Allahabad High Court
Sunil Kumar Mishra vs State Of U.P. And 5 Ors on 2 April, 2019
Equivalent citations: AIRONLINE 2019 ALL 879
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 58 Case :- WRIT - A No. - 52277 of 2014 Petitioner :- Sunil Kumar Mishra Respondent :- State Of U.P. And 5 Ors Counsel for Petitioner :- Siddharth Khare,Ashok Khare,Krishna Dutt Tiwari Counsel for Respondent :- C.S.C.,Adarsh Singh,B.P. Mishra,Birendra Pratap Singh,Indra Raj Singh Connected with Case :- WRIT - A No. - 48836 of 2016 Petitioner :- Ganesh Chandra Goel Respondent :- State Of U.P. And 4 Ors. Counsel for Petitioner :- Vijay Kumar Singh,Bindeshwari Prasad Mishra Counsel for Respondent :- C.S.C.,Abhilasha Singh,Adarsh Singh,Indra Raj Singh,Vijendra Singh And Case :- WRIT - A No. - 57215 of 2016 Petitioner :- C/M Madan Lal Inter College And Anr. Respondent :- District Inspector Of Schools And 3 Ors. Counsel for Petitioner :- Indra Raj Singh,Adarsh Singh Counsel for Respondent :- C.S.C.,Abhilash Singh,Rahul Yadav,Vijendra Singh And Case :- WRIT - A No. - 60494 of 2016 Petitioner :- Sunil Kumar Mishra Respondent :- State Of U.P. And Anr. Counsel for Petitioner :- Rahul Yadav,Abhilasha Singh,Vijendra Singh Counsel for Respondent :- C.S.C.,Adarsh Singh,Bindeshwari Prasad Mishra,Indra Raj Singh Hon'ble Ashwani Kumar Mishra,J.
1. These four writ petitions arise out of a seniority dispute between one Sunil Kumar Mishra and Ganesh Chandra Goel, both of whom claim entitlement to officiate as Principal of Madan Lal Inter College, Bisauli, Budaun, on the strength of their seniority. The dispute has arisen after the office of Principal fell vacant on 30th of June, 2014. In order to examine their right in the context of facts brought on record, certain ancillary aspects also arise for determination which would be noticed, later. Facts necessary for adjudicating the aforesaid dispute are as under.
2. Madan Lal Inter College, Bisauli, Budaun, is a recognized and aided Intermediate Institution, which is governed by the provisions of U.P. Intermediate Education Act, 1921; U.P. Secondary Education Services Selection Board Act, 1982 and the Uttar Pradesh High School and Intermediate College (Payment of Salaries of Teachers and other Employees) Act, 1971. Post of Lecturer in Chemistry in the Institution was held by one Suraj Prakash Agrawal. It is asserted that he went on leave due to some differences with the management of the Institution and did not turn up. It is against this vacancy that petitioner Sunil Kumar Mishra claims to have been appointed on 29.10.1985 as Lecturer in Chemistry. His letter of appointment is on record, as per which the appointment was offered on temporary basis, against short-term vacancy, upon an application made by him, for a period of five months. It is alleged that this appointment was approved for the academic session. In the next session 1986-87 also the petitioner made an application for being granted opportunity to work against the same post, on which an endorsement was made by the Manager that negotiation with Suraj Prakash Agrawal is going on and in case he fails to turn up then petitioner - Sunil Kumar Mishra can be appointed. Though petitioner claims that he was engaged in the next session also but financial approval was not granted to him, on account of which he approached this Court by filing Writ Petition No. 20807 of 1986. An interim order apparently was granted in his favour, on account of which he continued to work.
3. It is then asserted that on the basis of information sent by the Principal of the Institution concerned the District Inspector of Schools, Budaun, on 19.5.1992, regularized the services of the petitioner on the post of Lecturer in Chemistry. Writ Petition No. 20807 of 1986 was thereafter dismissed as having become infructuous on 11.9.2006. The order of the District Inspector of Schools dated 19.5.1992, whereby services of the petitioner was regularized w.e.f. 6.4.1991, was specifically taken note of in the order dated 11.9.2006. It is on the strength of this order that petitioner Sunil Kumar Mishra claims his seniority to be reckoned from 6.4.1991. It is also asserted that treating his substantive appointment to be w.e.f. 6.4.1991 the authorities have granted subsequent service benefits also in the form of selection grade and promotional pay-scale etc., vide order dated 22.11.2008.
4. The other claimant i.e. Ganesh Chandra Goel (who is petitioner in Writ Petition No. 48836 of 2016 and respondent in other petitions) claims to have been appointed as ad-hoc teacher in L.T. Grade on 3.12.1990 in the Institution in question. He was regularized as L.T. Grade Teacher on 26.3.1997 w.e.f. 7.8.1993. Later on, upon accrual of vacancy on the post of Lecturer in Mathematics, he was promoted by Regional Level Committee on 22.8.2007. Facts in that regard are not in issue. The post of Principal in the Institution fell vacant on 30th June, 2014 with the retirement of one Sri Rajan Sareen. It was thereafter that dispute arose regarding officiating appointment on the post of Principal.
5. A resolution was passed by the Managing Committee appointing Ganesh Chandra Goel as the officiating Principal, which resolution was approved by the Inspector vide his order dated 26.6.2014. This order was challenged by Sunil Kumar Mishra before this Court by filing Writ Petition No. 35497 of 2014. The writ petition was allowed on 15.7.2014. Operating portion of the order dated 15.7.2014 is reproduced hereinafter:-
"Having considered the facts and circumstances of the case, in my view the end of justice would be met in case the order impugned passed by the District Inspector of Schools is set aside and the matter is remitted to him to pass a fresh order after giving opportunity to the petitioner. Accordingly, the impugned order dated 26th June, 2014 passed by the District Inspector of Schools, Budaun is set aside and the matter is remitted to the District Inspector of Schools, Budaun to pass a fresh order after giving opportunity to the petitioner and other concerned parties as expeditiously as possible preferably within a period of six weeks from the date of communication of this order.
Thus, the writ petition is disposed of.
No order as to costs."
6. Pursuant to the aforesaid direction, the District Inspector of Schools, afforded opportunity of hearing to both the claimants and ultimately accepted the claim of seniority set up by Ganesh Chandra Goel vide his order dated 18.9.2014. This order clearly records that appointment of Sunil Kumar Mishra was made against a leave vacancy caused in the Institution, which has turned into a substantive vacancy only upon Suraj Prakash Agrawal attaining the age of superannuation on 30.6.2006. Requisition had already been sent for substantive appointment against this post to the Board only in the year 2006. This order further records that there was no substantive vacancy against which Sunil Kumar Mishra could be regularised. It has further been noticed in the order of Inspector that regularization was otherwise permissible only if appointment was made against substantive vacancy, by following the procedure laid under the First Removal of Difficulties Order and since it was admitted to the petitioner that such a procedure was not followed and the vacancy was otherwise of short-term, the appointment offered by the Management could only have been as per the Second Removal of Difficulties Order against short-term vacancy. In the absence of vacancy being substantive in nature the regularization was impermissible, particularly when selection was not made by the Committee chaired by the Inspector, as per the First Removal of Difficulties Order. The regularization w.e.f. 6.4.1991 vide order dated 19.5.1992 having been found to be de-hors the law has been consequently ignored. It was also recorded that no resolution of Managing Committee was even otherwise passed proposing regularization in favour of Sunil Kumar Mishra. Certain manipulation in the order of regularization has also been noticed and in view thereof the Management had otherwise proceeded to cancel it. It was in that context that appointment of petitioner Sunil Kumar Mishra has not been treated as substantive w.e.f. 6.4.1991 and claim of Ganesh Chandra Goel as being senior has been accepted. This order of Inspector dated 18.9.2014 is assailed in Writ Petition No. 52277 of 2014.
7. While the aforesaid writ petition of 2014 remained pending the District Inspector of Schools, Budaun, accepted claim of Sunil Kumar Mishra for being appointed as Officiating Principal vide his order dated 28.9.2016. This order is the subject matter of challenge in Writ Petition No. 48836 of 2016, filed by Ganesh Chandra Goel. The Committee of Management of the Institution has also assailed this very order by filing Writ Petition No. 57215 of 2016. It further appears that the Committee of Management passed a resolution on 20.11.2016 followed with an order passed on 22.11.2016 terminating services of Sunil Kumar Mishra, which was disapproved by the Inspector on 25.11.2016 on the ground that no approval had been obtained from the Board under Section 21 of the U.P. Secondary Education Services Selection Board Act, 1982. This order dated 25.11.2016 is also challenged in Management's Writ Petition No. 57215 of 2016. The resolution and the consequential order of the Managing Committee dated 20.11.2016 and 22.11.2016 has also been challenged by Sunil Kumar Mishra in Writ Petition No. 60494 of 2016. All these writ petitions are already connected and, therefore, have been taken up together. As the controversy on facts and in law are interconnected and arise out of same cause they are being disposed of by this common judgment.
8. It is submitted on behalf of Sunil Kumar Mishra that order of regularization passed in his favour on 19.5.1992 having attained finality, it was impermissible for the Inspector to ignore it in the year 2014, particularly when it had attained finality. It is also asserted that while deciding the question of inter-se seniority, the initial appointment could not be probed or subjected to challenge nor the long standing seniority could have been disturbed. It is also stated that Suraj Prakash Agrawal had abandoned his services in 1980 itself and therefore a substantive vacancy had arisen, against which Sunil Kumar Mishra was appointed and, therefore, his regularization w.e.f. 6.4.1991 was clearly permissible in law. Reliance is placed upon a judgment of this Court in Vijai Narain Sharma Vs. District Inspector of Schools, Etawah and others, 1986 UPLBEC 44 as well as a judgment of this Court dated 22.10.2010 passed in Writ Petition No. 8960 of 2010 (Rama Kant Chaturvedi Vs. State of U.P. and others) to contend that legality of appointment cannot be questioned while considering inter-se seniority of employees. Plea of abandonment of services by Suraj Prakash Agrawal is also pressed by relying upon a judgment of the Apex Court in Vijay S. Sathaye Vs. Indian Airlines Limited and others, (2013) 10 SCC 253 as well as a judgment of this Court in Dy. Director of Education (Secondary) and others Vs. Smt. Jyoti Yadav and another reported in 2016 (4) ALJ 27.
9. Third limb of submission advanced on behalf of Sunil Kumar Mishra is that power of management to make ad-hoc appointment against substantive vacancy was not settled prior to the Full Bench Judgement of this Court in Radha Raizada and others Vs. Committee of Management, Vidyawati Darbari Girl's Inter College and others, 1994 (3) UPLBEC 1551 and, therefore, the mere fact that procedure contemplated under Para 5 of First Removal of Difficulties Order, issued under Section 33 of the Act of 1982, had not been followed before appointing him would not be fatal. Reliance is placed upon a Division Bench Judgement of this Court in Km. Nishi Bhargava Vs. Deputy Director of Education, Agra Region, Agra and others, 1987 UPLBEC 415. Reliance is also placed upon the judgment of this Court in Balveer Singh and others Vs. DIOS and another, Special Appeal No. 321 of 2013, decided on 27.9.2018, to contend that any ad-hoc appointment made against substantive vacancy would not be invalidated merely for the reason that procedure prescribed in paragraph 5 of the First Removal of Difficulties Order had not been followed and that the appointments made prior to the judgment in Radha Raizada (supra) would stand saved on the analogy of Division Bench Judgement in Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad and another, 1998 (3) UPLBEC 1722.
10. Per contra, it is urged on behalf of Ganesh Chandra Goel that appointment of Sunil Kumar Mishra was made against a short term vacancy and the procedure for making of ad-hoc appointment against short-term vacancy alone was followed. This vacancy was neither substantive nor the procedure for adhoc appointment against substantive vacancy was followed. Submission is that such ad-hoc appointment against short-term vacancy could not have been regularised w.e.f. 6.4.1991, as has been done by the District Inspector of Schools vide his order dated 19.5.1992. Contention is that existence of a substantive vacancy was a prerequisite condition for a valid order of regularization under the applicable provision. It is urged that in case plea of Sunil Kumar Mishra about existence of substantive vacancy is admitted even then his appointment would be bad as the mandatory procedure laid down in Para 5 of the First Removal of Difficulties Order, had not been followed and that Management had no jurisdiction to appoint such a teacher. Reliance is placed upon Apex Court judgment in Prabhat Kumar Sharma and others Vs. State of U.P. and others, (1996) 3 UPLBEC 1959 to submit that ad-hoc appointment made against substantive vacancy without following the procedure contemplated in paragraph 5 of the First Removal of Difficulties Order, would clearly be void. It is also submitted that since the Supreme Court Judgement in Prabhat Kumar Shrama (supra) has not been noticed by the Division Bench Judgement in Balveer Singh (supra), as such, the judgment is liable to be ignored by following the principle of per-incuriam.
11. It is also urged on behalf of Sri Goel that Sunil Kumar Mishra in his application had clearly referred to accrual of vacancy on the post of Lecturer as being of short-term and the management also proceeded to appoint him, as such, and therefore the plea of abandonment cannot be pressed into service now and would be barred by acquiescence and estoppel. Submission is that vacancy on the post of Lecturer came into existence only with the regular incumbent attaining the age of superannuation on 30.6.2006 and, therefore, Inspector has rightly held the regularization of Sunil Kumar Mishra w.e.f. 6.4.1991 to be bad in law. It is contended that any ad-hoc appointment against substantive vacancy could be regularized only upon the recommendation of Selection Committee by virtue of relevant provisions of the U.P. Secondary Education Services Selection Board Act, 1982 and as such an exercise is yet to take place, Sri Sunil Kumar Mishra cannot be treated to have been substantively appointed as Lecturer in the Institution so as to grant him benefit of seniority w.e.f. 6.4.1991 or to treat him senior to Ganesh Chandra Goel and thereby allow Sunil Kumar Mishra to officiate as the Principal of the Institution.
12. On the basis of rival contentions advanced on behalf of the respective parties, following issues arise for consideration in this bunch of petitions:-
(i) Whether in a dispute relating to inter-se seniority of Lecturer, for the purposes of officiating on the post of Principal, the nature of initial vacancy and adhoc appointment or regularization could be examined for determining the date of substantive appointment?
(ii) Based upon the outcome of aforesaid issue, the nature of vacancy as well as appointment offered to Sunil Kumar Mishra would fall for determination, so as to consider whether he can be treated to have been substantively appointed as Lecturer, w.e.f. 6.4.1991, and be entitled to seniority, as such?
(iii) Whether ad-hoc appointment made against substantive vacancy, without following the procedure laid down in para 5 of the First Removal of Difficulties Order, 1981 could be protected by drawing analogy of the Division Bench Judgement in Ashika Prasad Shukla (supra)?
13. Sri Ashok Khare, learned Senior Counsel for the petitioner Sunil Kumar Mishra submits that issues relating to initial appointment and regularization cannot be reopened now and the Inspector has committed manifest illegality in raking up old issues, that are not immediately connected to the issue of seniority. He has placed reliance upon judgment of this Court in Vijai Narain Sharma (supra) and Rama Kant Chaturvedi (supra) in support of his contention that such issues cannot be raised at a belated stage.
14. In Vijai Narain Sharma (supra) petitioner and respondent both were appointed as teachers on the same date and the criteria to determine their seniority was the date of birth. It was in that context that attempt to question initial appointment was not approved by this Court. The scheme relating to appointment of teachers under the U.P. Intermediate Education Act, 1921 as well as regulations framed thereunder was examined to observe as under in paragraph 23 to 27 of the judgment:-
"23. It is, therefore, clear that even in the case of a promotion of a teacher to the lecturer's grade or to the L.T. Grade, a teacher aggrieved by the decision of the Committee of Management has got a remedy to challenge the said decision before the District Inspector of Schools. From the above provisions, therefore, the Scheme of the Act is that at the time when the appointment is made or when the promotion is made, the said appointment or promotion made by the Managing Committee can be challenged to the higher authority prescribed under the Act and the regulations framed thereunder.
24. Regulation 3 of Chapter II lays down the principles on which the seniority list has to be prepared. I have already quoted Regulation 3 of Chapter II, which lays down the manner in which the seniority is to be determined. The relevant factors for determining the validity of the seniority list are the grade in which the teacher is working, whether he is appointed on the substantive post or not, whether the appointment is permanent or temporary, the date of the appointment or promotion and the age of the teachers.
25. On a reading of Regulation 3 of Chapter II, it is clear that it now-where contemplated that the teacher who challenges the seniority list can again challenge the validity of the appointment or promotion of a teacher in the college. He can only be aggrieved by the factors, if wrongly decided, as mentioned in Regulation 3. That dispute can be taken in appeal under Clause (f) of Regulation 3, quoted above. In my opinion, it is clear that while disputing the validity of the seniority list, it is not open to a teacher to challenge the appointment and promotion which had already been done. The challenge to the appointment and promotion has been specifically provided. If no challenge is made at that stage then the appointment and promotion becomes final. If the Legislature intended that the appointment and promotion can be challenged at the time of determining seniority, the Legislature would have specifically provided in the Regulations. This has not been done.
26. There is another aspect of the matter that once the appointment or promotion becomes final, a vested right is created in favour of a teacher. A colleague of his in the institution having acquiesced to the appointment and promotion cannot be, subsequently, permitted to raise the dispute.
27. In this view of the matter, I am of the opinion that the contention raised by the learned counsel for the respondent is well founded. In proceedings for determining the validity of the seniority list prepared by the college, it is not open to a teacher of the said college to challenge the appointment or promotion of any other teacher in the same college."
15. Similar view is reiterated in Rama Kant Chaturvedi (supra). There is no quarrel with the proposition of law laid down in the aforesaid two judgments that initial appointment ought not to be permitted to be questioned while determining the issue of seniority. This is for the reason that issues relating to legality of appointment cannot be left open for all times to come and must be raised within a reasonable time.
16. In the facts of the present case, appointment of petitioner Sunil Kumar Mishra is not being questioned. The only question that needs to be examined is whether he is substantively appointed as Lecturer w.e.f. 6.4.1991 so as to be granted the benefit of seniority from that date. Questions that are incidental for the purpose can always be examined as the determination of seniority is dependent upon a valid entry into service itself. In paragraph 24 of the judgment in Vijai Narain Sharma (supra), this Court has observed that relevant factors for determining the validity of seniority list are the grade in which the teacher is working, whether he is appointed on substantive post or not, whether the appointment is permanent or temporary on the date of appointment or promotion and the age of the teachers. An enquiry into such issues would clearly be required to determine whether appointment is on a substantive post or not.
17. Regulation 3 of Chapter II framed under the Act of 1921 provides for the considerations that are relevant for determination of seniority. Separate seniority list has to be drawn for each grade of teachers under the regulation be it permanent or temporary. Seniority of teachers in a particular grade has to be determined on the basis of substantive appointment in that grade. Where substantive appointment is by way of regularization then questions relating to its legality would be ancillary and would have to be examined to correctly determine the issue of seniority.
18. Regularization in the present case has been allowed by the Inspector under Section 33-A(1-C) of the Act of 1982. Such a regularization is permissible only if initial adhoc appointment is against a substantive vacancy. Petitioner Sunil Kumar Mishra claims his appointment against a vacancy created due to non availability of one Suraj Prakash Agrawal. Whether such vacancy created on the post of Lecturer in Chemistry was substantive or of a short-term would determine the nature of appointment which could be offered against it. It would also be a relevant factor for determining the status of the teacher concerned. Issues relating to regularization are directly linked to it and would also be determined accordingly. In the absence of such determination of facts, it would not be possible to correctly determine the issue of seniority itself. An observation of the Apex Court in Prabhat Kumar Sharma (supra) would be of utmost relevance and has also to be kept in mind, as per which, an ad-hoc appointment under Section 18 of the Act of 1982 would have to be made as per the procedure prescribed in paragraph 5 of first 1981 Order and any appointment made in transgression thereof is to be treated as illegal, void and conferring no right on the appointees. It would thus be clear that any ad hoc appointment of the teachers under Section 18 shall be only transient in nature pending allotment of the teachers selected by the Commission and recommended for appointment. Such ad hoc appointment would have to be made in accordance with the procedure prescribed depending upon the nature of vacancy. Any appointment made in transgression thereof is to be treated as illegal and void and confers no right on the appointees.
19. Appointment to the post of teacher in an institution recognized under the U.P. Intermediate Education Act, 1921 was required to be made as per provisions of the Act of 1921 together with regulations framed thereunder. The State Legislature enacted U.P. Secondary Education Services Selection Boards Act, 1982 to establish Uttar Pradesh Secondary Education Services Selection Board, which was entrusted with the task of appointment in the institutions established under the U.P. Intermediate Education Act, 1921. Detail procedure has been laid for appointment and promotion to be made in the institution concerned. Section 33 of the Act of 1982, empower the State Government to remove any difficulty occurring in implementation of the provisions of the Act by a notified order. Since process of recruitment under the Ordinance of 1981, which was repealed and reenacted as Act of 1982, was likely to take time and selection of teachers was not likely for the first few months, as such, the State notified an order under Section 33 of the Act, known as the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order 1981. This order prescribed the procedure to make adhoc appointment against substantive vacancy occurring in the Institutions. Paragraph 5 prescribed the procedure for ad-hoc appointment to be made against such vacancy and is reproduced hereinafter:-
"5. Ad hoc appointment by direct recruitment. - (1) Where any vacancy cannot be filled by promotion under Paragraph 4, the same may be filled by direct recruitment in accordance with clauses (2) to (5).
(2) The management shall, as soon as may be, inform the District Inspector of Schools about the details of the vacancy and such Inspector shall invite applications from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh.
(3) Every application referred to in clause (2) shall be addressed to the District Inspector of Schools and shall be accompanied -
(a) by a crossed postal order worth ten rupees payable to such Inspector;
(b) by a self addressed envelope bearing postal stamp for purposes of registration.
(4) The District Inspector of Schools shall cause the best candidates selected on the basis of quality specified in Appendix. The compilation of quality points may be done on remunerative basis by the retired Gazetted Government servants under the personal supervision of such Inspector.
(5) If more than one teacher of the same subject or category is to be recruited for more than one institution, the names of the selected teachers and the names of the institutions shall be arranged in Hindi alphabetical order. The candidate whose name appears on the top of the list shall be allotted to the institution the name whereof appears on the top of the list of the institution. This process shall be repeated till both the lists are exhausted.
Explanation. - In relation to an institution imparting instruction to women the expression "District Inspector of Schools" shall mean the "Regional Inspectress of Girls Schools"."
20. Appendix to paragraphs 5 & 7 of the aforesaid order specifies quality point marks on the basis of which selection of teacher by direct recruitment has to be made. In the same year another order under Section 33 was issued by the State known as the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, which prescribed the procedure for filling up short-term vacancies. The two orders dealt with two different exigencies, inasmuch as, while First Order regulated making of appointment against substantive vacancy, the Second Order of 1981 regulated the ad-hoc appointment against short-term vacancy. Under the First Removal of Difficulties Order, the task of selection was entrusted to the District Inspector of Schools, while under the Second Removal of Difficulties Order, the powers of appointment was with the Managing Committee of the Institution concerned. Under the First Removal of Difficulties Order, there existed a provision of publication of vacancy by the Inspector in at least two newspapers having adequate circulation in Uttar Pradesh. There was, however, no specific requirement of publication of vacancy in the Second Removal of Difficulties Order.
21. The issue with regard to following of procedure under paragraph 5 of the First Removal of Difficulties Order for making ad-hoc appointment against substantive vacancy was examined by the Hon'ble Supreme Court in Prabhat Kumar Sharma and others Vs. State of U.P. and others (supra). The judgment of this Court in Radha Raizada (supra) was approved by the Supreme Court and the observation contained in paragraphs 41 and 42 in Radha Raizada was expressly endorsed. Paragraph 7 of the Apex Court Judgment in Prabhat Kumar Sharma (supra) is pertinent for the present purposes and are reproduced hereinafter:-
"7. It would thus be clear that any ad hoc appointment of the teachers under Section 18 shall be only transient in nature. pending allotment of the teachers selected by the Commission and recommended for appointment, Such ad hoc appointments should also be made in accordance with the procedure prescribed in para 5 of the First 1981 Order which was later streamlined in the amended Section 18 of the Act with which we are not presently concerned. Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees. The removal of difficulties envisaged under Section 33 was effective not only during the period when the Commission was not constituted but also even thereafter as is evident from second paragraph or the preamble to the First 1981 Order which reads as under:
"And whereas the establishment of the Commission and the Selection Boards as likely to take some time and even after the establishment of the said Commission and Boards, it is not possible to make selection of the teachers for the first few months." (emphasis supplied by me)
22. For petitioner Sunil Kumar Mishra it is a catch twenty two situation. If his claim for adhoc appointment is against a substantive vacancy then he would have to explain as to how the Managing Committee could appoint him and if he claims his adhoc appointment to be against short-term vacancy then his regularization under Section 33-A(1-C) becomes impermissible. For him it is lion on the land and crocodile in the river. The best course for him would be to avoid explaining this inconvenient and contradictory stand.
23. However, examination of such issues relating to determination of seniority or aspects that arise incidentally cannot thus be brushed aside by relying upon the law laid down in Vijai Narain Sharma (supra) and Rama Kant Chaturvedi (supra). Such an objection, therefore, would clearly run counter to the observations made in paragraph 24 of the judgment in Vijai Narain Sharma (supra) itself. The first issue is, therefore, answered by holding that nature of vacancy and the procedure followed for initial appointment as also the issue of existence of substantive vacancy would necessarily require determination as it is only thereupon that date of substantive appointment could be ascertained so as to determine inter-se seniority of the two teachers. However, the appointment offered to Sunil Kumar Mishra cannot be questioned at this stage and only its nature and status is being examined for resolving the issue of seniority.
24. It is not in issue that post of Lecturer in Chemistry in the Institution was substantively occupied by one Suraj Prakash Agrawal. It is alleged that he developed differences with the Manager of the Institution and left the Institution in 1980. According to petitioner Sunil Kumar Mishra a substantive vacancy had arisen against which he was appointed in the Institution concerned. Reliance is placed upon an Apex Court Judgement in Vijay S. Sathaye (supra) and a judgment of this Court in Deputy Director of Education Vs. Jyoti and another (supra). This contention, however, is seriously disputed and requires determination.
25. Admittedly petitioner was appointed in the year 1985 by the Management of the Institution concerned. The appointment of Sri Mishra being temporary in nature, against absence of Suraj Prakash Agrawal for the academic session is admitted in para 4 of Writ Petition No. 60494 2016. The appointment letter dated 29.10.1985 is on record as Annexure-1 to Writ Petition No.52277 of 2014. It is alleged that the appointment was approved for a period upto 30.6.1986 and was not extended thereafter. Alongwith the counter affidavit filed by respondent no.5 in Writ Petition No.52277 of 2014 a hand written application of petitioner Sunil Kumar Mishra has been brought on record which contains an endorsement of the Manager that negotiation with Suraj Prakash Agarwal is going on and if he does not turn up then applicant Sunil Kumar Mishra can be appointed. This document is not denied by the petitioner. It can safely be deduced from this document that Sri Suraj Prakash Agrawal had not abandoned his services by then and negotiations were going on between him and the Managing Committee. He could, therefore, at best be treated to be on leave and consequently a short-term vacancy would be deemed to have come in existence in the institution against which petitioner Sunil Kumar Mishra could be offered a temporary appointment.
26. Although plea of abandonment of service by Suraj Prakash Agrawal is setup by petitioner Sunil Kumar Mishra but such a plea runs counter to his own admitted documents. Moreover, in the absence of Suraj Prakash Agrawal as being a party before this Court it would otherwise not be prudent to examine the nature of leave availed of by him or return a finding of abandonment against him.
27. The issue can be examined from a different aspect also. In case the Management proceeded on the premise that Suraj Prakash Agrawal had abandoned his services then a substantive vacancy would have come into existence and right of appointment would not be available to the Management in view of the para 5 of the First Removal of Difficulties Order, 1981. The mandatory requirement of publication of vacancy for ad-hoc appointment against substantive vacancy as per procedure laid down in paragraph 5 of the First Removal of Difficulties Order stood specifically approved in the Full Bench Judgment in Radha Raizada and also by the Apex Court in Prabhat Kumar Sharma. The Apex Court further clarified that any ad-hoc appointment made against substantive vacancy without following the procedure prescribed in paragraph 5 would be illegal appointment and as such would be void and confer no right on the appointee.
28. The right of appointment was available to the Managing Committee only against short-term vacancy as per the Second Removal of Difficulties Order, 1981. It is the consistent case of the Management that appointment to petitioner Sunil Kumar Mishra was granted against short-term vacancy only. Considering the materials brought on record as also the statutory scheme as per which ad-hoc appointment against substantive vacancy could not be made by the Management of the institution concerned, it can safely be deduced that appointment of Sunil Kumar Mishra was made by the Management against a short-term vacancy and not against substantive vacancy.
29. Such ad-hoc appointment made against short-term vacancy cannot be treated to have been converted into an ad-hoc appointment against substantive vacancy merely because Suraj Prakash Agrawal did not turn up to join the institution. There is nothing on record to show that any such stand was ever taken by the Managing Committee before any of the educational authorities. In the absence of Suraj Prakash Agrawal being a party in this proceedings it would otherwise not be appropriate to examine his absence so as to determine as to when and how the leave vacancy got converted into substantive vacancy. If the Management was of the view that leave vacancy of Suraj Prakash Agrawal was converted into a substantive vacancy due to abandonment of service by him then an appropriate requisition would have been sent to the Board for the post to be filled up substantively as per section 16 of the Act of 1982. It appears that a requisition has been sent to the Board by the Managing Committee only in the year 2006 when Suraj Prakash Agrawal was to attain the age of superannuation on 30th of June, 2006. The adhoc appointment offered by the Managing Committee against a short-term vacancy would otherwise not be converted into adhoc appointment against substantive vacancy in law nor any provision exists in that regard in the applicable provisions. In such factual background it cannot be said that the short term vacancy caused due to leave of Suraj Prakash Agrawal was converted into substantive vacancy. Nature of temporary appointment offered to Sunil Kumar Mishra also cannot get converted into ad-hoc appointment against substantive vacancy as the manner and method of appointment are entirely distinct in the two cases. The nature of vacancy would thus remain unaltered.
30. The judgment of the Apex Court in the case of Vijay S. Sathaye (supra) would have no applicability in the facts of the present case. In Vijay S. Sathaye (supra), the petitioner had claimed voluntary retirement w.e.f. 12.11.1994 but such claim was denied on a finding that he had already abandoned his services. It was in the context of a challenge laid by the employee concerned that the Apex Court observed that the employee had acted contrary to the directions of the employer and had failed to comply with Regulation 12 (b) of Service Regulation which required tendering of three months notice. Finding of abandonment by the High Court was affirmed. On facts, this judgment has no applicability.
31. In Deputy Director of Education (Secondary) and others Vs. Smt. Jyoti Yadav a Full Bench of this Court endorsed the view that where absence is of more than five years then by virtue of Fundamental Rule 18 the abandonment would be presumed. This judgment also cannot be pressed into service at the instance of the present petitioner, particularly when the employee in question i.e. Suraj Prakash Agrawal is not a party to these proceedings. In view of the discussions held and for the reasons given hereinabove the inescapable conclusion would be that appointment of Sunil Kumar Mishra was against a short-term vacancy by the Management and not against a substantive vacancy.
32. It is only the Adhoc appointment is made against a substantive vacancy that regularization was made permissible in law w.e.f. 6.4.1991 vide Section 33A(1-C) which is reproduced hereinafter:-
"33A(1C) Every teacher appointed by promotion or by direct recruitment before July 31,1988 on ad hoc basis against a substantive vacancy in accordance with Section 18, 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 ad hoc appointment to the date of such commencement.] [(2) Every teacher deemed to have been appointed in a substantive capacity under sub-section (1) or (1-A) or (1-B) or (1-C), shall be deemed to he on probation from the date of commencement referred to in sub-section (1) or (1-A) or (1-B) or (1-C) as the case may be.] (3) Nothing in this Section shall be construed to entitle any teacher to substantive appointment -
(a) if on the date of [commencement referred to in sub-section (1) or (1-A) or (1-B) or (1-C) such post had already been filled or selection for such post had already been made in accordance with this Act, or
(b) if such teacher was related to any member of the Committee of Management or the Principal or Head Master of the Institution concerned.
Explanation. - For the purposes of this sub-section a person shall be deemed to be related to another if -
(i) they are members of a Hindu undivided family; or
(ii) they are husband and wife; or
(iii) the one is related to the other in the manner indicated in the Second Schedule to the Intermediate Education Act, 1921.]"
33. Once the vacancy itself has been found not to be substantive it was impermissible for the Inspector to have regularized the services of Sunil Kumar Mishra w.e.f. 6.4.1991, vide his order dated 19.5.1992. The status of Sunil Kumar Mishra in law would thus continue to remain as adhoc Lecturer unless it is regularized under an applicable provision of law. His claim would have to be examined by a duly constituted selection committee, under the relevant statute for the purposes of regularization, which is yet to happen. The order of Inspector dated 18.9.2014 in holding the appointment of petitioner Sunil Kumar Mishra on the post of Lecturer in Chemistry to be adhoc and not substantive is, therefore, upheld.
34. This takes the Court to the last issue framed for determination in this matter. First Removal of Difficulties Order of 1981 required the vacancy to be advertised in two newspapers before an appointment could be made against it. However, for adhoc appointment against short-term vacancy no requirement was specified in the Second Removal of Difficulties Order of 1981. An issue arose as to whether requirement of publication of vacancy exists in case of ad-hoc appointment against short-term vacancy also and the matter was ultimately examined by a Full Bench of this Court in Radha Raizada (supra). After having traced the history of appointments under the Act of 1921 and the difficulties sought to be redressed by the Removal of Difficulties Order, the Full Bench observed as under in paragraph 42 of the judgment:-
"42. In view of these provisions the ad hoc appointment of a teacher by direct recruitment can be resorted to only when the condition precedent for exercise of such powers as stated in paragraph 18 of the Act are present and only in the manner provided for in paragraph 5 of the Removal of Difficulties Order. This view of mine finds support in a number of decisions namely, Suresh Chandra v. District Inspector of Schools, Saharanpur, (1991) 2 UPLBEC 1079 and Lalta Prasad Yadav v. State of U.P. 1988 UPLBC 345 When a teacher is appointment on ad hoc basis is in accordance with the paragraph 5 of the first Removal of difficulties Order there is further no requirement of approval or prior approval of the District Inspector of Schools for such appointment. However it goes, without saying that if a management without following the procedure indicated above makes an ad hoc appointment the District, Inspector of Schools possess general power under the Payment of Salaries Act to stop payment of salary to such teachers."
35. The Full Bench also examined the issue of publication of vacancy for ad-hoc appointment to be made against short-term vacancy as per the Second Removal of Difficulties Order. Following discussions and observations of the Full Bench would be relevant and are reproduced hereinafter:-
"Paragraph 2 of the Order further-provides that the short term vacancy, if cannot be filled by promotion due to non-availability of a teacher in the lower grade possessing the prescribed minimum qualification, the same may be filled by the direct recruitment in the manner laid down in sub-paragraph (3) of paragraph of the Order which provides that the management shall intimate the vacancy to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution requiring the candidate to apply to the Manager of the institution along with particulars. The advertisement of short term vacancy on the notice board of the institution according to me, n fact no notice to the prospective eligible candidates as no prospective candidate is expected to visit each institution to see the notice board for finding out whether, any short term vacancy has been advertised. Since the payment of salary to the teachers appointed against the short term vacancy is the liability of the State Government, the advertisement of short term vacancy must conform to the requirement of Article 16(1) of the Constitution which prohibit the State from doing anything whether by making rule or by executive order which would deny equal opportunity to all the citizens. The provision contained in sub-paragraph (3) of paragraph 2 of the Second Removal of Difficulties Order which provides that the short term vacancy shall be notified on the notice board of the institution does not give equal opportunity to all the eligible candidates of the District, Region or the State to apply for consideration for the appointment against the said short term vacancy. Such kind of notice is an eye-wash for the requirement of Article 16 of the Constitution. This aspect can be examined from another angle. If the notice of short term vacancy, through the notice board of the institution is accepted, it will throw open the doors for manipulation and nepotism. A management of an institution may or may not notify the short term vacancy on the notice board of the institution and yet may show to the authority that such vacancy has been notified on the notice board of the institution and may process the application of its own candidate for the appointment against, the short term vacancy. I am, therefore, of the view that the procedure for notifying the short term vacancy should be the same as it is for the ad hoc appointment by direct recruitment under the First Removal of Difficulties Order. The management after intimating such vacancy to the District Inspector of Schools advertise such short term vacancy at least in two Newspapers having adequate circulation in Uttar Pradesh in addition to notifying the said vacancy on the notice board of the institution and further the application may also be invited from the local employment exchange. Thus, the procedure provided for notifying the short tern vacancy should be the same as contained in sub-paragraph (2) of paragraph 5 of the First Removal of Difficulties Order."
36. The insistence to follow same procedure for publication of vacancy while making ad-hoc appointment against short-term vacancy, as was contemplated in respect of substantive vacancy was, therefore, clarified for the first time in Radha Raizada (supra).
37. An issue then arose as to whether ad-hoc appointment already made against short-term vacancy, prior to the judgment in Radha Raizada (supra) would stand nullified in view of Full Bench Judgment fell for determination in Ashika Prasad Vs. District Inspector of Schools, Allahabad and another, 1998 (3) UPLBEC 1722. The Division Bench in Ashika Prasad Shukla (supra) observed that ad-hoc appointments made by direct recruitment against short-term vacancy prior to judgment of a learned Single Judge in K.N. Dwivedi Vs. District Inspector of Schools, 1994 UPLBEC 461 as reiterated in Radha Raizada (supra), would not be invalidated merely because the vacancy was not notified in two prominent newspapers. Paragraphs 9 & 10 of the judgment in Ashika Prasad Shukla (supra), are relevant and therefore reproduced hereinafter:-
"9. However, the question of legal nicety that arises for consideration is as to whether the direct appointment made in a short-term vacancy prior to K. N. Dwivedi Vs. District Inspector of Schools reported in 1994 (1) UPLBEC 461 or the Full Bench decision in Radha Raizada and others (supra) by notifying the vacancy only on the Notice-board of the Institution and without following the procedure of notifying the vacancy as prescribed in the First Removal of Difficulties Order would be void? in K. N. Dwivedi (supra) a learned single Judge holding the provisions providing for ad hoc appointment by direct recruitment by merely notifying the vacancy on the Notice-board of the Institution to be repugnant to the fundamental right guaranteed by Article 16 of the Constitution gave prospectivity to his judgment and saved the direct appointments already made against short-term vacancies by merely notifying the same on the Notice-board of the Institution. This question, however, was neither raised nor decided by the Full Bench in Radha Raizada and others (supra) and Radha Raizada and others (supra) has not overruled any previous decision of the Court on the question as to whether the appointment of a teacher by direct recruitment in a short-term vacancy made by notifying the vacancy on the Notice-board of the Institution sans any public notification would be void. Rather, some words have been read in the Statute (Second Removal of Difficulties Order) both in K. N. Dwivedi (supra) and Radha Raizada and others (supra) and the decisions therein are tantamount to amending the Statute by reading therein the requirement of giving public notice of the vacancy in addition to its notice on the Notice-board of the Institution with a view to saving the statute from being struck down as violative of Article 16(1) of the Constitution on one hand and advancing the object of the Act on the other. It cannot be repudiated that addition of words in the Statute by aid of judicial interpretation is permissible in certain situations, viz.. where it is considered necessary to do so in order to give effect to the intention of the Legislature or to avoid the particular provision being struck down as violative of any provisions of the Constitution. In a situation where addition of words is made in the Statute by Court, the 'doctrine of overruling' in its strict sense is not attracted. Instead, the Statute stands altered and/or modified as per the verdict of the Court. We are, therefore, of the considered view that the principle governing interpretation of legislative enactments vis-a-vis retroactivity. would apply to a situation where the Statute is altered by judicial verdict and the principle is that the change so brought about, would not project on the past events or transaction so as to affect vested rights unless the judicial verdict wreaking changes in the Statute by 'reading in' or 'reading down' is itself given retroactive operation.
10. As noticed above, Radha Raizada and others (supra) (decided earlier in point of time than Radha Raizada and others (supra) directed in no uncertain language that the decision would be prospective in operation. Radha Raizada and others (supra) was completely reticent on the point and we are of the considered view that Radha Raizada and others (supra) would not affect ad hoc appointments of teachers by direct recruitment in short-term vacancies approved or deemed to have been approved by the District Inspector of Schools in terms of paragraph 2 (3) (iii) of the Second Removal of Difficulties Order, for once the District Inspector of Schools approves, or is deemed to have approved, of the selection, the selected acquires the status of an ad hoc teacher upon joining the post and a right to continue as per statutory stipulations. The appointee would not be automatically denuded/stripped of the status and right so accruing merely because of the subsequent change of law, not given retrospective effect expressly or by necessary implication. In other words, ad hoc appointments of teachers by direct recruitment made in short-term vacancies by notifying the same on the Notice-board of the Institution without giving any public notice through advertisement in Newspapers having wide circulation if already approved or deemed to have been approved, would not be invalidated on the strength of Radha Raizada and others (supra). We accordingly subscribe to the view taken in K. N. Dwivedi (supra). "
38. It would be worth noticing that the prospective application of law in Radha Raizada was necessitated in view of the fact that there otherwise existed no express provision of publication of vacancy in two prominent newspapers for direct recruitment to be made against short-term vacancy and that such a requirement was introduced only by the judgment in K.N. Dwivedi (supra) and Radha Raizada (supra). This observation in Ashika Prasad (supra) has, however, no applicability so far as the making of ad-hoc appointment against substantive vacancy is concerned. The specific requirement of publication of vacancy in two newspapers stood mandatorily prescribed in paragraph 2 of the First Removal of Difficulties Order itself and not on account of any direction issued by the Full Bench. Reasons which impelled the Division Bench in Ashika Prasad Shukla (supra) to hold Radha Raizada (supra) as prospective in nature clearly did not exist in case of adhoc appointment against substantive vacancy.
39. At this stage, it would be necessary to refer to the argument of Sri Ashok Khare, learned Senior Counsel, for holding the requirement of publication of vacancy to be prospective even where adhoc appointment was being made against substantive vacancy, on the strength of observation made by a Division Bench of this Court in Special Appeal No. 321 of 2013, Balveer Singh and others Vs. DIOS and another. The Division Bench in Balveer Singh (supra) was examining a case of adhoc appointment against substantive vacancy. After examining the Division Bench Judgment in Ashika Prasad Shukla (supra) and Km. Nishi Bhargava (supra), the Court observed as under:-
"In the case of Ashika Prasad Shukla (supra), a Division Bench of this Court arrived at the conclusion that in the case of Radha Raizada and others (supra), the earlier decisions were not overruled and, as such, the appointments made prior to authoritive pronouncement by the Full Bench are required to be treated valid even if those were made by the Committee of Management. The relevant part of the judgment referred above reads as follows:-
"9. However, the question of legal nicety that arises for consideration is as to whether the direct appointment made in a short-term vacancy prior to K. N. Dwivedi Vs. District Inspector of Schools reported in 1994 (1) UPLBEC 461 or the Full Bench decision in Radha Raizada and others (supra) by notifying the vacancy only on the Notice-board of the Institution and without following the procedure of notifying the vacancy as prescribed in the First Removal of Difficulties Order would be void? in K. N. Dwivedi (supra) a learned single Judge holding the provisions providing for ad hoc appointment by direct recruitment by merely notifying the vacancy on the Notice-board of the Institution to be repugnant to the fundamental right guaranteed by Article 16 of the Constitution gave prospectivity to his judgment and saved the direct appointments already made against short-term vacancies by merely notifying the same on the Notice-board of the Institution. This question, however, was neither raised nor decided by the Full Bench in Radha Raizada and others (supra) and Radha Raizada and others (supra) has not overruled any previous decision of the Court on the question as to whether the appointment of a teacher by direct recruitment in a short-term vacancy made by notifying the vacancy on the Notice-board of the Institution sans any public notification would be void. Rather, some words have been read in the Statute (Second Removal of Difficulties Order) both in K. N. Dwivedi (supra) and Radha Raizada and others (supra) and the decisions therein are tantamount to amending the Statute by reading therein the requirement of giving public notice of the vacancy in addition to its notice on the Notice-board of the Institution with a view to saving the statute from being struck down as violative of Article 16(1) of the Constitution on one hand and advancing the object of the Act on the other. It cannot be repudiated that addition of words in the Statute by aid of judicial interpretation is permissible in certain situations, viz.. where it is considered necessary to do so in order to give effect to the intention of the Legislature or to avoid the particular provision being struck down as violative of any provisions of the Constitution. In a situation where addition of words is made in the Statute by Court, the 'doctrine of overruling' in its strict sense is not attracted. Instead, the Statute stands altered and/or modified as per the verdict of the Court. We are, therefore, of the considered view that the principle governing interpretation of legislative enactments vis-a-vis retroactivity. would apply to a situation where the Statute is altered by judicial verdict and the principle is that the change so brought about, would not project on the past events or transaction so as to affect vested rights unless the judicial verdict wreaking changes in the Statute by 'reading in' or 'reading down' is itself given retroactive operation.
10. As noticed above, Radha Raizada and others (supra) (decided earlier in point of time than Radha Raizada and others (supra) directed in no uncertain language that the decision would be prospective in operation. Radha Raizada and others (supra) was completely reticent on the point and we are of the considered view that Radha Raizada and others (supra) would not affect ad hoc appointments of teachers by direct recruitment in short-term vacancies approved or deemed to have been approved by the District Inspector of Schools in terms of paragraph 2 (3) (iii) of the Second Removal of Difficulties Order, for once the District Inspector of Schools approves, or is deemed to have approved, of the selection, the selected acquires the status of an ad hoc teacher upon joining the post and a right to continue as per statutory stipulations. The appointee would not be automatically denuded/stripped of the status and right so accruing merely because of the subsequent change of law, not given retrospective effect expressly or by necessary implication. In other words, ad hoc appointments of teachers by direct recruitment made in short-term vacancies by notifying the same on the Notice-board of the Institution without giving any public notice through advertisement in Newspapers having wide circulation if already approved or deemed to have been approved, would not be invalidated on the strength of Radha Raizada and others (supra). We accordingly subscribe to the view taken in K. N. Dwivedi (supra)."
On bare reading of the judgment referred above, it is apparent that the appointment of the petitioner being made prior to the judgment of the Full Bench, the appointment of the petitioner is required to be protected as per the law laid down in the case of Ashika Prasad Shukla (supra)."
40. It appears that the judgment of the Apex Court in Prabhat Kumar Sharma (supra) was not placed before the Division Bench in Balveer Singh (supra) though it was a binding precedent on the subject in issue.
41. Paragraph 37 of the Full Bench Judgment in Radha Raizada, which stood endorsed and approved by the Apex Court in Prabhat Kumar Sharma (supra), is also relevant at this stage and is extracted hereinafter:-
"37. Second Removal of Difficulties Order provides for ad hoc appointment against the short term vacancy in the posts of teachers caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise. Thus, these provisions show that Section 18 and First Removal of Difficulties Order, both independently empower the Management of institutions to make ad hoc appointment of teachers in the institutions. But Section 18 does not provide the method and manner of such appointment. Whereas Removal of Difficulties Orders while empowering the management of the institutions to appoint teachers on ad hoc basis further lay down the procedure of such ad hoc appointment of teachers. In fact Section 18 as well as First Removal of Difficulties Order operate in one field and are part of one integrated scheme, namely for providing ad hoc teachers who are urgently required in the institutions. Thus ad hoc appointment of teacher either under Section 18 of the Act or under the provisions of First Removal of Difficulties Order has to be done in the manner laid down in Paragraphs 4 and 5 of the First Removal of Difficulties Order, 1981."
42. The Division Bench in Km. Nishi Bhargava (supra) had an occasion to examine the import of Section 33-A of the Act of 1982 providing for regularization of certain appointment. In paragraph 8 following observations have been made by the Division Bench:-
"8. What remains to be examined is if an ad hoc teacher appointed after November 1982 and before June 1985 is entitled to benefit of regularisation under section 33-A. It may be pointed out that although commission was constituted in November, 1982 but the rules were framed in January, 1983 and the first regulation of commission came into force in July 1983. In absence of these rules and regulations the Commission could not function. It was in the circumstances not seriously disputed either by the learned Standing Counsel or the learned counsel who argued for the reserve-pool-teachers that the ad hoc appointees till July 1983 could claim benefit of Section 33-A. But nothing turns on it as the exact scope of Section 33-A has to be examined in either case. For convenience it is extracted below:
"33-A. Regularisation of certain appointment-- Every teacher directly appointed before the commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Ordinance 1985, on ad hoc basis against a substantive vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 as amended from time to time, who possesses the qualifications, prescribed under, or is exempted from such qualifications in accordance with the provisions of the Intermediate Education Act, 1921, shall, with effect from the date of such commencement, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such appointment upto the date of such commencement.
(2) Every teacher deemed to have been appointed in a substantive capacity under sub-section (1), shall be deemed to be on probation from the date of such commencement.
(3) Nothing in this section shall be construed to entitle any teacher to substantive appointment--
(a) if on the date of such commencement, such post had already been filled or selection for such post had already been made in accordance with this Act, or
(b) if such teacher was related to any member of the Committee of Management or the Principal, or Head Master of the institution concerned."
A bare perusal of it makes it clear that an ad hoc appointee must satisfy five conditions before he can be treated to be in substantive capacity (1) He must have been appointed before commencement of Act 28 of 1985 that is prior to 12th June, 1985, (ii) The appointment must have been against substantive vacancy; (iii) Under paragraph 2 of Removal of Difficulties Order, as amended from time to time; (iv) Possessed the prescribed qualifications; (v) Has been continuously serving the institution from the date of such appointment upto the date the order was issued in 1985. The first, second and fourth do not present any difficulty. But confusion appears to be prevailing regarding third and fifth."
43. It was in the backdrop of observations made in paragraph 8 that the Court proceeded to make its observation in paragraph 9 which has been noticed in Balveer Singh (supra). Need to satisfy five conditions were specified which included appointment to be against a substantive vacancy and after requisition was sent to the Commission and no appointment was made. In the present case there is no averment that the vacancy was ever advertised and that the Commission had failed to make appointment whereafter the Committee of Management proceeded to appoint petitioner Sunil Kumar Mishra and, therefore, the observations in Km. Nishi Bhargava would not be attracted in the facts of the present case. Moreover the Division Bench Judgment in Km. Nishi Bhargava will not hold the field in so far as the following of mandatory requirement of adhering to paragraph 5 of First Removal of Difficulties Order against substantive vacancy is concerned once the Full Bench has acknowledged it and the Supreme Court has specifically endorsed it.
44. The Division Bench in Balveer Singh (supra) was also not apprised of another previous judgment of the Division Bench of this Court in Julfikar Husain Ansari Vs. State of U.P. and others reported in 2013 (1) ADJ 80 which specifically dealt with the same issue. Plea of applying prospectivity on the analogy of Ashika Prasad Shukla (supra) even in the case of substantive appointment was specifically rejected after noticing the distinction in statutory provisions relating to adhoc appointment against short term vacancy and substantive vacancy. Paragraphs 5 to 8 of the Division Bench Judgment in Julfikar Husain Ansari specifically dealt with the issue and are reproduced hereinafter:-
"5. On behalf of the appellant, it was strenuously contended that since the judgment in the case of Radha Raizada (supra) amounted to laying down a new law that even ad hoc appointments must be made after due advertisement in two prominent newspapers, the said judgment cannot have a retroactive effect and the appointment of the appellant cannot be held to be illegal only on account of law laid down in that judgment. To buttress the said submission, learned counsel placed reliance upon a Division Bench judgment of this Court in the case of Ashika Prasad Shukla v. District Inspector of Schools, Allahabad, MANU/UP/0524/1998 : 1998 (3) ESC 2006 (All).
6. No doubt, the decision in the case of Ashika Prasad Shukla (supra) settles the law that ad hoc appointment by direct recruitment in a short-term vacancy made prior to judgment of a learned Single Judge of this Court dated 13.1.1994 in the case of K.N. Dwivedi v. District Inspector of Schools, (1994) UPLBEC 461, which stands supported by judgment dated 12.7.1994 in the case of Radha Raizada (supra), would not be invalid merely because the vacancy was not notified in two prominent newspapers. But, at the same time, it was pointed out that only a short-term vacancy was covered by the Second Removal of Difficulties Order and only against such vacancies, the requirement of advertisement in two newspapers arose on account of judicial pronouncements in the case of K.N. Dwivedi and Radha Raizada (supra). In fact, the judgment in Ashika Prasad Shukla (supra) has taken note of another judgment of this Court in the case of Sanjeev Kumar v. District Inspector of Schools, Ghaziabad, 1997 All LJ 33 and in course of distinguishing the same, it has been clarified that the case of Sanjeev Kumar of ad hoc appointment by direct recruitment in a substantive vacancy was to be governed by the provisions of the First Removal of Difficulties Order. Clause 5 of First Removal of Difficulties Order itself provides that the Management would, as soon as may be, inform the District Inspector of Schools about the details of the vacancies and thereupon the Inspector is required to invite applications from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh. As per the provisions in the First Removal of Difficulties Order, it is the District Inspector of Schools who would get the best candidate selected on the basis of quality points marks specified in Appendix and forward the names of selected candidates to the concerned institution. The Management has no role except to intimate the vacancy to the District Inspector of Schools in the matter of selection of candidates for direct recruitment in substantive vacancy as per the First Removal of Difficulties Order. Unlike the provisions in the Second Removal of Difficulties Order, 1981 relating to short-term vacancy, there is no provision of deemed approval under the Firs Removal of Difficulties Order.
7. A careful perusal of the Full Bench judgment in the case of Radha Raizada (supra) also makes it clear that the provision for advertisement in newspapers and selection through the District Inspector of Schools in respect of substantive vacancies and their filling up through ad hoc appointment by direct recruitment already existed in the First Removal of Difficulties Order and the same had to be followed. The Full Bench saved the vires of Second Removal of Difficulties Order only by reading into it the requirement of advertisement in two prominent newspapers and hence only this part was held to be prospective by the Division Bench in the case of Ashika Prasad Shukla (supra).
8. Since the ad hoc appointment of the appellant through direct recruitment was made against a substantive vacancy and such appointment was required to be made in accordance with the procedure prescribed under the First Removal of Difficulties Order, 1981 which was totally ignored, the writ Court, in our considered view, has rightly held that the appointment of the appellant was a nullity and could not be regularised. No case is made out for treating the judgment in the case of Rodha Raizada (supra) prospective in a case of present nature." (emphasis supplied)
45. Upon a careful consideration of the relevant statutory provisions operating in the field as also in view of the binding precedent of the Apex Court in Prabhat Kumar Sharma (supra), the Full Bench Judgment in Radha Raizada (supra) and the Division Bench Judgment of this Court in Julfikar Husain Ansari (supra), I have no hesitation in holding that requirement of following procedure specified in paragraph 5 of First Removal of Difficulties Order was mandatory and failure to comply with it would render the appointment void as per decision of the Apex Court in Prabhat Kumar Sharma. The Judgment of Apex Court in Prabhat Kumar Sharma (supra) and the Division Bench Judgment in Julfikar Husain Ansari (supra were not placed before the Division Bench in Balveer Singh (supra). In such circumstances, this Court is of the considered view that argument advanced by Sri Ashok Khare relying upon the Division Bench Judgment in Balveer Singh (supra) cannot be accepted and the law declared by the Supreme Court in Prabhat Kumar Sharma (supra) as well the Full Bench Judgment in Radha Raizada (supra) and Division Bench of this Court in Julfikar Husain Ansari would continue to hold the field. Adhoc appointment made against substantive vacancy without following the procedure laid down in Paragraphs 2 & 5 of the First Removal of Difficulties Order would thus be impermissible.
46. For the reasons and discussions held above, claim of Sunil Kumar Mishra, to be senior to Ganesh Chandra Goel, cannot be accepted. Consequently, Writ Petition No. 52277 of 2014 fails and is dismissed. Writ Petition No. 48836 of 2016 filed by Ganesh Chandra Goel succeeds and the order of District Inspector of Schools dated 28.9.2016, accepting the claim of Sunil Kumar Mishra to officiate as Principal of the Institution, stands quashed. To that extent, Writ Petition No. 57215 of 2016 filed by the Managing Committee against same order also succeeds. However, as the Committee of Management has proceeded to terminate services of Sunil Kumar Mishra without obtaining any approval from the Board under Section 21 of the U.P. Secondary Education Services Selection Board Act, 1982, therefore, the resolution of the Committee of Management dated 20th November, 2016 as well as the consequential order of termination dated 22nd November, 2016 cannot be sustained. Writ Petition No. 60494 of 2016 consequently succeeds and is allowed to that extent. The order of District Inspector of Schools, dated 25.11.2016, disapproving the resolution of the Committee of Management, terminating the services of Sunil Kumar Mishra, is affirmed. Since Ganesh Chandra Goel is held senior as Lecturer in the Institution concerned he would have the right to officiate as Principal of the Institution concerned. Services of Sunil Kumar Mishra would also be considered for regularization under the appropriate provisions of the U.P. Secondary Education Services Selection Board Act, 1982, in accordance with law.
47. With the aforesaid observations, this bunch of petitions stands disposed of. No order is passed as to costs.
Order Date :- 2.4.2019 Ranjeet Sahu