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Judgment
Sudhir Agarwal, J.—All these writ petitions are connected involving dispute having common questions of law and facts and, therefore, as requested and agreed by learned Counsels for the parties, have been heard together and are being decided by this common judgement.
The institution in question is Gahmar Inter College, Gahmar, District Ghazipur (hereinafter referred to as the "College") which is recognised by the Board of High School and Intermediate Education, U.P., Allahabad (hereinafter referred to as the "Board") under the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as the "1921 Act") and is receiving grant in aid. For the purpose of payment of salary etc., it is governed by the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as the "1971 Act"). It appears that one, Dayanad Upadhyay, a permanent teacher in L.T. Grade was promoted on ad hoc basis to the post of Lecturer (Sanskrit) on 01.07.1989. Sri Madan Mohal Lal Srivastava, Lecturer (Mathematics) was promoted on the post of Principal of College on ad hoc basis on 01.07.1992 causing a short term vacancy on the post of Lecturer (Mathematics). The Committee of Management of the College advertised three vacancies of teachers i.e. one of Lecturer and two of Assistant Teachers in L.T. Grade in the daily newspapers, namely, "Gandiv" and "Rashtriya Sahara" dated 03.09.1994 inviting applications within 15 days fixing 21.09.1994 for interview. It also informed the District Inspector of Schools (in short "DIOS") about the occurrence of the aforesaid vacancies and their publication in the newspaper vide management''s letter dated 12.09.1994. It is said that the selection committee made selection on 21.09.1994 recommending one, Sri Chavi Nath Mishra for the post of Lecturer and Sri Kuldeep Kumar Tiwari for the post of L.T. Grade teacher. The petitioners were placed at serial No. 2 in both the lists of Lecturer and Assistant Teacher L.T. Grade respectively. It is also said that Sri Chavi Nath Mishra and Sri Kuldeep Kumar Tiwari submitted application on 21.09.1994 itself withdrawing their candidature and, therefore, the selection committee recommended the names of petitioners for appointment to the post of Lecturer and Assistant Teacher L.T. Grade (Science) vide its recommendation dated 21.09.1994. Consequently, the Manager of the Committee of Management issued appointment letter dated 01.10.1994 appointing the petitioners as Assistant Teacher L.T. Grade and Lecturer (respectively) and the petitioners pursuant to the said appointment letters joined on the said date i.e. 01.10.1994 and are working since then. Since the DIOS did not grant financial approval for payment of salary to the petitioners, they filed Writ Petition No. 5008 of 1995 before this Court which was disposed of on 14.11.1996 directing the DIOS to decide petitioners representation within two months. Pursuant thereto the DIOS passed order on 08.04.1997 declining approval holding that firstly there was no short term vacancy of Lecturer (Mathematics) in the College and secondly that the appointment of the petitioners was in violation of the Removal of Difficulties Orders issued under U.P. Secondary Education Service Selection Board Act, 1982 (hereinafter referred to as "1982 Act"). Thereafter the petitioners approached the Deputy Director of Education, 5th Region, Varanasi (hereinafter referred to as the "DDE") who also held vide order dated 25.04.1998 that the management had no power to make such appointments in view of the Full Bench decision in Radha Raizada v. Committee of Management 1994 (3) UPLBEC 1551 and accordingly confirmed order dated 08.04.1997 of the DIOS. Aggrieved by the aforesaid two orders dated 08.04.1997 and 18/25.04.1998 the petitioners filed Writ Petition No. 18650 of 1998 (hereinafter referred to as the "first writ petition") wherein an interim order was passed on 11.09.2000 directing the respondents to pay salary to the petitioners from April, 2000.
A counter affidavit has been filed on behalf of respondents No. 1 to 3 in the first writ petition reiterating the stand of the educational authorities that there was no vacancy of "Lecturer" and further that the management has no authority to make appointment and the said appointments are in violation of the Removal of Difficulties Orders.
When the first writ petition was pending, it further appears that there was another teacher in L.T. Grade namely, Sri Shyam Bihari who proceeded on leave without pay on 19.09.1995 and ultimately submitted resignation which was accepted by the management on 23.12.2007. During the period when Sri Shyam Bihari was on leave since there was a short term vacancy in L.T. Grade, the management appointed one, Sri Akhilesh Kumar Singh on ad hoc basis as Assistant Teacher, L.T. Grade on 08.03.1996 under Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as "Second Order"). The DIOS declined to grant financial approval vide order dated 10.06.1996 whereagainst Sri Akhilesh Kumar Singh filed Writ Petition No. 21475 of 1996 which was allowed vide order dated 02.09.1997. This Court found that the vacancy was advertised in two newspapers, namely "Pioneer" dated 29.01.1996 and "Swatantra Bharat" on 30.01.1996, pursuant whereto Sri Akhilesh Kumar Singh applied and he was interviewed by the selection committee on 18.02.1996 and after his selection the Committee of Management passed resolution dated 19.02.1996 and ultimately he was appointed on 08.03.1996. Observing that the appointment against a short term vacancy is governed by the Second Order and the respondents therein failed to point out any irregularity in the procedure adopted by the management, the writ petition was allowed and consequently the order dated 10.06.1996 was quashed. The respondents were directed to pay salary to Sri Akhilesh Kumar Singh pursuant to his appointment against short term vacancy. Consequently, it is said that the DIOS passed order dated 03.03.1999 granting financial approval to the appointment of Sri Akhilesh Kumar Singh. Subsequently the aforesaid vacancy of Sri Shyam Bihari became substantive when his resignation was accepted by the Committee of Management and thus Sri Akhilesh Kumar Singh ceased to have any right to continue as he was appointed against the short term vacancy. An order of termination was issued and communicated to Sri Akhilesh Kumar Singh on 24.12.2007. Further, in the meantime one Smt. Harshvardhani Sharma was appointed under dying in harness rules against a supernumerary post as "Assistant Teacher" (Biology) and she was sought to be adjusted in the aforesaid substantive vacancy of Sri Shyam Bihari by the management''s order dated 02.01.2008. The papers were submitted to DIOS vide letter dated 12.01.2008. Sri Akhilesh Kumar Singh also represented against his termination to DIOS. Pursuant thereto, the DIOS passed an order on 30.01.2008 holding that Sri Akhilesh Kumar Singh is entitled to continue till a regularly selected candidate from the Commission is available and, therefore, his termination order dated 28.12.2007 is not valid and consequently the appointment of Smt. Harshvardhani Sharma was also not valid. It is against this order dated 30.01.2008 of the DIOS, the Committee of Management filed Writ Petition No. 14437 of 2008 (hereinafter referred to as the "second writ petition") wherein the said order of DIOS was stayed vide interim order dated 20.03.2008.
The third writ petition namely, Writ Petition No. 39704 of 2008 (hereinafter referred to as the "third writ petition") has been filed by the Committee of Management of the College challenging the order dated 18.07.2008. It appears that the Manager of the Committee of Management of the College passed an order dated 31.05.2008 terminating the services of Vinay Kumar Singh and Anil Kumar Singh (petitioners of first writ petition) observing that their appointments were illegal. Against the said order, representation was made by the aforesaid two teachers before the DIOS which was considered and thereupon the DIOS passed order dated 18.07.2008 holding management''s order illegal but it is said that the continuance of two teachers namely, Anil Kumar Singh and Vinay Kumar Singh would be subject to the further order of this Court in the first writ petition. It is this order of the DIOS which is the subject matter of the third writ petition.
The two questions which are up for consideration in the aforesaid three writ petitions are:
Whether the appointments of Sri Anil Kumar Singh and Sri Vinay Kumar Singh, petitioners of the first writ petition, are valid and in accordance with law and are they entitled for payment of salary from the public exchequer besides continuance in service?
Whether Sri Akhilesh Kumar Singh, another teacher appointed initially in a short term vacancy is entitled to continue till a regularly selected candidate from the Commission is available on conversion of the vacancy in a substantive one?
Considering the first question this Court finds that assuming that the vacancies of Lecturer and Assistant Teacher occurred on 01.07.1992 for making an ad hoc appointment the procedure prescribed in the Second Order was to be followed. Para 2 thereof reads as under:
Procedure for filling up short-term vacancies.-(1) If short-term vacancy in the post of a teacher caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise, shall be filled by the Management of the Institution by promotion of the permanent senior-most teacher of the institution, in the next lower grade. The Management shall immediately inform the District Inspector of Schools of such promotion along with the particulars of the teacher so promoted.
(2) Where any vacancy referred to in Clause (1) cannot be filled by promotion, due to non-availability of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualifications, it shall be filled by direct recruitment in the manner laid down in Clause (3).
(3) (i) The management shall intimate the vacancies to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution, requiring the candidates to apply to the Manager of the Institution along with the particulars given in Appendix "B" to this Order. The selection shall be made on the basis of quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, issued with Notification No. Ma-1993/XV-7(79)-1981, dated July 31, 1981, hereinafter to be referred to as the First Removal of Difficulties Order, 1981. The compilation of quality point marks shall be done under the personal supervision of the Head of Institution.
(ii) The names and particulars of the candidate selected and also of other candidates and the quality point marks allotted to them shall be forwarded by the Manager to the District Inspector of Schools for his prior approval.
(iii) The District Inspector of Schools shall communicate his decision within seven days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval.
(iv) On receipt of the approval of the District Inspector of Schools or, as the case may be, on his failure, to communicate his decision within seven days of the receipt of papers by him from the Manager, the Management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager.
Explanation-For the purpose of this Paragraph-
(i) the expression "senior-most teacher" means the teacher having longest continuous service in the institution in the Lecturer''s grade or the Trained graduate (L.T.) grade or Trained under-graduate (C.T.) grade or J.T.C. or B.T.C. grade as the case may be;
(ii) in relation to institution imparting instructions to women, the expression ''''District Inspector of Schools'' shall mean the Regional Inspectress of Girls'' Schools;
(iii) short-term vacancy which is not substantive and is of a limited duration.
The aforesaid provision and the manner in which it has to be followed and acted upon has been considered in detail by a Division Bench (in which I was also a Member) in Special Appeal No. (87) of 2003, Joint Director of Education, Azamgarh and Anr. v. Udai Raj Vishwakarma and Anr. decided on 06.02.2007 observing as under:
Moreover even the Second Order confers power upon the management to make short term appointment only by following the procedure prescribed thereunder and not otherwise. Para 2 of the Second Order provides where a short term vacancy has occurred, the management shall immediately take steps to fill in the same by making an ad-hoc promotion of the permanent senior most teacher of the institution in the next lower grade and inform the same to DIOS. Where the short term vacancy cannot be filled in by promotion due to non-availability of a teacher in the next lower grade possessing prescribed minimum qualification, it can be fill in by direct recruitment observing the procedure prescribed in para 2 (3) of Second Order. It requires that the management shall intimate vacancy to DIOS and would also notify the same on the notice board requiring the candidates to apply to the Manager of the institution. Thereafter a selection shall be made on the basis of the quality point marks. The compilation of quality point marks shall be prepared under the personal supervision of head of the institution. The details of selection, quality point marks and other particulars of the candidates thereafter shall be forwarded by the Manager to DIOS for his prior approval. The DIOS is under a statutory obligation to communicate his decision within seven days from the date of receipt of particulars by him failing which he would be deemed to have given his approval. The management, after approval is communicated by the DIOS or in case of his failure to communicate within seven days of the receipt of the papers sent by the Manager shall deem approval and appoint selected candidate. An order of appointment shall be issued under signature of the Manager. The scheme is thus very clear. Since payment has to be made from the State Exchequer, the appointment can be made only when the entire selection procedure as well as particulars of the candidate selected are scrutinized and examined by the DIOS and he has an occasion to convey his approval to the selection prior to appointment.
This Court also held that Clause 2(3) of the Second Order contemplates prior approval before making appointment and the meaning and effect of prior approval has also been considered in the above judgment Udai Raj Vishwakarma (supra) and it has been held that prior approval contemplates approval before making appointment and it cannot be validated by submitting papers subsequently for approval. This Court held that non-compliance of the requirement of prior approval makes the appointment void ab initio since it is not a mere irregularity but an illegality going to the root of the matter.
Even if we assume that the procedure for filling in the two vacancies was initiated by the management in September, 1994, therefore, the law as it stood on that day ought to have been complied with as contended by learned Counsel for the petitioners, yet we find that Section 18 as it stood amended w.e.f. 01.07.1994 did not empower the committee of management to make selection for ad hoc appointment on its own but the same could have been done u/s 18 i.e. pursuant to recommendation made by selection committee constituted under Sub-section 9 and not otherwise. The procedure prescribed under 1982 Act read with the Removal of Difficulties Order having not been followed in making alleged appointments of the petitioners in first writ petition, I do not find any fault or error apparent on the face of record in the order of DIOS dated 08.04.1997 declining to grant its approval and the order dated 18/25.04.1998 of the DDE rejecting petitioner''s representation. The petitioners of the first writ petition, therefore, having been appointed illegally, have no right to continue in post and to claim salary from the State exchequer inasmuch as the State can be saddled with the liability of payment of salary of a Teacher provided such an appointment was made in accordance with law and not otherwise. In the result the first writ petition deserves to be dismissed.
Now coming to the second and third writ petitions vis a vis question No. 2, I find that this question is also no more res integra, having been considered by Division Bench of this Court (in which I was also a Member) in Surendra Kumar Srivastava v. State of U.P. and Ors. 2007(1) ESC 118 (All) (DB), and, para 16 and 17 thereof are reproduced as under:
The question as to whether a teacher appointed on short term basis pursuant to the provisions of Second Order has a right to continue if subsequently the vacancy becomes substantive, specifically came up for consideration before a Full Bench in Smt. Pramila Mishra v. Deputy Director of Education 1997 (2) ESC 1284 (All)(FB) and on page 1291 the Court held that "from the provisions of the Acts, Rules, Regulations and Removal of Difficulties Orders discussed above, it is manifest that a clear distinction has been maintained between substantive vacancy and short term vacancy of the post of a teacher. The authority to make the appointment, the procedure to be followed in making the appointments and the considerations to be made in making the appointment in the two cases are distinct and different from each other. In each case the duration of ad hoc appointment is also laid down under the statutory provisions. In the case of ad hoc appointment in a short term vacancy paragraph 3 of the Second Order specifically lays down that the appointment will come to an end if the short term vacancy otherwise ceases to exist. It follows, therefore, that when a vacancy caused due to grant of leave to or suspension of the permanent incumbent becomes a substantive vacancy on account of his death, resignation or termination or removal from service, the short-term vacancy ceases to exist and a substantive vacancy is created in its place. On a perusal of the relevant provisions of the Acts, Rules, and Removal of Difficulties Orders and giving our anxious consideration to the matter, we do not find any provision which directly or even indirectly vests a right in a person appointed an ad hoc teacher in a short-term vacancy to continue even after the said vacancy has ceased to exist and a substantive vacancy has been created in its place. The contention raised on behalf of the respondents that such an appointee (in short-term vacancy) is entitled to continue in the post (substantive vacancy) till a candidate selected by the Commission/Board joins the post does not get any support from the statutory provisions and, therefore, cannot be accepted. The contention is also not acceptable for the reason that it runs counter to the intendment of the provisions of the Act, Rules and Regulations. We should not be understood to be saying that an ad hoc teacher in a short-term vacancy cannot be appointed in a substantive vacancy. He can be appointed in the substantive vacancy if he is selected in accordance with the procedure and in the manner laid down in the relevant provisions of the Acts, Rules, Regulations and Removal of Difficulties Orders. What we want to stress and which is clear to u/s is that he cannot claim as a matter of right that he is entitled to continue in the post till the candidate selected by the Commission/Board joins even if the short term vacancy has ceased and a substantive vacancy in the post of teacher has been created in its place."
A careful reading of the law laid down by the Full Bench in Smt. Pramila Mishra (Supra) makes it clear that the Court specifically rejected the contention that a person has a right to continue when a substantive vacancy is created or occurred if he has been appointed as ad hoc teacher in a short term vacancy and held that there is no provision to support this contention. It has also specifically observed that acceptance of such contention would run counter to the specific provisions of the Act and the Rules framed thereunder. Further in the operative part of the judgment, the Full Bench, while discarding the contention that a teacher appointed by the Management on ad hoc basis in a short term vacancy which is subsequently converted into a substantive vacancy can claim a right to continue further held that however he has a right to be considered along with other eligible candidates for ad hoc appointment in the substantive vacancy, if he possess the requisite qualification. The Full Bench also overruled all the judgments taking contrary view as is apparent from the following: "Summing up our conclusions in the light of the discussions in the foregoing paragraphs, we hold that a teacher appointed by the management of the institution on ad hoc basis in a short term vacancy (leave vacancy suspension vacancy), which is subsequently converted into a substantive vacancy in accordance with the provisions of the Act, Rules and Orders, (on death, resignation, dismissal or removal of the permanent incumbent), cannot claim a right to continue. He has, however, a right to be considered along with other eligible candidates for ad hoc appointment in the substantive vacancy if he possesses the requisite qualifications. Consequent upon the view taken by us, as noticed above, we hold that the decisions of this Court like Km. Meena Singh''s case (supra) and other cases taking contrary view, are declared to be no longer good law.
This Court also considered some judgments wherefrom a slight distinct interpretation was sought to be traced out by learned Counsel for the petitioners in that case and after considering various aspects of the matter this Court held in para 34 of the judgment as under:
Since the contingencies in which appointments are made under First and Second Order, i.e., on occurrence of substantive or short term vacancy, procedure is different and the rights of the persons appointed for the period they have to continue being different, we do not find any reason to interpret or read Clause-3 of Second Order in a manner which would do violence with otherwise clear and unambiguous procedure. Therefore, in view of the binding pronouncements of law by the Full Bench in Pramila Mishra (supra) are clear and unambiguous provisions contained in para-3 of the Second Order, we are of the considered opinion that an ad hoc appointee against the short term vacancy would seize on cessation of short term vacancy for any reason whatsoever including where vacancy is converted into a substantive one. In such a case, the appointment, therefore, whether ad hoc or regular has to be made in accordance with the provisions contained in 1982 Act read with the Rules and Regulations framed thereunder.
In view of the exposition of law settled above the question No. 2 has to be answered in favour of petitioner of second writ petition and that being so the termination of Akhilesh Kumar Singh by the committee of management cannot be faulted. Hence the order of DIOS dated 30.01.2008 challenged in the second writ petition deserves to be quashed.
Since the appointment of Vinay Kumar Singh and Anil Kumar Singh have been found illegal and contrary to the procedure prescribed under 1982 Act read with Removal of Difficulties Orders, their termination from service cannot be faulted and, therefore, the third writ petition also deserves to be allowed and the order of DIOS dated 18.07.2008 challenged in the said writ petition is liable to be quashed. However, it is made clear that this Court has not gone into the question of validity of the appointment of Smt. Harshvardhani Sharma since it was not raised and that issue would be looked into again by the DIOS, who shall pass appropriate order in accordance with law. The quashing of the order dated 18.07.2008 shall not be construed as if this Court has upheld her appointment.
In the result, all the writ petitions shall be dealt with in the following manner:
The Writ Petition No. 18650 of 1998 is hereby dismissed and the interim order, if any, is vacated.
The Writ Petition No. 14437 of 2008 is allowed and the order dated 30.01.2008 of DIOS is hereby set aside. It is declared that after short term vacancy having become substantive, Akhilesh Kumar Singh who was appointed on ad hoc basis against short term vacancy has no right to continue against substantive vacancy unless selection is made in accordance with the procedure prescribed in law for ad hoc appointment against substantive vacancy.
The Writ Petition No. 39704 of 2008 is allowed. The order dated 18.07.2008 of DIOS is hereby quashed.
However, it is made clear that any payment of salary made to any of the ad hoc appointee whose appointment has not been found valid in this judgment shall not be recovered, if already paid, for the period he has been allowed to work pursuant to such appointment.
There shall be no order as to costs.