Lokesh Kumar Shukla vs D.I.O.S. and Others

Sudhir Agarwal, J.—List revised. None appeared on behalf of Petitioner to press the writ petition. However, I have perused the record.

Pursuant to this Court''s order dated 06.07.2010 notice was issued to Petitioner on 12.07.2010 to engage another counsel. The office report dated 30.03.2011 shows that the same has not returned back. Service is deemed sufficient.

Petitioner has sought a writ of mandamus commanding the Respondents to pay salary to him on the post of Assistant Teacher (L.T. Grade) w.e.f. 01.08.1994.

It is claimed that a shortterm vacancy on the post of Assistant Teacher (L.T. Grade) occurred in Shree Moti Lal Inter College, Saiya, Agra (in short "the College") due to ad hoc promotion of one Sri Kishan Chandra Sharma as Lecturer. A shortterm vacancy was advertised in daily newspaper Swaraj Times on 13/14.07.1994 and thereafter Petitioner was selected and appointed vide order dated 31.07.1994 issued by Manager, Committee of Management.

It can not be disputed that for filling in a short term vacancy, procedure which ought to have been followed in the case in hand is prescribed in U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as the "Second Order") read with U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the "Act, 1982"). Where a short term vacancy is to be filled in on adhoc vacancy, the procedure prescribed under para 2 of the Second Order has to be observed. It reads as under:

Procedure for filling up shortterm vacancies.

(1) If shortterm 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 seniormost 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 nonavailability 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. Ma1993/XV7(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 "seniormost 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;

(ii) in relation to institution imparting instructions to women, the expression ''District Inspector of Schools'' shall mean the Regional Inspectress of Girls'' Schools;

(iii) shortterm vacancy which is not substantive and is of a limited duration.

A bare perusal of the aforesaid procedure prescribed in Second Order as also the steps taken, as stated in writ petition, makes it clear that the said procedure has not been followed. The appointment of Petitioner has been made in utter disregard of the aforesaid procedure. This procedure has been considered in a catena of decisions of this Court as well as the Apex Court. This Court does not intend to add the bulk of judgments by referring to all such decisions but suffice is to mention that a detailed judgment was rendered by a Full Bench of this Court in Radha Raizada v. Committee of Management, 1994 (2) ESC 345 (FB) and confirming the above Full Bench judgment, Apex Court in Prabhat Kumar Sharma and others Vs. State of U.P. and others, held that procedure laid down in Removal of Difficulties Order is mandatory and has to be observed in words and spirit. An appointment made inconsistent with the said procedure is void abinitio and will not confer either any right upon the incumbent to hold the post or to continue in service or to claim salary from State exchequer. The relevant observations made by the Apex Court in Prabhat Kumar Sharma (supra) is as under:

Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees.

Again in para 11 of the judgment the Court held as under:

Any appointment in violation thereof is void. As seen prior to the Amendment Act of 1982 the First 1981 Order envisages recruitment as per the procedure prescribed in para 5 thereof. It is an inbuilt procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the Management to any posts in aided institution.

This decision has been followed and reiterated recently by the Apex Court in Shesh Mani Shukla v. District Inspector of Schools Deoria and others J.T. 2009 (10) SC 309 wherein the Apex Court has held as under:

It is true that the Appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the Appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ Petitioner must establish a legal right in himself and a corresponding legal duty in the State.

In the circumstances, it cannot be said that the appointment of Petitioner was made validly and hence he was entitled for payment of salary. I, therefore, find no reason to pass any order enabling Petitioner to claim salary from the State Exchequer.

The writ petition, therefore, lacks merit and is dismissed. No costs.