Allahabad High Court
Smt. Vijay Rani Wife Of Sri N.C. Jain, ... vs Regional Inspectress Of Girls Schools, ... on 27 November, 2006
Author: Sudhir Agarwal
Bench: S. Rafat Alam, Sudhir Agarwal
JUDGMENT Sudhir Agarwal, J.
1. Aggrieved by the judgment dated 29.7.1999, dismissing the writ petition No. 7801 of 1989 of the Petitioner-Appellant, the present appeal under the Rules of the Court has been preferred.
2. In brief, the case of the Petitioner-Appellant is that she was appointed as Teacher (TGT Grade) on 1.7.1965, and in PGT Grade i.e. Lecturer's grade on 11.8.1980, in Kanya Vedic Inter College, Ghaziabad (in short 'College'). The erstwhile Principal Smt. Punya Kirti Sharma on attaining the age of superannuation retired on 30.6.1988 resulting in a substantive vacancy on the post of Principal in the College. It appears that some of the next senior most teachers namely Smt. Gayatri Bhatnagar, Urmila Goel and Swarn Lata Jain, declined to officiate as Principal. By order dated 29.6.1988, the Manager of the College directed the Petitioner-Appellant to take charge of the office of officiating Principal with effect from 1.7.1988. Pursuant thereto, the Petitioner-Appellant took over charge of the office of officiating Principal on 1.7.1988. The Manager vide letter dated 26.7.1988 (Annexure-2 to the writ petition) informed the Regional Inspector of Girls Schools, Meerut (in short 'RIGS') about the retirement of erstwhile Principal on 30.6.1988 and that the charge has been taken over by the Petitioner-Appellant. This letter of the Manager did not mention that the charge handed over to the Petitioner-Appellant, was as officiating Principal or otherwise but only mentions about the factum of handing over charge to the Petitioner-Appellant. Further the Petitioner-Appellant, acting as Principal of the College, vide letter dated 6.8.1988, herself, informed the Manager, Central Bank of India, Ghazibad that now the College account shall be operated by her in place of the erstwhile Principal. Subsequently, RIGS directed the management vide order dated 29.3.1989 to permit senior most teacher to function as officiating Principal of the College and also conveyed her disapproval of Petitioner-Appellant's functioning as Principal. It is this letter dated 29.3.1989, whereagainst the Petitioner-Appellant preferred the aforesaid writ petition seeking following reliefs:
1. A writ, order or direction in the nature of certiorari quashing the letter/order dated 29.3.1989 (Annexure-IV).
2. A writ, order or direction in the nature of mandamus directing the respondent No. 1 to let the petitioner to continue to function as principal so long as a regular appointment is not made by the Secondary Education Services Commission.
3. A writ, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the Case.
4. Award heavy costs of the petition to the petitioner.
3. In the meanwhile, it appears that RIGS passed two more orders dated 17th April 1989 and 28th April 1989 directing the Manager to promote respondent No. 3, the senior most teacher, as officiating principal and to send salary bills under her signatures.
4. While entertaining the writ petition, this Court passed following interim order dated 12.5.1989:
Meanwhile, the operation of the order dated 29th March 1989 of respondent No. 1 shall remain stayed. The petitioner shall be continued as Acting Principal of the College and paid her salary till a regular selected candidate by the Commission becomes available for appointment.
5. During the pendency of the writ petition, Petitioner-Appellant filed an application under Order 6 Rule 17 read with Section 151 C.P.C. seeking addition of certain grounds and one prayer as 1(a) in the writ petition, whereby she sought writ of certiorari quashing RIGS's orders dated 17.4.1989 and 28.4.1989. This Court on 3rd may 1994 passed an order on the said application directing it to be listed with record but, thereafter, it appears that the Petitioner-Appellant did not press this application, since no order allowing the aforesaid application has ever been passed. Hence, the said prayer has never been made part and parcel of the writ petition. Besides, it appears that vacancy on the post of officiating Principal of the College was also requisitioned to the Commission pursuant whereto vide order dated 15th April 1997, Commission selected and recommended Dr. Smt. Taruna Tyagi for appointment as Principal of the College. Consequently, the District Inspector of Schools issued letter dated 23rd January 1999 directing the management of the College to appoint Dr. Smt. Taruna Tyagi as Principal of the College in place of the Petitioner-Appellant, who thence filed an impleadment application No. 15089 of 1999 seeking impleadment of Dr. Smt. Taruna Tyagi as Respondent No. 4. The facts stated in the said application shows that on 25th January, 1999, appointment letter was issued appointing Dr. Smt. Taruna Tyagi as Principal of the College pursuant whereto she joined on 27th January 1999 and her signature for operation of bank accounts was also attested on 28th January 1999. It appears from the record that neither the selection of Respondent No. 4 nor her appointment letter was ever challenged either by seeking amendment in the said writ petition or by filing a fresh writ petition. It is not disputed between the parties that since 1999, Dr. Smt. Taruna Tyagi, Respondent No. 4 is continuously working as regularly appointed Principal of the College.
6. Counter affidavit filed on behalf of respondent No. 1 does not dispute appointment of the Petitioner-Appellant as teacher in the College in L.T. Grade on 1.7.1965 and promotion in Lecturer Grade on 11.8.1980 but it is averred that in the seniority list of the teachers of the College, she was at SI. No. 17. A copy of the seniority list has been placed on record as Annexure CA-1 to the counter affidavit filed in writ petition which shows that sixteen teachers, namely, Smt. Gayatri Bhatganar, Urmila Goel, Swarnlata Jain, Usha Mehta, Shashi Bala, Sawitri Bhatia, Mithlesh Sharma, Anjali Das Gupta, Shanta Malhotra, Saroj Bhaseen, Pramila Singhal, Sudha Bak Tain, Ramesh Dhupar, Saroj Gupta, Uma Goel and Shashi Agarwal were senior to the Petitioner-Appellant who were working on the post of lecturer in the College. Further, it is said that neither the committee of management ever passed any resolution making ad-hoc or officiating appointment of the Petitioner-Appellant on the post of Principal nor any such resolution was received by the respondent No. 1. No approval was granted by respondent No. 1 either to the appointment of the Petitioner-Appellant or to her functioning as officiating Principal of the College. The post of Principal was to be filled in as per the provisions of U.P. Secondary Education Services Selection Board Act, 1982 (in short 'the Act') and the Rules and Regulations framed thereunder and at no point of time, the Petitioner-Appellant was appointed as officiating Principal in accordance with the provisions thereof. The Union of non-teaching staff of the College made a representation dated 22.8.1988 making complaint against the Petitioner-Appellant regarding financial irregularities and misuse of the funds by the Manager of the College in collusion with the Petitioner-Appellant who was a much junior lecturer. Similar complaints were also sent by others, copies whereof have been filed as Annexure CA-2, 3 and 4 to the counter affidavit. The District Inspector of Schools (in short DIOS) sought an explanation on the aforesaid complaints from the College vide his letter dated 24.9.1988. It appears that on receiving complaints, the RIGS Meerut also wrote a letter dated 1.10.1988 (Annexure CA-7 to the Counter Affidavit) requiring the Manager of the College to send seniority list of teachers of the College, and, also not to allow the Petitioner-Appellant to function as Principal of the College. The Manager having failed to respond, a reminder also sent on 15.2.1989 (Annexure CA-8 to the counter affidavit). Thereafter steps were taken by the authorities to ensure that the senior most teacher of the College should function as officiating Principal and an order to this effect was issued whereagainst the Petitioner-Appellant filed writ petition and obtained interim order.
7. The senior most teacher Smt. Gayatri Bhatnagar, respondent No. 3, has also filed counter affidavit, wherein it is stated that as per the seniority list of the teachers of the College, the Petitioner-Appellant was at Sl. No. 17. However, it is not disputed that the management created a situation on account whereof she was compelled to write a letter that she is not willing to discharge duties of ad-hoc principal of the College. It is however averred that the management did not send any requisition to the Commission on occurrence of the vacancy of the Principal and it is only pursuant to RIGS's letter dated 15.2.1989 whereby the Manager of the College was required to send requisition in respect to the vacancy of the Principal and the same was requisitioned by the College vide letter dated 23.2.1989, true copy whereof has been placed on record as Annexure CA-2 to the counter affidavit filed on behalf of respondent No. 3.
8. The Petitioner-Appellant in the rejoinder affidavit has not disputed the seniority list and her position therein, but has stated that since the respondent No. 3 and other senior teachers declined to function as ad-hoc Principal, she was directed to officiate as Principal by the Manager and, therefore, her appointment is absolutely valid and in accordance with law.
9. The Hon'ble Single Judge, however, has dismissed the writ petition after hearing learned Counsel for the parties holding that she is not entitled for the benefit of Section 33-A(1-A) of the Act and, therefore, cannot claim regularization on the post of Principal of the college.
10. Sri Manish Goel, learned Counsel appearing on behalf of the Petitioner-Appellant vehemently contended that the Hon'ble Single Judge erred in law by observing that the Petitioner-Appellant was not entitled for the benefit of regularization under Section 33-A(1-A) of the Act inasmuch once the senior most teachers had declined to function as officiating Principal of the College, the Petitioner-Appellant was rightly appointed as officiating Principal of the College, and, having continued to function, de facto, she is entitled for the benefit under the aforesaid provision. It is also contended that a senior most teacher once having declined to function as officiating Principal, subsequently cannot turn around and assert for enforcement o his/her right to officiate as Principal of the College and, therefore, the respondent No. 3 having declined to function as officiating Principal could not have been directed subsequently to be given charge of officiating Principal and, therefore, the order impugned in the writ petition was illegal and could not have been passed by the respondent No. 1. Thus, it is contended that the Hon'ble Single Judge erred in law by declining to extend benefit of Section 33-A(1-A) of the Act to the Petitioner-Appellant.
11. On the contrary, Sri Abhinav Upadhyay, learned standing counsel, submits that from the record, it appears that the Petitioner-Appellant was never appointed as officiating Principal of the College either in fact or in law, under the Act or under the Removal of Difficulties Orders issued thereunder. He further contended that in any case, the alleged appointment of the Petitioner-Appellant as officiating Principal of the College was illegal and non-est. being in violation of the provisions of the Act and the Removal of Difficulties Orders. The benefit of Section 33-A(1-A) is available only to such persons who are appointed in accordance with the provisions of Removal of Difficulties Orders or the Act and not otherwise and thus she was rightly denied the said benefit by the Hon'ble Single Judge.
12. Sri Rahul Mishra, Advocate, holding brief on behalf of Sri Vivek Chaudhary, learned Counsel appearing on behalf of respondent No. 4 vehemently contended that pursuant to the requisition sent subsequently, the Commission made selection for the post of Principal of the College wherein the respondent No. 4 was selected and, therefore, she was entitled to be appointed and function as Principal of the college on regular basis and the Petitioner-Appellant has no right either in fact or in Law. He also adopted the arguments advanced by Sri Abhinav Upadhyay, learned standing counsel.
13. The rival submissions of the learned Counsel for the parties, in our view, give rise to the following questions, which need to be answered in this appeal:
1. Whether the Petitioner-Appellant was appointed at all as officiating/ad hoc principal of the College?
2. Whether the alleged appointment of the Petitioner-Appellant on the post of principal as officiating/ad hoc basis was in accordance with the procedure prescribed under U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 as amended time to time?
3. Whether the Petitioner-Appellant can claim any benefit for any purpose whatsoever on account of her continuance as principal of the College pursuant to the interim order passed by this Court in the writ petition, though the same has ultimately been dismissed?
4. Whether the Petitioner-Appellant is entitled for regularization under Section 33-A(1-A) of the Act?
14. We find that Hon'ble Single Judge has not considered the matter in the light of questions numbers 1, 2 and 3 as formulated above and initially we thought to remand the matter to the Hon'ble Single Judge to consider afresh but the learned Counsels for the parties requested that the matter since is pending for the last more than 17 years, this Court itself may consider all the aspects arising in the appeal on the basis of the record of the writ petition and special appeal and decide, instated of remand, as this would save precious time of the Court and agony of the parties, and thus, we proceed to consider all the above aspects of the matter and decide ourselves.
15. Coming to the first question, it appears from the record that Smt. Punya Kirti Sharma, Principal of the College was to retire on 30th June 1988. About 3 and 1/2 months earlier to the occurrence of the vacancy, Manager of the College vide letter dated 19th March 1988 (Annexure-1A to the supplementary affidavit filed in writ petition) required Smt. Gayatri Bhatnagar, senior most lecturer to convey her consent, whether she is inclined to work as officiating Principal or not. Smt Bhatnagar vide letter dated 29th March 1988 (Annexure SA-1B to the supplementary affidavit in writ petition) expressed her inability to function as officiating Principal. Similar letters declining to function as officiating Principal said to be submitted by Smt. Urmila Goel on 7th April 1988 (Annexure SA-2 to the supplementary affidavit in the writ petition) and undated (Annexure SA-3 to the supplementary affidavit in the writ petition) by Smt. Swarnlata Jain, who was third in seniority list. Thereafter, it appears that the Manager of the College issued a letter dated 29th June 1988 directing the Petitioner-Appellant to take over charge from the outgoing Principal on 30th June 1988 and discharge duties of officiating Principal with effect from 1st July 1988. He also wrote a letter dated 26th July 1988 to RIGS informing that the charge of officiating Principal has been handed over to Smt. Vijyai Rani, Petitioner-Appellant. On the basis of the aforesaid, the Petitioner-Appellant took over charge and started discharge of duties of Principal of the College with effect from 1st July 1988. From the aforesaid facts, two things are clear, firstly, though the Petitioner-Appellant was 17th in the seniority list of the teachers, on refusal to work as officiating Principal by three senior most teachers, immediately thereafter, the Manager took a long jump and directed the Petitioner-Appellant to take over charge and function as officiating Principal. The other senior most teachers in the College neither were enquired nor were permitted to function as officiating Principal though it was incumbent upon the management, after decline by three senior most teachers to officiate as Principal, to ask the next senior most teacher to take over charge and not to ignore or byepass the claim of the teachers who were at S1. No. 4 to 16 in the seniority list and straightway to go down to one of the junior most teacher. Moreover, besides the order dated 29th June 1988 placed on record as Annexure-1 to the writ petition, there is no order on record, on the basis whereof, the Petitioner-Appellant is claiming her appointment as officiating Principal. The alleged order dated 29th June 1988 may be reproduced as under:
dU;k oSfnd fo|ky; b.Vj dkfyt xkft;kckn izs"kd] lsok esa izcU/kd Jherh fot; jkuh dU;k oSfnd fo|ky; lnk;u viBuh;
b.Vj dkfyt xkft;kcknA fnukad 29-6-88 egksn;]
Jherh iqU;d`fr kekZ iz/kkukpk;Z in ls 30-6-88 dks vodkk izkIr djrh gSaA iz/kkukpk;Z ds dk;Zokgd in ds fy;s ofj"B iz/kkukpk;Z ds dk;Zokgd in ds fy;s ofj"B iz/kkukpk;kZ Jherh xk;=h nsoh mfeZyk xks;y] Jherh Lo.kZ yrk tSu izkfIr ls budkj dj fn;k gS os dk;Zokgd iz/kkukpk;Z ds in ij dk;Zjr ls rS;kj ugha gSA vki ds uke ls Jherh iqU;d`fr kekZ us izR; iz/kkukpk;ksZa ls iwN dj laLrqfr dh gSA vr% vki Jherh iqU;d`fr kekZ ls 30-6-88 ls pktZ ysdj 1-7-88 ls iz/kkukpk;Z in dk dk;ZHkkj laHkky ys o dk;Zokgd iz/kkukpk;Z dk dk;Z djsaA Hkonh;
Jkesojn;ky
16. From a bare reading, we do not find that it did promote Petitioner-Appellant on officiating basis as Principal of the College. On the contrary, it shows that the Manager of the College directed the Petitioner-Appellant to take over charge as officiating Principal and discharge its duties. Despite of repeated reading of the order, we could not find ourselves in agreement with the learned Counsel for the Petitioner-Appellant to read the letter dated 29th June 1988 as order of ad hoc/officiating promotion of the Petitioner-Appellant as Principal of the College. Whenever a person leaves office either on account of retirement, superannuation, leave, transfer etc, he proceeds after giving charge to his successor. Normally a person appointed to succeed in the office or one having a co-ordinate position and status is available to hand over charge, or in the absence of such person, the charge is handed over to the senior most person working in the office. When the Principal of the College was retiring on 30th June 1988, in the absence of any appointment or promotion to the post of Principal, she was required to hand over charge to the senior most teacher, who would have looked after day to day function of the office of Principal. But such a course of mere handing over charge would not result in promotion of such senior most teacher as officiating Principal unless and until an order to this effect is passed. Taking charge of a higher office and discharge its function; and to discharge function of a higher office after promotion pursuant to an order of promotion, whether on regular or ad-hoc or officiating basis, are two different things. In the former, the incumbent continue to possess the status and position of the office in which he/she is appointed substantively but look alter the duties of the higher office of which charge has been handed over in addition to her substantive duties, but it does not result in a vacancy of any kind to the post/office, the incumbent is substantively holding, but, in the later case, the incumbent vacates his substantive office and discharge function of higher office by occupying the higher post. If the promotion is officiating or ad hoc such occupancy may be temporary, but the fact remain that it result in a vacancy in the lower post, may be short term and temporary.
17. Besides, the letter dated 29th June 1988 has been issued by the Manager of the College and it is not the case of the Petitioner-Appellant, either in the writ petition, or in various supplementary affidavits, rejoinder affidavit, supplementary rejoinder affidavit etc filed in the writ petition or in this appeal that the committee of management at any point of time passed any resolution promoting the Petitioner-Appellant as officiating Principal of the College pursuant whereto the Manager of the College issued an order of promotion in favour of the Petitioner-Appellant. Admittedly, the power to make promotion as officiating Principal vests in the committee of management. In the counter affidavit of respondent No. 1, it has been categorically stated in para-3, 5, 7 and 9 that neither the committee of management passed any resolution making ad hoc appointment/promotion of the Petitioner-Appellant on the post of Principal nor any such resolution was ever communicated to the Respondent No. 1. The Petitioner-Appellant could not produce any thing before us to dispute and controvert the aforesaid. Neither any resolution of the committee of management deciding to promote the Petitioner-Appellant as officiating principal of the College has been placed on record nor any letter of appointment issued by the management pursuant to such resolution is available on record. The only document is the letter dated 29th June 1988, which we have already discussed above A photocopy of the letter dated 29th June 1988 has also been placed on record as Annexure-3 in rejoinder affidavit filed in reply to the counter affidavit of respondent No. 4 which does not show any discrepancy or mistake in the typed copy filed as Annexure-1 to the writ petition. The RIGS letter dated 25th January 1999 (Annexure-6 to the writ petition) also stated that neither the committee of management has passed any resolution promoting the Petitioner-Appellant as officiating Principal nor any such resolution has been approved by the RIGS and in the absence of any decision by the committee of management to promote the Petitioner-Appellant as officiating Principal, she is illegally functioning as officiating Principal and misusing the office. The seniority list, which is on record, and said to be prepared in February 1989, there also the Petitioner-Appellant is shown as lecturer and not as officiating Principal. It is not the case of the Petitioner-Appellant that as a result of her alleged promotion as officiating Principal of the College, she was also paid salary of the said post. On the contrary, the Petitioner-Appellant herself has filed, along with the rejoinder affidavit in reply to the counter affidavit of respondent No. 3, photocopies of certain salary bills as Annexure RA-5 which are for the months of May 1989 and June 1989. The aforesaid salary bills show that the Petitioner-Appellant was receiving salary as lecturer in the College and not as officiating Principal. Had she been promoted as officiating Principal, she would have been entitled for salary of the said office, but since there was no order of promotion passed by the committee of management, the salary bills, which the Petitioner-Appellant herself had submitted, show that she was entitled for the salary of the Lecturer only. In June 1989, the salary bill show basic pay of the senior most lecturer (respondent No. 3) at Rs. 1480/- while the Petitioner-Appellant's basic pay at Rs. 040/-. The aforesaid documents cemented the conclusion that the Petitioner-Appellant was only required to look after and discharge the duties of the officiating Principal but was never promoted/appointed on the said post. In other words, it can be said that the Petitioner-Appellant was given only current duty charge in addition to her substantive post and this arrangement did not result promotion to the post of which, the current duty charge was handed over. In State of Haryana v. S.M. Sharma , the Chief Administrator of the Board entrusted Sri S.M. Sharma, with the current duty charge of the post of Executive Engineer, which was subsequently withdrawn as a result of his transfer to other post. He challenged the said order stating that it amounts to reversion. The Apex Court held that Sri Sharma was only having current duty charge of the Executive Engineer and was never promoted or appointed to the aforesaid post and therefore,on transfer to some other post, it did not result in reversion from the post of Executive Engineer.
18. A somewhat similar situation occurred in Ramakant Shripad Sinai Advalpalkar v. Union of India and Ors. 1991 Supple (2) SCC 733 and the Apex Court observed as under:
The distinction between a situation where a government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion.
19. It was further held that such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it sometimes. However the person continues to hold substantive lower post and only discharges duties of the higher post essentially as a spot-gap arrangement. A further contention was raised that if such an arrangement continued for a very long period it would give some kind of right to continue on the post but negativing such contention, it was held that an in-charge arrangement is neither recognition nor is necessarily based on seniority and therefore, no rights, equities and expectations can be built upon it.
20. In this view of the matter, the Petitioner-Appellant has miserably failed to show that the management ever appointed her as officiating Principal of the College and, therefore, we hold that she was only allowed to discharge duties of the office of officiating Principal, but was never appointed/promoted by the management as officiating Principal of the College. The question No. 1 is answered and decided accordingly.
21. In view of the answer of question No. 1, having been replied in negative, dismissal of the writ petition by the Hon'ble Single Judge cannot be faulted and it may not be necessary to consider other issues, but, since, the learned Counsel for the parties have advanced their arguments at length on rest of the questions, therefore, we proceed to consider the same assuming that the Petitioner-Appellant was appointed as officiating Principal of the College, but such assumption will not dilute, in any manner, our answer to question No. 1, as decided above.
22. Before answering question No. 2, it would be prudent to have a bird eye view of some of the relevant statutory provisions The Act has undergone several amendments from time to time. However, for the purpose of the present case, since the vacancy of Principal of the College occurred on 30th June 1988, therefore, the provisions as existed in 1988 would be relevant. Section 10 and Section 18 of the Act, which in our view, relevant for the purpose of deciding the aforesaid question, as they stood on 30.6.1988/1.7.1988, may be reproduced as under:
18. Ad hoc Teachers.-(1) 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 the 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.
(2) The provisions of Sub-section (1) shall also apply to the appointment of a teacher (other than a teacher specified in the Schedule) on ad hoc basis with the substitution of the expression 'Hoard' for the expression "Commission".
(3) 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 he, joins the post;
(b) when the period of one month referred to in Sub-section (4) of Section 11 expires;
(c) thirtieth day of June following the date of such ad hoc appointment.
23. Section 18(1) of the Act thus, provides that the management shall fill the vacancy notified to the Commission in accordance with Sub-section 1 of Section 10 of the Act if the Commission has failed to recommend any candidate within one year, or the post has actually remained vacant for more than two months, by direct recruitment or by permitting promotion of the senior most teacher to officiate purely on ad hoc basis.
Section 10 of 1982 Act reads as under:
10. Procedure of selection of teachers specified in the Schedule.-(1) For the purposes of making appointment of a teacher specified in the Schedule, the management shall notify the vacancy to the Commission in such manner and through such officer or authority as may be prescribed.
(2) The procedure of selection of candidates for appointment to the posts of such teachers shall be such as may be prescribed : Provided that the Commission shall, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under Sub-section (1).
24. By U.P. Act No. 24 of 1992, Section 18 was amended and substituted by a new provision, which came in to force on 1st July 1992 and, therefore, we have considered for the purpose of present case Section 18 as it stood prior to the aforesaid amendment.
25. The scheme of the Act shows that on the occurrence of a vacancy of a teacher in a College, the management is obliged to inform the vacancy to the Commission in such manner and through such officer or authority as may be prescribed. In the meantime, in case the vacancy has been informed to the Commission in accordance with the Act and the commission has failed to recommend name of any suitable candidate for appointment as teacher within one year from the date of such notification or the post of such teacher has actually remained vacant for more than two months, the management may appoint, by direct recruitment or promotion a teacher on purely ad hoc basis from amongst the persons possessing qualifications under the Intermediate Education Act or the Regulations framed thereunder. An appointment under Section 18(1) of the Act shall cease to have effect from the date when the candidate recommended by the Commission/ Board joins the post or when the period of one month referred in Sub-section 4 of Section 11 expires or 30th day of June following the date of such ad hoc appointment, whichever is earlier. Section 16 of the Act provides that every appointment of a teacher after the commencement of the Act shall be made by the management only on the recommendation of the Commission/Board subject to certain provisions of the Act which includes Section 18 also. Sub-section 2 of Section 16 declares any appointment made in contravention of Sub-section 1 of Section 16 void.
26. It appears that the provisions of the Act enacted on 14th July 1981 caused certain practical difficulties for reasons more than one necessitating issuance of Removal of Difficulties Order by the State Government in exercise of power under Section 33 of the Act. The Act did not contain any provision as to when appointment of ad hoc teacher shall be made either by promotion or by direct recruitment if necessitated under Section 18 thereof. Similarly, Section 18 empower committee of management to make ad hoc appointment earliest after expiry of 60 days from the date of sending requisition to the Commission and for the said period, if the vacancy occurred is that of a Principal, should it remain unfilled though it would cause various administrative and other difficulties. Similarly there were several other discrepancies, which, when realized by the State Government, resulted in issuance of the U.P. Secondary Education Service Commission (Removal of Difficulties order) 1981 published in U.P. Gazette (Extraordinary) dated 31st July 1981 (in short 'First Order'). Though five more Removal of Difficulties Orders were issued on 11th September 1981 (Second Removal of Difficulties Order) (in short 'Second Order'), 30th January 1982 (Third Removal of Difficulties Order), 24th April 1982 (Fourth Removal of Difficulties Order), 30th July 1983 (Fifth Removal of Difficulties Order) and 13th July 1983 (sixth Removal of Difficulties Order), but for the purpose of the case in hand, we are concerned only with the First and Second Orders and, therefore, propose to consider only the aforesaid two Orders.
27. Clause 2 of the First Order provides the contingencies when ad hoc appointments can be made by the management of the College, Clause 3 provides the duration of ad hoc appointment, and, Clause 4 provides procedure for ad hoc appointment by promotion and they are reproduced as under:
2. Vacancies in which ad hoc appointment can be made.- 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 m the case of a substantive vacancy caused by death, retirement, resignation, or otherwise.
(as substituted by Second Order)
3. Duration of ad hoc appointments.-Every appointment of an ad hoc teacher under Paragraph 2 shall cease to have effect when a candidate recommended by the Commission or the Board, as the case may be, joins the post, (as substituted by Third Order)
4. Ad hoc appointment by promotion.-(1) Every vacancy in the post of the Head of an institution may be filled by promotion-
(a) in the case of an Intermediate College, by the senior-most teacher of the institution in the lecturers' grade and in the case of a High School, by the senior-most teacher of the institution in the trained graduate (L.T.) grade, (as substituted by Third Order)
(b) in the case of a High School raised to the level of an Intermediate College, by the Headmaster of such High School;
(c) in the case of a Junior High School raised to the level of a High School, by the Headmaster of such Junior High School.
(2) 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.
(3) Every vacancy in the post of a teacher in the trained graduate (L T.) grade shall filled by promotion by the senior-most teacher of the institution in the trained under-graduate (C T) grade.
(4) Every vacancy in the post of a teacher in the trained undergraduate (CT.) grade shall be filled by promotion by the senior- most teacher of the institution in the J. T. C. grade or B T. C. grade.
Explanation.-For the purpose of Clause (1) to (4) of this paragraph, the expression "senior-most teacher" means the teacher having longest continuous service in the Lecturer's grade or the trained Graduate (L.T.) grade, or trained undergraduate (CT.) grade; J.T.C. or B.T.C grade, as the case maybe.
28. Second Order provides procedure for filling up a short term vacancy. Para-2 provides procedure and para-3 provides duration of such ad hoc appointment as under:
2 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 filed 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.
3. Duration of ad hoc appointment-Every appointment of a teacher under paragraph 2 of this Order shall cease from the earliest of the following dates, namely:
(a) when the teacher, who was on leave or under suspension joins the post; or
(b) (omitted by Third Order).
(c) when the short-term vacancy otherwise ceases to exist.
29. The First Order is, therefore applicable to fill in a substantive vacancy on ad hoc basis, where a candidate selected by the Commission is not available. In the case in hand, the Principal retired on 30th June 1988 and therefore a substantive vacancy occurred on lst July 1988. Being substantive vacancy, in view of Section 18 read with First Order, the same could have been filled in by ad hoc appointment of the senior most teacher of the College by the management only if the post after sending requisition to the Commission, remained vacant for more than two months. The Petitioner-Appellant having claimed to be appointed on1st July 1988 cannot be said to have been appointed in accordance with Section 18 read with First Order and such an appointment cannot be said to be under the aforesaid provision. It is worthy to mention at this stage that a Full Bench of this Court in Radha Raizada v. Committee of Management 1994 (3) UPLBEC 1551 considered the relationship of Section 18 and First Order and in Para 37 of the judgment and held that they operate in the same field and part of one integrated scheme. The relevant observations are reproduced as under:
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.
30. The Full Bench while approving earlier Division Bench judgment in Charu Chandra Tiwari v. District Inspector of Schools 1990 UPLBEC 160, in Para-39 of the judgment also, held as under:
I am, therefore, of the view that the existing substantive vacancy which has been notified to the Commission and the condition provided under Section 18 of the Act is present, the vacancy has to be filled up firstly by promotion from amongst senior most teacher in next tower grade.
31. Finding difficult to justify appointment under Section 18 of the Act and First Order, the learned Counsel for the Petitioner-Appellant contended that in order to meet a situation where substantive vacancy on ad hoc basis cannot be filled in by resorting to Section 18 of the Act and First Order, since it could be filled in only after 60 days from the date of sending requisition to the Commission and to that extent, it would amount to a short term vacancy and therefore it could have been filled in under the Second Order. In the alternative, it is contended that the appointment of the Petitioner-Appellant is referable only to Para-2 of the First Order and Section 18 would have no application, therefore, her appointment was in accordance with law. We Find these submission difficult to accept for more that one reason. Admittedly, the vacancy being substantive, it has to be filled in accordance with the procedure prescribed under the First Order read with Section 18 of the Act. The contingency termed as short term vacancy has been described under para-2 of the Second Order. The period during which the management otherwise does not possess power to make ad hoc appointment either under Section 18 and/or the First Order cannot be read to bring in the concept of short term vacancy, since this attempt would not only distort the scheme of the Act and various Removal of Difficulties Orders and Rules and Regulations framed thereunder, but may also create several functional and practical difficulties. To elaborate our point, if submission of the learned Counsel for the Petitioner-Appellant is accepted that at least for 60 days during which the substantive vacancy may not be filled up by the management by resort to Section 18 of the Act and read with First Order and for the said period, it may be treated to be a short term vacancy permitting the management to fill in under the Second Order, we find that almost the same period will have to be consumed by the management or the authorities in order to make appointment under the Second Order as well. Even under the Second Order, where the vacancy may not be filled in by promotion, the management is required to intimate the vacancy to DIOS, notify the same on the notice board and also to make advertisement calling application from the prospective candidates. Thereafter, selection on the basis of the quality point marks shall be made and the papers shall be forwarded to DIOS, who will have seven days' time to convey his approval failing which, it will be deemed to have been granted. Thereafter, only the management can make appointment under the Second Order. Thus the entire exercise in case of direct recruitment under Second Order would take at least a month and more, meaning thereby after such an exercise, the candidate may not be able to work even for a full month, since immediately thereafter, the occasion to make appointment under the First Order would arise and by virtue of Clause 3 of the Second Order, the appointment shall seize. This entire futile exercise would neither be in public interest nor would serve either the interest of the institution or even the prospective candidates at large. In an educational institution, no person can serve better if is to be appointed for a few days only, since he may not be able to discharge his duties with due devotion, keen interest and considering welfare and interest of the students at large. For the purpose of making ad hoc promotion in the case of substantive or short term vacancy, the senior most teacher in the next lower grade has to be considered at the first instance and, if ex facie the vacancy is substantive, it cannot be termed to be short term as a result of time taken in observance of the statute. Besides, it is a will recognized principle that something, which is not permissible directly, should not be allowed or resorted to indirectly. When law requires something to be done in a particular manner, any other mode is prohibited and any thing done otherwise is illegal. In Competent Authority v. Barangore Jute Factory and Ors. , it was held where the statute requires a particular act to be done in a particular manner, the act should be done in that manner alone. Every word of the statute has been to be given its due meaning. Similar dictum has been laid down in Nazir Ahmad v. King Emperor AIR 1936 Privy Council 253 and reiterated in catena of cases and we do not propose to add all the said authorities except of referring one of the recent judgment of the Apex Court.
32. Coming to alternative argument that the appointment may still be referable to Para-2 of the First Order and Section 18 would have no application, we find that a controversy somewhat similar came up for consideration in Munishwar Dutt Pandey v. Ramjeet Tiwari and Ors. where the Apex Court considered the question whether an appointment referable to Para-2 of the First Order would necessarily attract Section 18 of the Act and would be valid even if the conditions laid clown under Section 18 are not satisfied. It was held though para-2 of the First Order and Section 18 refers to the same topic namely ad hoc appointment for teachers in an institution governed by the Act, and, Section 33 of the Act provides that the authority, may, in case of difficulty remove the same by Notified Order but once such a contingency occur, than the Order itself would have the effect of modification even by omission of existing provision of the Act for the period specified in the Order. If a persons is appointed in accordance with para-2 of the Order, its validity need not be looked into by applying Section 18 of the Act for the purpose of attracting Section 33A(1-A) of the Act since it is applicable only to the appointment made under para-2 of the First Order and has no application to Section 18 of the Act. The relevant observations made in para 19 and 20 of the judgment are reproduced as under:
It is of course true that both of them deal with the same topic, namely, "Ad hoc appointment of teachers in an institution governed bp the Act". But a mere look at Section 33 shows that the legislature in its wisdom has provided that the Order-making authority may in case of difficulties remove the same by notified order. Once that happens the Order itself has the effect of modifying or even omitting the existing provisions of the Act for the period specified in the Order. As there is no specification of any period of life for the Order and as held by this Court it operates on a permanent basis, when the Order operates the provision of the Act which may be covering the field will themselves get modified or altered or even omitted. That exercise is permitted by the parent legislation itself by enacting Section 33 the vires of which are not in dispute before us. Even that apart Sub-section (2) of Section 33 itself provides that such an order has to be laid before both the Houses of the State Legislature. So it would get the sanction of the parent legislature itself As we have seen earlier Section 16 of the Act, which deals with "appointments to be made only on recommendations of the Commission or the Board" is expressly made subject to Sections 33 and 33-A amongst other. These provisions are in the parent Act itself and consequently Section 33-A which is a part and parcel of the parent provision has to operate of its own and there cannot be inconsistency or incongruity between the two provisions of the same Act, namely, Section 18 on the one hand and Section 33-A including Section 33-A(1-A) on the other.
20. For all these reasons, therefore, contention of the' contesting respondent that para 2 of the Order which itself is incorporated in Section 33-A(1-A) and is a part and parcel of the same parent provision is in any way repugnant to Section 18 of the Act (sic). It must, therefore, be held that none of the conditions for applicability of Section 18 is shown to have existed on the facts of the present case, as the writ petitioner was put in saddle as Principal of the College by by the Managing Committee itself ratifying his promotion on ad hoc basis with effect from 1-7-1988 prior to the notifying of the vacancy by the management to the Commission and such appointment being made not within two months of such notification and as the said post had not remained actually vacant during that period on account of the ratification by the Managing Committee of the action of its President as seen earlier. The second point for determination, therefore, is answered in the negative.
33. The Court, in fact, was considering the application of Section 33A (1-A) of the Act and held that only requirement for extending benefit under Section 33A (1-A) of the Act is whether the appointment has been made under para-2 of the First Order in accordance with the procedure prescribed thereunder and for that purpose, there is no necessity to look into the requirement of Section 18 of the Act.
34. To Attract Section 33 A (1-A), therefore, if the appointment is not made under para-2 of the First Order, no benefit can be extended thereof. In Kiran Gupta and Ors.v. State of U.P. and Ors. 2000(7) SCC 719, the Court observed that to attract Section 33A(1-A) of the Act, following conditions must be shown to have been fulfilled-(1) Appointment must have been on ad hoc basis against a substantive vacancy; (2) Appointment should have been in accordance with para-2 of the First Order as amended from time to time; (3) The incumbent must possess qualification prescribed under the Act or should be exempted under the Act; (4) Should have been continuously serving in the institution from the date of ad hoc appointment till the date of commencement of U.P. Secondary Education Services Commission and Selection Board (Amendment) Act 1991, i.e., 6th April 1991. If any of the condition is unsatisfied and lacking, Section 33A (1-A) would have no application. Therefore, testing the case of the Petitioner-Appellant in the light of above, we are afraid that she does not qualify to get any benefit for the reason that her appointment is not shown to have been made under Para-2 of the First Order and thus, Section 33-A(1-A) of the Act would have no application. Para-2 of the first Order clearly states that the ad hoc appointment has to be made in accordance with the procedure prescribed in the said order, which brings in Para-4 which in turn provide that the senior most teacher has to be appointed on ad hoc basis as Principal of the College. Para-2 read with 4 of the First Order, thus confer a right upon the senior most teacher to be appointed as officiating Principal, if a substantive vacancy has occurred on the post of Principal and the management intend to make ad hoc appointment by promotion, If senior most teacher for one or the other reason is not available, the management may appoint the next one but in no case, it can justify the appointment of a person, who was such a junior teacher, namely, at S1. No. 17 in the seniority list. Even if the contention of the learned Counsel for the Petitioner-Appellant is accepted that three senior most teachers declined to officiate as Principal, yet 13 more teachers, who were senior to the Petitioner-Appellant still were available, who had a right to be appointed by promotion on the substantive vacancy of Principal under para-2 and 4 of the First Order. Admittedly, there is neither any averment nor any material nor any suggestion by the learned Counsel for the Petitioner-Appellant that other teachers also declined to function as officiating Principal of the College. In these circumstances, even if it is assumed that the Petitioner-Appellant was appointed as officiating Principal, her appointment cannot be said to have been made as per procedure prescribed under para-2 and 4 of the First Order. The question where an appointment is made not strictly in accordance with the provision of the Act or Removal of Difficulties order, still can a benefit be claimed, specifically has been answered in Prabhat Kuamr Sharma and Ors. v. State of U.P. and Ors. 10 SCC 62 : AIR 1996 SC 2628 and it Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointee. (Para-7)
35. The Apex Court agreed and upheld the Full Bench decision in Radha Raijada (supra) and made the aforesaid observation. Similar view has been taken by this Court in a number of cases, some of which may be referred as under:
(A) In the case of Dr. R.K. Pandcy v. Sukh Ram Pal Singh Sahravat 1995 (1) ESC 74, this Court held:
As the appointment of Dr. Raman Kumar Pandey was made before two months from the date of vacancy could expire, it was wholly illegal, having been made in contravention of Section 18 of the Act. (para 7) (B) In the case of Anilesh Pratap Singh v. State of U.P. 2003 (5) ALR 674, A Division Bench of this court held:
15. Applying the principles laid down in the aforementioned cases we are of the considered opinion that the provisions of Section 18 of the 1982 Act is mandatory and unless and until the period of two months expires from the date of notifying the vacancy to the Commission, the Committee of Management does not get any power to fill up the vacancy on ad-hoc basis.
36. The aforesaid view has been followed recently by us also in Special Appeal No. 32 of 2006 Lalta Prasad Gaswami v. State of U.P. and Ors. Decided on 12th Januray 2006.
37. Sri Goel, at this stage, also sought to argue that since the senior most teacher has declined to officiate as ad hoc Principal and, therefore, subsequently, cannot come forward to claim appointment on ad hoc basis and the DIOS or RIGS erred in law by directing the management to appoint the senior most teacher as officiating Principal of the College placing reliance on Hari Ram yadav v. State of U.P. and Ors. 2001(2) UPLBEC 1268, Urmila Srivastava v. DIOS and Ors. 2001(2) UPLBEC 1713 and Satyaveer Singh v. DIOS 1995 ALR 139.
38. We find that in none of the aforesaid cases there is any discussion as to why a senior most teacher, if declines at a particular point of time for certain valid and bona fide reasons to officiate as Principal, he/she may not avail or resort to its right subsequently when such disability seizes. For illustration, there may be cases where the management may be justified in not permitting the senior most teacher to officiate as Principal of the College, e.g., if the senior most teacher is under suspension or is physically disable or suffer from any other similar handicapness, but when such reasons disappear, still the senior most teacher will not be able to claim its right to officiate as Principal is seriously doubted. In Km. Vandana Banerji v. Administrator, Arya Kanya Pathshala 1990(1) UPLBEC 116, it was held that the appointment of the junior teacher as Principal against a senior teacher is against the provisions of law and the Regulations. In Yogendra Chaturvedi v. Addl. Commissioner 1986 Education Cases 44 and Tribhuvan Mishra v. DIOS Azamgarh 1992(1) UPLBEC 716, it was held senior most teacher may not necessarily be appointed as ad hoc principal, if there are reasons to justify the same but in such cases, the management may give a show-cause notice to the senior most teacher proposing his supercession. A senior most teacher, on recovery of disability, may resort to his right to officiate as Principal has been held in Dhanesh Kumar Sharma v. State of U.P. 2004(3) UPLBEC 2297. In Radha Raizada (supra), the Full Bench also took the view that the senior most teacher shall have a preferential right to officiate as Principal, which may be denied for justified reasons after giving him opportunity. Therefore, the consistent opinion expressed by this Court from time and again is that the senior most teacher shall have the right to officiate as Principal, unless such right may be denied for justified reasons. However, in our view, where such right has been denied for the reasons beyond his control, on change of situation, the senior most teacher may assert his right to officiate as Principal. We need not to dilate on this issue further for the reasons that in the case in hand, even if we accept the contention of the Petitioner-Appellant that respondent No. 3 having declined to officiate as Principal could not have been directed subsequently by RIGS to appoint her as officiating Principal, still it would not improve her case for the reason that admittedly there were 13 more senior teachers available in the institution, who, at no point of time, had declined to officiate as Principal. It is also not the case of the Petitioner-Appellant that the said teachers also suffer any kind of disability justifying management not to officiate any of them as Principal of the College. Hence, direction to the Petitioner-Appellant to officiate as Principal cannot be sustained and in our considered opinion, the question No. 2 has to be answered against the Petitioner-Appellant that here appointment was not in accordance with First Order as amended from time to time.
39. Coming to the 3rd question, we find that the RIGS issued order as long as back on 29th March 1989 directing management to allow respondent No. 3 to officiate as Principal of the College. She also issued letter dated 17th April 1989 directing Manager to promote respondent No. 3 as officiating Principal and send salary bills under her signature. A reminder letter was also sent on 28th April 1989. The Petitioner-Appellant at no point of time was ever appointed as officiating Principal of the College and in any case, since 12thMay 1989, she has worked continuously as officiating Principal under the interim order passed by this Court and not pursuant to her own rights. In the circumstances, she cannot claim any benefit out of her continuance as officiating as Principal on the basis of the interim order of this Court, when the writ petition ultimately stands dismissed. There are two principles which have to be followed in such a case. Firstly, act of the Court shall prejudice none. If a person has enjoyed certain benefits under the interim order, he/she would not be allowed to claim any further benefit due to change in law pursuant to enjoyment of certain benefit under an interim order of the Court. A benefit under the interim order is tentative and subject to final decision in the matter and cannot go beyond the final decision. In Committee of Management Arya Nagar Inter College v. Sri Kuamr Tiwari , the services of the respondent came to be terminated on 30th June 1988, whereafter she obtained interim order and continued thereunder. Thus, he continued in service not by virtue of his own right under an order of appointment, but on account of an interim order and the Court, thus, held that no benefit of such continuance can be allowed. In South Eastern Coalfields Ltd. v. State of M.P. and Ors. , the Court recognized the principle that wrong order should not be perpetuated by keeping it alive. Recognizing the maxim auctus curiae neminem gravabit, it was held that no one shall suffer by an act of the Court and such a rule is not confined to an erroneous act of the Court but act of the Court embraces within its purview all such acts as to which the Court may form an opinion in any legal proceedings that the Court would not have so acted bad it been correctly apprised of the facts and law. It is duty of the Court to apply the restitution putting the parties in the same position as they would have been, had the order, subsequently found to be erroneous by the Court, would not have been passed. In para 28 of the judgment, it was held-
The injury, if any, caused by the act of the court shall be undone and the gain which the parties would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences. Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the Courts, persuading the Court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard anddetermined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be cannot be countenanced.
(emphasis added)
40. Considering from another angle, where an interim order is passed and the writ petition is ultimately dismissed, the effect would be as if no order was ever passed. That being so, the incumbent does not gain on the basis of mere continuance since he has no legal or valid right to continue. An interim order passed by the Court merges with the final order and, therefore, the result brought by dismissal of the writ petition is that the interim order becomes non est. A Division Bench of this court in Shyam Lal v. State of UP. , while considering the effect of dismissal of writ petition on interim order passed by the court has laid down as under:
It is well settled that an interim order merges in the final order and does not exist by itself. So the result brought about by an interim order would he non est in the eye of law if the final order grants no relief. The grant of interim relief when the petition was ultimately dismissed could not have the effect to postponing implementation of the order of compulsory retirement. It must in the circumstances take effect as if there was no interim order.
41. The same principal has been reiterated in the following cases:
(A) Sri Ram Charan Das v. Pyare Lal.
In Shyam Lal v. State of U.P. a Bench of this Court has held that orders of stay of injunction are interim orders that merge in final orders passed in the proceedings. The result brought about by the interim order becomes non est in the eye of law in final order grants no relief. In this view of the matter it seems to us that the interim stay became non est and lost all the efficacy, the commissioner having upheld the permission which became effective from the date it was passed.
(B) 1986 (4) LCD 196 Shyam Manohar Shukla v. State of U.P. It is settled law that an interim order passed in a case which is ultimately dismissed is to be treated as not having been passed at all (see Shyam Lal v. State of Uttar Pradesh) Lucknow and Sri Ram Charan Das v. Pyare Lal (DB), C) Chemicals and Industries Ltd. v. U.P. State Electricity Board.
After the dismissal of the writ petitions wherein notification dated 21.4.1990 was stayed, the result brought about by the interim orders staying the notification, became non est in the eye of taw and lost all its efficacy and the notification became effective from the beginning.
42. Therefore, we hold that mere continuance of the Petitioner-Appellant pursuat to the interim order dated 12th May 1989 passed in the writ petition would not entitle her to claim any benefit Section 33-A(1-A) of the Act since the aforesaid benefit is available only where the incumbent has continued on the basis of appointment made under para-2 of the First Order and not where one has continued on the basis of the interim order of the Court. Further, the continuance must be pursuant to an order of appointment, meaning thereby the appointment must have been made and the appointment letter should continue to operate, i.e., the service must not have come to an end or terminated. Only then Section 33-A(1-A) of the Act would apply and not otherwise. The question No. 3, is accordingly answered against the Petitioner-Appellant and we hold that she is not entitled for any benefit on account of her continuance pursuant to the interim order passed by this Court in the writ petition.
43. For answering the last question we have to refer to Section 33-A and Sub-section 1-A of Section 33-A. Section 33-A was inserted by U.P. Act No. 19 of 1985 and Sub-section (1-A) was inserted in Section 33-A by U.P. Act No. 26 of 1991 with effect from 6.4.1991. We may reproduce Section 33-A (1 -A) as under:
Section 33-A. Regularisation of certain appointment-
(1-A) Every teacher appointed by promotion 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, is exempted from such qualification in accordance with the provisions of the Intermediate Education Act, 1921 shall, with effect from the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1991, be deemed to have been appointed in a substantive capacity, provided such teacher has been continuously serving the institution from the date of such commencement.
44. A bare reading of Section 33 A (1-A) of the Act shows that a teacher appointed by promotion on ad hoc basis against substantive vacancy in accordance with Paragraph 2 of the First Order as amended from time to time, possessing qualification or exempted therefrom under the Act and continuously serving the institution from the date of such ad hoc appointment to the date of commencement of U.P. Amendment Act 26 of 1991 shall be deemed to have been appointed in substantive capacity.
45. In view of the discussions made while considering questions No. 1, 2 and 3, above, we have already held that neither the Petitioner-Appellant was appointed at all nor her appointment was in accordance with para-2 of the First Order nor she continued on the basis of such ad hoc appointment till commencement of UP Act No. 26 of 1991 of and thus, we are of the considered opinion that she is not entitled for any benefit of Section 33-A(1-A) of the Act and the Hon'ble Single Judge was right in declining to grant any relief to the Petitioner-Appellant observing that the said provision has no application in her case.
46. In the result, we do not find any merit in this appeal and it is, accordingly, dismissed without there being any order as to costs.