Deep Chand vs Regional D.D.E. & Others
2015 Latest Caselaw 3393 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 59
 

 
Case :- WRIT - A No. - 34669 of 1997
 

 
Petitioner :- Deep Chand
 
Respondent :- Regional D.D.E. & Others
 
Counsel for Petitioner :- Vashistha Tiwari,Rahul Sahai,S.U. Upadhyay
 
Counsel for Respondent :- SC,P.K.Jain
 

 
Hon'ble Ashwani Kumar Mishra,J.

1. Gandhi Inter College, Chhata, District Mathura (hereinafter referred to as 'institution') is a recognized institution under the provisions of U.P. Intermediate Education Act and payment of salary to the teachers and other staff is governed by the provisions of Payment of Salary Act, 1971.

2. It appears from the record that one Sri Jagan Prasad Sharma retired from the institution, who was substantively appointed Lecturer and Principal of the institution. The vacancy caused in the lecturer grade was filled with adhoc promotion of Sri Ganesh Chand Varsanay from L.T. Grade and an adhoc promotion was offered to Sri Khem Raj Gaur, who was a confirmed Assistant Teacher in C.T. Grade. A short term vacancy in C.T. Grade came into existence, and consequently, a resolution was passed by the Committee of Management, appointing the petitioner as a C.T. Grade teacher and an order of appointment was also issued to the petitioner on 10.9.1988. An approval was also sought for appointment of the petitioner, which came to be granted by the District Inspector of Schools, Mathura, vide his order dated 30.6.1989 w.e.f. 12.9.1988 to 20.9.1989. Pursuant to the financial approval, petitioner was paid salary from month to month. However, the salary of the petitioner was not released in the next academic session 1990-91, though petitioner's appointment stood extended, which gave cause to the petitioner to file Writ Petition No.31988 of 1990. An interim mandamus was issued in the writ ptition to the respondents to pay salary or show cause in the said writ petition, whereafter salary was paid to petitioner, but was again stopped in August, 1991. Upon a representation made by the petitioner, the District Inspector of Schools passed an order on 24.4.1992, clarifying that the status of petitioner continues as before and that the Committee of Management was to ensure payment of salary to the petitioner. Petitioner's Writ Petition No.31988 of 1990 was disposed of vide following order on 28.4.1995:-

"Having heard the learned counsel for the petitioner and having regard to the fact that the petitioner has already maked 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."

3. In pursuance of the directions issued by the writ court, claim of the petitioner has been examined and rejected by the District Inspector of Schools vide order dated 2.7.1997, which is impugned in the present writ petition.

4. The post of C.T. Grade teacher was declared to be a dead cadre govt. order dated 11.6.1989. It appears that the Committee of Management proceeded to send a requisition for the post in question to be filled by appointment in the cadre surviving i.e. L.T. Grade, and as no regularly selected candidate was made available by the Commission, an adhoc appointment was made by the Committee of Management of respondent no.5. However, payment of salary was not released to him, and consequently, respondent no.5 filed a Writ Petition No.30056 of 1994, impleading District Inspector of Schools, Accounts Officer and Committee of Management, as respondents therein, asserting that respondent no.5 was selected and appointed by the Committee of Management on 11.7.1992 and as no orders have been passed relating to financial approval, as such mandamus be issued for the purpose. This writ petition was disposed of on 13.9.1994, requiring the District Inspector of Schools to examine claim of respondent no.5. Relevant portion of the order dated 13.9.1994 is reproduced:-

"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 of making 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."

5. From the records, it transpires that the District Inspector of Schools proceeded to examine the claim of respondent no.5 first. The District Inspector of Schools noticed the stand of the management about the post in C.T. Grade having arisen due to promotion of Sri Khem Raj Gaur on 1.7.1987 and that a requisition for substantive appointment was sent by the management on 24.2.1992 and as no selected candidate was made available, as such the appointment of respondent no.5 was valid and financial approval was granted to such appointment vide order dated 17.12.1996. This is the other order challenged in writ petition.

6. It is worth noticing that in Writ Petition No.30056 of 1994 petitioner was not arrayed as a party and the claim of petitioner was not even referred by the educational authorities, while examining the claim of respondent no.5, though it was prior and pending. The District Inspector of Schools thereafter proceeded to examine the claim of petitioner by a separate order and it was observed that appointment of petitioner had not been made in accordance with the procedure contemplated under the provisions of U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as 'Act of 1982'), inasmuch as vacancy was not advertised in two newspapers and an appointment on C.T. Grade had been banned vide radiogram issued by the State on 20.6.1989. It was further observed that the petitioner for such reason is not entitled to any relief claimed and his representation was accordingly rejected.

7. Sri Ashok Khare, learned senior counsel appearing for the petitioner, submits that appointment of the petitioner was made in September, 1988 in accordance with the provisions of U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to 'Second Removal of Difficulties Order, 1981'), which provided for procedure to be followed in filling up short term vacancies. Learned counsel submits that clause 2(3)(i) of Second Removal of Difficulties Order, 1981 provided for the procedure to be followed in making of appointment to the C.T. Grade post. Clause (ii) required the appointment to be intimated alongwith quality point marks to the District Inspector of Schools for his prior approval. Clause (iii) contemplated a deeming fiction in law with regard to grant of approval, if no decision was intimated within seven days of the date of receipt of proposal by the inspector. Sri Khare with reference to the order of inspector granting financial approval to petitioner's appointment contends that an intimation has been sent to the District Inspector of Schools on 10.9.1988, which got received in the office of inspector on 12.9.1988, and approval was also granted to petitioner's appointment w.e.f. 12.9.1988. Sri Khare further submits that the deeming fiction was clearly attracted in the facts of the present case and even otherwise his appointment had been approved. Clause (iii) of the Second Removal of Difficulties Order, 1981 has also been relied upon, providing that an appointment made was to cease (a) when the teacher was on leave, or joins the post upon reinstatement after suspension; or (b) when the period of six months from the date of such appointment expires; or (c) when the short term vacancy otherwise ceases to exist. It is submitted that by virtue of Third Removal of Difficulties Order, 1982 sub clause (b) which provided for adhoc appointment to end upon expiry of six months was omitted. It is contended that petitioner's appointment was made under the Second Removal of Difficulties Order, 1981 and was liable to be regularized in view of the provisions contained under section 33-A(1-B), but this aspect of the matter has not been noticed. Sri Khare further submits that there was only one post and as the petitioner had continued and his claim was liable to be considered for regularization, the management could not have appointed respondent no.5. It is also stated that the management has categorically admitted before the District Inspector of Schools that a requisition had been sent to the commission for appointment of teacher on L.T. Grade post on 24.2.1992, which presupposes existence of substantive vacancy and in view of the law laid down by 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, no adhoc appointment on such substantive vacancy could otherwise be made by the Committee of Management of institution. Sri Khare submits that this aspect of the matter has been completely omitted from consideration in the orders impugned. It is submitted that so long as the claim of the petitioner was not considered with reference to the applicable provisions of law, no financial approval could be granted to the appointment of respondent no.5.

8. Sri J.P. Singh, learned counsel appearing for respondent no.5, on the other hand, contends that claim of the petitioner has rightly been rejected and respondent no.5 has been appointed, who has been granted financial approval, and he has been working since then and no interference, in such circumstances, is liable to be made in the present writ petition. It is further submitted that during pendency of the writ petition, the Regional Level Committee has also passed an order recognizing the appointment of respondent no.5, which has not been challenged, and therefore, no relief is liable to be granted to the petitioner.

9. Sri V.K. Singh, learned counsel appearing for the Committee of Management, submits that the appointment of petitioner was not made after obtaining approval from the District Inspector of Schools and the petitioner has not substantiated that his appointment is protected by the provisions of Second Removal of Difficulties Order, 1981 and Third Removal of Difficulties Order, 1982. He further submits that in the absence thereof, petitioner's claim for regularization could not be considered under section 33-A of the Act of 1982. It is further submitted that equities clearly stare against the petitioner.

10. I have heard learned counsel for the parties and have examined the materials available on record with reference to the applicable statutory provisions. From the records, it is apparent that educational authorities have first considered the claim of respondent no.5, without even referring to the claim of present petitioner and financial approval had been granted vide order dated 17.12.1996. The order dated 17.12.1996 has been annexed as Annexure-7 to the writ petition. At internal pages 2 & 3 of the said order, District Inspector of Schools has narrated the stand of management as to how the vacancy came into existence, which got filled with adhoc appointment of respondent no.5. It is recorded that appointment of respondent no.5 was made after requisition was sent by the management to the commission on 24.2.1992. It has not been disputed by either of the sides that a requisition can be sent only if a substantive vacancy comes into existence. It is further not disputed by the counsel appearing for the parties that once a substantive vacancy comes into existence, it could not be filled by the Committee of Management while exercising powers under section 18 of the Act of 1982, in view of the law laid down in Radha Raizada (supra).

11. Sri V.K. Singh, learned counsel for the Committee of Management submits that the vacancy on which appointment of respondent no.5 was made was short term and not a substantive vacancy. He further submits that in the counter affidavit filed by the management, it has been stated that a short term vacancy had come into existence.

12. However, nothing has been brought on record to show that recording of stand of management in the order of DIOS that a requisition had been sent to the Commission on 24.2.1992, is incorrect. In the absence of anything shown to the contrary, I am inclined to rely upon the version of management recorded in the order of District Inspector of Schools that a requisition had been sent by the management on 24.2.1992 and that the counsel for the management cannot be permitted to take a stand contrary to it. Once that be the position, a substantive vacancy, according to the management, had come into existence on the L.T. Grade post, over which the management had no right to make an appointment, in view of the law settled in the Full Bench judgment of Radha Raizada (supra). For this reason alone, the grant of financial approval in favour of respondent no.5 vide order dated 17.12.1996 was impermissible. However, this aspect has not been considered in the order, and therefore, the order dated 17.12.1996 is not liable to be sustained.

13. Even otherwise, it is to be observed that the District Inspector of Schools had proceeded to accord financial approval to the appointment of respondent no.5 first, without having considered the claim of petitioner. The course followed by the authorities for consideration of respective claim is not liable to be approved, inasmuch as appointment of petitioner had been made first and as there existed only one post, the claim of respondent no.5 could be considered only if the claim of petitioner was considered and rejected. Vice versa, as has been done, was impermissible.

14. Coming to petitioner's claim it is to be observed that appointment of petitioner had been made on 10.9.1988, which was prior to the decision of State to declare C.T. Grade as a dead cadre. The appointment was made on a short term vacancy in the C.T. Grade allegedly in accordance with the provisions of Second Removal of Difficulties Order, 1981 and if it was so, then such appointment was liable to be considered for regularization by virtue of provisions contained in section 33-1(1-A) of the Act of 1982. Clause (1-A) in section 33-A was introduced by U.P. Act No.26 of 1991, which dealt with regularization of certain appointment and it reads as under:-

"(1-A) Every teacher appointed by promotion on adhoc 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 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."

The facts that petitioner claims appointment under paragraph 2 of Removal of Difficulties Order and he was working on 6.4.1991 i.e. date of introducing of Amendment Act of 1991 are not disputed.

15. In the facts of the present case, it is apparent that a short term vacancy on the C.T. Grade post had arisen in 1987 against which petitioner came to be appointed on 10.9.1988. Although such appointment did require a prior approval, but the procedure contemplated under clause (iii) of Second Removal of Difficulties Order, 1981 did contemplate a deemed approval if no decision was taken within a week of the proposal being made to the inspector. The order dated 30.6.1989 clearly refers to a communication received from the management of the institution dated 10.9.1988 in the office of District Inspector of Schools on 12.9.1988, with regard to appointment of petitioner which was also approved by the District Inspector of Schools w.e.f. 12.9.1988. The provision contained in the Second Removal of Difficulties Order, 1981 providing for such appointment to end after expiry of six months had been subsequently omitted. In such circumstances, prima facie the claim of petitioner for regularizing his appointment did merit consideration by the inspector with reference to the provisions of Second Removal of Difficulties Order, 1981 and Third Removal of Difficulties Order, 1982 read with section 33-A of the Act of 1982, which admittedly has not been done. A Division Bench of this Court in Ashika Prasad Shukla v. District Inspector of Schools, Allahabad and Another: (1998) 3 UPLBEC 1722 (DB) considered the issue of prior approval for an adhoc appointment made against short term vacancy. In para 15 & 16 following proposition has been laid down:

"15. The next question that falls for consideration is whether the appointment of the petitioner-appellant could still stand invalidated on the ground that it was made without prior approval of the District Inspector of Schools. Sri Yatindra Singh placed reliance on a Division Bench decision of this Court in A. K. Pathshala v. Smt. M. D. Agnihotri, 1971 All LJ 983, wherein it was held, on construction of Section 16F (1) of the U. P. Intermediate Education Act, 1921, that appointment without prior approval by the Competent Authority would, in the eye of law, be no appointment. The ratio of the said decision as held by a subsequent Division Bench in Lalit Mohan Misra v. District Inspector of Schools. 1979 All LJ 1025, is that a "person gets the status of a teacher when requisite formality is completed." The relevant observations are as under :

"Without approval the person does not get the status of a teacher even though the approval is to be followed by formal letter but in the absence of formal letter the person gets the status of a teacher after approval to the appointment is given by the District Inspector of Schools. The appointment of a person as a teacher becomes effective only from the date approval is given and even if a person is allowed to work before that the same has no recognition under the U. P. Intermediate Education Act."

16. Paragraph 2 (3) (iv) of the Second Removal of Difficulties Order is not phrased in a prohibitory language as was the language used in Section 16F (1) of the U. P. Intermediate Education Act, 1921. The words 'prior approval' have been used in sub-clause (ii) of paragraph 2 (3) of the Second Removal of Difficulties Order and a conjoint reading of sub-clauses (it), (Hi) and (iv) of clause (3) of paragraph 2. no doubt, leads to an inescapable conclusion that the appointment would be issued under the signature of the Manager only on the approval having been communicated by the District Inspector of Schools within seven days of the receipt of the papers or where the approval is deemed to have been accorded as visualised by sub-clause (Hi) of clause (3) of paragraph 2 of the Second Removal of Difficulties Order. However, appointment, if made prior to approval or deemed approval, would become effective from the date of approval or deemed approval as held by the Division Bench of this Court in Lalit Mohan Misra (supra). There is nothing on the record to connote that prerequisite conditions attracting deemed approval were not satisfied in the instant case. The learned single Judge has also not addressed himself to this facet of the matter and the Judgment under appeal on this score too cannot be sustained."

16. The District Inspector of Schools in his order dated 2.7.1997 has vaguely referred to non-compliance of provisions of the Act of 1982 in the appointment of the petitioner, but the order is silent about the exact shortcoming in the appointment of the petitioner. From the perusal of the order dated 2.7.1997, this Court finds that the District Inspector of Schools completely misdirected himself in examining the question, which fell for his consideration. The inspector was swayed more by the fact that by a radiogram issued on 20.6.1989 appointments had been banned without realizing the fact that such a radiogram had no impact on the petitioner's appointment as his appointment had been made prior to it, and the radiogram could not be retrospective. It has further been mentioned in the order that vacancy was not advertised in two newspapers, ignoring the fact the procedure contemplated in Radha Raizada (supra) for filling up short term vacancy by publication in two well known newspapers was to apply prospectively. A Division Bench of this court in Ashika Prasad Shukla (supra) noticed the theory of 'prospective overruling'. Having noticed the judgment of the U.S. Supreme Court in Great Northen Railway v. Subburst Oil and Ref. Company: (1932) 287 YS 358, Chicot County Drainage District v. Baxter State Bank: (1940) 338 US 371 and Golak Nath v. State of Punjab: AIR 1967 SC 1643, the Division Bench of this Court went on to hold as under in para 10 to 14 of the judgment in Ashika Prasad Shukla (surpa):-

"10. However, the question of legal nicety that arises for consideration is as to whether the direct appointment made in a short-term vacancy prior to K. N. Dwiviedi or the Full Bench decision in Radha Raizada by notifying the vacancy only on the Notice-board of the Institution and without following the procedure of notifying the vacancy as prescribed in the First Removal of Difficulties Order would be void? in K. N. Dwivedi. a learned single Judge holding the provisions providing for ad hoc appointment by direct recruitment by merely notifying the vacancy on the Notice-board of the Institution to be repugnant to the fundamental right guaranteed by Article 16 of the Constitution gave prospectivity to his judgment and saved the direct appointments already made against short-term vacancies by merely notifying the same on the Notice-board of the Institution. This question, however, was neither raised nor decided by the Full Bench in Radha Raizada and Radha Raizada has not overruled any previous decision of the Court on the question as to whether the appointment of a teacher by direct recruitment in a short-term vacancy made by notifying the vacancy on the Notice-board of the Institution sans any public notification would be void. Rather, some words have been read in the Statute (Second Removal of Difficulties Order) both in K. N. Dwivedi and Radha Raizada and the decisions therein are tantamount to amending the Statute by reading therein the requirement of giving public notice of the vacancy in addition to its notice on the Notice-board of the Institution with a view to saving the statute from being struck down as violative of Article 16(1) of the Constitution on one hand and advancing the object of the Act on the other. It cannot be repudiated that addition of words in the Statute by aid of judicial interpretation is permissible in certain situations, viz.. where it is considered necessary to do so in order to give effect to the intention of the Legislature or to avoid the particular provision being struck down as violative of any provisions of the Constitution. In a situation where addition of words is made in the Statute by Court, the 'doctrine of overruling' in its strict sense is not attracted. Instead, the Statute stands altered and/or modified as per the verdict of the Court. We are, therefore, of the considered view that the principle governing interpretation of legislative enactments vis-a-vis retroactivily. would apply to a situation where the Statute is altered by judicial verdict and the principle is that the change so brought about, would not project on the past events or transaction so as to affect vested rights unless the judicial verdict wreaking changes in the Statute by 'reading in' or 'reading down' is itself given retroactive operation.

11. As noticed above. K. N. Dwivedi (decided earlier in point of time than Radha Raizada. directed in no uncertain language that the decision would be prospective in operation. Rodha Raizada was completely reticent on the point and we are of the considered view that Radha Raizada would not affect ad hoc appointments of teachers by direct recruitment in short-term vacancies approved or deemed to have been approved by the District Inspector of Schools in terms of paragraph 2 (3) (iii) of the Second Removal of Difficulties Order, for once the District Inspector of Schools approves, or is deemed to have approved, of the selection, the selectee acquires the status of an ad hoc teacher upon joining the post and a right to continue as per statutory stipulations. The appointee would not be automatically denuded/stripped of the status and right so accruing merely because of the subsequent change of law, not given retrospective effect expressly or by necessary implication. In other words, ad hoc appointments of teachers by direct recruitment made in short-term vacancies by notifying the same on the Notice-board of the Institution without giving any public notice through advertisement in Newspapers having wide circulation if already approved or deemed to have been approved, would not be invalidated on the strength of Radha Raizada. We accordingly subscribe to the view taken in K. N. Dwivedi.

12. Sri Yatindra Singh placed reliance on Sanjeev Kumar v. District Inspector of Schools, Ghaziabad, 1997 All LJ 33, in which one of us (S. R. Singh, J.) repelled the argument that Radha Raizada should not be made retrospective so as to Impinge upon prior appointments in the following words :

"What has been held by Full Bench in Radha Raizada's case about the procedure to be following by direct recruitment in case of ad hoc appointment under Section 18 would be deemed to be enshrined therein from the very inception of Section 18 of the Act No. V of 1982, The doctrine of prospective application as pronounced by the Supreme Court in Managing Director's case, AIR 1994 SC 1074 (supra), is not intended for application to the construction of what has been laid down by the Full Bench in Radha Raizada's case, (supra) particularly because any previous decision of this Court has not been adverted to my knowledge, articulating a contrary view nor Sri Sinha has brought any such decision to my notice in the course of arguments."

13. The view taken in Sanjeev Kumar finds reinforcement from the decision of the Supreme Court in Suresh Chandra Verma v. Chancellor Nagpur University, AIR 1990 SC 2023, wherein it was held :

"It is unnecessary to point out that when the Court decides that the interpretation of a particular provision as given earlier was not legal, it in effect declares that the law as it stood from the beginning was as per its decision, and that it was never the law otherwise. This being the case. since the Full Bench and now this Court have taken the view that the interpretation placed on the provisions of law by the Division Bench in Bhakare's case (supra), was erroneous, it will have to be held that the appointments made by the University on March 30, 1985 pursuant to the law laid down in Bhakare's case (supra), were not according to law. Hence, the termination of the services of the appellants were in compliance with the provisions of Section 57'(5) of the Act."

14. Neither Sanjeev Kumar nor Suresh Chandra Verma (supra), are attracted for application to the facts of the present case. Sanjeeu Kumar was a case of ad hoc appointment by direct recruitment in a substantive vacancy "under Section 18 of the U. P. Secondary Education Service Commission Act, 1982. which, as it then stood, by it self did not provide any procedure for direct appointment on ad hoc basis and it was propounded in Radha Raizada that the procedure visualised by the First Removal of Difficulties Order, would govern ad hoc appointment by direct recruitment under Section 18 of the Act as well. The procedure as provided in Clause 5 of the First Removal of Difficulties Order, visualises that the Management would, as soon as may be, inform the District Inspector of Schools about the details of the vacancies and provisions therein enjoin upon the Inspector a duty to invite applications from local Employment Exchange and also through public advertisement in at least two Newspapers having adequate circulation in Uttar Pradesh. The procedure further visualises that the District Inspector of Schools would cause the best candidate selected on the basis of quality point specified in Appendix and forward the names of the selected candidates to the concerned institution. The Management has no role except to Intimate the vacancy to the Inspector in the matter of selection of candidates for direct recruitment in substantive vacancy under the First Removal of Difficulties Order and unlike the provisions contained in the Second Removal of Difficulties Order, there is no provision of deemed approval under the former. The procedure of direct appointment in short-term vacancy on the other hand visualises that entire exercise of selection would be done by the Management after notifying the vacancy on the Notice-board. It is after the selection that the papers are forwarded to District Inspector of Schools for approval. The provisions contained in Second Removal of Difficulties Order visualise that approval would be deemed to have been accorded on fulfilment of conditions stipulated therein. In Sanjeev Kumar, the District Inspector of Schools declined, vide Order dated 21.2.1994. to lend approbation to the appointment made by the Committee of Management and concededly, the procedure prescribed for direct recruitment was not gone through. Therg was no question of Sanjeev Kumar, having acquired the status of a teacher and right to the post. In this view of the matter, the case of Sanjeev Kumar, is distinguishable and in fact in paragraph 9 of the , 1997 ALJ 33, it has been held as under :

"It may be observed that the decision in Radha Raizada's case, 1994 (3) UPLBEC 1551 (FB), does not serve to erode any vested right or substantive right of a person. It has only expatiated on Section 18 of the U. P. Act No. V of 1982 and held that though Section 18 does not prescribe the procedure for ad hoc appointment, the one laid down in the Removal of Difficulties Order Issued under the Act, would be applicable by implication qua the purpose of the Act. Since the petitioner was not appointed in the manner laid down by/or under U. P. Act No. V of 1982. his ad hoc appointment was void and therefore, non-est by virtue of Section 16 (2) of the Act. I, therefore, do not feel pursuaded to interfere into the matter."

K.N. Dwivedi was a case like the one on hand, of ad hoc appointment under the provisions of Second Removal of Difficulties Order in a short-term vacancy. The requirement of advertising the vacancy in Newspapers, as a condition precedent to direct appointment, was not a requirement of the law under Second Removal of Difficulties Order as it stood prior to K. N. Dwivedi. Advertisement in Newspapers became an imperative condition of a valid appointment in a short-term vacancy only as a result of the decision dated 13.1.1994 in K. N. Dwivedi's case which finds its echo in Radha Raizada decided on 12.7.1994. Appointment in a short-term vacancy by simply notifying it on the Notice-board of the Institution was permissible prior to K. N. Dwivedi. The relevant clause of the Second Removal of Difficulties Order albeit it held arbitrary and repugnant to Article 16(1) of the Constitution was 'law nonetheless for intermediate transactions'. The law as it stood prior to determination of unconstitutionality was an 'operative fact' resulting in 'consequences which cannot justly be ignored'. Many such appointees came to be regularised by legislation on such vacancy being subsequently converted into substantive vacancy in terms ofSection 33B of the Act. The past cannot, therefore, be erased by judicial declaration in Radha Raizada. In the circumstances, keeping in view equity and good conscience, we hold that Sanjeev Kumar has no application to a case of appointment in short-term vacancy under the Second Removal of Difficulties Order. The present case being one of the ad hoc appointment by direct recruitment in a short-term vacancy made prior to K. N. Dwivedi and Radha Raizada would not be invalidated merely because the vacancy was not notified in two Newspapers of wide circulation in addition to notice on the Notice-board of the Institution and since appointment was not cancelled nor was the deemed approval withdrawn by the District Inspector of Schools, the decision of the Supreme Court in Suresh Chandra Verma. too would not apply."

The order dated 2.7.1997 does not deal with the claim of petitioner with reference to the relevant provisions, noticed above, and the same is thus not liable to be sustained.

17. Coming to the submission advanced by respondents that after such long lapse of time no interference is liable to be made in the present writ petition, I am of the opinion that mere fact that the writ petition has remained pending since 1997 would not be a ground to deny legitimate claim of the petitioner in case he is able to establish the same. In fact petitioner has been contesting the matter since 1990. The appointment and continuance of respondent no.5 could not have come into existence in case claim of petitioner was accepted. No equity in favour of respondent no.5, therefore, is liable to be attracted in the facts and circumstances of the present case. I am supported with the view so taken by a Division Bench of this Court in Smt. Maya Goyal v. Vice Chancellor, Bundelkhand University and others: (1995) 3 UPLBEC 1931.(Ref: para 11 & 12 of the said judgment)

18. So far as the objection of the petitioner regarding lack of challenge to the order of Regional Level Committee is concerned, it is to be noticed that the order of the Regional Level Committee in fact is not an order adjudicating the claim of petitioner at all, inasmuch as petitioner was not a party to the proceedings before the Regional Level Committee nor the Committee had considered the claim for payment of salary. It appears that claim of respondent no.5 incidentally was mentioned, while considering claim of other persons under the orders of writ court. The order, in the opinion of the Court, cannot be treated to be an adjudication on the aspect relating to entitlement of petitioner in respect of the cause, and therefore, there exists no requirement of any challenge to it and the objection of respondents, on this count, also cannot be sustained.

19. In view of the discussions, aforesaid, the writ petition succeeds and is allowed. The order dated 17.12.1996 and 2.7.1997, passed by the District Inspector of Schools, are hereby quashed. The matter is remitted back for a fresh consideration of the cause by the Regional Level Committee to examine legality of petitioner's appointment and claim of regularization in accordance with the provisions of Second Removal of Difficulties Order, 1981 and Third Removal of Difficulties Order, 1982 read with section 33-A(1-A) of the Act of 1982. The Regional Level Committee shall complete the aforesaid exercise within a period of three months from the date of presentation of certified copy of this order, by way of a reasoned speaking order, in accordance with law.

It is clarified that this Court has not adjudicated the entitlement of petitioner for regularization and the authorities are at liberty to independently assess the claim of petitioner with reference to the records available before them in accordance with the statutory schemes. The authorities while deciding the claim would also be at liberty to examine as to what relief is liable to be allowed to petitioner in case his claim succeeds, in accordance with law. It is only if petitioner's claim is rejected that an occasion would arise for the respondents to consider claim of respondent no.5, in light of the observations made above and in accordance with law.

20. There shall, however, be no order as to costs.

Order Date :- 26.10.2015

Ashok Kr.

(Ashwani Kumar Mishra, J.)