Smt. Pramila Mishra vs Deputy Director of Education and Others

D.P. Mohapatra, C.J.—The core question that arose for determination in these appeals is whether a teacher appointed on ad hoc basis in a short term vacancy, like leave vacancy, is entitled as of right to continue in the said post even after the short-term vacancy has been converted to a permanent vacancy due to death, resignation or retirement of the permanent incumbent? The answer to this question depends on the interpretation of Section 33B of the U.P. Secondary Education Services and Selection Boards Act, 1982 {U.P. Act No. 5 of 1982) (hereinafter referred to as the Act) and its interaction with the provisions of the U.P. Secondary Services Commission (Removal of Difficulties) (Second) Order, 1981. The point was referred to Full Bench by a Division Bench by the order passed on 12.4.1994 in Special Appeal No. 382 of 1993. The relevant portion of the said order reads:

Cites judgments of the Division Bench in Civil Writ Petition No. 7786 of 1986 Rafiq Ahmad and Anr. v. State of U.P. and Ors. decided on March 10. 1988; Heera Lal Sahu v. District Inspector of Schools, Kanpur Dehat and Ors. decided on May 20, 1988. A reading of these judgments would show that there is no reference in either of them to the provisions of Clause 3 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 regarding duration of ad hoc appointment. In this view of the matter, both these judgments in our opinion require reconsideration and we consequently admit this Special Appeal to Full Bench.

The other appeals have been ordered to be heard along with Special Appeal No. 322 of 1993 since they involve the same point. In the cases referred to in the reference order quoted above, this Court took the view that an ad hoc teacher appointed in a short-term vacancy, which is subsequently converted into a permanent vacancy, is entitled to continue in the post till a candidate duly selected by the U.P. Secondary Education Services Commission joins the post. It is relevant to note here that in both the cases the main question for consideration of this Court was the claim of salary by the ad hoc teacher. While in the case of Heera Lal Sahu (supra), a direction was issued to the District Inspector of Schools for payment of arrears salary to the Petitioner within three months from the date production of a certified copy before him and to continue to pay salary in future till a candidate found best suitable, who is recommended by the Commission, joins the post, in the case of Rafiq Ahmad and Anr. v. State of U.P. and Ors. (supra), the direction to the District Inspector of Schools was to pay to the Petitioners their respective salaries and treat them as teachers in the institution concerned till their services are either done away in accordance with law or the Board makes a selection of teachers and the selectees of the Board join the post held by the Petitioners or Arif Siddiqui returns to his original post.

For the sake of brevity and convenience, we will refer to the relevant facts in Special Appeal No. 898 of 1995, which is the case in which detailed arguments were advanced before us. This Special Appeal was filed by Smt. Pramila Mishra, an Assistant Teacher of Nagar Palika Balika Inter College, Kalpi, District Jalaun at Orai challenging the judgment dated 29.9.1995 of Civil Misc. Writ Petition No. 19152 of 1995. The writ petition was filed by Smt. Sneh Lata Mishra, Respondent No. 5 in the appeal, citing the Deputy Director of Education, Jhansi Division, Jhansi, Regional Inspectress of Girls School/Deputy Director of Education-II, Jhansi, District, Inspector of Schools Jalaun at Orai, Nagar Palika Balika Inter College, Kalpi. District Jalaun at Orai through its Officer-in-charge and Smt. Pramila Mishra the Appellant, as Respondents. The Petitioner challenged the order dated 6.7.1995 of the Deputy Director of Education, Jhansi, disapproving the extension of her ad hoc appointment as Lecturer with effect from 19.4.1990.

The facts of the case relevant for the purpose of present proceedings may be stated thus : When Smt. L. R. Mishra, a Lecturer in Economics, proceeded on medical leave, a short term vacancy arose in the post on 1.7.1989. The Petitioner Smt. Sneh Lata Mishra was appointed in the post on ad hoc basis by order dated 1.1.1990. Smt. Pramila Mishra who was appointed an Assistant Teacher in the institution in C. T. Grade on 31. .1978, became entitled to hold a post in L. T. Grade with effect from 1.2.1988 on completion of 10 years service in C. T. Grade. Respondent No. 5 moved Writ Petition No. 10393 of 1994 challenging the order of the District Inspector of Schools refusing her claim for pay fixation in L. T. Grade with effect from 1.1.1986. She also filed a separate writ petition challenging the ad hoc appointment of the Petitioner Smt. Sneh Lata Mishra which was summarily disposed of on 7.2.1990 with the observation that she had an alternative remedy. Upon the death of Smt. L. R. Mishra, the short-term vacancy, in which the Petitioner was appointed, was converted into a permanent vacancy and the same was notified to the Commission Then, the question arose whether the Petitioner was entitled to continue as ad hoc teacher or the claim of the Respondent No. 5 for her promotion in the substantive vacancy was to be accepted. The Deputy Director of Education by order dated 21.7.1990 upheld the ad hoc appointment of the Petitioner. The "Respondent No. 5 challenged the said order in Writ Petition No. 19052 of 1990 in which an ex parte order of stay was passed. Thereafter, the Petitioner filed Writ Petition No. 17217 of 1992 for payment of her salary with effect from 22.1.1990 whereupon an interim mandamus was issued. Both the Writ Petitions No. 19052 of 1990 and 17217 of 1992 were considered together. While Writ Petition No. 19052 of 1990 was allowed on the ground that no opportunity of hearing was granted to the Respondent No. 5 and the matter was remanded, in Writ Petition No. 17217 of 1992 a direction for payment of salary was made. Special Appeal No. 193 of 1993, filed by the Respondent No. 5 against the interim order of payment of salary to the Petitioner, was dismissed by order dated 2.2.1995. The appeal filed by the Petitioner against the order passed in Writ Petition No, 19052 of 1990 was also dismissed. The Deputy Director of Education by order dated 8.7.1995 disapproved the extension of ad hoc appointment of the Petitioner and held the Respondent No. 5 to be entitled to promotion to the post of Lecturer of Economics. This order was challenged in Writ Petition No 19152 of 1995. The learned single Judge relying on previous decisions of the court, including the decisions in Km. Meena Singh v. District Inspector of Schools 1992 (3) AWC 1733 and Virendra Kumar Singh v. District Inspector of Schools and Anr. 1989 (2) UPLBEC 607, held that a teacher appointed on ad hoc basis against a short-term vacancy would be entitled to continue even after the vacancy is converted into a substantive one till such time as a candidate selected by the Commission turns up to join. Consequently, the learned single Judge held that Respondent No. 5, who could not claim promotion on the date of creation of the short term vacancy, could not be considered for promotion to the post after the short term vacancy was converted into substantive one. On such findings, the learned single Judge allowed the writ petition, quashed the order dated 6.7.1995 and directed that the Petitioner will continue as ad hoc teacher of Economics in the institution.

At the outset, it would be convenient and useful to notice a few statutory provisions relevant for the consideration of the issues raised in the case. Section 7AA of the U.P. Intermediate Education Act, 1921 (U.P. Act 11 of 1921), provides, inter alia, that notwithstanding anything contained in the Act, the Management of an institution may, from its own resources, employ as an interim measure part-time teachers for imparting instructions in any subject or group of subjects or for a higher class for which recognition is given or in any section of an existing class for which permission is granted u/s 7A; that no part time teacher shall be employed in an institution unless which conditions may be specified by the State Government by order in this behalf are complied with; that no part time teacher or part-time instructor shall be employed unless he possesses such minimum qualifications as may be prescribed; that a part-time teacher or a part-time instructor shall be paid such honorarium as may be fixed by the State Government by general or special order in this behalf; and that nothing in the Act shall preclude a person already serving as a teacher in an institution from being employed as a part-time teacher or a part-time instructor u/s 7AA.

Section 7AB, which makes provisions for exemption, lays down that nothing in the Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (U.P. Act No. 24 of 1971) or the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982 (U.P. Act No. 5 of 1982) shall apply in relation to part-time teachers and part-time instructors employed in an institution u/s 7AA.

Section 16E of the said Act which prescribes the procedure for selection of teachers and head of institution, provides, inter alia, that no person shall be appointed as Head of institution of teacher in an institution unless he possesses the minimum qualification prescribed by the regulations, provided that a person who does not possess such qualification may also be appointed if he has been granted exemption by the Board having regard to his education, experience and other attainment; that every application for. appointment as Head of Institution or teacher of an institution in pursuance an advertisement published under Sub-section (2) shall be made to the Inspector and shall be accompanied by such fee which shall be paid in such manner as may be prescribed; that after the receipt of application under Sub-section (4), the Inspector shall cause to be awarded, in respect of each such application, quality point marks in accordance with the procedure and principles prescribed and shall thereafter forward the application to the Committee of Management; that the application shall be dealt with, the candidates shall be called for interview and the meeting of the Selection Committee shall be held, in accordance with the Regulations; that the Selection Committee shall prepare a list containing in order of preference the names as far as practicable of three candidate for each post found by it to be suitable for appointment shall communicate its recommendation together with such list to the Committee of Management; that subject to the provisions of Sub-section (8) the Committee of Management shall , on receipt of the recommendations of the Selection Committee under Sub-section (6), first offer appointment to the candidate given the first preference by the Selection Committee, and on his failure to join the pots the candidate next to him in the list prepared by the Selection Committee under this section and on the failure of such candidate also, to the last candidate specified in such list and in Sub-section (8) it is provided that the Committee of Management shall, where it does not agree with the recommendations of the Selection Committee, refer the matter together with the reasons of such disagreement to the Regional Deputy Director of Education in the case of appointment to the post of Head of the Institution and to the Inspector in the case of appointment to the post of teacher of an institution, and his decision shall be dual Sub-section (11) of Section 16E provides that notwithstanding anything contained in the foregoing sub section, appointment in the case of temporary vacancy caused by the grant of live to an incumbent of a period not exceeding six months or by death, termination or otherwise of an incumbent occurring during an educational session, may be made by direct recruitment or promotion without refereneeto the Selection Committee in such manner and subject to such conditions as may be prescribed, provided that no appointment made under this sub-section shall, in any case, continue beyond the end of the educational session during which such appointment was made.

The Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982 was enacted for the purpose of establishing Secondary Education Services Commission and Selection boards for the selection of teacher in secondary institutions recognised under the Intermediate Education Act, 1921. ''Institution'' as defined in Section 2 (e) of the said Act means'' an Intermediate College or Higher Secondary School or a High School recognised under the Intermediate Education Act, 1921 and includes institution maintained by a local authority but doe;; not include an institution maintained by the State Government; Section 18 of the said Act which makes provision for ad hoc teacher, provides, inter alia, (bat where the Management has notified a vacancy to the Commission in accordance with the provisions of this Act, and (a) the Commission has failed to recommend (he name of any suitable candidate for being appointed as a teacher specified in the Schedule within one year from the date of such notification; or (b) the post of such teacher has actually remained vacant for more than two months, then the management may appoint, by direct recruitment or promotion, a teacher on purely ad hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the Regulations made thereunder. Sub-section (2) of the said Section extends the provisions of Sub-section (1) to the appointment a teacher (other than a teacher specified in the Schedule) on ad hoc basis with the substitution of the expression ''Board'' for the expression ''Commission''. In Sub-section (3) of the said Section, it is laid down that every appointment of an ad hoc teacher under Sub-section (1) or Sub-section (2) shall cease to have effect from the earliest of the following dates, namely, (a) when the candidate recommended by the Commission or the Board, as the case may be, joins the post; (b) when the period of one month referred to in Sub-section (4) of Section 11 expires; and (c) thirtieth days of June following the date of such ad hoc appointment.

Section 33 of the Act vests power in the State Government to remove difficulties, provided, inter alia, that the State Government may, for the purposes of removing any difficulty, by a notified order, direct that the provisions of this Act shall, during such period as may be prescribed in the order, have effect subject to such adaptations, whether by way of modification, addition or omission, as it may deem to be necessary or expedient, provided that no such order shall be made after two years from the date of commencement of this Act. The Section also provides that no order under Sub-section (1) shall be called in question in any court on the ground that no difficulty as is referred to in Sub-section (1) existed or required to be removed.

Section 33A, (which was introduced by amendment by U.P. Act No. 19 of 1985 with effect from 12th June, 1985), makes provision regarding regularisation of certain appointments. Sub-section (1) of the said Section mandates that every teacher directly appointed, before the commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Ordinance, 1985, on ad hoc basis against a substantive vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, as amended from time to time, who possesses the qualifications prescribed under, or exempted from such qualifications in accordance with the provisions of the U.P. Intermediate Education Act, 1921, shall, with effect from the date of such commencement, be deemed to have been appointed in a substantive capacity provided such teacher had been continuously serving the institution from the date of such appointment up to the date of such commencement. Sub-section (3) of the said Section lays down that nothing in this Section shall be construed to entitle any teacher to substantive appointment, (a) if on the date of such commencement, such post has already been filled or selection for such post had already been made in accordance with this Act, or (b) if such teacher was related to any member of the Committee of Management or the Principal, or Head Master of the institution concerned.

Section 33B of the Act (which was inserted in the statute by U.P. Act No. 1 of 1993 with effect from 7th August, 1993), provides in Sub-section (1) that any teacher, other than the Principal or Head Master, who (a) (i) was appointed by promotion or by direct recruitment in the lecturer grade or Trained Graduate grade on or before May 14, 1991 or in the Certificate of Teaching grade on or before May 13, 1989 against a short-term vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 and such vacancy was subsequently converted into a substantive vacancy, or (ii) was appointed by direct recruitment on or after July 14, 1981 but not later than June 12, 1985 on ad hoc basis against a substantive vacancy in the Certificate of Teaching Grade through advertisement and such appointment was approved by the Inspector, or (iii) was appointed by promotion or by direct recruitment on or after July 31, 1988 but not later than May 14, 1991 on ad hoc basis against a substantive vacancy in accordance with Section 18, as it stood before the omission by the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1992; (b) possesses the qualification prescribed under, or is exempted from such qualifications in accordance with the provisions of the Intermediate Education Act, 1921. (c) has been continuously serving the Institution from the date of such appointment up to the date of the commencement of the Act referred to in sub Clause (iii) of Clauses (a) and (d) is not related to any member of the Management or the Principal or Headmaster of the Institution concerned in the manner specified in the explanation to Sub-section (3) of Section 33A, (e) has been found suitable for appointment in a substantive capacity by a Selection Committee constituted under Sub-section (2), shall be given substantive appointment by the Management, (emphasis supplied). Sub-section (2) makes provision for constituting Selection Committee for each region, the procedure and the manner to be followed by the Selection Committee in recommending names for appointment of teacners. Sub-section (5) provides that a teacher who is not found suitable under Sub-section (1) and a teacher who is not eligible to get a substantive appointment under that sub-section shall cease to hold the appointment on such date as the State Government may by order specify. Sub-section (6) of Section 33B mandates that nothing in this Section shall be construed to entitle any teacher to substantive appointment, if on the date of commencement of the Act referred to in Sub-clause (iii) of Clause (a) of Sub-section (1), such vacancy had already been filled or selection for such vacancy had already been made in accordance with this Act.

Section 34 of the Act vests power in the Commission to make or amend Regulations with the prior approval of the State Government for certain purposes. It is further provided in the section that such Regulations shall not be inconsistent with the provisions of the Act or the Rules made u/s 35 and as far as possible, be followed by the Board for discharging its duties and performing its functions under the Act. Section 35 vests power in the State Government to make Rules, by notification, for carrying out the purposes of the Act.

Rule 9B of the U.P. Secondary Education Service Commission Rules, 1983 lays down the procedure for ad hoc appointment by promotion. The Rule provides, inter alia, (i) that the Management shall in respect of the vacancies to be filled by promotion, consider the cases of such teachers who are working in trained graduate (L.T.) or Certificate of Teaching (C.T.) grade and possess the qualifications prescribed under the Intermediate Education Act, 1921 or the Regulations made thereunder and have put in at least five years'' continuous service as such on the date of occurrence of vacancy for promotion to the lecturer or trained graduate (L.T.) grade, as the case may be, on the basis of seniority subject to rejection of unfit without their having applied for the same. Sub-rule (2) provide that the Management shall forward the name of the selected teacher along with the copy of seniority list and his service record including character roll to the District Inspector of Schools for approval and in Sub-rule (3), it is laid down that the District Inspector of Schools, shall, within ten days from the date of receipt of names under Sub-rule (2), send the names of approved teachers to the Management of the concerned institution and the provisions of Sub-rules (6) and (7) of Rule 9A shall mutatis mutandis apply.

The Government under the provisions of the U.P. Secondary Education Services Commission and Selection Boards Act, 1981 issued several orders styled as ''Removal of Difficulties Order''. The Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as the First Order) and the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as the Second Order), which are relevant for the present purpose. Paragraph 2 of the First Order which enumerates vacancies in which ad hoc appointments can be made, lays down that the management of an institution may appoint by promotion or by direct recruitment a teacher on purely ad hoc basis in accordance with the provisions of the Order in the following cases, namely (a) in the case of a substantive vacancy existing on the date of commencement of the Order caused by death, retirement, resignation or otherwise; (b) in the case of a leave vacancy, where the whole or unexpired portion of the leave is for a period exceeding two months on the date of such commencement; (c) where a vacancy of the nature specified in Clause (a) or Clause (b) comes into existence within a period of two months subsequent to the-date of such commencement. Paragraph 3 of the First Order, which makes provision regarding duration of ad hoc appointments, lays down that every appointment of an ad hoc teacher under Paragraph 2 shall cease to have effect from the earliest of the dates, namely, (a) when the candidate recommended by the Commission or the Board joins the post; or (b) when the period of six months from the date of such ad hoc appointment expires. Paragraph 4 makes provision for ad hoc appointment by promotion. Clause (2) of the said paragraph mandates that every vacancy in the post of a teacher in Lecturers grade may be filled by promotion by the senior-most teacher of the institution in the trained-graduate (L.T.) grade. In Clauses (3) and (4) it is laid down that every vacancy in the post of a teacher in the trained graduate (L.T.) grade shall be filled by promotion by the senior-most teacher of the institution in the trained under graduate (C.T.) grade and every vacancy in the post of a teacher in the trained under graduate (C.T.) grade shall be filled by promotion by the seniormost teacher of the institution in the J.T.C. grade or B.T.C. grade. Paragraph 5 of the First Order provides, inter alia, that where any vacancy cannot be filled by promotion under paragraph 4, the same may be filled by direct recruitment in accordance with Clauses (2) to (5). On a perusal of Clauses (2) to (5) it is manifest that the management shall, as soon as may be, inform the District Inspector of Schools about the details of the vacancy and such Inspector shall invite applications from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh, that every application referred to in Clause (2) shall be addressed to the District Inspector of Schools; that the District Inspector of Schools shall cause the best candidate selected on the basis of quality point specified in Appendix and if more than one teacher of the same subject or category is to be recruited for more than one institution, the names of the selected teachers and names of the institutions shall be arranged in Hindi alphabetical order; the candidate whose name appears on the top of the list shall be allotted to the institution the name whereof appears, on the top of the list of the institutions; the process shall be repeated till both the lists are exhausted. In relation to an institution imparting instruction to women the expression "District Inspector of Schools" shall mean the "Regional Inspectress of Girls'' Schools".

The Second Order deals with filling up of certain short-term vacancies caused by grant of leave to or on account of suspension of a teacher or otherwise. Paragraph 2 of the Second Order, which lays down the procedure for filling up short term vacancies, provides, inter alia, that if short term vacancy in the post to 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, 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. In Clause (2) of the said paragraph, it is provided that 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). In Clause (3), it is mandated that 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'' of this Order; that 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 dated 31st July, 1981 and that the compilation of quality point marks shall be done under the personal supervision of the head of institution. The District Inspector of Schools shall communicate his decision within 7 days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval. On receipt of 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. Paragraph 3 of the Second Order makes provision regarding duration of ad hoc appointment. In the said paragraph, it is laid down that every appointment of a teacher under paragraph 2 of this Order shall cease from (he earliest of the following dates, namely, (a) when the teacher, who was on leave or under suspension joins the post; (b) when the period of six months from the date of such ad hoc appointment expires; or (c) when the short term vacancy otherwise, ceases to exist. (Emphasis supplied)

Paragraph 4 of the Second Order lays down that every appointment of a teacher under paragraph 2 shall mutatis mutandis be subject to the conditions laid down in paragraph 6 of the First Removal of Difficulties Order, 1981.

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 appointment and the considerations to be made in making the appointments in the two cases are distinct and different from each other. In each case, (he 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 as 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 Acts, 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 us is that he cannot claim as a matter of right that he is entitled to continue in the post fill 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.

In the case of Virendra Kumar Singh v. District Inspector of Schools, District Allahabad and Anr. (1989) 2 UPLBEC 607, a Division Bench of this Court held that an appointment on leave vacancy continues till person in whose leave vacancy that appointment was made comes to join that post or other candidate is recommended by the Commission or Board and that candidate is ready to join the post. Considering the undisputed factual position in that case that neither the person in whose vacancy the Petitioner was appointed had come back or was ready to join the post nor some one else had been recommended by the Commission to join the post in which the Petitioner continued, this Court held that the Respondents erred in law in not treating the Petitioner to continue in service and in not paying the salary to the Petitioner.

In the case of Charu Chandra Tiwari v. District Inspector of Schools; Deoria and Ors. (1990) 1 UPLBEC 160, a Division Bench of this Court interpreting Section 18 (1) of the U.P. Secondary Education Services Commission and Selection Boards Act, 1982 held that the said Section empowers the Management to make ad hoc appointment in case the vacancy is not filled for more than two months by the Commission; that the nature of appointment is apparent from use of expression, ''purely ad hoc basis''; that it does not create any right in the appointee except to continue till regular selection is made. This Court also held that under the said clause the method of appointment could be by direct recruitment or promotion, but manner is not provided, nor it provides if the two methods are exclusive of each other or are alternative. Discussing the purpose and objective of the appointment and legislative background of ad hoc appointment in educational institutions, the court observed:

A superficial reading of Section 18 (1) may create an impression that it is open to Management to fill ad hoc vacancy either by direct appointment or by promotion. But a close scrutiny in the light of purpose and objective of the appointment and legislative background of ad hoc appointment in educational institutions, dispels this doubt. Purpose, obviously, is the interest of the institution and students. Delay in appointment by the Commission may not cause dislocation in teaching. To avoid it the senior-most teacher available in the subject, who in fact normally must be taking classes, should be promoted. It is conducive to the institution, is encouraging for the teacher and avoids any disturbance. But more than this is the construction of the clause both on the language and legislative background. In U.P. Intermediate Education Act, 1921 there was no concept of ad hoc appointments. By Act No. XXVI of 1975 the Act was amended. Procedure for appointment of teachers by the Management on Recommendation of Selection Committee was provided. The transitory provision empowered the Government to remove difficulties by issuing orders to give effect to provisions of the Act. In pursuance of it, the U.P. Secondary Education (Removal of Difficulties) Order, 1975 was issued on 18th August, 1975.

Since the Government was empowered to frame regulations notwithstanding anything contained in Chapter IInd and IIIrd of Regulations and the Removal of Difficulties Order provided for filling up vacancy of teacher in Lecturer or L.T. grade or even C.T. by promotion of senior-most teacher and the power to appoint by direct recruitment was available if the vacancy could not be filled; in the manner laid down in proceeding clause, that is, by promotion it is obvious that rule of 40% and 60% was not adhered to for ad hoc appointments. It was clearly visualised that all posts in the institution on ad hoc basis were primarily to be filled by promoting senior-most teacher and the method of direct recruitment for such appointment could be resorted to only if such teachers were not available or they were not qualified. Regulations 5 and 6 of Chapter IInd framed under U.P. Intermediate Education Act providing for every appointment by direct recruitment except to the extent of 40% by promotion has to be deemed to be modified so far ad hoc appointments are concerned. Ad hoc appointments are short-term appointments. The appointee has no right except to continue till regular selection is made or the short-term vacancy comes to an end. Why should the senior-most teacher otherwise fully qualified be deprived of thai benefit. It is, therefore, clear that any vacancy whether substantive or temporary which is to be filled by ad hoc selection has first to be filled by promotion and in absence of availability of a candidate by direct recruitment. There appears no rationale to exclude this method from Section 18 of the Act empowering the Committee of Management to make direct recruitment even though senior-most teacher in the institution was available. Section 18 only empowers the Management to make ad hoc appointments. It is silent in respect of procedure. In absence of any rationale it cannot be construed as contrary to the scheme visualised by Removal of Difficulties Order and in vogue from 1975. Any other construction or conceding power to the management to fill ad hoc vacancy u/s 18 by direct recruitment even though senior-most teacher was available shall result in arbitrariness and would be against the interest of teachers to protect whose interests the Legislature has intervened from time to time since 1975 and State Government had issued Removal of Difficulties Order, Therefore, whether from the language of the section or from the scheme the irresistible conclusion is that ad hoc vacancy u/s 18 should be filled by promotion and the method of direct recruitment should be adopted only if the teachers for promotion are not available.

In the case of Committee of Management, Kunwar R.C. Mahila Degree College, Mainpuri v. Vice Chancellor, Agra University, Agra and Anr. (1990) 2 UPLBEC 997, a Division Bench of this Court considered the question whether Management of the institution could terminate the services of Miss. Galav, as an ad hoc lecturer in History, merely on the ground that the Principal had agreed to deliver 12 lectures per week in History to B. A. Students. Taking note of the provision in Paragraph 2 of the U.P. Higher Education Service Commission (Removal of Difficulties) Order, 1982 and Section 16 of the U.P. Higher Education Services Commission Act, 1980, the court held that the Management is vested with no power to dismiss or remove or terminate the services of an ad hoc teacher under the provisions of the Commission Act or the Removal of Difficulties Order, but such power is vested elsewhere. However, on the contentions raised in that case, the court proceeded on the basis that the Management did have the power to remove the lecturer concerned from service.

A learned single Judge of this Court in the case of Niranjan Rai v. District Inspector of Schools, Ghazipur and Ors. (1991) 2 UPLBEC 1416, considering the question of ad hoc appointment of an outsider as lecturer on leave vacancy, which subsequently turned into a substantive vacancy, held that an outsider appointed on ad hoc basis loses his right to continue on the post after expiry of his term and it is only a senior teacher of that College, who has right to be appointed lecturer in the vacant post. Therein, this Court observed that when a post falls substantially vacant, and any ad hoc appointment is to be made to the post, that appointment is to be made by promotion from the senior-most teachers of the College; it is only when such a teacher of the College is not available then a man from outside the institution having qualification for the post may be appointed. Taking note of the fact, that the Petitioner in that case was appointed for short Term period on leave vacancy and his appointment order was also for a fixed term the court held that with expiry of the term for which the Petitioner was appointed his appointment ceased to be effective and even if he continued under some misconception, he could not claim appointment on ad hoc basis against the post which had substantively fallen vacant after his short-term appointment in the leave vacancy had ceased to be operative. This Court upheld the order of termination of Petitioner''s service. The Court placed reliance on the decision of this Court in the ease of" Churn Chandra Tiwari (supra).

In the case of Vipin Kumar v. District Inspector of Schools, Muzaffarnagar and Ors. (1993) 3 UPLBEC 1800, a Division Bench of this Court agreeing with the view taken in Cham Chandra Tiwari''s case (supra), held that direct recruitment is permissible only when eligible teacher for promotion is not available in the institution and that as Committee of Management did not consider the case of promotion of Respondent No. 3 in that case to the post of lecturer in Economics In the college, the appointment of the Appellant to the post by direct recruitment was rightly set aside.

In the case of Km. Meena Singh v. District Inspector of Schools. Jaunpur and Anr. (1994) 3 UPLBEC 1653, a single Judge of this Court (S. R. Singh, J.) held that 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 bona fide abolition of the post. The learned Judge relied on a previous single Judge decision of this Court in Writ Petition No. 1524 of 1989 Chandra Bhan Singh v. District Inspector of Schools and Anr. decided on 4.12.1991, in which, as stated in the judgment, Hon''ble M. L. Bhat, J. had held that the tenure of an ad hoc appointee against short term vacancy would not come to an end merely because the vacancy has become substantive one. That view had been taken relying on certain Division Bench decision referred to in the judgment dated 4.12.1991. While placing reliance on this judgment, S. R. Singh, J., observed in paragraph 15 of his judgment that it is true that there is no discussion in the judgment about the effect of Clause (c) of Para 3 of the Second Removal of Difficulties Order, 1981 but it appears from the said decisions that so far as the court is concerned it has consistently taken the view that an ad hoc appointee against short term vacancy should be allowed to continue even if the vacancy is converted into substantive one until he is replaced by a duly selected candidate or his service are terminated on the grounds connected with misconduct or abolition of the post.

In addition to the above citations, some other citations were also made on the principles relating to interpretation of statutes and the scope and ambit of the equality/equal opportunity clauses enshrined in Articles 14 and 16 of the Constitution. We do not consider it necessary to discuss those decisions for the reason that there is no dispute over general principles laid down therein and we find no difficulty in interpreting the provisions of the U.P. Secondary Education Services Commission and Selection Boards Act and the First and the Second Removal of Difficulties Order, 1981. However, we may only notice the cases cited by the learned Counsel for parties. They are : Carew and Company Ltd. Vs. Union of India (UOI), ; Directorate of Enforcement Vs. Deepak Mahajan and another, ; D.S. Nakara and Others Vs. Union of India (UOI), ; Manubhai Jehtalal Patel and Another Vs. State of Gujarat and Others, ; Union of India and Another Vs. Tulsiram Patel and Others, ; Secretary, Finance Department and others Vs. West Bengal Registration Service Association and others, ; Venkateshwara Theatre Vs. State of Andhra Pradesh and Others, ; State of Sikkim Vs. Surendra Prasad Sharma and others, and Prem Singh and Others Vs. Haryana State Electricity Board and Others,

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 it he possesses the requisite qualifications. Consequent upon the view taken by us, as noted 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.

There would be no order as to costs.