Smt. Shobha Saxena vs State Of U.P. And Others
2018 Latest Caselaw 1689 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 03.04.2018
 
Delivered on 24.07.2018
 
Court No. - 26
 

 
Case :- WRIT - A No. - 10191 of 2006
 
Petitioner :- Smt. Shobha Saxena
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Manish Goyal,Jeet Bahadur Singh,Siddharth Singhal
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ajit Kumar,J.

1. This writ petition is directed against the order passed by the Joint Director of Education, XII Moradabad Region, Moradabad dated 6th December, 2005, whereby the claim of regularization of services of the petitioner as Assistant Teacher in the institution in L.T. grade under Section 33-C of U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as 'Act No.5 of 1982') has been rejected.

2. The facts of the case are that the institution being recognized and aided institution, intimated and notified vacancy in L.T. grade caused due to retirement of Smt. Saraswati Devi Mishra on 30th June, 1988 to the Regional Inspectress of Girls Schools on 9th June, 1990 in 4 sets of copies for onward transmission to the U.P. Secondary Education Services Selection Board for making selection against the said substantive vacancy. However, even after the receipt of the requisition, no selection and recommendation was made by the U.P. Secondary Education Services Selection Board within a period of two months, the Committee of Management sought permission from Regional Inspectress of Girls Schools vide letter dated 15th January, 1991 for filling up the vacancy on ad-hoc basis.

3. In view of the permission so being accorded by the Regional Inspectress of Girls Schools, the vacancy in question was so advertised in two daily newspapers. After receiving the applications against the vacancy the Selection Committee was constituted on 10th August, 1991 and the selection was held. The petitioner in this petition was adjudged to be the best candidate to be appointed as Assistant Teacher in L.T. grade on ad-hoc basis and, accordingly, recommendation was made by the Selection Committee. On the basis of recommendation of the Selection Committee, the appointment letter was issued to the petitioner on 14th August, 1991 pursuant to which the petitioner joined on 16th August, 1991. The papers were forwarded to the Regional Inspectress of Girls Schools on 10th September, 1991 for seeking approval but thereafter no further order was passed by the Regional Inspectress of Girls Schools nor, any payment of salary was made to the petitioner who was discharging his duties as L.T. grade teacher. Under the circumstances, the petitioner filed Writ Petition No. 10754 of 1992 seeking a direction for payment of salary and vide order dated 27th March, 1992 an interim mandamus for payment of salary was issued which was made absolute on 12th January, 1993. In the meanwhile, since the petitioner continued on the said post and he was drawing salary, the post of Lecturer (English) had fallen vacant, therefore, the petitioner was also directed to take classes of English in Intermediate. The petitioner put up his claim for promotion as Lecturer and challenged the advertisement issued by the Committee of Management in respect to the vacancy in question.

4. On being not heard on the question of his claim for promotion, he filed another Writ Petition No. 23634 1997. While this petition remained pending, Act No. 5 of 1982 came to be amended by insertion of new Section 33-C which provided for regularization of ad-hoc teachers working in L.T. grade against the clear vacancies. The petitioner then set up his claim for regularization. In view of the amending Act No.5 of 1982 (supra) and since his claim was not being considered, he filed another Writ Petition No. 39433 of 2000 claiming his regularization.

5. All the three petitions were clubbed together and heard together and this Court disposed of all the three petitions vide a common judgment and order dated 05.08.2004 with the following directions:-

"Since the petitioner is working pursuant to the interim order passed in the year 1992 in writ petition No. 10754 of 1992 and the claim of the petitioner for regularisation has been forwarded to the District Inspector of Schools, in my view, all the three writ petitions could be disposed of with the following directions:-

"I direct that the District Inspector of Schools will forward the papers with regard to the regularisation of the petitioner within two weeks from the date a certified copy of this order is produced before him to the Regional Committee contemplated under Section 33 C of U.P. Secondary Education Services Section Board Act, 1982. The Regional Committee will consider the case of the petitioner and decide her case for regularisation within one month thereafter."

All the three writ petitions stand disposed of accordingly."

6. It is pursuant to the aforesaid directions, the impugned order has come to be passed rejecting the claim of the petitioner for regularisation on four grounds:-

(a). There was a ban operating between 26th June, 1991 and 26th September, 1991;

(b). The appointment of the petitioner was done by unpaid Secretary of the Committee of Management on 16th September, 1989;

(c). The petitioner was given appointment under the interim order of this Court dated 27th March, 1992 and 1st February, 1993, only on 19th August, 1993 which is beyond the cut off date dated 6th August, 1993 prescribed under Section 33-C of the Act No. 5 of 1982 for the purposes of regularisation of the ad-hoc appointee.

(d). No requisition was made prior to making an appointment on ad-hoc basis under Section 18 of Act No. 5 of 1982;

(e). Appointment of the petitioner was not as per procedure of Section 18 of the Act No. 5 of 1982 and hence void.

7. The argument advanced by the learned counsel for the petitioner is that consideration of the Joint Director of Education that the Secretary was only unpaid Secretary is of no significance. The Committee of Management is elected body and once resolution has been passed to make appointment, there was no question to annul the appointment on the ground that the Secretary was unpaid Secretary of the Committee of Management. The foundation of the argument is that it is Committee of Management who is Appointing Authority and the Secretary is only an office bearer who acts on behalf of the Committee of Management. It is only a formal order that is issued by the Secretary and, therefore, merely because the Secretary was temporary or unpaid, it cannot be said that the appointment of the petitioner was bad. However, regarding annulment of the resolution of the Committee of Management dated 28th June, 1992, there is absolute no whisper in the entire writ petition nor, the finding to that effect recorded by the Regional Inspectress of Girls Schools has been assailed.

8. The second argument advanced by the learned counsel for the petitioner is that proper requisition was sent to the Regional Inspectress of Girls Schools and documents to that effect has already been brought on record. Learned counsel for the petitioner has also taken the Court through the order of the Regional Inspectress of Girls Schools dated 13th February, 1991, whereby, permission was accorded to the Committee of Management to proceed with the selection and appointment against the vacancies in question. The argument, therefore, is once Regional Inpsectress of Girls Schools has accorded the permission and has taken a note in its order to the effect that any appointment shall be subject to the recommendation to be made by the Selection Board, it means that the Regional Inspectress of Girls Schools is quite concious that the proper requisition has been sent.

9. Regarding the ban, learned counsel for the petitioner has relied upon a judgment of this Court in the case of Km. Prabhabati Dikshit vs. U.P. Madhyamik Shiksha Sewa Ayog and another, 1992 (1) UPLBEC 582, wherein the Government order dated 22nd September, 1989 and 30th July, 1991 were held to be arbitrary and violative to the Article 14 of the Constitution.

10. In so far as the question of joining of the petitioner and cut off date is concerned, the learned counsel for the petitioner has argued that the petitioner was given appointment as far back as on 14th August, 1991 pursuant to which he had submitted his joining on 6th August, 1991 and it is even after the submission of papers to the Regional Inspectress of Girls Schools, when payment of salary was not being done that the Writ Petition No. 10754 of 1992 was filed in which initially interim mandamus was issued on 27th March, 1992 and then absolute direction was issued on 1st February, 1993. The argument, therefore, is that right of the petitioner to continue in the Institution and to draw salary did exist and interim direction is nothing but mere recognition of right which has already flown through the valid appointment order issued by the Manager/ Secretary of the Institution under the resolution of the Committee of Management.

11. Per contra, the arguments advanced by the learned Standing Counsel are that once services of the petitioner came to be terminated by the Committee of Management vide resolution dated 28th June, 1992, a mere continuance of the petitioner under the interim direction of this Court will not confer any right. It has further pointed out that at no point of time resolution of the Committee of Management dated 28th June, 1992 was cancelled by any writ of certiorari by this Court. The petitioner according to the learned Standing Counsel, was getting salary only under interim direction of this Court and so he was continuing, otherwise his services had come to an end under the resolution of the Committee of Management dated 28th June, 1992. It has been further argued by learned Standing Counsel that in his reply in paragraphs 18 to 23 of the writ petition that the claim of the petitioner for regularisation does not come under the provision of Section 33-C of the Act No. 5 of 1982. It has been argued that the petitioner was not offered any valid appointment unless the procedure as prescribed for was fully followed in matter of selection.

12. Learned Standing Counsel has drawn the attention of the Court towards the relevant provisions for making ad-hoc appointment under Section 18 of the Act No. 5 of 1982 as it then existed. The argument is that unless and until selection was held at the instance of Regional Inspectrerss of Girls Schools and recommendation, was forwarded to the Management, there was no question of offering any appointment by the Committee of Management to the petitioner. He has further relied upon the judgment of Supreme Court that mere continuance under the interim order would not confer any right of valid appointment to incumbent who has otherwise not being validly appointed. In a nutshell, the appointment of the petitioner is void ab initio and, therefore, no right would flow from such invalid appointment.

QUESTION Of BAN ON APPOINTMENT

13. Now coming to the point of ban first which is said to have been imposed by the State Government and appointments and that operated between 30th July, 1991 and 26th September, 1991, I am of this opinion that this issue is no more res integra. In the case of Km. Prabhabati Dikshit (supra), this Court had already held such ban in matters relating to the appointments of teachers in recognised institutions to be arbitrary and illegal and the Government order in question which has been relied upon in impugned order was quashed. Para 4 and 5 of the judgment (supra) reads as under:-

"4. I have not been shown any provision under which such a general ban can be issued for stopping selection of lecturers and L.T. Grade teachers. There is no such provision in the U.P. Secondary Education Services Commission and Selection Board Act, 1982. In fact the Government Orders dated 22.09.1989 and 30.07.1991 are contrary to the provisions of the U.P. Secondary Education Services Commission Act. A bare perusal of the provisions of the said Act shows that appointments have to be made only on the recommendation of the Commission except as provided in Section 18, sub-section 4(B) to (D) to Section 33 and 33-A. There is no power conferred by the said Act on the State Government which permits the State Government to ban selections by the Commission. The State Government has no power to stop the Commission from performing its functions which have been entrusted to it by the legislature. Hence the Government orders dated 22.09.1989 and 30.07.1991 are illegal and ultra vires.

5. The Government orders dated 22.09.1989 and 30.07.1991 are also, in my opinion, arbitrary, and hence violative of Article 14 of the Constitution. In is wholly unreasonable to ban ad hoc appointments of teachers in High Schools and Intermediate Colleges, particularly since it is well known that the Secondary Education Commission often does not select regular teachers even long after the vacancy is notified. Hence, unless ad hoc appointments are made the teaching work will suffer. To ban such appointments, is, therefore, clearly arbitrary."

14. Thus, the legal position is very much clear, the law declared by the Court means that the law had always stood and striking down of a provision means that the provision did not exist at all and, therefore, merely because there was some ban, the selection cannot be faulted with and on this count the selection of the petitioner on the post against a short term vacancy cannot be held to be bad or illegal and, therefore, the order impugned on this count cannot be sustained.

AUTHORITY TO ISSUE APPOINTMENT ORDER

15. So far as the point no. (b) taken in the impugned order is concerned that the appointment was made by unpaid Secretary/ Manager of the Committee of Management was bad for lack of authority, the reasoning does not appear to be sound one. The Committee of Management of Intermediate College or High School for that matter is elected by General body of the Society or as per the scheme of the administration by the General body of College. Sometimes, the members of the Committee of Management are elected and they among themselves elected office bearers whereas sometimes, the officer bearers are directly elected by the General body as per the scheme of administration. So, in any case, the Committee of Management and the office bearer is an elected body and elected person respectively. The positions of an office bearer is not paid one unless and until the scheme of the administration provides otherwise. However, this question is dependent upon the validity of selection and appointment of the petitioner in case if I find and hold the selection and appointment of the petitioner valid as per procedure, issuance of appointment order by availing matters will have no adverse effect. There are usual restrictions on the teachers and the Principal of the college from getting elected as office bearer of Committee of Management of another college. Under the impugned order, there is no reference of any such scheme of administration where Secretary/ Manager of the Committee of Management is a paid employee or is a paid office bearer. There is no discussion in the impugned order that a Secretary had no authority to issue an appointment order. The Secretary/ Manager of the Committee of Management of an institution, as rightly argued by the learned counsel for the petitioner, is a person to execute formally resolution of the Committee of Management. So, it is ultimately, elected body known as Committee of Management which has the authority to make appointment under its resolution. The Secretary/ Manager will only issue the formal order of the appointment.

SIGNIFICANCE OF CUT OFF DATE

16. Coming to the point no. (c) that the petitioner's appointment was only under the interim order of this Court as she was paid salary but for the interim mandamus and that is w.e.f. 19th August, 1993 which falls beyond the cut off date as per Section 33-C of the Act No.5 of 1982 and, therefore, the petitioner did not deserve regularisation and also does not appeal to reason.

17. It has come on record that the petitioner had been given appointment on 14th August, 1991 and she submitted her joining on 16th August, 1991 and continued to work. It is the payment that had started taking her appointment w.e.f. 19th August, 1993 after the interim mandamus was made absolute. If this is a case where the payment of salary has started late or from a particular date, the appointment and joining of a candidate does not get vitiated automatically.

18. Section 33-C of the Act No.5 of 1982 when provides for the cut off date then it deals with the factual situation as to have happened between the two cut off dates. If a person has been given appointment and joining between the cut off dates, and appointment of such candidate is ultimately found to be lawful and valid, such candidate cannot be denied regularization merely because the payment of salary had started from a later date. But again this question is dependent upon the answer to the issue (d) and (e) i.e. whether appointment of the petitioner is lawful and valid one.

VALIDITY OF APPOINTMENT OF PETITIONER

19. So far as the point no. (d) and (e) are concerned, they are inter-related. From the above discussion, it is quite clear that in case if the petitioner's appointment is held ultimately to be lawful and valid, the impugned order is liable to go as on the above three grounds I have already held that the impugned order cannot be sustained. But the question is of validity of the appointment of the petitioner. Unless and until the appointment of the petitioner is upheld, the question of regularization would not arise and, therefore, finding on this aspect of the matter will have also impact on the point (c) that I have decided above.

20. So far appointment of the petitioner is concerned, it has come to be established without any dispute that there arose substantive vacancy in the institution on 30th June, 1988 due to retirement of one Smt. Saraswati Devi Mishra who was working as Assistant Teacher in L.T. grade. Therefore, the question is now of the appointment of a candidate on ad-hoc basis against the substantive vacancy. There is no doubt that when the institution proceeded to seek permission from the Regional Inspectress of Girls Schools vide letter dated 15th January, 1991 for filling up the vacancy on ad-hoc basis, section 18 was very much there on statute namely Act No. 5 of 1982. Section 18 of the Act No.5 of 1982 as then existed, runs as under:-

"18. Ad hoc Teachers. - (1) Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and -

(a) the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher specified in the Schedule within one year from the date of such notification; or

(b) the post of such teacher has actually remained vacant for more than two months, then, the management may appoint, by direct recruitment or promotion, a teacher on purely ad hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder.

(2) The provisions of sub-section (1) shall also apply to the appointment of a teacher (other than a teacher specified in the Schedule) on ad hoc basis with the substitution of the expression 'Board' for the expression "Commission".

(3) Every appointment of an ad hoc teacher under sub-section (1) or sub-section (2) shall cease to have effect from the earliest of the following dates, namely -

(a) when the candidate recommended by the Commission or the Board, as the case may be, joins the post;

(b) when the period of one month referred to in sub-section(4) of Section 11 expires;

(c) thirtieth day of June following the date of such ad hoc appointment.

The word "appointment" appearing in Section 16 has to be construed in harmony with the provisions of the two Acts, particularly Sections 10 and 11 of the new Act and Section 16-G of the Intermediate Education Act. Words take their colour from the context in which they appear. The expression "appointment" in its widest sense would, no doubt, include a transfer also but considering the context and the object of the new Act the word "appointment" as it appears in Section 16 cannot comprise an appointment through transfer or an appointment to say, a Government Official on deputation to a recognised institution.

Section 16 does not depend for its operation on fulfillment of any condition precedent of making of a provision, the language of sub-section (2) of Section 16 is clear and leaves no room for doubt that the appointment to be made against the provisions of the Ordinance would be void.

The expression 'void' used in sub-section (2) of Section 16 is very material. In the strict sense the word 'void' means nullity."

21. From bare perusal of the provisions as contained under Section 18 of the Act No.5 of 1982, the Committee of Management is fully vested with the power to make appointment by direct recruitment or promotion of a teacher purely on ad-hoc basis against the substantive vacancy but the condition precedent is that such vacancy must have been notified to the U.P. Secondary Education Services Selection Board (hereinafter referred to as 'the Board') and the Board has not been able to make recommendations for appointment against such vacancy for more than two months.

22. Now coming to this above aspect of the matter, it is to be seen first as to whether the management of the institution in question had ever intimated the vacancy to the Board. Specific pleading has been taken vide para 4 of the writ petition that the Committee of Management notified the vacancy on 29th June, 1990 to the Commission/ Board through Regional Inspectress of Girls Schools and the document namely covering letter to that effect which mentions requisition in four sets as appendix to the said letter has also been filed as Annexure-2 to the writ petition.

23. In the counter affidavit filed on behalf of the respondent nos. 1 to 3 and sworn by District Inspector of Schools, Sri Chandra Jeet Singh Yadav the said paragraph 4 of the writ petition and the pleadings taken therein had not been denied. Meaning thereby the factum of requisitioning the vacancy to the Board is admitted to the respondents-State authorities and, therefore, the finding in the impugned order that no requisition was sent to the Board/ vacancy was not intimated to the Board does not find favour either from the records or from the pleading raised before this Court. Thus, it is established that the requisition was properly sent to the Board under the Act No. 5 of 1982 as amended from time to time for making selection and recommendation against the vacancy.

24. The next step is now available to the Committee of Management was to proceed to make an appointment to meet requirement on ad-hoc basis after proper selection is held. Specific pleading has been raised in paragraph 5 of the writ petition that the Commission did not make any selection and recommendation against the vacancy intimated for more than two months after sending the requisition.

25. Accordingly, the Committee of Management proceeded to seek permission of the Regional Inspectress of Girls Schools to make appointment on ad-hoc basis which permission was accorded by the Regional Inspectress of Girls Schools vide order dated 13th February, 1991. The document to that effect has also been filed as Annexure-3 to the writ petition and these facts as stated in paragraph 5 of the writ petition have also not been denied in paragraph 6 of the counter affidavit filed by the District Inspector of Schools.

26. From the facts discussed hereinabove, it is very much clear that under Section 18 of the Act No.5 of 1982, the Committee of Management was fully empowered to make appointment on ad-hoc basis against the vacancy in question and the facts established absolutely that vacancy was duly intimated and Regional Inspectress of Girls Schools had accorded permission to the Manager of the institution to make appointment on ad-hoc basis of Assistant Teacher in L.T. grade against the vacancy in question.

27. The next question is now to be considered after permission was accorded by the Regional Inspectress of Girls Schools vide order dated 13th February, 1991, is what procedure was adopted by the Committee of Management for making selection and appointment against the vacancy. Section 18 of Act No. 5 of 1982 as noted above does not lay down any procedure. The procedure for ad-hoc appointment against substantive vacancy is laid down under the Removal of Difficulties (First) order, 1981. In the case of Radha Raizada and others v. Committee of Management, Vidyawati Darbari Girls Inter College and others; 1994 (3) UPLBEC 1551, the Full Bench has held that in case of substantive vacancy, the procedure shall be applied as prescribed for under the Removal of Difficulties (First) order, 1981 and this treated to have continued till 30th July, 1992, the date when U.P. Act No. 24 of 1992 came to be enforced. The Removal of Difficulties (First) Order, 1981 dated 11th September, 1981 reads as under:-

"The U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981

Whereas, the Uttar Pradesh Secondary Education Services Commission and Selection Boards Ordinance, 1981 (U.P. Ordinance No. 8 of 1981) was promulgated on July 10, 1981 with a view to establish a Secondary Education Services Commission and six or more Secondary Education Selection Boards for selection of teachers in institutions recognised under the Intermediate Education Act. 1921;

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

And, whereas, a number of vacancies in the posts of teachers in various institutions recognised under the Intermediate Education Act, 1921 exist and the failure or delay in filling up of such vacancies is likely to create difficulties;

Now, therefore, in exercise of the powers under Section 33 of the Uttar Pradesh Secondary Education Services Commission and Selection Boards Ordinance, 1981 (U.P. Ordinance No. 8 of 1981), the Governor is pleased to direct that the provisions of the said Ordinance shall have effect subject to the provisions of the following Order :

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

(2) It shall come into force at once.

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

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

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

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

3. Duration of ad hoc appointments. - Every appointment of an ad hoc teacher under Paragraph 2 shall cease to have effect from the earliest of the following dates, namely :-

(a) when the candidate recommended by the Commission or the Board joins the post; or

(b) when the period of six months from the date of such ad hoc appointment expires.

4. Ad hoc appointment by promotion. - (1) Every vacancy in the post of the Head of an institution may be filled by promotion :

(a) in the case of an Intermediate College, by the senior most teacher of the institution in the lecturer's grade;

(b) in the case of a High School raised to the level of an Intermediate College, by the Headmaster of such High School;

(c) in the case of a Junior High School raised to the level of a High School, by the Headmaster of such junior High School.

(2) Every vacancy in the post of a teacher in Lecturer's grade may be filled by promotion by the senior most teacher of the Institution in the trained graduate (L.T.) grade.

(3) Every vacancy in the post of a teacher in the trained graduate (L.T.) grade shall be filled by promotion by the senior most teacher of the Institution in the trained undergraduate (C.T.) grade.

(4) Every vacancy in the post of a teacher in the trained undergraduate (C.T.) grade shall be filled by promotion by the senior most teacher of the Institution in the J.T.C. grade or B.T.C. grade.

Explanation. - For the purposes of clauses (1) to (4) of this paragraph 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 undergraduate (C.T.) grade or J.T.C. or B.T.C. grade, as the case may be.

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

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

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

(a) by a crossed postal order worth ten rupees payable to such Inspector;

(b) by a self addressed envelope bearing postal stamp for purposes of registration.

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

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

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

6. Eligibility for appointment. - Every appointment of a teacher under Paragraph 4 or 5 shall be subject to the following conditions, namely :-

(a) The candidate sought to be appointed by promotion or by direct recruitment must fulfil the essential qualifications laid down in Appendix A referred to in the Regulation (1) of Chapter II of the Regulations made under the Intermediate Education Act, 1921.

(b) The candidate sought to be appointed by direct recruitment under Paragraph 5 shall not be related to any member of the Committee of Management in the manner indicated in schedule II of the Intermediate Education Act, 1921.

(c) The candidate sought to be appointed by promotion under Paragraph 4 must have been serving the institution in substantive capacity from before the date of commencement of this Order.

7. Disputes to be referred to Director. - (1) Every dispute connected with the promotion or direct recruitment under this Order shall be referred to the Director and his decision thereon shall be final.

(2) Without prejudice to the generality of clause (1), the Director shall have the power to look into the complaint, if any, regarding the award of the quality points mentioned in Appendix or the validity or propriety of any promotion or direct recruitment in accordance with this Order and to cancel any promotion, recruitment or appointment made in contravention of such Order."

28. From the perusal of the aforesaid provisions, it is very much clear that not only the condition for making ad-hoc appointment, is that the vacancy must be determined first and then needed to be notified to the Commission first and for two months if Commission has not been able to make selection and recommendation, the Management shall proceed first to make ad-hoc promotion of eligible candidate. However, if there is no eligible candidate available, Management may proceed for direct recruitment on ad-hoc basis. Thus, it is in event of above these two conditions being present that substantive vacancy can be filled in by making direct recruitment as per the procedure prescribed under para 5 of the Removal of Difficulties Order, 1981.

29. So, in any case, there could not have been any appointment except with the intervention of Regional Inspectress of Girls Schools and if at all management was to move any recommendation for consideration, the appointment could have been done only after consideration was made by the Regional Inspectress of Girls Schools. This observation is only for the purpose that the selection at the end of the Regional Inspectress of Girls Schools was sine qua non in matters of ad-hoc appointment against the substantive vacancy under Section 18 of the Act No.5 of 1982 read with paragraph 5 of First Removal of Difficulties Order, 1981.

30. Now, testing selection and appointment of the petitioner in the instant case, in the light of procedure prescribed in paragraph 5 of the Removal of Difficulties Order, 1981, I find that the Committee of Management though sought permission from the District Inspector of Schools to fill in the vacancy but thereafter proceeded to advertise the vacancy on its own, instead of Regional Inspectress of Girls Schools exercising such powers. The words and expression as contained under clause 2 of paragraph 5 of the order "such inspector shall invite the application from local employment exchange and also through public advertisement at least two newspapers having adequate circulation in Uttar Pradesh" means the power of selection in matters of ad-hoc appointment against the substantive vacancy fell within the domain of authority namely, District Inspector of Schools/ Regional Inspectress of Girls Schools and it is the Regional Inspectress of Girls Schools who is required to invite the applications, in the first instance, from the local employment exchange and then through public advertisement. It is after the applications are invited that the Regional Inspectress of Girls Schools was required to examine the same and to select the best candidate on the basis of the quality points specified under the appendix attached to the said order.

31. In the present case, however, no such procedure was followed. The Committee of Management proceeded to advertise the vacancy on its own and then proceeded to hold selection without involvement of the Regional Inspectress of Girls Schools in the matters of selection and without inviting any applications from the local employment exchange. Further the appointment order to the petitioner was issued on 14th August, 1991 itself, whereas the papers were forwarded to the Regional Inspectress of Girls Schools only on 10th September, 1991.

32. In the instant case, therefore, the Regional Joint Director of Education is justified in recording finding to the effect that the selection and the appointment of the petitioner was not as per the procedure prescribed. Vide paragraphs 41 and 42 the Full Bench in Radha Raizada (supra) has held thus:

"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 power 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 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, 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 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 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 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 Saharnapur, 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."

33. Thus, while answering the question no. (c) "what would be the criteria and procedure for ad-hoc appointment of a teacher or a principal either under the Removal of Difficulties Order, 1982 or under Section 18 of the Act No.5 of 1982":-

First Stage.- (July 31, 1981 to July 13, 1992). Both substantive and short term vacancies have to be filled in by promotion. If it is not possible to do so on account of non-availability of a teacher possessing requisite qualification the same can be filled by direct recruitment in accordance with the First Order in the case of substantive vacancy and in accordance with Second Order in the case of short term vacancy.

Second Stage.- (July 14, 1992 to August 6, 1993). Post of Principal and Head Master has to be filled in by promotion only. Substantive vacancy on the post of teacher has to be filled in accordance with amended Section 18 and short term vacancy in the same as in First Stage.

Third Stage.- (August 7, 1993 onwards). No ad hoc appointment on a substantive vacancy can be made. Only short term vacancy can filled in the same manner as in First Stage."

34. Section 16 of the Act No. 5 of 1982 is also relevant here. The provision reads as under:-

"16- Appointment to be made only on the recommendation of the Board- (1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the regulations made thereunder but subject to the provisions of Sections 12, 18, 21-B, 21-C, 21-D, 33, 33-A, 33-B, 33-C and 33-D, every appointment of a teacher, shall on or after the date of the commencement of the Uttar Pradesh Secondary Education Services Commission (Amendment) Act, 1998 be made by the Management only on the recommendation of the Board.

Provided that in respect of retrenched employees, the provisions of Section 16-EE of the Intermediate Education Act, 1921, shall mutatis mutandis apply.

Provided further that the appointment of a teacher by transfer from one Institution to another, may be made in accordance with the Intermediate Education Act, 1921.

(2) Any appointment made in contravention of the provisions of sub-section (1) shall be void."

35. After coming into force of Act No.5 of 1982, the appointment has to be made as per procedure prescribed, by the Commission/ Board. Since Removal of Difficulties Order have been framed under Section 33 of the Act No.5 of 1982, the appointment has to be made on ad-hoc basis under Section 18 of the Act No. 5 of 1982 read with Removal of Difficulties (First) Order, 1981. So, the procedure prescribed is in Removal of Difficulties (First) Order, 1981. Thus, any appointment that has not been made as per procedure is null and avoid. It is settled legal position that no right flows from any appointment which is rendered void. In case of Prabhat Kumar Sharma and others vs. State of U.P. and others; AIR 1996 SC (2) 638, it has been held that procedure for ad-hoc appointment under the Removal of Difficulties Order, 1981 is mandatory and if the said procedure is not observed strictly, the appointment will be rendered void ab initio and would not confer any right upon incumbent either to hold post or claim any salary. The said decision has come to be confirmed by the Apex Court in the case of Shesh Mani Shukla, DIOS, Deoria and others vs. J.T. 2009 (10) SC 209. This view also finds support in the two other judgments of this Court in the case of Ajay Kumar Singh vs. The District Inspector of Schools and another; 2013 (4) ADJ 353 and Smt. Anju Kushwaha vs. R.I.G.S. Bareilly; 2013 (10) ADJ 514.

36. In Smt. Anju Kushwaha (supra), relying upon the another judgment of Satya Prakash Ojha vs. District Magistrate, Ballia and others, 2001 (2) UPLBEC 1882 vide para 26 held that:-

"the Order clearly provides that the Management has to give information about the vacancy to the District Inspector of Schools, who has to invite the applications from the Employment Exchange and also through public advertisement in at least two news papers having adequate circulation in Uttar Pradesh. The selection of a candidate has to be done on the basis of quality points specified in the Appendix as per Paragraph 5 of the Order. Therefore, the entire selection has to be done by the District Inspector of Schools and the Committee of Management of the institution has no authority at all to advertise the vacancy or make any kind of selection."

37. In view of the above, therefore, in my considered opinion the petitioner having not been appointed as per procedure her appointment is null and void. The argument raised by the learned counsel for the petitioner that the petitioner has continued for such a long time and there was interim direction by this Court for payment of salary considering her appointment, in the opinion of the Court, would not render the appointment to be valid and lawful which is otherwise void. The Supreme Court in the case of Committee of Management Arya Nagar Inter College, Arya Nagar, Kanpur through its Manager and others vs. Sree Kumar Tiwary and others; AIR 1997 (SC) 3071 had clearly held that a candidate continuing on the strength of interim order cannot be held entitled to regularization. Therefore, since I have already held hereinabove that the selection and appointment of the petitioner was not in accordance with law, merely because she had continued on the post and under the interim order of this Court, she drew salary for so many years, would not render her right to the post lawful and valid one. Section 33-C of the Act No.5 of 1982 talks only ad-hoc appointment against the substantive vacancy on a cut off date and that means ad-hoc appointment as per the procedure prescribed. No one is entitled to any position to which he/ she has got a back door entry. Whatever is unlawful or illegal will not become lawful or legal due to efflux of time. While it is true that this Court directed the Joint Director of Education to consider the claim as raised by the petitioner for regularisation as per the procedure, this Court did not validate the appointment of the petitioner which was otherwise invalid. Virtually, there is no judgment on the first writ petition in which she had claimed to have been validly appointed and yet the approval was not granted. It is another thing that she was continued because of the interim mandamus of this Court for payment of salary vide order dated 27th March, 1992 which was later on made absolute, this Court did not ultimately, upheld the selection and appointment of the petitioner in Writ Petition No. 10754 of 1992. The writ petition for regularization was filed in the year 2000 bearing Writ Petition No. 39433 of 2000 whereas for promotion writ petiton was filed in the year 1997 bearing Writ Petition No. 23634 1997. This Court fails to understand as to when the petitioner's very initially appointment was not upheld by this Court, what was the occasion for filing writ petition for seeking promotion but then while her writ petition for promotion was pending Section 33-C came to be inserted in Act No.5 of 1982 and the petitioner became smart enough to file another writ petition seeking direction for regularization. Be that as it may, this Court vide its order dated 5th August, 2004 while disposing all the three writ petitions only directed Regional Committee constituted and contemplated under Section 33-C of the Act No.5 of 1982 to examine the matter, consider the claim and decide her case.

38. The Regional Joint Direct has, therefore, rightly decided the case of the petitioner under the impugned order as not being entitled to regularization inter alia on the ground that her very appointment was bad. Once it is held that appointment is void for want of compliance of mandatory procedure prescribed, all other grounds become secondary.

39. Even otherwise since I have held that the selection and appointment of the petitioner was void under Section 16 of the Act No.5 of 1982, she is not entitled to be regularized under Section 33-C of Act No. 5 of 1982 and so not entitled to any benefit arising out of regular appointment against substantive post.

40. Now considering the facts and circumstances of the present case where the petitioner contitnued de facto in the institution as Assistant Teacher in L.T. grade and worked as such and drew her salary, in the special facts and circumstances, I think that it will be too harsh to direct for any recovery of salary that she has been paid for the period she has served although her appointment being held null and void, she was not entitled for the same.

41. This Court, therefore, while holding that the petitioner as not entitled to be regularized under Section 33-C of the Act No.5 of 1982, does not direct for any recovery of the amount already drawn by the petitioner under the interim mandamus made absolute by this Court and thereafter also during the pendency of consideration of her case for regularization by the competent authority.

42. In view of the above, the writ petition lacks merit and is, accordingly, dismissed subject to observation made above.

Order Date :- 24.7.2018

Atmesh