Allahabad High Court Judgement

Allahabad High Court Judgement

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice at mail@myadvocates.club
JUDGEMENT HEADLINE : Appointment Not In Accordance With Sec. 18 Of The Secondary Education Board Act- Bad- WP- Dismissed.
JUDGEMENT TITLE : Manvendra Pratap Singh Vs. State Of U.P. & Others. On 02/12/2005 By Allahabad High Court
CASE NO : WRIT - A NO. 15991 OF 1999
CORAM : Hon'ble Dilip Gupta,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Reserved

Civil Misc. Writ Petition No. 15991 Of 1999
Manvendra Pratap Singh
Vs.
State Of U.P. And Others
********
Hon. Dilip Gupta, J.

This Petition Has Been Filed For A Direction Upon The District Inspector Of Schools, Aligarh To Accord Financial Approval To The Appointment Of The Petitioner On The Post Of Assistant Teacher (L.T. Grade) In Hira Lal Barasaini Inter College, Aligarh (hereinafter Referred To As The ''College') And To Pay Him Salary Regularly Including Arrears W.e.f. 10th August, 1998.
The Petitioner Claims That In The Aforesaid College, Which Is A Recognised Government Aided College, A Number Of Vacancies On The Post Of Assistant Teacher (L.T. Grade) Were Lying Vacant But Despite Intimation Having Been Sent By The Committee Of Management Of The College, The District Inspector Of Schools, Aligarh And The U.P. Secondary Education Services Commission And Selection Board (hereinafter Referred To As The "Secondary Education Board") Did Not Make Any Appointment. In Such Circumstances The Committee Of Management Decided To Fill-up The Existing Short Term Vacancies Of Assistant Teacher (L.T. Grade) On Ad Hoc Basis By Issuing An Advertisement In The Newspaper "Parabada Dainik" Dated 3rd August, 1998. In Response To The Aforesaid Advertisement The Petitioner And Other Candidates Submitted Applications And On The Basis Of The Recommendations Made By The Selection Committee The Petitioner Was Appointed As Temporary Assistant Teacher (L.T. Grade) On Ad Hoc Basis By Means Of The Letter Dated 10th August, 1998. The Petitioner Thereafter Joined The Services On 10th August 1998 And By Means Of The Communication Dated 24th October, 1998 The Committee Of Management Of The College Sought Approval Of The Appointment Of The Petitioner From The District Inspector Of Schools, Aligarh. However, When No Communication Was Received From The Office Of The District Inspector Of Schools, The Petitioner Filed This Petition On 17th April, 1999 When The Matter Was Adjourned On The Request Made By The Learned Counsel For The Petitioner That He Desired To File A Supplementary Affidavit Disclosing The Newspapers Wherein The Advertisements Were Published. A Supplementary Affidavit Was Filed On Behalf Of The Petitioner Mentioning Therein That The Advertisement Was Also Published In The Newspaper "Dainik Prakash" Dated 3rd August, 1998.
A Counter Affidavit Has Been Filed By The Assistant District Inspector Of Schools, Aligarh On Behalf Respondent Nos. 1, 2 & 3. It Has Been Pointed Out That The Appointment Had Not Been Made In Accordance With The Provisions Of The Act And The Removal Of Difficulties Order And Was Also Contrary To The Decision Of This Court Given In The Case Of Radha Raizada And Others Vs. Committee Of Management, Vidyawati Darbari Girls Inter College & Ors,. (1994) 3 UPLBEC 1551 As The Vacancy Was Not Advertised In Two Newspapers Having Vast Circulation In The State But Was Advertised Only In Local Newspapers. It Was Further Pointed Out That It Was Imperative For The College To Have Intimated The Board About The Appointments To Be Made On The Vacancies But That Had Not Been Done. In Such Circumstances, It Was Pointed Out That The Petitioner Was Not Entitled To Any Relief From This Court.
I Have Heard Learned Counsel For The Petitioner And The Learned Standing Counsel Appearing For The Respondents And Have Perused The Material Available On Record.
Section 18 Of The Uttar Pradesh Secondary Education Services Commission And Selection Boards Act, 1982 (hereinafter Referred To As The ''Act') Has Been Amended Time And Again And In Order To Appreciate The Contention Of The Learned Counsel For The Petitioner It May Be Pertinent To Refer To The Provisions Of Section 18 Of The Act And To The Provisions Of The Uttar Pradesh Secondary Education Services Commission (Removal Of Difficulties) Order, 1981 Which Is More Popularly Known As The First Removal Of Difficulties Order, 1981. Section 18 Of The Act As Amended By U.P. Act No.24 Of 1992 Provided That Where The Management Notified A Vacancy To The Commission In Accordance With The Provisions Of The Act, And The Post Of Such Teacher Actually Remained Vacant For More Than Two Months, The Management Could Appoint By Direct Recruitment Or Promotion A Teacher, On Purely Ad Hoc Basis, In The Manner Provided For In The Section. Subsequently Amendments Were Made In The Act By U.P. Act No. 1 Of 1993 But It Was Provided That The Amendment Act Shall Come Into Force On Such Date As The State Government May By Notification Appoint And Different Dates Could Be Appointed For Different Provisions. Under Section 11 Of The U.P. Act No. 1 Of 1993 A New Section 16 Was Substituted For Section 16 Of The Act And It Was Stated That Notwithstanding Anything To The Contrary Contained In The Intermediate Education Act, 1921 Or The Regulations Made There Under But Subject To The Provisions Of Sections 21-B, 21-C, 21-D, 33, 33-A, 33-B, Every Appointment Of A Teacher Shall, On Or After The Date Of Commencement Of The Amendment Act, Be Made By The Management Only On The Recommendation Of The Board. What Is Important To Be Noted Under The Amended Section 16 Is That Reference To Section 18 Was Omitted With The Result That Section 16 Was No Longer Subject To Section 18 Of The Act. It May Also Be Pertinent To State That Under Section 13 Of U.P. Act No. 1 Of 1993, Section 18 Of The Act Was Omitted. Under The Notification Dated 7.8.1993 It Was Provided That 7th Of August, 1993 Would Be The Date On Which The U.P. Act No. 1 Of 1993 Shall Come Into Force Except Section 13. Thus Section 16 Of The Act Came Into Force W.e.f. 7.8.1993 But Section 18 Still Continued Since Section 13 Of U.P. Act No.1 Of 1993 Did Not Come Into Force. Thus A Situation Had Arisen Where Section 16 Of The Act Was No Longer Subject To Section 18 Of The Act Meaning Thereby That No Appointment On Ad Hoc Basis Could Be Made Under Section 18 Of The Act. This Matter Came Up For Decision Before A Full Bench Of This Court In The Case Of Radha Raizada And Others Vs. Committee Of Management, Vidyawati Darbari Girls Inter College & Ors. (1994) 3 UPLBEC 1551 And The Court Clearly Held As Follows:-
"Thus After Omission Of Section 18 From Section 16 No Ad Hoc Appointment Is Permissible Under Section 18 And If Made, Would Be Void Under Sub-section (2) Of Section 16 Of The Act."

The Full Bench, However, Examined The Problem That If No Ad Hoc Appointment Of A Teacher Could Be Made Under Section 18 Of The Act, Then Whether It Was Permissible To Appoint A Teacher On Ad Hoc Basis Under The First Removal Of Difficulties Order, Since The Removal Of Difficulties Order Still Continued. The Court Noticed That A Perusal Of Section 16 Would Show That It Was Still Subject To Section 33 Of The Act, Which Empowers The Government To Issue Removal Of Difficulties Order. The Court, Therefore, Held That Since The Removal Of Difficulties Order Had Been Issued Under Section 33 Of The Act, An Ad Hoc Appointment, Either By Direct Or By Promotion Under The Removal Of Difficulties Order Would Be A Valid Appointment. It Was Also Observed That If The Management Had Made An Ad Hoc Appointment Without Following The Procedure Laid Down In Paragraph 5, The District Inspector Of Schools Can Stop Payment Of Salary To Such A Teacher.
The Court Held As Follows:-
"Omission Of Section 18 Has Not Yet Been Enforced With A Result The Conditions Precedent Namely Notification Of Substantive Vacancy To The Commission And Further The Post Has Remained Vacant For More Than Two Months Are Still There And If These Two Conditions Are Fulfilled, It Is Only Then The Management Can Appoint Ad Hoc Teacher Either By Promotion Or By Direct Recruitment In Accordance With The Procedure Laid Down In The First Removal Of Difficulties Order."

The Supreme Court Also Had An Occasion To Examine The Validity Of The Ad Hoc Appointments Which Were Not Made In Accordance With The Procedure Provided For Under Paragraph 5 Of The First Removal Of Difficulties Order In The Case Of Prabhat Kumar Sharma And Others Vs. State Of U. P. And Others Reported In (1996) 10, SCC 62 And It Was Clearly Held That Any Ad Hoc Appointment Not Made In Accordance With Paragraph 5 Of The First Removal Of Difficulties Order Is An Illegal Appointment And Is Void And Confers No Right On The Appointee. It May Be Useful To Reproduce A Passage From The Judgment Made In The Context Of Paragraph 5 Of The First Removal Of Difficulties Order And It Is As Follows:-
"It Is An Inbuilt Procedure To Avoid Manipulation And Nepotism In Selection And Appointment Of The Teachers By The Management To Any Post In An 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".

The Act Was Further Amended By The Uttar Pradesh Secondary Education Services Selection Boards (Amendment) Act, 1995 (U. P. Act No. 15 Of 1995). The Amendment Act Came Into Force W.e.f. 28.12.1994. The Relevant Amendments Caused By U.P. Act No. 15 Of 1995 Which Are Relevant For The Purposes Of The Controversy Involved In The Present Petition Are The Amendments Made In Sections 16 And 18 Of The Act. Section 16 Of The Act Was Again Made Subject To Section 18 Of The Act. The Relevant Portions Of Section 18 Of The Act Are Reproduced Below:-
"18. Ad Hoc Teachers.- (1) Where The Management Has Notified A Vacancy To The Commission In Accordance With Sub-section (1) Of Section 10 And The Post Of A Teacher Actually Remained Vacant For More Than Two Months, The Management May Appoint By Direct Recruitment Or Promotion A Teacher On Purely Ad Hoc Basis, In The Manner Hereinafter Provided In This Section.
(2) A Teacher Other Than A Principal Or Headmaster, Who Is To Be Appointed By Direct Recruitment May Be Appointed On The Recommendation Of The Selection Committee Referred To In Sub-section (8).
(3) A Teacher Other Than A Principal Or Headmaster, Who Is To Be Appointed By Promotion, May In The Prescribed Manner Be Appointed By Promoting The Seniormost Teacher, Possessing Prescribed Qualifications-
(a) In The Trained Graduate's Grade, As A Lecturer, In The Case Of A Vacancy In The Lecturer's Grade;
(b) In The Certificate Of Teaching Grade, As Teacher In The Trained Graduate's Grade, In The Case Of A Vacancy In The Trained Graduate's Grade.
.............
(6) For The Purposes Of Making Appointments Under Sub-sections (2) And (3), The Management Shall Determine The Number Of Vacancies, As Also The Number Of Vacancies To Be Reserved For The Candidates Belonging To The Scheduled Castes, The Scheduled Tribes And Other Backward Classes Of Citizen In Accordance With The Uttar Pradesh Public Services (Reservation For Scheduled Castes, Scheduled Tribes And Other Backward Classes) Act, 1994 And, As Soon As May Be Thereafter, Intimate The Vacancies To Be Filled By Direct Recruitment To The District Inspector Of Schools And If The Management Fails To Intimate The Vacancies And The Post Of A Teacher Has Actually Remained Vacant For More Than Three Months, The District Inspector Of Schools May, Subject To Such Directions As May Be Issued By The Director And After Verification From Such Institution Or From His Own Record, Determine Such Vacancies Himself.
(7) The District Inspector Of Schools Shall, On Receipt Of Intimation Of Vacancies Or As The Case May Be, After Determining The Vacancies Under Sub-section (6), Forward The Same To The Deputy Director Of Education In Charge Of The Region, Who Shall Invite Applications From The Persons Possessing Qualifications Prescribed Under The Intermediate Education Act, 1921 Or The Regulations Made Thereunder, For Ad Hoc Appointment To The Post Of Teachers Other Than Principal Or Headmaster In Such Manner As May Be Prescribed.
(8) (a) For Each Region There Shall Be A Selection Committee For Selection Of Candidates For Ad Hoc Appointment By Direct Recruitment Comprising-
(i) Regional Deputy Director Of Education;
(ii) Regional Deputy Director Of Education (Secondary);
(iii) Regional Assistant Director Of Education (Basic).

The Regional Deputy Director Of Education Who Is Senior Shall Be The Chairman.
(b) The Selection Committee Constituted Under Clause (a) Shall Make Selection Of The Candidates, Prepare A List Of The Selected Candidates, Allocate Them To The Institutions And Recommended Their Names To The Management For Appointment Under Sub-section (2).
(c) The Criteria And Procedure For Selection Of Candidates And The Manner Of Preparation Of List Of Selected Candidates And Their Allocation To The Institution Shall Be Such As May Be Prescribed.
(9) Every Appointment Of An Ad Hoc Teacher Under Sub-section (1) Shall Cease To Have Effect From The Date When The Candidate Recommended By The Commission Joins The Post."
It May Also Be Pointed Out That Minor Amendments Were Again Made In Section 18 Of The Act By U.P. Act No.25 Of 1998 But They Are Not Relevant To The Controversy Involved In This Petition. In Sub-section (1), For The Word "Commission", The Word "Board" Was Substituted And In Sub-section (a), For The Clause "A" The Following Clause Was Substituted Namely:-
"(a) For Each Region There Shall Be A Selection Committee For Selection Of Candidates For Ad Hoc Appointment By Direct Recruitment Comprising -
(i) Regional Joint Director Of Education (Secondary);
(ii) Regional Deputy Director Of Education (Basic);
(iii) Regional Assistant Director Of Education (Basic);
The Regional Joint Director Of Education Shall Be The Chairman."

Further In Sub-section (9), For The Word "Commission", The Word "Board" Was Substituted.
Thus, Once Section 16 Of The Act Was Made Subject To The Provisions Section 18 Of The Act By U.P. Act No. 15 Of 1995 And Section 18 Of The Act Also Provided For A Detailed Procedure To Be Followed While Making Appointments On Ad Hoc Basis It Became Imperative That The Ad Hoc Appointment In The Present Case Should Have Been Made In Accordance With The Provisions Of Section 18 Of The Act. Admittedly The Procedure Provided For In Section 18 Of The Act Was Not Followed By The Committee Of Management. The Committee Of Management Itself Had Advertised The Post And The Selection Committee Constituted By It Had Made The Recommendation. The Appointment Of The Petitioner As An Ad Hoc Teacher Was, Therefore, Contrary To The Provisions Of Section 18 Of The Act. It Is, Therefore, Void And Cannot Confer Any Right Upon Him. The Relief Claimed For In This Petition To Grant Financial Approval To The Appointment Of The Petitioner On The Post Of Assistant Teacher (L.T. Grade), Therefore, Cannot Be Granted.
The Writ Petition Is Accordingly Dismissed.
There Shall Be No Order As To Costs.

Go to Navigation