Sarvjeet Yadav vs Director Education (Secondary) & ...
2015 Latest Caselaw 5547 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									       AFR
 
					       Judgment reserved on  25.8.2015
 
					        Judgment delivered on 18.12.2015
 

 
Case :- WRIT - A No. - 50074 of 2000
 
Petitioner :- Sarvjeet Yadav
 
Respondent :- Director Education (Secondary) & Others
 
Counsel for Petitioner :- K.K.Tripathi
 
Counsel for Respondent :- C.S.C.
 
Connected with 
 
Case :- WRIT - A No. - 11710 of 2013
 
Petitioner :- Sarvjeet Yadav
 
Respondent :- State Of U.P.Thru Secy & Ors.
 
Counsel for Petitioner :- Radha Kant Ojha,A.B. Bhushan,Adarsh  Bhushan
 
Counsel for Respondent :- C.S.C.,P.N.Tripathi,Pradeep Verma,	 Siddharth Khare
 

 
Hon'ble Mahesh Chandra Tripathi,J.

1. Heard Shri Anil Bhushan, Senior Advocate assisted by Shri Om Kumar Srivastava, learned counsel for the petitioner and Shri Pankaj Rai, learned Additional Chief Standing Counsel for the State respondents. Shri Ashok Khare, Senior Advocate assisted by Shri P.N. Tripathi has appeared for Committee of Management, Sarvodaya Inter College, Sudanipur, District Jaunpur.

2. In Writ A No.50074 of 2000 the petitioner has prayed for quashing the order dated 12.6.2000 passed by the Joint Director of Education (Secondary), Varanasi Region, Varanasi-respondent no.2 and has further prayed for direction commanding the respondent no.2 to recall the order dated 12.6.2000 and re-hear his case and to pay his salary due from December, 1998 till today alongwith the current salary as and when it falls due in future.

3. In the connected Writ A No.11710 of 2013 the petitioner has prayed for quashing the impugned order dated 26.12.2012 passed by the Director of Education (Secondary), Government of UP, Lucknow and the order dated 19.1.2013 passed by District Inspector of Schools, Jaunpur and has further prayed for direction commanding the respondents to permit him to continue to work as L.T. Grade Teacher in the institution.

4. Brief facts giving rise to these writ petitions are that 'Sarvodaya Inter College, Sudanipur, District Jaunpur' (hereinafter referred to as the institution) is a recognized and aided Intermediate College and the provisions of U.P. Intermediate Education Act, 1921, Payment of Salary Act, 1971 and Act No.5 of 1982 are fully applicable to the aforesaid institution. There were 05 sanctioned posts of Lecturer in the institution, 11 posts of L.T. Grade Teacher, 14 posts of C.T. Grade Teacher and after C.T. Grade having been declared as dying cadre, admittedly there are 25 posts of L.T. Grade Teachers. Two additional posts of L.T. Grade teachers had also been created in the year 1991, hence total posts became to 27. There was a vacancy of Lecturer in History in the institution under 50% promotional quota. Shri Ram Bali Yadav passed M.A. in History and he was senior-most Assistant Teacher L.T. Grade in the institution. The Committee of Management vide its resolution dated 2.8.1989 promoted Shri Ram Bali Yadav as Lecturer in History and in pursuance thereof, he had taken over the charge of Lecturer on 26.2.1990. Since Shri Vijay Prakash Maurya, Assistant Teacher C.T. Grade had not completed ten years' service in 1988, he was given promotion in L.T. Grade on adhoc basis by the Committee of Management vide resolution dated 20.6.1988 and as such, one vacancy of Assistant Teacher in L.T. Grade came into existence.

5. The Committee of Management of the institution informed the District Inspector of Schools, Jaunpur on 20.3.1990 about the short term vacancy and after giving information, the vacancy was notified on the notice board on 25.5.1992. The petitioner was selected as Assistant Teacher in L.T. Grade on 15.6.1992 and the relevant papers were forwarded to the District Inspector of Schools on 26.6.1992. The District Inspector of Schools granted approval to the petitioner's appointment on 10.7.1992 and the petitioner had been permitted to join as L.T. Grade Teacher on 11.7.1992. When he was not paid his salary, he filed a Writ Petition No.14010 of 1995, which was disposed of on 23.5.1995. In compliance of the order of this Court dated 23.5.1995, the District Inspector of Schools, Jaunpur granted approval for payment of salary to the petitioner on 16.9.1997. He had drawn his salary from January, 1998 to November, 1998. Despite the approval granted by the District Inspector of Schools to his appointment, his salary has been stopped since December, 1998 without assigning any reason. He again filed Writ Petition No.10957 of 2000 for payment of salary. The said writ petition was disposed of with direction to the respondent no.2 in the said writ petition to pass appropriate orders in accordance with law on the representation of the petitioner dated 27.1.2000. When no decision was taken, the petitioner filed a Contempt Petition No.1984 of 2000 in which notices were issued to the Joint Director of Education. By the impugned order dated 12.6.2000 the Joint Director of Education (Secondary), Varanasi Region, Varanasi rejected the representation of the petitioner for payment of salary as Assistant Teacher in L.T. Grade, giving rise to Writ A No.50074 of 2000.

6. Thereafter the petitioner approached the State Government for payment of salary. On 14.7.2003 the Special Secretary, Government of UP passed an order directing the District Inspector of Schools to release the salary of the petitioner on the post of Assistant Teacher in L.T. Grade. The District Inspector of Schools passed the consequential order on 22.12.2003 releasing the salary of the petitioner and pursuant to the aforesaid order, the petitioner was getting salary month to month regularly. The dispute with regard to the management is going on between Om Prakash Gupta and Gyan Chand Yadav and admittedly, there is no valid Committee of Management in the institution. Even though Shri Om Prakash Gupta has filed the Writ Petition No.26045 of 2012 making averment that he is the recognized Manager of the institution and obtained an order on 24.5.2012 for deciding the representation pending before the Director of Education (Secondary) under Section 16-E (10) of the Intermediate Education Act, 1921. On 05.7.2012, notice was sent to the petitioner by the Director of Education (Secondary) fixing the date 16.7.2012. On 16.7.2012 the petitioner came to know about the date from the office of the District Inspector of Schools and appeared before the Director of Education. Since brother of the complainant Om Prakash Gupta is serving in the postal department, the notice was served on the son of the petitioner on 17.7.2012. By the order dated 26.12.2012 challenged in Writ A No.11710 of 2013, the Director of Education (Secondary), U.P. Lucknow accepted the representation of Shri Om Prakash Gupta dated 8.6.2012 and terminated the services of the petitioner. The Director of Education (Secondary) also directed the Joint Director of Education, Varanasi to recover the entire amount paid towards salary from the petitioner.

7. Learned counsel for the petitioner submitted that the Joint Director of Education (Secondary), Varanasi Region, Varanasi passed the impugned order dated 12.6.2000 without affording any opportunity of hearing and before passing the said order, no notice was served on the petitioner directing him to produce the documents regarding his appointment and approval. Inspite of clear cut direction, when no decision was taken for payment of his salary, the petitioner filed the Contempt Petition No.1984 of 2000, in which notices were issued to the respondents on 15.5.2000. The Joint Director of Education became annoyed with the petitioner after issuance of contempt notice and passed the order dated 12.6.2000 rejecting the claim of petitioner for payment of salary. The petitioner moved an application for recalling the order on the ground that he has not been served any notice about the date of hearing and the representation had been rejected ex-parte without affording opportunity of hearing. Since the petitioner is approved L.T. Grade Teacher and his salary had been stopped by the educational authority without recalling the order of approval, the petitioner approached the State Government for payment of salary. The Special Secretary passed the order dated 14.7.2003 directing the District Inspector of Schools to release his salary on the post of Assistant Teacher L.T. Grade. The District Inspector of Schools passed the consequential order dated 22.12.2003 releasing the salary of the petitioner and pursuant to the aforesaid order, the petitioner was getting salary month to month regularly.

8. It is submitted by learned counsel for the petitioner that the dispute with regard to the management was going on between Om Prakash Gupta and Gyan Chand Yadav. Admittedly there is no valid Committee of Management in the institution. Even though Om Prakash Gupta filed the writ petition claiming that he is the recognized Manager of the institution and obtained an order dated 24.5.2012 for deciding the representation pending before the Director of Education (Secondary). In pursuance of the order of this Court dated 24.5.2012 the Director of Education allowed the representation of Om Prakash Gupta dated 8.6.2012 and terminated the services of the petitioner and further directed to recover the salary paid to the petitioner. The Director of Education has overlooked the report of District Inspector of Schools and cancelled the appointment of the petitioner on two grounds namely as to how and when the vacancy of LT Grade came into existence and the appointment was made without advertising the vacancy.

9. Learned counsel for the petitioner submitted that under Section 16-E (10) of U.P. Intermediate Education Act, 1921 (in short, the Act) the Director of Education is empowered to cancel the appointment of a person, if the same has been made in contravention of any provision of the Act. The Director of Education cancelled the appointment of the petitioner without affording any opportunity of hearing. The Director of Education has exercised powers under Section 16-E (10) of the Act after reference having been forwarded by the District Inspector of Schools on the recommendation of the Committee of Management under Section 16-E (8) of the Act. The Director of Education has directly entertained the application under Section 16-E (8) of the Act filed by Om Prakash Gupta claiming himself to be the Manager of the Committee of Management but in fact he was not the Manager of the Committee of Management. The Director of Education does not have suo moto powers to cancel the appointment and as such, whole exercise undertaken by the Director of Education on the representation of Om Prakash Gupta is without jurisdiction.

10. One Ram Bali Yadav, Assistant Teacher L.T. Grade was promoted as Lecturer in History in the year 1980 and on the vacancy caused due to promotion of Ram Bali Yadav, Vijay Prakash Maurya was promoted as L.T. Grade Teacher on adhoc basis. The petitioner was appointed on the vacancy caused due to adhoc promotion of Vijay Prakash Maurya, Assistant Teacher in L.T. Grade and the District Inspector of Schools accorded approval to the appointment of the petitioner on 16.9.1997.

11. Learned counsel for the petitioner submitted that the District Inspector of Schools in his reply stated that Om Prakash Gupta is not Manager of the institution and the Manager of the institution is Gyan Chand Yadav and the appointment of the petitioner was made in accordance with provisions of the Act and U.P. Secondary Education Service Commission (Removal of Difficulties) II Order, 1981 and the approval in this regard had also been accorded by the District Inspector of Schools. When the salary of the petitioner has been stopped, he approached the State Government and the State Government passed an order in favour of the petitioner for payment of his salary. By the impugned order, the Director of Education has accepted the representation of Om Prakash Gupta, who was not the Manager of the institution, when the writ petition was filed. The appointment of the petitioner was made within the sanctioned strength and educational authority after looking into the papers has accorded approval. Since the appointment was made against the short term vacancy, there was no requirement to advertise the aforesaid vacancy and the vacancy was advertised on the notice board. In the judgment of K.N. Dwivedi vs. District Inspector of Schools 1994 (1) UPLBEC 461, there was no requirement under law to advertise the vacancy in the newspaper and as such, the order dated 26.12.2012 passed by the Director of Education is not sustainable in the eyes of law and the same is liable to be set aside. The petitioner has been dismissed from service after 20 years and without giving any proper notice or opportunity of hearing. It was incumbent to the Director of Education to supply all the complaints filed by Om Prakash Gupta but no such exercise had been undertaken.

12. It is submitted that the appointment of the petitioner was made prior to the Full Bench judgment in Radha Raizada vs. Committee of Management (1994) 3 UPLBEC 1551 and as such, there was no requirement for advertising the vacancy in the newspapers in view of Removal of Difficulties Second Order, 1981 and the aforesaid aspect of the matter has been considered by a Division Bench of this Court in Ashika Prasad Shukla vs. District Inspector of Schools, Allahabad and another (1998) 3 UPLBEC 1722. The Director of Education can exercise the aforesaid powers within reasonable time. By the impugned order, the appointment of the petitioner has been cancelled after 20 years, which is not permitted in view of law laid down by Full Bench in Dr. Asha Saxena vs. Smt. S.K. Chaudhary (1991) 2 UPLBEC 1202. In paragraph-16 of the judgment, the Full Bench observed as follows:-

"16. If that be so, the controversy regarding seniority of the three lecturers was determined by the Managing Committee on 29.4.1976. The aforesaid seniority list had remained in existence since then. The argument raised by the learned counsel for Dr. Asha Saxena that she got a right to file objections only when the seniority list was prepared in the year 1985-86 is not tenable. This argument is also not tenable because it has come on the record that the seniority list gradewise was prepared even earlier to the year 1985 and no objection had been filed. The law is well settled that the Court will not interfere with a seniority list which had remained in existence for a long time and which had become final. In the present case the Management had determined the seniority on 29.4.1976. This decision had been taken after affording opportunity to Dr. Asha Saxena. She did not file any appeal against the decision of the Committee of Management even though an appeal may have been preferred. Objections by Dr. Asha Saxena had been filed after a lapse of nearly 15 years. In the objections, which have been filed an Annexure "3" to the writ petition, of Dr. Asha Saxena, she has not taken a ground that seniority list was not prepared every year. The only objection raised was that she did not know about the insertion of provisions of Section 3(l)(bb) in Chapter II and she filed the objections after coming to know of the aforesaid provisions. The seniority list has been existing since the year 1975-76 and we are not prefared to quash seniority list after a lapse of nearly 15 years. The Supreme Court in the case of Malcom Lawrence Cecil D'Souza v. Union of India A.I.R. 1975 SC 1269 = 1975 LIC 816 (Paras 8 and 9) has held:

"The matter can also be looked at from another angle. The seniority of the petitioner qua respondents 4 to 26 was determined as long ago as 1956 in accordance with 1952 Rules. The said seniority was reiterated in the seniority list issued in 1958. The present writ petition was filed in 1971. The petitioner, in our opinion, cannot be allowed to challenge the seniority list after lapse of so many years. The fact that a seniority list was issued in the year 1971 in pursuance of the decision of this Court in Karnik's case, AIR 1970 SC 2092 (supra), would not cloth the petitioner with a fresh right to challenge the fixation of his seniority qua respondents 4 to 26 as the seniority fist of 1971 merely reflected the seniority of the petitioner qua those respondents as already determined in 1956. Satisfactory service conditions postulate that there should be no sense of uncertainty amongst public servants because of stale claims made after lapse of 14 or 15 years. It is essential that any one who feels aggrieved with an administrative decision affecting one's seniority should act with due diligence and promptitude and not sleep over the matter. No satisfactory explanation has been furnished by the petitioner before us for the inordinate delay in approaching the Court. It is no doubt true that he made a representation against the seniority list issued in 1956 and 1958 but that representation was rejected in 1961. No cogent, ground has been shown as to why the petitioner became quiescent and took no diligent steps to obtain redress. Although security of service cannot be used as a shield against administrative action for lapses of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of seniority. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one's position in the seniority list after having been settled for once should not be liable to be reopened after lapse of many years at the instance of the party who has during the intervening period chosen to keep quiet. Baking of old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time."

Learned counsel appearing for Dr. Asha Saxena has also urged before us that the Regional Inspectress of Girls Schools has found the appointment of the three teachers invalid as on the date of appointment none of them had the requisite qualifications for being promoted to the post of lecturer in the College. It has been urged that the Full Bench on an earlier occasion relying on the decision of the Supreme Court in the case of Ram Sarup v. State of Haryana AIR 1978 SC 1536 = 1978 L.L.C. 1535 has held that the three teachers should be deemed to have been appointed from the date on which they would acquire qualifications for being promoted to the post of lecturers. At the very outset it may be mentioned that the earlier writ petition of Dr. Asha Saxena had been allowed inasmuch as complete material had not come before the Full Bench regarding the fact that Dr. Asha Saxena had filed objections immediately after her promotion which had been rejected and had become final. It has also not been brought to the notice of the Full bench that seniority list grade-wise was prepared every year after the incorporation of Chapter III in the year 1976. It may also be noted that Dr. Asha Saxena has not challenged the validity of the appointment and had only made a challenge to the seniority list. One fails to understand that after a lapse of nearly 17 years the Regional Inspectress of Girls Schools referred the matter to the Director of Education for adjudicating the question as to whether the appointments were valid or not. In our opinion, the exercise of power by the Regional Inspectress of Girls Schools on the facts and circumstances of the case is wholly arbitrary as that power could not be exercised after lapse of 17 years. The objections filed by Dr. Asha Saxena in the year 1986 which are contained in Annexure "3" to the writ petition are liable to be rejected inasmuch as the ground that she did not know the provision of Clause 3(1)(bb) in Chapter II was of no avail to her. The seniority lists were being prepared year after year after 1975-76 and the objection filed by Dr. Asha Saxena after the lapse of nearly 11 years was not liable to be entertained as has been held by the Supreme Court in the case of Malcom Lawrence Cecil D'Sousa (1975 L.I.C. 816) (supra). In any view of the matter, the appointments which were existing for the last 17 years could not be set aside after a lapse of such a long period. Even the earlier Full Bench had quashed the order of the Regional Inspectress of Girls Schools referring the matter under Section 16-E(10) of the Act we are also of the opinion that the aforesaid order is liable to be quashed. It is true that there is power under Section 16-E (10) of the Act to cancel the appointments but the power has to be exercised within a reasonable time. The appointments had been made in the year 1973 and by no stretch of imagination it can be said that the exercise of that power after the /apse of 17 year by the Director of Education under Section 16-E(10), on the facts and circumstances of the case can be said to be exercise of a power within a reasonable time. In our opinion, the order of the Regional Inspec-tress of Girls Schools referring the matter to the Director of Education under Section 16-E(10) is thus liable to be quashed."

13. It is further submitted that Vijay Prakash Maurya, Assistant Teacher in C.T. Grade was promoted on adhoc basis as L.T. Grade and since C.T. Grade became dying cadre, hence in view of the Government Orders dated 11.8.1989 and 4.9.1990, the petitioner was appointed as Assistant Teacher, L.T. Grade on the aforesaid vacancy in view of law laid down in Khem Chand vs. State of UP 2006 (2) ESC 860. The District Inspector of Schools approved the appointment of the petitioner on 16.9.1997 and he had been given salary from State exchequer. When his salary was not paid, the petitioner submitted several representations and the Joint Director of Education rejected the representation for payment of salary. The petitioner approached the State Government and in pursuance of the order passed by the Special Secretary dated 14.7.2003, the petitioner started getting salary and had peen paid salary upto November, 2010. The order dated 14.7.2003 has never been challenged by any of the respondent and as such, the Government being the highest authority and the order of the Government can only be annulled by the State Government but by the impugned order the Director of Education set aside the order of the State Government for which he has no jurisdiction.

14. It is submitted that the service book of Vijay Prakash Maurya has been annexed in the counter affidavit stating therein that Vijay Prakash Maurya has been awarded LT Grade after completion of 10 years and as such, there was no vacancy on which the petitioner can be appointed. The service book only refers the pay scale, which was corrected by the authority on 10.3.2000 and the adhoc promotion of Vijay Prakash Maurya has not been mentioned in the service book. Since adhoc promotion does not require any approval, as such the same has not been mentioned in the service book and there was no requirement for approval in view of judgment in the case of Km. Radha Raizada and others Vs. Committee of Management VDGIC 1994 (3) UPLBEC 1551. The petitioner was appointed after notifying the vacancy in the notice board on the basis of quality point mark and his appointment was also approved by the District Inspector of Schools. Shri Vijay Prakash Maurya, who was promoted on adhoc basis in the year 1988 as L.T. Grade, retired on 30.6.2014. Since the petitioner has been working in the institution from 11th July, 1994, hence he is entitled for regularization under Section 33-F of UP Act No.5 of 1982, which provides that the teacher appointed prior to 6th August, 1993 is entitled to be appointed against the short term vacancy and the same has been converted into substantive vacancy.

15. Learned counsel for the petitioner submitted that in service matters only the non-appointees can challenge the legality of the appointment procedure and has placed reliance on Girjesh Shrivastava and others vs. State of Madhya Pradesh and others (2010) 10 SCC 707.

16. Shri Pankaj Rai, learned Additional Chief Standing Counsel, on the other hand, vehemently submitted that the institution in question is recognized and aided Intermediate College and the provisions of U.P. Intermediate Education Act, 1921, Payment of Salary Act, 1971 and Act No.5 of 1982 are fully applicable to the aforesaid institution and as such, alleged claim is unsustainable. The procedure has not been followed. He precisely submitted that when there was no short term vacancy, then whole exercise is farce and void. The alleged claim has been set out on the ground that one Vijay Prakash Maurya, who was Assistant Teacher C.T. Grade, was given promotion on L.T. Grade on 10.3.1990. Hence the Committee of Management informed about the short term vacancy through his letter dated 20.3.1990 to the District Inspector of Schools, Jaunpur and after giving information on the notice board only, the petitioner had been alleged to be appointed on 20.5.1992 on an ad-hoc basis in C.T. Grade. The financial approval was never accorded by the District Inspector of Schools, Jaunpur. Even the Committee of Management had given appointment letter to the petitioner on 10.7.1992 as C.T. Grade Teacher, which was perse void and as such rightly the District Inspector of Schools has not accorded financial approval.

17. Shri Pankaj Rai submitted that both the writ petitions are liable to be dismissed on the ground that once the C.T. Grade has become dying cadre in the year 1989, as such no appointment could be made on C.T. Grade after 1989. Admittedly the petitioner was alleged to be appointed in the year 1992 in C.T. Grade, hence his appointment is void ab-initio. No body can be appointed on the dying cadre. Shri Vijay Prakash Maurya, who was permanent C.T. Grade Teacher, was absorbed in L.T. Grade after the C.T. Grade was declared dying cadre. Hence the contention of the petitioner, that on the promotion of Sri Vijay Prakash Maurya, a short term vacancy arose in C.T. Grade, is misconceived. The orders/letters, by which the salary of the petitioner was released, were found forged and concocted. The Joint Director of Education, Varanasi Region, Varanasi vide his letters dated 10.4.2000 and 17.5.2000 issued notices to all the concerned for hearing and only thereafter vide order dated 12.6.2000 the service of the petitioner was terminated by the Joint Director of Education. Against the order dated 12.6.2000 passed by the Joint Director of Education, the petitioner filed a Writ Petition No.50074 of 2000, in which no interim order was granted in favour of the petitioner. When the services of the petitioner have been terminated by the Joint Director of Education vide order dated 12.6.2000 and the said order has not been interfered, then there was no occasion for payment of salary to the petitioner as there was no order to reinstate or restore the petitioner in service.

18. Shri Ashok Khare, Senior Advocate appearing for respondent no.5 submitted that the entire claim of the petitioner is based upon two orders namely the order dated 16.9.1997 passed by the District Inspector of Schools, Jaunpur and the order dated 14.7.2003 passed by the State Government and both the orders are wholly illegal orders. The order dated 16.9.1997 had come into existence in pursuance of direction issued by this Court on 23.5.1995 in Writ Petition No.14010 of 1995. A bare perusal of the order dated 16.9.1997 would demonstrate that the said order contains no consideration whatsoever with regard to the selection and appointment of the petitioner. The petitioner has obtained the order dated 14.7.2003 by concealment of fact as the Joint Director of Education already rejected the claim of the petitioner on 12.6.2000. The petitioner filed Writ Petition No.50074 of 2000 challenging the order dated 12.6.2000. The State Government does not exercise any power under any provision of law so as to pass the order dated 14.7.2003. During the course of argument the counsel for the petitioner claims that the order of the State Government dated 14.7.2003 is an order referable to exercise of power under Section 9 (4) of Intermediate Education Act, 1921. A bare perusal of Section 9 (4) would demonstrate that it is a power of the State Government to issue directives of general nature in circumstances requiring emergent action at the level of the State Government. Such a power could not have been exercised for issuing individual directions limited for a particular individual.

19. Shri Ashok Khare has submitted that alleged claim has been made against a short term vacancy caused on account of promotion of Vijay Prakash Maurya from Assistant Teacher in C.T. Grade to Assistant Teacher in L.T. Grade. In fact, Vijay Prakash Maurya has not been granted any such promotion. Vijay Prakash Maurya was a permanently appointed Assistant Teacher in C.T. Grade. Upon declaration of C.T. Grade as dying cadre Vijay Prakash Maurya stood absorbed in the pay scale of LT Grade. Such absorption is neither a case of promotion nor does it give rise to any vacancy on the lower post. A perusal of the service book of Om Prakash Gupta-respondent no.5 would demonstrate that Vijay Prakash Maurya was sanctioned LT Grade on completion of ten years' service. There exists no indication in the service book that at any point of time Vijay Prakash Maurya was granted promotion. Even in case it is accepted that Vijay Prakash Maurya had been granted adhoc promotion, the resultant vacancy would be a short term vacancy alone. An adhoc appointee against a short term vacancy is entitled to continue only till such point of time as the short term vacancy continues to exist. The date of birth of Vijay Prakash Maurya is 5.1.1952 and on such basis, he must have retired in June, 2014. He has placed reliance upon a Full Bench judgment of this Court in Pramila Mishra vs. State of UP & others, LAWS (All) 1997-7-69 in which it was held that a teacher appointed by the management of the institution on adhoc 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 alongwith other eligible candidates for adhoc appointment in the substantive vacancy, if he possesses the requisite qualifications. Consequently upon the view taken by us, as noted above, the Full Bench held that the decisions of this Court like Km. Meena Singh's case and other cases taking contrary view, are declared to be no longer good law.

20. Heard the rival submissions and perused the records.

21. The present case has been set out on the basis that one Shri Vijay Prakash Maurya, Assistant Teacher in C.T. Grade was given promotion in L.T. Grade on completion of ten years' service on adhoc basis by the Committee of Management vide resolution dated 20.6.1988 and as such, one vacancy was occurred in L.T. Grade on account of C.T. Grade already declared as dying cadre w.e.f.11.8.1989. The Committee of Management of the institution informed the District Inspector of Schools, Jaunpur on 20.3.1990 about the short term vacancy and after giving adequate information the vacancy was notified on the notice board on 25.5.1992. The petitioner was selected as Assistant Teacher in C.T. Grade on 15.6.1992 and the relevant papers were transmitted to the District Inspector of Schools on 26.6.1992, which was approved by the District Inspector of Schools vide his order dated 10.7.1992 and the petitioner was permitted to join as L.T. Grade teacher on 11.7.1992. When the petitioner was not paid his salary, he approached this Court by means of Writ Petition No.14010 of 1995, which was disposed of on 23.5.1995 and in compliance of the order passed by this Court, the District Inspector of Schools, Jaunpur had granted approval for payment of salary to the petitioner on 16.9.1997. He received his salary since January, 1998 to November, 1998. The whole case has been set out that once the approval was accorded by the District Inspector of Schools on 16.9.1997, and subsequently his salary could not have been stopped since December, 1998 without assigning any reason. Again, the petitioner was compelled to approach this Court by means of Writ Petition No.10957 of 2000 for payment of salary. Finally, the said writ petition was disposed of with direction to the respondents to decide the claim of petitioner. When no decision has been taken, again the petitioner was compelled to approach this Court by means of Contempt Petition No.1984 of 2000. It is alleged that when notice was issued to the Joint Director of Education, he felt annoyed and passed the impugned order dated 12.6.2000 whereby his claim had been rejected, giving rise to Writ A No.50074 of 2000.

22. It also transpires from the record that meanwhile the petitioner had approached to the State Government for payment of salary. Thereafter the Special Secretary, Government of UP vide his order dated 14.7.3003 had directed the District Inspector of Schools for releasing the salary of the petitioner as Assistant Teacher in L.T. Grade and as such consequential order had been passed in favour of the petitioner by the District Inspector of Schools on 22.12.2003 for releasing the salary of the petitioner. Thereafter the petitioner started receiving his monthly salary. Meanwhile, it appears that due to some dispute of Committee of Management, one claimant for the post of Manager namely Om Prakash Gupta filed Writ Petition No.26045 of 2012 in which an order was passed on 24.5.2012 for deciding the representation pending before the Director of Education (Secondary) under Section 16-E (10) of the Intermediate Education Act, 1921. Notices were issued to the petitioner on 5.7.2012 and finally by the impugned order dated 26.12.2012 the Director of Education (Secondary), U.P. Lucknow terminated the services of the petitioner and directed for recovery of entire salary, which has been paid to the petitioner. Since claim has been made against short term vacancy, the State Government by notification dated 7.9.1981 came out with U.P. Secondary Education Service Commission (Removal of Difficulties) II Order, 1981 for filling the short term vacancy. Full mechanism is provided in U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order 1981. Just to appreciate the present controversy U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order 1981 is reproduced hereinafter:-

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

1. Short title and commencement- (1) This order may be called the Uttar Pradesh Secondary Education 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."

23. "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, the 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.

24. On the touchstone of statutory provision holding the field what I find that short term vacancy, as alleged, came into existence on account of promotion of one Vijay Prakash Maurya, who had been promoted from C.T. Grade to L.T. Grade on 10.3.1990. Nothing has been brought on record to show that when LT Grade post had fallen vacant as observed by the Director of Education that Shri Vijay Prakash Maurya had been promoted on the post of LT Grade without any post, whereas as per Government Order No.3299/15-7-89-1 (136)/89 dated 11.8.1989 the C.T. Grade has become dying cadre and as such, it had been shown that Shri Vijay Prakash Maurya had been promoted on the post of L.T. Grade and on his place, the petitioner has been appointed. It has also been stated that the C.T. Grade became dying cadre w.e.f. 11.8.1989. Since Vijay Prakash Maurya had rendered qualifying service, he had been absorbed on the post of LT Grade and as such, it could not be presumed that Shri Vijay Prakash Maurya was promoted on the said post.

25. From the entire record and the pleadings as set out by the petitioner, the Court finds that at no point of time the Manager had ever notified the vacancy on the notice board of the institution inviting applications from eligible candidates and how many candidates including the petitioner pursuant to the said notice proceeded to apply and in the said selection on the basis of computation of quality point marks, the petitioner, on account of having highest quality point marks, was entitled to be offered appointment. Nothing has been brought on record to indicate that such process has ever been adopted while giving an appointment to the petitioner.

26. In Km. Radha Raizada (supra) Hon'ble Full Bench has considered the full details regarding the procedure, which is to be adhered for adhoc appointment of teachers by direct recruitment, adhoc appointment of teacher against short term vacancies, First Removal of Difficulties Order, Second Removal of Difficulties Order and Third Removal of Difficulties Order. For appreciating the present controversy, relevant paragraph nos. 41, 42 and 43 are reproduced hereinafter:-

"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 per-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.

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 sub-paragraph (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."

27. As per law laid down in Radha Raizada's case (supra) the procedure provided in sub-paragraphs (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 sub-paragraph (3) of Paragraph 2 of 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 selected candidates 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 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.

28. The judgment of Full Bench of this Court in the case of Km. Radha Raizada (supra) 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 harmonize. 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."

29. It is reflected from the records that the claim has been set out on the basis that the petitioner was appointed against the short term vacancy caused by promotion of Vijay Prakash Maurya from Assistant Teacher in C.T. Grade to Assistant Teacher in L.T. Grade. As per service record of Vijay Prakash Maurya, which is appended as Annexure CA-1 to the counter affidavit filed on behalf of respondent no.5, it is clear that Shri Vijay Prakash Maurya was given L.T. Grade on completion of ten years' service, which does not give an impression to the Court that at any point of time Shri Vijay Prakash Maurya was granted promotion but in fact the said benefit had been conferred when the C.T. Grade became dying cadre and as such Vijay Prakash Maurya stood absorbed in L.T. Grade pay scale and as such absorption was made while retaining his original post. Therefore, the Court is of the view that such absorption is neither a case of promotion nor does it give rise to any vacancy on the lower post.

30. As already observed that in the present matter also, there is no indication in the service book that at any point of time Shri Vijay Prakash Maurya was granted any promotion. Even in the case it is accepted that Vijay Prakash Maurya had been granted adhoc promotion, the resultant vacancy would definitely be a short term vacancy and adhoc appointee against the short term vacancy is entitled to continue till such vacancy continues to exist. 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."

31. 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 (supra), has mentioned that the appointment stood automatically terminated.

32. While considering the Second Difficulties Order the Hon'ble Full Bench in Km. Radha Raizada (supra) has observed 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.

33. The inevitable conclusion is that even in the matter of selection and appointment for short term vacancy, procedural front has to be adhered to as is provided under Second 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 management shall immediately notify the same on the notice board and carry out the selection based on quality point marks. Since the CT grade became dying cadre w.e.f. 11.8.1989 and as such the alleged appointment in C.T. Grade after 1989, cannot sustain. Admittedly the petitioner was alleged to be appointed in the year 1992 in C.T. Grade, hence his appointment is void ab-initio. No body can be appointed on the dying cadre. Shri Vijay Prakash Maurya, who was permanent C.T. Grade Teacher, was absorbed in L.T. Grade after the C.T. Grade was declared dying cadre. On this parameter also, the case of the petitioner does not fall in such category and at no point of time the procedure has been adhered in the matter and as such no interference is required to be made in the order impugned but however in the interest of justice, it is directed that whatever amount has been paid to the petitioner as salary shall not be recovered.

34. Both the writ petitions are accordingly dismissed.

Order Date :- 18.12.2015

RKP