Suresh Prasad Misra vs District Inspector of Schools and Others

Krishna Murari, J.—1. This intra court appeal filed under the Rules of Court has been filed challenging the judgment and order dated 12.01.2009 passed by learned single Judge dismissing the writ petition filed by the petitioner-appellant seeking a writ of mandamus to command the respondents to pay salary of the L.T. Grade with effect from 12.08.1991 onwards as well as future salary month by month as and when it falls due.

Shorn of unnecessary details, facts relevant for the purposes of deciding the controversy are as under:

Kisan Uchchatar Madhyamik Vidyalay, Pipra Bazar, Deoria is a duly recognized institution and governed by the provisions of U.P. Intermediate Act, 1921 as well as Payment of Salaries Act, 1971. The petitioner-appellant claims that he was appointed as L.T. grade teacher to teach biology in the institution in question on a newly created post, which was sanctioned by the Director of Education vide order dated 31.3.1991. The Committee of Management vide letter dated 26.4.1991 notified the vacancy to the District Inspector of Schools. However, even after expiry of period of two months from the date of notification of the vacancy, when no appointment was made, the Committee of Management in exercise of power conferred by Section 18 of the U.P. Secondary Education Services Commission and Selection Board Act, 1981 after inviting the application and interviewing the applicants, recommended the name of the petitioner-appellant for being appointed on the said post. Thereafter, the Manager of the Institution issued an appointment letter dated 11.8.1991 and in pursuance thereof, the petitioner-appellant joined the duties and started working with effect from 12.8.1991. The relevant papers pertaining to the selection and appointment of the petitioner-appellant were forwarded by the Committee of Management vide covering letter dated 22.8.1991 to the District Inspector of Schools for approval. However, when the petitioner-appellant was informed by the District Inspector of Schools as per letter dated 31.8.1991 issued by the Director of Education that financial approval cannot be granted, he approached this Court by filing the instant writ petition.

Learned single Judge vide impugned judgment and order dismissed the writ petition on the ground that the petitioner was not appointed in accordance with the procedure prescribed under the First Removal of Difficulties Order, as such, his appointment cannot be held to be valid.

Learned counsel for the petitioner-appellant contended that the appointment of the appellant was made in exercise of power conferred by Section 18 of the Act after inviting application and after interviewing the candidates on the basis of their quality point marks and thus there was no reason to refuse financial sanction for payment of salary and the appellant is entitled to payment of salary. It is also submitted that there was no provision in the Act with regard to any approval whatsoever to the appointment made under Section 18 of the Act and the payment of salary to the appellant cannot be withheld for want of any financial sanction.

In reply, learned Standing Counsel submitted that since the learned single Judge found that the appointment of the petitioner-appellant was not made in accordance with the procedure prescribed by First Removal of Difficulties Order and the vacancy, as required, was not advertised in two newspapers and the quality point marks were not determined, as such, rightly dismissed the writ petition. It is further submitted that the appointment of the petitioner being de hors the provisions prescribed by First Removal of Difficulties Order was per se invalid and he would not be entitled to payment from the State exchequer.

We have considered the argument advanced by learned counsel for the parties and perused the record.

The issue involved for adjudication regarding legality and validity of the appointment of the petitioner-appellant under Section 18 of the Act as L.T. Grade teacher is no longer res-integra and stands settled by pronouncement of Full Bench judgment in the case of Radha Raizada v. Committee of Management, Vidyawati Darbari Girls Inter College and others, [, (1994) 3 UPLBEC 1551]. Question No. (c) before the Full Bench was what would be the criteria and procedure for ad hoc appointment of a teacher or a Principal under the Removal of Difficulties Order and under Section 18 of the Act No. 5 of 1982.

The Full Bench while considering the power and procedure of ad hoc appointment of teacher or Principal during the period beginning from 31.7.1981 till 13.7.1992 (after which date U.P. Act No. 24 of 1992 came into force) observed in paragraph 29 onwards as under:

"29. First, I will take up and consider the power and procedure of ad hoc appointment of teacher or Principal either by promotion or by direct recruitment during the period beginning from 31st July, 1981 till 13th July, 1992 after which date U.P. Act No. 24 of 1992 came into force.

As stated earlier the purpose of the Act is to appoint teachers in the institutions to be selected by the Commission of the Board as the case may be. Section 16 of the Act provides that notwithstanding anything to the contrary contained in the Intermediate Education Act but subject to the provisions of Sections 18, 21-B, 21-C, 21-D, 33 and 33-A of the Act, every appointment of teacher shall on or after 10th July, 1991 be made by the management only on the recommendation of the Commission. Its sub-section (2) further provides that every appointment of a teacher in contravention of the provisions of sub-section (1) shall be void. However, this Section 18 of the Act. Original Section 18 provided that where management has notified a vacancy to the Commission and (a) the Commission has failed to recommended the name of any suitable candidate or (b) the post of teacher has actually remained vacant for more than two months, then the Management may appointment by direct recruitment or promotion a teacher on purely ad hoc basis from amongst the person possessing qualifications prescribed under the Intermediate Education Act or the regulation made thereunder. However, this Section 18 did not provide the procedure to be followed for appointment of ad hoc teacher either by promotion or by direct recruitment. Since the Commission or the Board was not constituted, therefore, the difficulty arose in making available teachers in the institutions and as such the Government by notification dated 31.7.1991, 11th September, 1991 and 30th January, 1992 issued separately Removal of Difficulties Orders three Rem oval of Difficulties orders known as First, Second and Third Removal of Difficulties Orders.

Paragraph 2 of the First Removal of Difficulties Order provides as follows:

"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 this Order in the case of substantive vacancy caused by death, retirement, resignation or otherwise."

Paragraph 3 of the First Removal of Difficulties Order provides as follows:

"Every promotion of an ad hoc teacher under Para 2 shall cease to have effect when a candidate recommended by the Commission or the Board as the case may be joint the post."

Paragraph 4 of the First Removal of Difficulties Order provides as follows:

"Every vacancy in the post of head of institution may be filled by promotion (a) in the case of an Intermediate College by the seniormost teacher of the institution in the lecturer''s grade. (b) in the case of High Schools raised to the level of Intermediate College by the Head Master of such High School and (c) in the case of Junior High School raised to the level of High School by the Head Master of such Junior High School."

Sub-paragraph (2) of Paragraph 4 of the order further provides that every vacancy in the post of teacher in the lecturers grade may be filled by promotion by the senior most teacher of the institution in the trained graduate (grade).

Sub-paragraphs (3) and (4) of paragraph 4 of the order are not relevant as we are informed that C.T. Grade has now been abolished.

Paragraph 5 of the First Removal of Difficulties Order provides that where any vacancy cannot be filled by promotion under paragraph 4 of the order, same may be filled by direct recruitment in accordance with the procedure laid down in Clauses 2 to 5 of paragraph 5 of the order.

Second Removal of Difficulties Order provides for ad hoc appointment against the short term vacancy in the posts of teachers caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise. Thus, these provisions show that Section 18 and First Removal of Difficulties Order, both independently empowers the Management of institutions to make ad hoc appointment of teachers in the institution. But Section 18 does not provide the method and manner of such appointment. Whereas Removal of Difficulties Orders while empowering the management of the institutions to appoint teachers on ad hoc basis further lay down the procedure of such ad hoc appointment of teachers. In fact Section 18 as well as First Removal of Difficulties Order operate in one field and are part of one integrated scheme, namely for providing ad hoc teachers who are urgently required in the institutions. Thus, ad hoc appointment of teacher either under Section 18 of the Act or under the provisions of First Removal of Difficulties Orders has to be done in the manner laid down in paragraphs 4 and 5 of the First Removal of Difficulties Order, 1981."

Again in paragraphs 41 and 42, the issue has been summed up by the Full Bench as under:

"41. It has already been noticed that Section 18 of the Principal Act provides for power to appoint a teacher purely on ad hoc basis either by promotion or by direct recruitment against the substantive vacancy in the institution when the condition precedent for exercise of powers exist namely that the Management has notified the said vacancy to the Commission in accordance with the provisions of the Act and the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher within one year from the date of such notification of the post of such teacher has actually remained vacant for more than two months. However, since the State Government was alive to the situation that the establishment of the Commission may take long time and even after it is established, it may take long time to make available the required teacher in the institution and as such issue three Removal of Difficulties Orders namely Removal of Difficulties Order dated 11.9.1981, Removal of Difficulties Order dated 30.1.1982 and Removal of Difficulties Order dated 14.4.1982. In fact these Removal of Difficulties Orders were issued to remove the difficulties coming in the way of a Management in running the institution in absence of teachers. This power to appoint ad hoc teachers by direct recruitment thus, it available only when pre-conditions mentioned in Section 18 of the Act are satisfied, secondly, the vacancy is substantive vacancy and thirdly, the vacancy could not be filled by promotion. Neither the Act nor the Removal of Difficulties Order defines vacancy. However, the vacancy has been defined in Rule 2(11) of U.P. Secondary Education Services Commission rules 1983. ''Vacancy'' means a vacancy arising out as a result of death, retirement, resignation, termination, dismissal, creation of new post or appointment/promotion of the incumbent to any higher post in substantive capacity. Thus, both under Section 18 of the Act and under the Removal of Difficulties Order the Management of an institution is empowered to make ad hoc appointment by direct recruitment, in the manner laid down in paragraph 5 of the First Removal of Difficulties Order only when such vacancy cannot be filled by promotion and for a period till a candidate duly selected by the Commission joins the post. As noticed earlier both Section 18 of the Act and the provisions of First Removal of Difficulties Order provide for ad hoc appointment of teacher in the institution, later further providing for method and manner of such appointments are part of one scheme. Scheme being provision for ad hoc appointment of teacher in the absence of duly selected teachers by the Commission. The provisions may be two but the power to appoint is one and the same and therefore, the provisions contained in Section 18 and Removal of Difficulties Order are to harmonized. It is, therefore, not correct to say that appointment of a teacher on ad hoc basis is either under Section 18 of the Act or under the Removal of Difficulties Order. Thus, if contingency arises for ad hoc appointment of teacher by direct recruitment the procedure provided under the first Removal of Difficulties Order has to be followed. Paragraph 5 of the First Removal of Difficulties Order provides that the management shall, as soon as may be, inform the District Inspector of Schools about the details of vacancy and the District Inspector of Schools shall invite application from the local Employment Exchange and also through public advertisement in at least two news papers having adequate circulation in Uttar Pradesh. Sub-paragraph (3) of paragraph 5 further provides that every such application shall be addressed to the District Inspector of Schools. Sub-paragraph (4) of paragraph 5 of the Removal of Difficulties Order provides that the District Inspector of Schools shall cause the best candidate selected on the basis of quality point specified in Appendix. The compilation of quality point may be done by the Retired Government Gazetted Officer, in the personal supervision of the Inspector. Paragraph 6 of the First Removal of Difficulties Order further provides for appointment of such teacher under paragraph 5 who shall possess such essential qualification as laid down in Appendix A referred to in the Regulation 1 Chapter II of the Regulations made in the Intermediate Education Act.

In view of these provisions the ad hoc appointment of a teacher by direct recruitment can be resorted to only when the condition precedent for exercise of such power as stated in paragraph 18 of the Act are present and only in the manner provided for in paragraph 5 of the Removal of Difficulties Order. This view of mine finds support in a number of decisions namely, Rang Bahadur Singh and others v. District Inspector of Schools, Saharanpur, , 1991 (2) UPLBEC page 1079 and Lalta Prasad Yadav and others v. State of U.P., 1988 UPLBEC page 345. When a teacher is appointed on ad hoc basis is in accordance with the paragraph 5 of the First Removal of Difficulties Order there is further no requirement of approval or prior approval of the District Inspector of Schools for such appointment. However, it goes without saying that if a management without following the procedure indicated above makes an ad hoc appointment the District Inspector of Schools possess general power under the Payment of Salaries Act to stop payment of salary to such teacher."

Applying the law laid down by the Full Bench in respect of ad hoc appointment in the facts of the present case, we find that there is absolutely no averments in the writ petition with respect to advertisement of the vacancy in two newspapers having adequate circulation. Further, vague allegation has been made by the petitioner-appellant in the writ petition that appointment was made on quality point marks. To satisfy the criteria prescribed in Removal of Difficulties Order for selection of best candidate on the basis of quality point marks, vague averments made in the writ petition have been specifically denied in the counter affidavit filed on behalf of the State. The petitioner-appellant has failed to refute the allegations of the counter affidavit in the rejoinder affidavit nor there is any material on record to indicate that a compilation of quality point marks was made as specified in the Appendix. It is thus clear that the appointment of the petitioner-appellant was made de hors the procedure prescribed under the Removal of Difficulties Order and in view of the law laid down by the Full Bench in the case of Radha Raizada (Supra), cannot be held to be a valid and legal entitling him for payment of salary. In so far as other argument advanced by learned counsel for the appellant that there was no provision in the Act with regard to any approval to the appointment made under Section 18 of the Act, the same also stands concluded by the observations made in paragraph 42 to the effect that if a management makes an appointment without following the procedure provided by the Removal of Difficulties Act, the District Inspector of Schools possess general power under the Payment of Salaries Act to stop payment of salary to such teacher. Thus this argument is also without any force.

In view of above facts and discussions, we do not find any infirmity or illegality in the impugned judgment of the learned single Judge dismissing the writ petition, which may require any interference.

Special appeal being devoid of merits stands dismissed.

However, in the facts and circumstances, there shall be no order as to costs.