Anil Kumar and Another vs District Inspector of Schools and Another

Arun Tandon, J.—Heard Shri Raj Kumar Jain, advocate on behalf of the petitioner and standing counsel for the State-respondents.

Amendment application is allowed.

Saraswati Vidya Mandir Uchchatar Madhyamik Vidyalaya, Sultangarh, district Fatehpur is a recognised and aided intermediate college under the provision of Intermediate Education Act. The provision of Secondary Education Selection Board Act, 1982 are applicable to the teachers of the said institution.

Two posts of L.T. grade teacher were created for the institution. Against such newly created post, the U.P. Education Services Selection Board failed to recover suitable candidates even after more than two months of the requisition of the vacancy, therefore, the Management Committee decided to fill the same on ad hoc basis. The petitioners claim to have been selected as L.T. grade teachers on ad hoc basis and offered appointment on 16.11.1991. They joined on 18.11.1991.

The appointment of the teacher was granted financial approval by the District Inspector of Schools under order dated 15.11.1991. However, the said order was recalled vide order 27.12.1991. Feeling aggrieved by the same, the petitioners filed the present writ petition. They also pray for a mandamus commanding the respondents to pay salary to the petitioner as L.T. grade teacher.

The writ petition is completely silent about the date of requisition of the vacancies as well as procedure adopted qua ad hoc as appointment claimed by the petitioners. Counter-affidavit filed on behalf of State in this petition by reference incorporates the facts stated in the counter-affidavit filed in connected Writ Petition No. 1366/1996. The records of Writ Petition No. 2923/1992 have also been called and examined.

The Full Bench of this Court in the case of Radha Raizada and Ors. v. Committee of Management, Vidyawati Darbari Girls Inter College and Ors. 1994 All LJ 1077, has examined the procedure which is required to be followed in the matter of ad hoc appointment against substantive vacancies in respect of various periods as noticed in the Judgment itself.

According to the decision of Full Bench of this Court in the case of Radha Raizada (supra) appointment on ad hoc basis against a substantive vacancy requires publication of the vacancy in two newspapers and the procedure prescribed under the first difficulties order is to be followed.

As a matter of fact on the date, petitioners claim appointment against substantive vacancy, the committee of management did not have the competence to offer any such ad hoc appointment without following the procedure prescribed under the first difficulty of the order.

It is needless to emphasise that Section 16 of Commissions Act declares any appointment made de hors the provision of the Act which will necessarily include the removal of difficulties order issued under the Act would be void.

In absence of material facts having disclosed by the petitioner qua for the procedure followed in respect of his ad hoc appointment against the substantive vacancy, this Court is of the considered opinion that the petitioner is not entitled to any relief under Article 226 of the Constitution of India.

This Court Is conscious of the fact that the order impugned passed by D.I.O.S. does not record any reason, however querying of the impugned order would only result in restoration of the earlier order of D.I.O.S. granting approval of the appointment of the petitioner which as already noticed above could not be demonstrated to be made after following the statutory procedure, therefore, such course is not open to this Court.

In view of Section 16 of Act, 1982 and the judgment of the Supreme Court of India in the case of Mohd. Sartaj v. State of U.P. and Ors. JT 2006 (3) SC 331 : 2006 (1) AWC 950 (SC), wherein it has been held any length of working would not infuse life in a void appointment. This Court is of the considered opinion that no relief is to be granted to the petitioner.

Learned Counsel for the petitioner then came up with the plea that the Hon''ble Supreme Court in the case of Naresh Chand v. District Inspector of Schools and Ors. Civil Appeal No. 5302/2007, permitted the continuance of the ad hoc teacher on the ground that he had worked for ten years under interim orders of the Court and it was directed that he may continue on ad hoc basis till regular selection are made even after his selection was found to be bad.

Suffice it to record that the Supreme Court in paragraph 9 of its judgment in Naresh Chandra recorded that the order is being passed on special facts and circumstances of the case. Therefore, no law which may have binding effect under Article 141 of the Constitution of India as claimed by the petitioner has been laid down. The Apex Court had not found that the appointment of Naresh Chandra was void in view of Section 16 of the Selection Board Commission''s Act, 1981. This Court may also refer to the judgment of the Supreme Court in the case of Pramod Kumar v. U.P. Secondary Education Services Commission and Ors. 2008 (4) ALJ 207 , wherein it has been held that any length of continuance under interim orders of the Court will not cure the initial defect in the appointment of the incumbent. Reference be held to the judgment of the Supreme Court in the case of State of Bihar Vs. Upendra Narayan Singh and Others, , wherein it has been held that permitting illegal appointees in service merely because they continued for years under interim orders of the Court is only a result in an spoiled system.

Learned Counsel for the petitioner also placed reliance upon the case of judgment in the case of Dr. Prabhu Narain Saxena Vs. Chancellor, Agra University and others, and in the case of H.C. Puttaswamy and Ors. v. Hon''ble Chief Justice of H.C. Puttaswamy and others Vs. The Hon''ble Chief Justice of Karnataka High Court, Bangalore and others, The Apex Court has held that in the peculiar facts of the case, humanitarian approach was needed and that the appellant be dealt with justice ruled by the mercy.

I am also of the considered opinion that merely because the High Court has not been able to decide, the writ petition filed by the petitioner for last 18 years no benefit can accrue in favour of the petitioner who has enjoyed the interim order for all this period. This Court cannot perpetuate illegal/void appointment. Writ petition is dismissed.