Allahabad High Court
Committee Of Management vs Director Of Education (Basic) & Others on 19 March, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD (AFR) Reserved on 20.11.2012 Delivered on 19.03.2013 Court No. - 34 Case :- WRIT - C No. - 25982 of 1997 Petitioner :- Committee Of Management Respondent :- Director Of Education (Basic) & Others Petitioner Counsel :- Shashi Nandan, Sr. Advocate, Awadhesh Narain Rai, Respondent Counsel :- S.C.,J.N.Verma, Shailendra Hon'ble Sudhir Agarwal,J.
1. Writ petition has been restored to its original number and as requested and agreed by learned counsel for the parties, I proceed to decide it on merits itself at this stage.
2. Heard Sri Shashi Nandan, Senior Advocate, assisted by Sri. Awadh Narain Rai, Advocate for the petitioner and Mr. Shailendra Srivastava, Advocate for respondents.
3. This writ petition is directed against the order dated 25.06.1997 passed by Regional Assistant Director of Education (Basic) Region-I, Meerut (hereinafter referred to as "A.D.(Basic)"), deferring effect and operation of letter dated 29.05.1995 whereby it has granted approval for creation of seven posts of Assistant Teachers and one post of Clerk in Sarvodya Mandir Junior High School, Mahavatpur Bawli, Meerut (hereinafter referred to as "the School").
4. The school was initially recognized as Junior High School by Board of Basic Education (hereinafter referred to as "the Board") under the provisions of U.P. Basic Education Act, 1972 (hereinafter referred to as "Act 1972") and the Rules framed thereunder. The school was not receiving grant-in-aid but after issuance of Government Order dated 20.01.1986, the committee of management of school submitted an application before A.D. (Basic) for bringing the school in grant-in-aid list. While the said application was pending, the State Government issued a telegram dated 04.10.1988 restraining Basic Education Authorities from considering application to bring any Basic School in grant-in-aid. The said telegram came to be challenged by committee of management of the school in writ petition No. 13716 of 1991, which was was disposed of vide judgment dated 22.08.1991 directing A.D. (Basic) to consider and pass appropriate order on the application for bringing school in grant-in-aid list. Operative part of the judgment dated 22.08.1991 reads as under:-
"I have heard learned counsel for the parties and considered the matter. In my opinion the telegram dated 4.10.88 will not have the effect of altering or modifying the Government order dated 20.1.86. The said Government order can be withdrawn or modified by a subsequent Government order but it cannot be affected in any manner by the telegram dated 4-10-88 which is impugned in this writ petition.
Accordingly, I dispose of the writ petition finally with a direction that the petitioners' case may be considered by respondent No. 3 without being influenced by the telegram dated 4.10.88. The petitioners' application shall be considered in accordance with the Government order dated 20.1.86. The respondent No. 3 is directed to treat the telegram dated 4.10.88 as non-est for the purposes of giving consideration to the application of the petitioners. The petitioners may present a certified copy of this order before respondent No. 3 who shall consider the matter and decide the same in the light of the directions given herein above, within a period of one month." (emphasis added)
5. While compliance of judgment was in the process, in the meanwhile, the school was upgraded upto High School with effect from July 1993.
6. Consequently, A.D. (Basic) passed order dated 29.12.1994 based on an Inspection Report dated 31.10.1994. He observed that there are already 17 Assistant Teachers and a Head Master, besides one Clerk and four peons, duly approved by the Department and recommendation is now made for creation of seven posts of Assistant Teachers and one of Clerk. This letter dated 29.12.1994 was addressed to Director of Education(Basic), Lucknow, may be for the reasons that by letter dated 03.08.1991, power of creation of posts got vested in the Director. Relevant part of A.D. (Basic)'s letter dated 29.12.1994 reads as under:-
^^ vr% lkr lgk;d v/;kidksa ,oa ,d fyfid ds in l`tu dh lcy laLrqfr dh tkrh gSA "
"Therefore, strong recommendation is made for creation of seven post of Assistant Teachers and one post of Clerk'." (ETC by Court)
7. Further, A.D. (Basic) also sought appropriate direction from the Director, in the context of compliance of this Court's judgment dated 22.08.1991.
8. On 29.05.1995 A.D. (Basic) himself proceeded and issued another order, conveying approval to creation of seven posts of Assistant Teachers and one post of Junior Clerk in the School, purporting to exercise power under Section 9 of Act, 1978. The said sanction was granted from the date of issuance of letter dated 29.05.1995, in respect to seven post of Teachers; and, from the date of appointment in respect to the post of Junior Clerk.
9. The letter dated 29.05.1995 approving creation of posts clearly mentioned that minimum qualifications for appointees to the aforesaid created posts would be the same as are prescribed in Rules and payment of salary etc. shall also be made according to prescribed procedure. The order also stated that, in case, subsequently it is found that any information has been concealed or there is misrepresentation, the aforesaid letter creating posts shall stand revoked.
10. The committee of management thereafter sought approval of District Basic Education Officer, Meerut (hereinafter referred to as "D.B.E.O.") vide letter dated 24.06.1995 for appointment of seven incumbents selected by it for the posts of Assistant Teachers, creation whereof was approved by A.D (Basic) vide letter dated 29.05.1995.
11. It is interesting to note that seven persons sought to be appointed as Assistant Teachers, their qualifications mentioned in the said letter are/were as under:-
S.N. Name Qualification Post
1.
Smt. Kiranvati M.A., B.Ed.
Assistant Teacher
2. Smt. Manjulata B.A., B.Ed Assistant Teacher
3. Indu Rani M.A., B.Ed.
Assistant Teacher
4. Satish Kumar B.Sc., B.Ed.
Assistant Teacher
5. Rakesh M.Sc., B.Ed.
Assistant Teacher
6. Krishna Pal Singh M.A., B.Ed.
Assistant Teacher
7. Ram Kumar B.Sc., B.Ed.
Assistant Teacher
12. The D.B.E.O. vide letter dated 25.07.1996, declined to clear salary bills of school w.e.f. July, 1996 since the school had been upgraded as High School.
13. The petitioner came to this Court in Civil Misc. Writ Petition No. 25217 of 1996 wherein granting time to the respondents to file counter affidavit, an interim order dated 07.08.1996 was passed that salary shall not be denied only on the ground of upgradation of institution upto High School level and it shall be continued to be paid under U.P. Junior High School (Payment of Salaries of Teachers and Other Employees) Act, 1978 (hereinafter referred to as the "Act, 1978") till the institution is brought within the purview of Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as "Act 1971").
14. The school was further upgraded upto Intermediate level on self financed basis for new classes vide letter dated 25.02.1997 issued by Additional Secretary, Secondary Education Board, Meerut. The District Inspector of Schools, Meerut (for short "D.I.O.S.") also conveyed the aforesaid upgradation/recognition to the school upto Intermediate (Self Financed)vide letter dated 25.04.1997.
15. Thereafter A.D. (Basic) issued letter dated 25.06.1997 stating that circumstances in which seven posts of Assistant Teachers and one post of Clerk was created, need fresh investigation and hence, till inquiry is over, the order sanctioning creation of aforesaid posts i.e., letter dated 29.05.1995 is being stayed. This is the impugned order herein.
16. The order dated 25.06.1997 has been challenged on various grounds, namely, A.D.(Basic) had no jurisdiction of review; there is no power to stay an order which was already operating, having been passed in compliance of judgment of this Court, it could not have been made inoperative; and that the institution having been upgraded upto Intermediate level, A.D.(Basic) had no jurisdiction to pass any order in respect to the school.
17. This Court granted an interim order dated 08.08.1997 that until further orders, operation of order dated 25.06.1997 shall remain stayed. As a result thereof, the appointments made on seven posts of Assistant Teachers also continued and they are also receiving salary from State Exchequer accordingly.
18. On behalf of respondents no.1 to 4 a counter affidavit sworn by Sri R.P.Pachauri posted as Deputy Basic Education Officer, Meerut/Baghpat has been filed. It says that school was actually recognised upto Junior High School in 1975 and taken on grant-in-aid list in 1982 approving following strength of staff in the school vide Government letter dated 13.7.1982:
Head Master - 01 Assistant Teacher - 11 Clerk - 01 Peon - 03
19. Thereafter two post of Assistant Teachers were created and appointments were approved on 21.11.1984. Three post of Assistant Teacher and one post of Peon was sanctioned vide letter dated 28.04.1988. The management of school further represented for creation of some more posts in the school. Justification for additional posts was provided by management and from reply contained in paragraphs no. 7 and 8 of counter affidavit , it is evident that management's decision was not found incorrect but in the meantime before any decision could be taken, the management of school sought upgradation upto high school. It was actually upgraded w.e.f. July, 1993. This fact was not communicated by management to Basic Education authorities. In ignorance thereof order approving creation of seven posts of Assistant Teachers and one post of Clerk, pursuant to this Court directions contained in judgment dated 22.08.1991 was passed. Having no knowledge that the school has already been upgraded upto High School in July 1993, A.D. (Basic) passed order on 29.05.1995, sanctioning the aforesaid posts. It is also alleged that A.D.(Basic) could not have created posts without seeking prior approval of Director of Education(Basic) as provided in Director's letter dated 03.08.1991. It is thus pleaded that after school upgraded upto High School, Basic Education Department could not have created further posts. The school could have got benefit of payment of salary under 1978 Act, only for the staff which was already sanctioned on the date when the institution was upgraded upto High School. Any subsequent event and orders etc. of Basic Education Department being wholly illegal, are without jurisdiction .
20. The petitioner has filed rejoinder affidavit in which basic facts are not disputed. It is however said that so far as salary and posts of primary part of school is concerned, despite upgradation the same would remain unaffected. Therefore, the order passed by A.D. (Basic), creating seven posts of Assistant Teachers and one post of Clerk would remain unaffected and salary cannot be denied.
21. It has not been disputed by learned Standing Counsel that under Act 1978, power of creation of posts in Primary School was delegated and conferred upon A.D.(Basic) vide Government Order dated 20.01986. The said conferment sought to be cancelled vide Government Telegram 4.10.1988 but this Court vide judgment dated 22.08.1991 in Writ Petition No. 13716 of 1991, held that Telegram dated 04.10.1988 shall not have the effect of altering or modifying Government Order dated 20.01.1986. Consequently, power of creation of posts in Basic Schools continued with A.D.(Basic). The aforesaid judgment has not been upset in any higher forum but has attained finality. It is in these circumstances, it cannot be said that the order passed by A.D.(Basic) was not within his/her jurisdiction, provided upgradation of a school in 1993 would have not changed the position otherwise.
22. Now I proceed to consider whether upgradation of school upto High School in July 1993 would result in alteration of situation to the extent of depriving Basic Education Authorities to pass any order regarding creation or abolition of posts with respect to Primary Section of such upgraded schools.
23. The aforesaid issue is no more res integra having been decided by this Court in a catena of decisions. The question initially came to be considered by a Full Bench in State of U.P. & others Vs. District Jduge, Varanasi & others 1981 UPLBEC 336 and in para 17 observed as under :
"17. A basic school or a Junior High School is thus different from a High School or an Intermediate College. On the plain language of these definitions the same institution cannot be called a basic school or a Junior High School as well as a High School or an Intermediate College. Each one has a distinct legal entity. On a basic school or a Junior High School being upgraded as a High School or an Intermediate College the identity of the institution known as basic school or Junior High School is lost. It ceases to exist as a legal entity and in its place another institution with a new legal entity comes into being. One cannot be equated with the other."
24. The view taken by the Full Bench created certain difficulties as a result whereof, legislature intervened by inserting Section 13-A in U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 (U.P. Act No.6 of 1979). Section 13-A reads as under:
"13-A Transitory provisions in respect of certain upgraded institutions.-- (1) Notwithstanding anything contained in the Act, the provisions of this Act shall, mutatis mutandis, apply, to an institution which is upgraded to High School or Intermediate standard and, to such teachers and other employees thereof in respect of whose employment maintenance grant is paid by the State Government to such institution.
(2) For the purposes of this section the reference to the students wherever they occur in Section 5, shall be construed as reference to the students of classes up to Junior High School level only. "
25. Thereafter the matter again came up in Dr. (Smt.) Sushila Gupta Vs. Joint Director of Education, Kanpur Region, Kanpur & others 2006 (1) ADJ 89 (All)=2006(2) AWC 1561. The Court held, once a Junior High School is recognized as High School or Intermediate College, in spite of the fact whether the institution was aided or unaided, it would be governed by the provisions of Act 1921 and the Regulations framed thereunder, applicable to such institution, namely, Secondary institution, would apply thereto. The Court (Hon'ble A.P. Sahi J.) in para 29 and 30 of the judgment said as under:
"29. It is, thus, clear from all the decisions cited herein above and the provisions discussed herein above that a Junior High School upgraded to the High School/Intermediate level, the institution is governed by the provisions of U.P. Intermediate Education Act and Service Rules as applicable to such institution, have to be applied. There is no distinction drawn between an aided or an unaided school. The recognition of the institution is by itself sufficient to exclude the applicability of the laws governing Junior High School once the institution is upgraded. It is for this reason that a special transitory amending provision was brought in by way of Section 13-A in U.P. Act No. 6 of 1979 discussed herein above to enable such upgraded institution to continue to receive the grant-in-aid that they were receiving at the level of Junior High School.
30. In view of the conclusions and findings recorded herein above, the issue raised on behalf of the petitioner has to be answered in the affirmative in favour of the petitioner. Consequently, the institutions where the respondents are proceeding to make an appointment on the post of the Head of the institution which is admittedly an upgraded institution, can only be made under the provisions of the U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder coupled with the provisions of the U.P. Act No. 5 of 1982 and such other provisions that are consistent with the law laid down herein above."
26. The aforesaid judgment stood confirmed in intra court appeal by a Division Bench in Ajay Pratap Rai Vs. District Basic Education Officer, Jaunpur and others 2007(4)ADJ 357. This Court has followed the above decisions in Smt. Shail Kumari Singh Vs. State of U.P. 2008(1) ESC 365., Smt. Sudama Devi Vs. C/M Sri A.B.U.M.V. and another decided on 21.2.2011 and Ravendra Pal Singh Vs. State of U.P. and others decided on 21.5.2009. Recently, another Division Bench consisting of Hon'ble Ashok Bhushan J. and Hon'ble Arun Tandon, J. also considered the same in Smt. Manju Awasthi Vs. State of U.P. and others (Special Appeal No. 25 of 2006 decided on 6.11.2012).
27. It thus cannot be doubted now that after upgradation of a Primary or Junior High School as High School or Intermediate College, it would cease to be governed by provisions of Act 1972 and Rules and Regulations framed thereunder, and, would be governed by Act 1921 as well as Rules and Regulations framed thereunder, and relevant statute applicable to secondary educational institutions, except to extent otherwise any provision is available.
28. This by itself would not result in solving problem for the reason that the payment of salary to teaching and non-teaching staff of Primary/ Junior High School Section is governed by Act 1978. As already said by U.P. Act No. 34 of 2000 Section 13-A was inserted therein so as to continue payment of salary to teachers and other employees of Primary/Junior High School despite its upgradation as High School standard, to the extent of those teachers and other employees of institutions whose employment, maintenance, grant is paid by State Government. Section 13-A operates with a non-abstante clause and, therefore, in the present case, it would have continued to govern the matter of payment of salary to the existing teaching and non-teaching staff of Junior High School, as it was on the date of upgradation. Section 13-A also provides that provisions of Act 1978 shall continue to apply. The question of approval i.e., previous approval of Director or educational authority for creation of post in respect of aided institution is basically on account of such requirement contained in Section 9 of Act 1978 which reads as under:
"9. Approval for posts.--No institution shall create a new post of teacher or other employee, except with the previous approval of the director, or such other officer as may be empowered in that behalf by the director.
(2) If any new post is created with the previous approval referred to in sub-section (1), and no appointment is made to such post, within three months, the approval shall be deemed to have been withdrawn."
29. In respect of High School and Intermediate Educational institutions which are aided, payment of salary to teaching and non-teaching staff is governed by U.P. High Schools and Intermediate College (Payment of Salaries of Teachers and Other Employees) Act, 1971 and therein requirement of approval is by virtue of Section 9 which reads as under:
"9. Approval for posts.--No institution shall create a new post of teacher or other employee except with the previous approval of the Director, or such other officer as may be empowered in that behalf by the Director."
30. Act 1978 would have continued for purpose of payment of salaries to such teachers and other employees who were already under maintenance grant from the State on the date the institution was upgraded to High School i.e., July 1993. In respect of further creation of posts etc. since upgradation was without any financial assistance, for the purpose of creation of posts in Primary School, the A.D. (Basic) exercised power under Section 9 of Act 1978 passed order on 29.05.1995. Since Act 1971 was not to apply to the school, in my view, the order dated 29.5.1995 passed by A.D.(Basic) cannot be said to be wholly without jurisdiction, particularly when it was in purported compliance of this Court's judgment dated 22.08.1991.
31. In Smt. Manju Awasthi Vs. State of U.P. and others (supra), a conclusive opinion has been expressed that after upgradation of a Junior High School as High School or Intermediate, entity of Junior High School or Primary School ceases to exist and a new entity comes into existence, i.e., upgraded school which shall be governed by provisions of Act 1921, Rules and Regulations framed thereunder and other ancillary Act applicable to Secondary Educational institutions. Having said so, the Court also observed, with reference to Section 13-A of Act 1978, that the maintenance grant available to Junior High School/Primary School cannot be treated to be a grant under Act 1971 and, therefore, for a limited purpose, relating to payment of salary, Act 1978 shall continue to apply to Primary School as a part of upgraded school, and to that extent, powers can be exercised by Basic Education Authorities as reiterated in the Government Order dated 24.11.2001. The Court said:
"......As noticed above, by virtue of Section 13A inserted in 1978 Act by U.P. Act No. 34 of 2000, the provisions of 1978 Act shall apply to an institution which is upgraded High School or Intermediate college. 1978 Act relates to payment of salary. Thus, in so far as payment of salary part is concerned by virtue of statutory provisions, 1978 Act shall apply and the Government Order dated 24.11.2001 in so far as powers regarding payment of salary is concerned can be exercised by the said Government Order...."
32. Looking from the above angle and the observations noticed above, it is evident that creation of posts in Primary School which was aided, is restricted by Section 9 of Act 1978. It would create an anomalous situation where a Junior High School when upgraded and though, for the purpose of payment of salary to the existing staff of Primary School Section of upgraded school, we apply Act 1978 by virtue of Section 13-A thereof, but for the purpose of creation of posts in Primary Section of School, we look forward to the statutes applicable to secondary educational institution, knowing very well that Act 1971 is not applicable to upgraded Junior High School and, therefore, power of creation of posts thereunder would not be available to upgraded Junior High School so long it is not included for grant in aid under Act 1971. If we refer to executive orders relating to creation of posts, applicable to secondary educational institutions, there also result would not be very conducive, inasmuch as, on the one hand, Section 13-A of Act 1978 declares that the provisions of Act 1978 shall continue to apply to upgraded Junior High School but, simultaneously, we should exclude application of Section 9 of the aforesaid Act though there exists no reason therefor. Instead to go in search for administrative/executive orders applicable to secondary educational institutions in respect of creation of posts, the prudent and logical approach would be that without doing any violence to the language of Section 13-A of Act, 1978, apply it in words and spirit and that shall bring in Section 9 also. Neither there is any compulsion to do otherwise nor I am inclined to do so when a specific statutory provision already exists. In absence of any ambiguity in application of the said provision, there is no reason to take any otherwise view. Hence, I am inclined to take the view that the matter of creation of posts of an upgraded Junior High School would continue to be governed by provisions of Act 1978 by virtue of Section 13-A thereof, which would also bring in Section 9 of Act 1978. It thus, leaves no manner of doubt that order of A.D. (Basic) was not without jurisdiction, whereby he approved creation of posts of Assistant Teachers and certain ministerial and other staff in the context of Junior High School Section.
33. Having said that, so far as appointment of teachers and non-teaching staff in the upgraded Junior High School after July 1993, is concerned, there is no scope to take recourse to provisions of Act 1972 or the Rules framed thereunder. On this aspect, a Division Bench judgments of this Court in Ajay Pratap Rai Vs. District Basic Education Officer (supra) and Smt. Manju Awasthi (supra) are very clear and binding authority on this Court.
34. In Ajay Pratap Rai Vs. District Basic Education Officer (supra) the Court said:
"..... the selection and appointment on the post of Head of the Institution which has been recognized as a High School and Intermediate College cannot be made under the provisions which are applicable to a Junior High School. In Sushila Gupta (supra), the learned Single Judge considered all the Amendment made in the Statute and held that in spite of so many amendments to the statutory provisions, the proposition of law laid down by the above referred to Full Bench remained the same. Mr. Saxena has not brought to our notice any provision which have altered the legal position"
35. In Manju Awasthi (supra) after noticing entire authorities on the subject, the Court observed :
"The selections made by the Basic Shiksha Adhikari under the provisions of U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978, have rightly been quashed in the writ petitions by Hon'ble Single Judge on the ground that after upgradation of a Junior High School, selection/appointment is to be made in accordance with 1921 Act and U.P. Act No. 5 of 1982...."
36. In view of above, it cannot be disputed that the management in 1995, when the school was already upgraded upto High School, had no jurisdiction to make any appointment of teachers except by following the procedure prescribed in Act 1982 and, therefore, impugned order dated 25.06.1997, stopping salary of seven appointments of teachers which were made by management, cannot be faulted, since they have not been appointed on the posts under the relevant statute in accordance with procedure prescribed therein and, their appointments are patently illegal.
37. Be that as it may, since the learned counsel for the parties has advanced submissions, I would proceed to consider whether appointment of seven person as Assistant Teachers by management on seven posts in question, which were created by A.D. (Basic)' order dated 29.05.1995, can be said to be valid, even if this court applies the statutory rules framed under Act 1972 applicable for appointment teachers of Junior High School. In other words, the question which I may consider is whether the petitioner committee of management could have appointed seven teachers whose names are mentioned above in para 11 of this judgement, validly, so as to confer right upon them to claim salary from State Exchequer.
38. Recruitment of teachers in Junior High School governed by U.P. Recognized Basic Schools (Junior High Schools)(Recruitment and Conditions of Service of Teachers) Rules, 1978 (for short "Rules 1978").
39. Had the appointments been made following Rules 1978, no person could have been appointed as a teacher, unless he possessed requisite qualification prescribed in Rule 4 of Rules 1978. This is what is stated in Rule 5 of Rules 1978 which reads as under:
"5. Eligibility for appointment.- No person shall be appointed as Headmaster or Assistant Teacher in substantive capacity in any recognised school unless-
(a) he possesses the minimum qualifications prescribed for such post;
(b) he is recommended for such appointment by the Selection Committee.(emphasis added)
40. Minimum qualification prescribed for appointment of Assistant Teacher in Junior High School is provided in Rule 4(1) of Rules 1978 which reads as under:
"4. Minimum qualification.- (1) The minimum qualification for the post of Assistant teacher of a recognised school shall be Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination (with Hindi and a teacher's training course recognised by the State Government or the Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate or Certificate of Training). (emphasis added)
41. Qualification of seven teachers have been mentioned above as is evident from D.B.E.O. letter dated 24.06.1995. It clearly shows that none of the seven persons possessed qualification of teachers' training course required in Rule 4(1) of Rules 1978. Moreover, the posts were created and approval was granted on 29.05.1995 whereupon the management sought approval of D.B.E.O. vide letter dated 24.06.1995, meaning thereby, within less than a month it claims to have selected seven incumbents and sought to make their appointments. There is nothing on record to show that procedure for selection prescribed in Rule 10 of Rule 1978 was followed or that a selection committee as contemplated in Rule 9 of Rules 1978 was constituted. Ex facie, appointments do not conform the requirement of Rules 1978, and, if the appointments in question are to be referred to Rules 1978, the same are ex facie illegal and void.
42. If the validity of these appointments is considered in the light of relevant statutes, applicable to secondary educational institutions, i.e., Act 1921, Act 1982 and Rules and Regulation framed thereunder including Removal of Difficulties orders, as I have already noticed, under the provision of Act 1982 recruitment of teachers could have been made by the U.P. Secondary Education Service Selection Board but no vacancy was ever notified to the said board. Even ad hoc appointment under section 18 could not have been made without first requisitioning the vacancies to the Board. Appointments, therefore, did not observe the procedure under the Act 1921 and from that angle, appointments of seven teachers being patently illegal, claim for payment of their salary from State Exchequer, for which the management has contested this matter, cannot be allowed.
43. It is now well established that when appointments are wholly illegal and void ab initio, having not being made according to procedure prescribed in relevant statute and incumbents also did not fulfill requisite qualification at the time when alleged appointments were made, such appointment being void ab initio, would not confer any right to pay salary or hold the posts at all.
44. A Division Bench of this Court (of which I was also a member) in Ravendra Kumar Vs. District Inspector Of School And Others (Special Appeal (D) No. 551 of 2012, decided on 12.06.2012. held in paras 15 to 18 held as under:
"15. The view taken by learned Single Judge that appointment of petitioner having not been shown to be validly made, he is not entitled for salary is also consistent with the view taken by Apex Court in Prabhat Kumar Sharma and others Vs. State of U.P. and others, (1996) 10 SCC 62 that procedure laid down in Removal of Difficulties Order is mandatory and has to be observed in words and spirit. An appointment made inconsistent with the said procedure is void ab initio and will not confer either any right upon the incumbent to hold the post or to continue in service or to claim salary from the State exchequer. The relevant observations made by the Apex Court in Prabhat Kumar Sharma (supra) is as under:
"Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees."(emphasis added)
16. Again in para 11 of the judgment the Court held:
"Any appointment in violation thereof is void. As seen prior to the Amendment Act of 1982 the First 1981 Order envisages recruitment as per the procedure prescribed in para 5 thereof. It is an inbuilt procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the Management to any posts in aided institution."
17. The aforesaid decision has been followed and reiterated in Shesh Mani Shukla Vs. District Inspector of Schools Deoria and others J.T. 2009 (10) SC 309 wherein the Apex Court said:
"It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State."
18. In the circumstances, we are satisfied that the alleged appointment of the petitioner being void ab initio, it conferred no right upon him at all which included claim for salary from State Exchequer."
45. Therefore, from whatever angle this matter is examined, it cannot be doubted that the alleged appointments of seven teachers was not in conformity with mandatory requirement of relevant statute and, therefore, a mandamus sought by the petitioner commanding the respondents not to interfere in the functioning of institution in any manner pursuant to the order dated 25.06.1997, cannot be granted to the extent of aforesaid seven appointments of teachers made by petitioner management in the school.
46. It is true that the order of A.D. (Basic) passed on 29.05.1995 granting approval for creation of post despite upgradation of Junior High School to High School is being upheld, yet since appointments made by management on the aforesaid posts of teacher are patently illegal and void ab initio, the impugned order dated 25.06.1997 in so far as it had directed to stop payment of salary to the said teachers cannot be faulted.
47. Even if the reasons assigned in the order which is impugned in this Court, are not found correct, yet if operative direction(s) or the alternate consequence or result of such order is just and valid, it is not necessary for this Court to set aside such an order in its entirety but the Court would be justified to uphold the order to the extent it is found to be valid. I therefore hold that impugned order dated 25.06.1997 shall not be read as to affect the creation of posts vide A.D. (Basic)'s order dated 29.12.1994 only on the ground of jurisdiction or authority of A.D. (Basic) passing the order dated 29.12.1994. For the rest part of the order that salary shall not be paid to incumbents appointed against such duly created posts is upheld and shall be given affect to in its entirety.
48. In view of above discussion, writ petition stands disposed of in terms as above.
49. Costs made easy.
Dated: 19.3.2013 Akn