Anoop Kumar vs District Inspector of Schools,Etawah & Ors.

Dr. B.S. Chauhan, J.

The facts of the case as revealed in the petition are that there is on SchoolS.A.V. Inter College, Bharthana District Etawah which is governed by the provisions of the U.P. High Schools and intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971.

One Sri Rajveer Singh working in L.T. Grade was given an ad hoc promotion in Lecturer Grade and the petitioner was appointed in C.T. Grade on short term vacancy, vide appointment letter dated 16111994, contained in Annexure1 to the writ petition. The appointment of the petitioner has duly been approved by the District Inspector of Schools, EtawahRespondent No. 1, vide order dated 15111994 contained in Annexure2 to the writ petition. Sri Rajveer Singh who was having the lien on the post in C.T. Grade retired on 3061996 and, thus, the short term vacancy was converted into substantive vacancy.

Respondent No. 1, vide letter dated 1461996, contained in Annexure7 to the writ petition, directed respondent No. 4 to intimate the vacancy created by the retirement of Sri Rajveer Singh in C.T Grade, so that it can be notified to the Commission for filling it up by direct recruitment and to give a notice to the petitioner that as the person having the lien on the post has retired, the petitioner has no right to hold the said post. Again on 1771996 respondent No. 1 wrote a similar letter to respondent No. 4, contained in Annexure8 to the writ petition. The petitioner has challenged the orders passed by respondent No. 1 dated 1461996 and 1771996, contained in Annexures 7 and 8 to the writ petition.

Learned Counsel for the petitioner vehemently argued that if the short term vacancy is converted into the substantive vacancy, the ad hoc appointee on the short term vacancy is entitled to hold the post till the regular selection is made by the Commission.

In Km. Meena Singh v. D.I. O.S. and others, 1992 AWC 1739, this Court has held as under;

"In my opinion, therefore, a teacher duly appointed against short term vacancy under para 2 of the Second Removal of Difficulties Order, 1981, would be entitled to continue even after the vacancy is converted into a substantive one by reason of resignation, retirement, death or otherwise till such time as a candidate selected for regular appointment turns up to join the post held by ad hoc appointee unless his services are terminated earlier on grounds connected with misconduct, unsuitability or bonaf.de abolition of post......

The fact that the appointment against short term vacancy is also required to be made on the basis of quality point marks as is done in the case of recruitment against substantive vacancy, is indicative of the fact that there is no qualitative difference in the methods of appointment under the aforesaid provision. It is true that in case of appointment against a short term vacancy the management intimates the vacancy to the District Inspector of Schools and notifies the same on the notice board while in the case of appointment against substantive vacancy the District Inspector of Schools after receiving information from the management invites applications himself from the Local Employment Exchange and also through the public advertisement in at least two newspaper having adequate circulation in Uttar Pradesh. This would certainly attract more candidates for choice of a suitable candidate. But once the appointment against short, term vacancy is approved by the District Inspector of Schools it may not have been intended by the Legislature that such ad hoc appointee would be replaced by another ad hoc appointee merely because the nature of the vacancy has changed. If this procedure is allowed to be followed it may lead to exploitation of ad hoc appointee and corruption at the relevant levels as discussed herein before".

While deciding the said case, this Court had relied upon its earlier decisions in Writ Petition No. 1524 of 1989, Sri Chandra Bhan Singh v. District Inspector of Schools, decided on 4121991 and Writ Petition No. 19914 of 1991, Chandra Kant Pandey v. District Inspector of Schools, decided on 991991.

In Smt. Sneh Lata Misra v. Deputy Director of Education, Jhansi, 1996 (1) ESC 64, this Court again took the same view following the earlier cases, i.e. Km. Meena Singh (supra) and Virendra Kumar Singh v. District Inspector of Schools and another, 1989 (2) UP LBEC 607.

Sri Kripa Shanker Singh, learned Standing Counsel has vehemently argued that the aforesaid judgments are of no help to the petitioner as the law has subsequently been amended and there is no judgment to the effect that after the amendment of the various legal provisions the law laid down in the aforesaid cases can be followed.

The aforesaid judgments cannot be a binding on this court as the issue had not been raised in above referred cases.

In H.H.N. Madhav Rao Sindhiya v. Union of India and others, AIR 1971 SC 530, the Apex Court had referred as under:

"It is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment."

The said judgment was subsequently followed in Commissioner of Income Taxv. Sun Engineering Works (P) Ltd., 1992 (4) SCC 363, wherein the Supreme Court had observed as under:

"It is neither desirable nor permissible to pick opt a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete ''Law'' declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings".

Thus, I am of the considered opinion that the aforesaid judgments in Km. Meena Singh and Smt. Sneh Lata Misra (supra) are of no help to the petitioner.

In Mulcesh Kumar v. State of U.P., 1996 (4) UPLBEC 788, this Court considered the effect of the amendment which was enforced with effect from 1471992 on the short term vacancies and the Court came to the following conclusion:

"This issue has been decided by the Full Bench of this Court in the case of Radha Raizada v. Committee of Management, 1994 (3) UPLBEC 1551, wherein this Court has observed that procedure for filling up the short term vacancies which are not in the substantive capacity remains the same as prior to the amendment which was enforced with effect from 1471992.

In view of the above, the management had power to fill up the short term vacancies and there is no requirement of prior permission/approval from the District Inspector of Schools or any other authority for filling up such vacancies in nonsubstantive capacity".

But it was not considered in the said case as to what happened in a case where short term vacancy is converted into the substantive vacancy. The following legal provisions are necessary to be considered for deciding the present controversy. Section 12 of the U.P. Higher Education Service Commission Act, 1908:

Procedure for appointment of teachers. (1) Every appointment as a teacher of any college shall be made by the management in accordance with the provisions of this Act and every appointment made in contravention thereof shall be void.

(2) The management shall intimate the existing vacancies and the vacancies, likely to be caused during the course of the ensuing academic year, to the Director at such time and in such manner, as may be prescribed.

Explanation. The expression "academic year" means the period of 12 months commencing on July 1.

(3) The Director shall notify to the Commission at such time and in such manner as may be prescribed a subject wise consolidated, list of vacancies intimated to him from all colleges.

(4) The manner of selection of persons for appointment to the post of teachers of a college shall be such, as may be determined by regulations:

Provided that the Commission shall with a view to inviting talented persons give wide publicity in the State to the vacancies notified to it under subsection (3):

Provided further that the candidates shall be i squired to indicate tl.Jr order of preference for the various, colleges vacancies wherein have been advertised. (This provision came by substitution by U.P. Act No. 2 of 1992 with effect from 22111991).

Section 15 of the U.P. Secondary Education Service Selection Board Act, 1982:

Procedure for selection of teachers. (1) For the purposes of making appointment of a teacher, the Management shall determine the number of vacancies existing or likely to fall vacant during the year of recruitment and in the case of any post, other than the post of head of the institution, also the number of vacancies to be reserved for the candidate belonging to the Scheduled Castes, Scheduled Tribes and other categories of persons in accordance with the rules or orders issued by the Government in this behalf in regard to the institution and notify the vacancies to the Board in such manner and through such officer or authority as may be prescribed.

(2) The procedure of selection of candidate for appointment to the post of such teachers shall be such as may be prescribed:

Provided that the Board shall, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under subsection (1). (This provision was substituted by U.P. Act No. 1 of 1993 with effect from 781993.

Rule 4 of the U.P. Secondary Education Service Commission Rules, 1983"

Determination and intimation of vacancies. (1). (i) The Management shall determine and intimate to the Commission, in theproforma given in Appendix A'' and in the manner here in after specified, the number of vacancies existing or likely to fall vacant during the year of recruitment and, in the case of any post, other than the post of the head of an institution, also the number of vacancies to be reserved for the candidates belonging to the Scheduled Caste, Scheduled Tribes and other category of persons in accordance with the rules or orders issued by the Government in this behalf in regard to the educational institutions.

(2) The Statement of vacancies shall be sent by the Management to the Inspector in quadruplicate by 15th September of the year of recruitment and the Inspector shall, a after verification, forward two copies of the same to the Deputy Director by October 15, with a copy to the Commission.

(3) The Deputy Director shall, after keeping a copy, forward the statement received by him under subrule (2) alongwith a consolidated subjectwise statement of various categories of vacancies to the Commission by November 15.

(4) Notwithstanding anything contained in subrules (1), (2) and (3), the time schedule mentioned in the subrules shall not apply in respect of recruitment year 1982 and, unless any other date or schedule is notified by the Government, the Director shall ensure that vacancies are notified to the Commission by February 28, 1983.

(5) Where a vacancy occurs at any time during the session or after the requisition has already been sent in accordance with subrules (2), (3), (4) or (5) of this rules, the managemeni shall notify the vacancy to the Inspector within 15 days of its occurrence and the Inspector and the Deputy Director shall deal with it in the manner mentioned in subrules (3) and (4) within lOdaysofits receipt by them.

(6) (i) Where the Management has, foi any recruitment year, failed to notify the vacancy or the vacancies by the date specified in subrules (2), (4), or (5) or has failed to notify the vacancy or the vacancies in the manner prescribed in Rule 4 or Rule 9, the Commissior may require the Inspector to notify the vacancj or the vacancies in the institution under his jurisdiction to the Commission by such date as the Commission may specify.

(ii) Where the Commission requires the Inspector to notify the vacancy or the vacancies under paragraph (1) of this subrule the Inspector shall notify the same in accordance with Rule 4 or, as the case maybe, Rule 9 of these rules and vacancy or the vacancies so, notified shall be deemed to be notified by the Management.

Rule 9A. Procedure for ad hoc appointment by direct recruitment. (I) (a) The District Inspector of Schools shall, in respect of the vacancies to be filled by direct recruitment, advertise the vacancies subjectwise, separately for lecturer and trained graduate (L.T.) grade, alongwith the number of vacancies to the reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other category of persons in at least two newspaper one of which having wide circulation in the district and the other in the Stateand invite applications for ad hoc appointment in the pro forma given in Appendix ''C''. Such advertisement shall, inter alia, mention the pay and allowances admissible to the posts, minimum academic qualifications for appointment and such other things as may be considered necessary.

(This rule has been inserted vide Notification No. 3440/1572(6) 92 dated 1671992).

The said rule further provides for the process of selection by Section Committee and in subrule (5) the Committee is empowered to allocate the selected candidates to the Institution according to the preferences given by the selected candidates and under subrule (6) the Committee of Management of the Institution is duty bound to pass a resolution appointing the candidate duly selected by the said Selection Committee within a period of fifteen days. Subrule (7) does not given any discretion to the Committee of Management as the direction issued by the District Inspector of Schools becomes binding upon the Committee of Management.

Similarly, Rule 9B lays down the procedure for the ad hoc appointment by promotion.

As the aforesaid amendment which came into force on 1471992 has deprived the Committee of Management to make an ad hoc appointment on the substantive vacancy, it is not permissible for the petitioner to agitate the issue that a person who was duly appointed on the short term vacancy by the Committee of Management would be entitled to continue if the short term vacancy is converted into substantive vacancy. In the aforesaid cases, i.e. Km. Meena Singh (supra), it was so held that the procedure of filling up the short term vacancy as well as the substantive vacancy on ad hoc basis had been the same. Now the procedure has completely been changed and any persons who has not been appointed under Rule 9A of the U.P. Secondary Education Service Commission Rules, 1983 does not have a right to hold the post on a substantive vacancy, even if he was holding the post as having been appointed on the short term vacancy. As the language of the said Rules and the provisions of the Act quoted above makes clear that the provisions are mandatory and not merely .directory. Take an example, if A, a Lecjurer is likely to retire on 30th June, 1996, proceeds on leave only eight weeks ago and the Committee of Management fills up a short term vacancy by appointing ''B'' and if ''B'' is permitted to hold the post as the same had been converted from the short term vacancy as substantive vacancy on 30th June, 1996 as ''A has retired, it would amount to a process defeating the provisions of the statutory rules. Statutes cannot be interpreted in a way which may open the flood gates of fraud and corruption. If the proposition of the petitioner is accepted, it would be tantamount to authorise the Committee of Management to make an appointment after creating the short term vacancy by the colourable exercise of power and to defeat the very object for which the amendment was brought in the said Rules on 1471992. The Rules must be interpreted to make the statutory provisions workable. Moreover, the Court must consider the legislative history of a particular provision and take judicial notice of the fact as to why such amendment was self necessary. The provisions should not be interpreted which nullifies the effect of the amendment. (Commissioner of Income Tax, Orissa v. Mis N.C. Budharaja, AIR 1993 SC 2529 and C.E. S. C. Ltd. v. Subhash Chandra Bose, AIR 1992 SC 573.

In Atma Ram Mittal v. Ishwar Singh Punia, 1988 SC 2031, the Supreme Court has held that the contents, subjectmatter, the effects and consequences or the spirit and reason of law should be taken into account while interpreting the provisions of law. The word must be construed with the imagination of "purpose behind them".

In State of Rajasthan v. Gopi Kishan Sen, AIR 1992 SC 1754, the Apex Court has held that the statutory provisions cannot be interpreted in a way which render the statutory provision ineffective or otiose.

In Hindustan Liver Ltd. v. Ashok Vishnu Kate and others, 1995 (6) SCC 326, the Apex Court has held that the statutory provisions should be interpreted to effectuate the purpose of the Act. Thus, if the law laid down in Km. Meena Singh (supra) is followed in the instant case, it would make the amendment nugatory which is not permissible under the law nor such an interpretation can be given. It is settled law that when the Act provides for a particular procedure the steps have to be taken accordingly or not at all.

Dr. R.G. Padia, learned Counsel for the petitioner has vehemently argued that there is no difference if the short term vacancy is filled up by the Committee of Management and approval is granted by the District Inspector of Schools and in a case where the selection on the substantive vacancy be made under the amended Rules by the Selection Committee headed by the District Inspector of Schools, the submission is devoid of any merit and is preposterous.

In Jethi Devi v. Bhakhra Beas Management Board, 1995 (6) SCC 61, the Supreme Court considered the case where after the death of her husband, Om Das, Jethi Devi applied for the employment on compassionate ground under the Dying in Harness Rules, but the respondents therein rejected the claim of Smt. Jethi Devi only on the ground that she had started living with her brotherinlaw, Chandra Mani as his wife and a child was also born to them. The Apex Court has observed as under:

The question which, therefore, emerges fg.fKc whether the ceased to be the widow of Om OM"Kn view of the fact that no legally solemnised marriage exists she is not incorrect in stating that she is the widow of Om Das".

Thus, unless the requirement of law is completed, no body can take the advantage of a situation that may be similar to a situation as recognized by law. Thus, unless the procedure required is being followed, parties cannot derive any benefit out of it.

In Rameshwar Dayal v. State of U.P., AIR 1983 SC 383, the Supreme Court has considered the effect of the amendment in the Motor Vehicles Act, 1939 and while interpreting the amended provisions the Court observed that for interpreting the amended provisions the Court must bear in its mind the history of the provision, the mischief which the Legislature attempted to remedy, the remedy provided by the amendment and the reason for providing such remedy. Rule 9A of 1983 Rules was inserted with effect from 1671992 to remedy the mischief played by the Committee of Management by tilling up the short term vacancies without considering the claims of the persons belonging to the reserved category. Rule 9A provides that while advertising the post, it would be mentioned in the advertisement itself as which particular post is to be filled up by the candidates belonging to the reserved category. If the interpretation given by this Court in the above referred cases is accepted such an interpretation will not only be inconsistent with the provisions of statutory Rule 9A of the said Rules, but it would also be in flagrant violation of the provisions U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994, which defines "Public Services and Posts" including the posts in Educational Institutions which receive grant in aid from the State Government. While filling up the short term vacancy by the Management a large number of persons may not even think to apply but when an ad hoc appointment is made on a substantive vacancy a large number of candidates may apply as the ad hoc appointment on substantive vacancy may be more lucrative for candidates particularly in view of the fact that in past the ad hoc appointments had been regularised from time to time and for the same purpose Sections 33A and 33B had been inserted in the Act No. 5 of 1982, The said amendments had been brought in the Act by Act No. 19 of 1985, Act No. 26 of 1992 and Act No. 1 of 1993. Thus, any person if holding the post in contravention of the statutory provisions his service may be declared to be invalid as per the law laid by the Supreme Court in Smt. Ravindra Sharma v. State of Punjab, 1995 (1) SCC 138. If an incumbent holding the post on short term is permitted to hold the post after the vacancy had been converted into the substantive vacancy, it wpald also be violative of mandatory provision enshrined in the mandatory provision of Article 16 of the Constitution of India. Thus, there is no force in the argument that the appointment made by the Committee of Management has the same qualitative effect as it would have been if the post had been filled up under the amended provisions by the Selection Committee, headed by the District Inspector of Schools.

The petition is devoid of any merit and hence it is dismissed.