this Court, in the case of Km. Radha Raizada has been approved in the case of Prabhat Kumar Sharma and others Vs. State of U.P. 1996 (10) SCC 62. Relevant paragraphs 6, 7, 10 are as follows:

"We are not concerned in this case with the Second Removal of Difficulties Order 1981 which deal with filling up of short-term vacancies of ad hoc teachers. It is, therefore, not necessary to deal with the procedure prescribed in that behalf. The Full Bench as elaborately considered the legislative history. In paragraphs 23 and 27 it had dealt with the amendments to the U.P. Intermediate Education Act, 1921 and various provisions of Ordinance 8 of 1981. The object was to provide teachers selected through the Commission or the Board with a view to raise the standard of education and in the event of there being delay in allotting the selected teachers, with view to allow the institution to appoint teachers on ad hoc basis so as to avoid hardship to the students. Procedure and Section 18 was provided for appointment of such teachers in the institutions purely on ad hoc basis in accordance with the procedure prescribed thereunder. The method of recruitment and appointment of such teachers is regulated in para 5 of the First 1981 Order The appointment, therefore, should be made in accordance with the said procedure. In paragraph 41 of the judgment, it has expressly dealt with a appointment as under:

"41 It has already been noticed that Section 18 of the Principal Act provides for power to appoint a teacher purely on ad hoc basis either by promotion or by direct recruitment against the substantive vacancy in the institution when the condition precedent for exercise of powers exist namely that the Management has notified the said vacancy to the Commission in accordance with the provisions of the Act and the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher within one year from the date of such notification of the post of such teacher has actually remained vacant for more than two months. However, since the State Government was alive to the situation that the establishment of the Commission may take long time and even after it is established, it may take long time to make available the required teacher in the institution and as such issue three Removal of Difficulties Order dated 30.1.82 and Removal of Difficulties Order dated 14.4.1982. In fact these Removal of Difficulties Orders were issued to remove the difficulties coming in the way of a Management in running the institution in absence of teachers. This power to appoint ad hoc teachers by direct recruitment thus, it available only when pre-conditions mentioned in Section 18 of the Act are satisfied, secondly, the vacancy is substantive vacancy and thirdly, the vacancy could not be filled by promotion. Neither the Act nor the Removal of Difficulties order defined vacancy. However, the vacancy has been defined in Rule 2(11) of U.P. Secondary Education Services Commission Rules 1983. 'Vacancy' means 'a vacancy arising out as a result of death, retirement resignation, termination, dismissal, creation of new post or appointment prevention of the incumbent to any higher post in substantive capacity. Thus, both under Section 18 of the Act and under the Removal of Difficulties Order, the Management of an institution is empowered to make ad hoc appointment by direct recruitment, in the manner laid down in paragraph 5 of the First Removal of Difficulties Order only when such vacancy cannot be filled promotion and for a period till a candidate duly selected by the Commission joins the post. As noticed earlier both Section 18 of the Act and the provisions of First Removal of Difficulties Order provide for ad hoc appointment of teacher in the institution, later further providing for method and manner of such appointments are part of the scheme. Scheme being provision for ad hoc appointment of teacher in the absence of duly selected teachers by the Commission. The provisions may be two but the power to appoint is on and the same and, therefore, the provisions contained in Section 18 and Removal of Difficulties Order are to harmonized. It is, therefore, not correct to say that appointment of a teacher on ad hoc basis is either under Section 18 of the Act or under the Removal of Difficulties Order. Thus, if contingency arises for ad hoc appointment of teacher by direct recruitment the procedure provided under the first Removal of Difficulties Order has to be followed. Paragraph 5 of the First Removal of Difficulties Order provides that the management shall, as soon as may be, inform the District Inspector of Schools about the details of vacancy and the District Inspector of Schools shall invite applications from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh. Sub paragraph (3) of paragraph 5 further provides that every such application shall be addressed to the District Inspector of Schools. Sub paragraph (4) of paragraph 5 of the Removal of Difficulties Order provides that the District Inspector of Schools shall cause the best candidate selected on the basis of quality point specified in Appendix. The complication of quality point may be done by the Retired Government Gazetted Officer, in the personal supervision of the Inspector. Paragraph 6 of the First Removal of Difficulties Order further provides for appointment of such teacher under paragraph 5 who shall possess such essential qualification as laid down in Appendix A referred to in the Regulation 1 of Chapter II of the Regulations made in the Intermediate Education Act.

42.In view of these provisions the ad hoc appointment of a teacher by direct recruitment can be resorted to only when the condition precedent for exercise of such powers as stated in paragraph 18 of the Act are present and only in the manner provided for in paragraph 5 of the Removal of Difficulties Order.

".......Thus, both under Section 18 of the Act and under the Removal of Difficulties Order the Management of an institution is empowered to make ad hoc appointment by direct recruitment, in the manner laid down in paragraph 5 of the First Removal of Difficulties Order only when such vacancy cannot be filled by promotion and for a period till a candidate duly selected by the Commission, joins the post. Both Section 18 of the Act and the provisions of First Removal of Difficulties Order provide for ad hoc appointment of teacher in the institution, later further providing for method and manner of such appointments are part of one scheme. Scheme being provision for ad hoc appointments of teacher in the absence of duly selected teachers by the Commission. The provisions may be two but the power to appoint is one and the same and, therefore, the provisions contained in Section 18 and Removal of Difficulties Order are to harmonised. It is therefore, not correct to say that appointment of a teacher on ad hoc basis is either under Section 18 of the Act or under the First Removal of Difficulties Order. Thus if contingency arises for ad hoc appointment of teacher by direct recruitment the procedure provided under the First Removal of Difficulties Order has to be followed.

7. It would thus be clear that any ad hoc appointment of the teachers under Section 18 shall be only transient in nature. Pending allotment of the teachers selected by the Commission and recommended for appointment. Such ad hoc appointments should also be made in accordance with the procedure prescribed in para 5 of the First 1981 Order which was later streamlined in the amended Section 18 of the Act with which we are not presently concerned. Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees. The removal of difficulties envisaged under Section 33 was effective not

only during the period when the Commission was not constituted but also even thereafter as is evident from second paragraph or the preamble to the First 1981 Order which reads as under:

"And whereas the establishment of the Commission and the Selection Boards as likely to take some time and even after the establishment of the said Commission and Boards, it is not possible to make selection of the teachers for the first few months."

10. These principles are unexceptionable. However, the question is whether they get attracted to the facts of this case. It is seen that when intimation was given by the college to the Commission for allotment of the teachers, the Act envisaged that within one year the recommendation would be made by the Commission for appointment; but within two months from the date of the intimation if the allotment of the selected candidates is not made to obviate the difficulty of the Management in imparting education to the students, Section 18 gives power to the Management to make ad hoc appointments. Section 16 is mandatory. Any appointment in violation thereof is void. As seen prior to the Amendment Act of 1982 the First 1981 Order envisages recruitment as per the procedure prescribed in para 5 thereof. It is an in-built procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the Management to any posts in aided institution. It is obvious that when the salary is paid by the State to the Government aided private educational institutions, public interest demands that the teachers' selection must be in accordance with the procedure prescribed under the Act read with the First 1981 Order. Therefore, the Order is a permanent one but not transient as contended for. The Full Bench of the High Court has elaborately considered the effect of the Order and for cogent and valid reasons it has held that the Order will supplement the power to select and appoint ad hoc teachers as per the procedure prescribed under Section 18 of the Act. The view taken by the Division Bench following the Full Bench decision, therefore, cannot be faulted with. Accordingly, we find no merit in special leave petition."

The inevitable conclusion is that even in the matter of selection and appointment on adhoc basis made against the substantive vacancy under Section 18 of U.P. Act No. V of 1982, procedural front has to be adhered to as is provided under First Removal of Difficulties Order wherein the Committee of Management of the institution concerned is obligated to inform the vacancy to the District Inspector of Schools and thereafter the District Inspector of Schools is obligated to advertise the vacancy in question and carry out the selection based on quality point marks.

On this parameter once claim of Hari Ram respondent-appellant no. 2 is being examined. As far as appointment of Hari Ram is concerned, his appointment has been claimed to have been made in exercise of authority vested under Section 18 of U.P. Act No. V of 1982 and accepted position is that the procedure prescribed under First Removal of Difficulties Order, 1981 has not at all been adhered to as First Removal of Difficulties Order, clearly talks of advertisement and also clearly talks about the fact that selection is to be made on the basis of quality point marks awarded on the basis of marks obtained in High School, Intermediate, Graduate level and Post Graduate level and here without following the procedure prescribed purported selection has been made based on the strength of interview in question. Under First Removal of Difficulties order, there is no provision to make selection/appointment on the post of teacher by way of interview, rather selection is to be made on the basis of quality points marks as specified in the Appendix to the First Removal of Difficulties Order. In view of this, procedure that has been adopted and adhered to by the Committee of Management is not at all in consonance with the procedure prescribed under Para-5 of the First Removal of Difficulties Order. District Inspector of Schools at the point of time when he has proceeded to accord approval, at no point of time has ever considered all these aspect of the matter and to the contrary has proceeded to mention that advertisement has been made and appointment has been made without going into this aspect of the matter, as to whether requisite procedure as prescribed stand fulfilled or not.

Consequently selection and appointment of appellant-defendant appellant no. 2 made under purported exercise of authority under Section 18 of U.P. Act No. V of 1982 read with Para-5 of First Removal of Difficulties Order is void and cannot be subscribed. Learned Single Judge, has rightly quashed the order passed in favour of Hari Ram by District Inspector of Schools.

In view of the aforesaid discussion, present special appeal is partly allowed. Appointment of both the incumbents i.e. appellant no. 2 and respondent no. 4 are held to be illegal/void. Payment already made to them be not recovered in the peculiar facts of the case.

Order Date :- 9.12.2015

Dhruv