Allahabad High Court
Surendra Kumar Pandey S/O Sri Ram Narain ... vs District Inspector Of Schools, Finance ... on 28 March, 2007
Equivalent citations: 2007(4)AWC3884
Author: Sabhajeet Yadav
Bench: Sabhajeet Yadav
JUDGMENT Sabhajeet Yadav, J.
1. By this petition, petitioner has sought relief of mandamus directing the respondents to pay henceforth the salary of the petitioner month to month and arrears of salary along with other benefits permissible under law since the initial date of his appointment on the post of lecturer in Civics in the institution in question.
2. The brief facts leading to the case are that one post of lecturer in Civics in Kisan Inter College, Babhnan District Basti fell vacant on account of retirement of one Sri B.P. Srivastava lecturer in Civics, who retired on 30.6.90. It is not in dispute that the institution is recognised Intermediate College under the provisions of U.P. Intermediate Education Act 1921 and receiving grants-in-aid out of state fund, thus the liability for payment of salary of teachers and other employees of the institution is upon the State Government under the provisions of U.P. High School and Intermediate Colleges (Payment of Salaries of teachers and other employees) Act 1971. According to the petitioner's case the Committee of Management of the institution vide its resolution dated 1.7.90 resolved to send the requisition to the U.P. Secondary Education Services Selection Commission/Board hereinafter referred to as Commission/Board in pursuant thereto on 2.7.90 requisition was sent to the Commission/Board for holding selection to fill up the said vacancy but Commission/Board has failed to recommend any name within time prescribed for the same. Thus finding no alternative, the Committee of Management of the institution after advertising the vacancy in one news paper has held the selection for the said vacancy and selected the petitioner on the post of lecturer in Civics as the petitioner was fully eligible and qualified for the post and thereafter appointed the petitioner on ad-hoc basis on the post of lecturer in Civics vide order dated 8.1.91 in pursuance of which the petitioner has joined his post on 24.1.91, immediately thereafter the papers were sent for approval to the District Inspector of Schools, Basti on 25.1.1991. The District Inspector of Schools, Basti did not approve the appointment of petitioner on the post of lecturer in Civics for considerably long time, despite several representations and reminders sent to him. Finding no alternative the petitioner submitted a representation to the Principal Secretary, Secondary Education, Government of Uttar Pradesh who directed on 1.1.1996 to Director of Education for taking necessary action in the matter, thereupon Director Education on 25.1.1996 directed the District Inspector of Schools, Basti for taking necessary action regarding the payment of salary of the petitioner. It is further stated that the District Inspector of Schools after hearing the petitioner and parties concerned has ultimately decided the dispute, whereby the petitioner's representation was allowed and petitioner's appointment on ad hoc basis on the post of lecturer in Civics was approved vide detailed order dated 8.8.1997. A copy of the order dated 8.8.1997 is on record as Annexure-5 of the writ petition. It was also indicated in the order of approval that one Sri Kamala Prasad Singh who was L.T. Grade teacher in the institution and sought promotion on the post of. lecturer in place of petitioner and objected the appointment of petitioner, has withdrawn his writ petition on 25.3.1996 as he has also been promoted as lecturer in History.
3. It is further stated that despite approval granted by District Inspector of Schools on 8.8.1997, the salary of petitioner was not paid, then petitioner has again represented the matter before Education Minister thereupon who has directed the Joint Director Education on 16.7.98 for making payment to the petitioner. It is further stated that the Special Secretary to Government also wrote a letter to the Director Secondary Education on 27.1.99 directing the District Inspector of Schools for making payment of salary to the petitioner in pursuance thereof on 22.3.1999 the respondent No. l passed an order directing for payment of salary to the petitioner from the date of order itself. The copy of letter dated 21/22.3.1999 passed by District Inspector of Schools is on record as Annexure-10 of the writ petition. It is further stated that despite aforesaid direction the salary of petitioner was not paid. Ultimately the petitioner again represented to the respondent No. 1 on 15.9.99, thereupon the respondent No. 1 has summoned the record from the respondent No. 3 but of no avail. Thereafter the petitioner has again moved various representations to the authorities concerned and ultimately finding no favour with them filed abovenoted writ petition before this Court.
4. A detail counter affidavit has been filed on behalf of respondents in the writ petition, wherein the allegations contained in various paragraphs of writ petition have been refuted and denied inasmuch as in paras 3 and 13 of the counter affidavit, it has been specifically stated that original record in respect of alleged order of approval of petitioner dated 8.8.1997 (Annexure-5 of writ petition) and order dated 21/22.3.1999 passed by respondent No. l in respect of payment of salary to the petitioner with immediate effect (Annexure-10 of the writ petition) are not available in the office, therefore, genuineness of aforesaid orders cannot be verified and no finality can be attached thereon. Besides this, the petitioner's appointment was made not in accordance with the provisions of law, inasmuch as the vacancy was also not advertised in two daily news papers having adequate circulation in Uttar Pradesh, rather advertised in one local news paper alone. Due to the aforesaid reasons, the payment of salary to the petitioner could not be made.
5. Heard Sri B.S. Pandey, learned Counsel for the petitioner and learned Standing Counsel for the respondents.
6. I have given thoughtful consideration to the submissions of learned Counsel for the parties and also perused the record. The first question involved in this case is that as to whether the petitioner has been validly appointed on the post of lecturer in question or not? Unless petitioner's appointment on the post in question is held to be valid in accordance with the provisions of law, no direction for payment of salary from State exchequer can be given in his favour. In this connection it is pointed out that the undisputed facts of this case itself reveal that the petitioner's appointment on the post of lecturer on ad-hoc basis in Civics was made against a substantive vacancy on 8.1.1991 caused on account of retirement of earlier lecturer in Civics on 30.6.90. According to the petitioner's own case the Committee of Management had advertised the aforesaid vacancy in only one newspaper and selection of petitioner was made by the Committee of Management of the institution. At the relevant point in time the appointment of teachers and head of institution, recognised under the provisions of U.P. Intermediate Education Act 1921 was governed by the provisions of U.P. Secondary Education Service Commission and Selection Board Act 1982 herein after referred to as Act 1982. and under the provisions of Section 18 of the said Act although the Committee of Management of the institution was entitled to make appointment against substantive vacancy of teachers on ad-hoc basis by direct recruitment or by promotion but power of selection for direct recruitment was with the District Inspector of Schools under the provisions of U.P Secondary Education and Services Commission Removal of Difficulties Order 1981 i.e. (Removal of Difficulties) First Order 1981 wherein the District Inspector of Schools was empowered to hold selection of teachers in L.T. Grade or as lecturer and recommend the name of selected candidate to the Committee of Management for making such appointment in the manner provided under para 5 of First Removal of Difficulties Order 1981. The Committee of Management was not empowered to hold selection for direct recruitment to fill up the post of teachers i.e. L.T. Grade or lecturers against substantive vacancies caused on account of death retirement or resignation of such teachers working in the institution. The Committee of Management was no doubt empowered to make ad-hoc appointment but against short term vacancy caused on account of grant of leave or suspension etc. duly approved of District Inspector of Schools. Since the vacancy in question was admittedly of substantive in nature therefore, the Committee of Management of the institution had no authority under law to hold selection for making appointment of the petitioner against substantive vacancy on ad-hoc basis through direct recruitment.
7. The aforesaid view taken by this Court finds supports from the view taken by Full Bench of this Court in Radha Raizada and Ors. v. Committee of Management, Bidyawati Darbari Girls Inter College and Ors. 1994 U.P.L.B.E.C., 1551 wherein the Full Bench of this Court has held that the power to hold selection for direct recruitment on ad-hoc basis against substantive vacancy does not lie with the Committee of Management of the institution, rather the power to hold selection lies with the District Inspector of Schools under Removal of Difficulties First Order 1981. The pertinent observations made in this regard in paras 41 and 42 of the decision are extracted as under:
41. It has already been noticed that Section 18 of the Principal Act provides for power to appoint a teacher purely on ad hoc basis either by promotion or by direct recruitment against the substantive vacancy in the institution when the condition precedent for exercise of powers exist namely that the Management has notified the said vacancy to the Commission in accordance with the provisions of the Act and the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher within one year from the date of such notification of the post of such teacher has actually remained vacant for more that two months. However, since the State Government was alive to the situation that the establishment of the Commission may take long time and even after it is established, it may take long time to make available the required teacher in the institution and as such issue three Removal of Difficulties Orders namely Removal of Difficulties Order dated 11.9.81, Removal of Difficulties Order dated 30.1.82 and Removal of Difficulties Order dated 14.4.1982. In fact these Removal of Difficulties Orders were issued to remove the difficulties coining in the way of a Management in running the institution in absence of teachers. This power to appoint ad hoc teachers by direct recruitment thus, it available only when preconditions mentioned in Section 18 of the Act are satisfied, secondly, the vacancy is substantive vacancy and thirdly, the vacancy could not be filled by promotion. Neither the Act nor the Removal of Difficulties Order defines vacancy. However, the vacancy has been defined in Rule 2 (11) of U.P. Secondary Education Services Commission Rules 1983. 'vacancy means' a vacancy arising out as a result of death, retirement, resignation, termination, dismissal, creation of new post or appointment/promotion of the incumbent to any higher post in substantive capacity. Thus, both under Section 18 of the Act and under the Removal of Difficulties Order the Management of an institution is empowered to make ad hoc appointment by direct recruitment, in the manner laid down in paragraph 5 of the First Removal of Difficulties Order only when such vacancy cannot be filled by promotion and for a period till a candidate duly selected by the Commission joins the post. As noticed earlier both Section 18 of the Act and the provisions of First Removal of Difficulties Order provide for ad hoc appointment of teacher in the institution, later further providing for method and manner of such appointments are part of one scheme. Scheme being provision for ad hoc appointment of teacher in the absence of duly selected teachers by the Commission. The provisions may be two but the power to appoint is one and the same and therefore, the provisions contained in Section 18 and Removal of Difficulties Order are to harmonized. It is, therefore, not correct to say that appointment of a teacher on ad hoc basis is either under Section 18 of the Act or under the Removal of Difficulties Order. Thus, if contingency arises for ad hoc appointment of teacher by direct recruitment the procedure provided under the first Removal of Difficulties Order has to be followed. Paragraph 5 of the First Removal of Difficulties Order provides that the management shall, as soon as may be, inform the District Inspector of Schools about the details of vacancy and the District Inspector of Schools shall invite application from the local Employment Exchange and also through public advertisement in at least two news papers having adequate circulation in Uttar Pradesh. Sub paragraph (3) of paragraph 5 further provides that every such application shall be addressed to the District Inspector of Schools. Sub-paragraph (4) of paragraph 5 of the Removal of Difficulties Order provides that the District Inspector of Schools shall cause the best candidate selected on the basis of quality point specified in Appendix. The complication of quality point may be done by the Retired Government Gazetted Officer, in the personal supervision of the Inspector. Paragraph 6 of the First Removal of Difficulties Order further provides for appointment of such teacher under paragraph 5 who shall possess such essential qualification as laid down in Appendix A referred to in the Regulation 1 of Chapter II of the Regulations made in the Intermediate Education Act.
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, Rang Bahadur Singh and Ors. v. District Inspector of Schools Saharanpur 1991 (2) UPLBEC page 1079 and Lalta Prasad Yadav and Ors. v State of U.P. 1988 UPLBEC page 345. When a teacher is appointed on ad hoc basis is in accordance with the paragraph 5 of the First Removal of Difficulties Order there is further no requirement of approval or prior approval of the District Inspector of Schools for such appointment. However it goes without saying that if a management without following the procedure indicated above makes an ad hoc appointment the District Inspector of Schools possess general power under the Payment of Salaries Act to stop payment of salary to such teacher.
8. The aforesaid decision of Full Bench of this Court rendered in Radha Raizada's case has also been approved by Hon'ble Apex Court in Prabhat Kumar Sharma and Ors. v. State of U.P. and Ors. and it was held that any ad hoc appointment of teacher made contrary to the provision of Section 18 of the Act 1982, read with para 5 of the First Removal of Difficulties Order 1981 against substantive vacancy through direct recruitment is illegal and void and does not confer any right on the appointees.
9. In view of the law enunciated by Full Bench of this Court and Hon'ble Apex Court the appointment of the petitioner made on the basis of selection held by the Committee of Management of the institution in my opinion is wholly contrary to the statutory provisions of law and has to be held illegal and void, thus does not confer any right upon him and further under the said Removal of Difficulties Order, the vacancy was liable to be advertised in two daily news papers having adequate circulation in Uttar Pradesh but the vacancy was advertised admittedly in only one news paper, therefore, on this count also selection held cannot be said to be according to law. Since the petitioner's appointment is contrary to the provisions of statute and void ab initio, thus does not confer any right upon him. therefore, no direction for payment of salary to the petitioner from the State exchequer can be issued by this Court.
10. Learned Counsel for the petitioner has further submitted that since the appointment of petitioner has been made in the year 1991 much earlier to the pronouncement of Full Bench of this Court in Radha Raizada case (supra) which has been decided on 12th July 1994, therefore, law enunciated by Full Bench of this Court cannot affect the appointment made earlier to it and the petitioner's appointment shall be treated to be valid and well in accordance with the provisions of law. In support of his submission learned Counsel for the petitioner has placed reliance upon two decisions of this Court rendered in Ashika Prasad Shukla v. District Inspector of Schools, Allahabad and Anr. 1998 (3) U.P.L.B.E.C., 1722 and in Smt. Ram Dulari Devi and Ors. v. Joint Director of Education Varanasi Region, Varanasi and Ors. 1999 (3) U.P.L.B.E.C, 2069 and further urged that since the appointments made under the provisions of Section 18 of the Act 1982 does not require approval of District Inspector of Schools, therefore, the same has already attained the finality and cannot be reopened after decision of Full Bench of this Court in Radha Raizada case.
11. Contrary to it learned Standing Counsel has submitted that although the ad hoc appointment under Section 18 of the Act 1982 read with para 5 of Removal of First Difficulties Order 1981 does not require any formal approval of District Inspector of Schools but in view of decision rendered by Full Bench itself in Radha Raizada's case the District Inspector of Schools has ample power and authority under the provisions of U.P. High School and Intermediate Colleges Payment of Salaries of Teachers and Other Employees Act 1971 to deny the payment of salary to such teachers whose appointments are not found valid in accordance with the provisions of law and the District Inspector of Schools is required to accord financial approval of appointment of petitioner before directing payment of salary to him from State exchequer as the institution is admittedly receiving grants-in-aid out of State fund and further since the petitioner has not been paid his salary from the State exchequer in absence of financial sanction or approval given by District Inspector of Schools, therefore, it cannot be said that the petitioner's appointment has already attained finality prior to the decision of Full Bench of this Court in Radha Raizada's case and also submitted that since the decision of Division Bench of this Court rendered in Ashika Prasad Shukla's case (supra) pertains to appointment against short term vacancy, whereas contrary to it the matter in dispute pertains to appointment against substantive vacancy, therefore, the aforesaid decision is quite distinguishable and have no application with the case of petitioner. Besides this since according to the petitioner's own case the financial approval of his appointment has been accorded by District Inspector of Schools on 8.8.1997 and further direction for payment of salary to the petitioner alleged to have been given by District Inspector of Schools vide order dated 21/22.3.1999 as contained in Annexures-5 and 10 respectively to this writ petition, therefore, the submission of learned Counsel for the. petitioner that his appointment has already attained finality prior to the decision of Full Bench of this Court in Radha Raizada's case appears to be misconceived and contradictory in the term. The submission of learned Standing Counsel appears to have substance and requires consideration.
12. Thus in view of rival submissions of learned Counsel for the parties. the next question arises for consideration as to whether the decision rendered by Full Bench of this Court in Radha Raizada's case has retrospective or prospective operation and/or as to whether the appointment of petitioner which was prior in time can be affected by decision rendered by Full Bench of this Court in aforesaid case? In this connection it is necessary to point out that from careful reading of the Full Bench decision of this Court in Radha Raizada's case there is nothing to indicate in the decision itself that the decision has any retrospective or prospective operation. Virtually the retroactivity and prospectivity are the terms used in the field of legislation. A statutue may be prospective or retrospective in operation but the decision of court normally pronounce upon the rights and obligations of the parties in litigation in a context of a particular legislation or law existing on the date on which cause of action arises and some times, legislation covers even pending cases by virtue of having being retrospective in operation subject to certain limitations need not to be discussed here. Thus the decision of court covers the transaction or action taken under challenge, which are anterior or prior in point of time to the date of decision and the court pronounces upon legality or validity of such transaction or action under challenge, vis-a-vis, rights and obligations of parties in litigation in context of statute or law and as such it can be said to be declaratory in nature, therefore would be retrospective in operation, unless intended to be applied prospectively, but from a careful reading of the judgement of Hon'ble Full Bench of this Court in Radha Raizada's case (supra), there is nothing to indicate that as to whether the aforesaid decision was intended to be appealed prospectively or retrospectively, and in my opinion rightly so.
13. In this connection it would be useful to mention that the Hon'ble Apex Court has evolved the doctrine of prospective overruling of earlier decision rendered by Hon'ble Apex Court itself so that the transactions carried out and action taken on account of earlier existing legal position can be saved and may not be affected and exposed to attack or judicial scrutiny on account of decision rendered subsequently by the Apex Court, wherein the earlier legal position has been altered or changed by overruling its earlier decision.
14. In L.C. Golak Nath v. State of Punjab , while dealing with the question as to whether the decision in that case should be given prospective or retrospective operation in para 51 of the decision eleven Judges Constitution Bench of the Hon'ble Apex Court has laid down propositions to the effect that; (1) The doctrine of prospective overruling can be invoked only in matters arising under our Constitution; (2) It can be applied only by the highest court of the country i.e. Supreme Court as it has the constitutional jurisdiction to declare law binding on all courts in India; (3) The scope of retroactive operation of the law declared by the Supreme Court superseding its earlier decisions is left to its discretion to be moulded in accordance with the justice of the cause or matters before it. Hon'ble Apex Court then declared that the said decision will not affect the validity of (Seventeenth Constitutional Amendment) Act 1964 or other amendments made to the Constitution taking away or abridging the fundamental rights. Thereafter in Woman Rao v. Union of India , in Atma Prakash v. State of Haryana , in Orissa Cement Ltd. v. State of Orissa and in Union of India v. Mohd. Ramzan Khan the Hon'ble Apex Court has evolved and applied the same doctrine of prospective overruling.
15. Thus from a careful consideration of the observations made in the aforesaid decision it is clear that doctrine of prospective overruling cannot be evolved and applied by this Court as held in Golak Nath's case that the doctrine of prospective overruling can be invoked only in matters arising under our Constitution and it can be evolved and applied by the highest court of the country i.e. Supreme Court only as it has the constitutional jurisdiction to declare law binding on all courts in India. The scope of retroactive operation of law declared by the Supreme Court superseding its earlier decisions is left to its discretion to be moulded in accordance with the justice of the cause or matters before it. Therefore, there can be no scope for doubt to hold that it is only in the competence of Hon'ble Apex Court to evolve the doctrine of prospective overruling and apply it suitably in facts and circumstances of the case to save the transactions and actions taken under earlier law declared by Supreme Court which has been overruled by the Apex Court subsequently or transactions under taken in a legislation which is ultimately declared invalid piece of legislation or ultra-vires to any provisions of constitution or another law. Such power of Apex Court is because of the reason that the Hon'ble Apex Court is armed with the provisions of Articles 141 and 142 of the Constitution of India whereas having no such power, this Court can not evolve the doctrine of prospective overruling by postponing/halting/deferring the operation of its judgments leaving it to be applied only in connection of cases arising out after the decision rendered by this Court. Therefore, in my considered opinion the law declared by this Court is always retrospective in operation except in the cases where decision has effect of amending the statute whereby the vested or accrued rights of individuals are taken away and this Court has no power or jurisdiction under our constitution to halt or postpone the effect of operation of law declared by it or to defer it for operation in respect of future transactions. However, civil court and this Court also have ample power to mould the relief claimed in the proceeding, but the aforesaid power should not be confused and equated with the power to halt/defer or restrict the operation of law declared by this Court itself in the sense that decision would apply prospectively or would have prospective operation.
16. Now coming to the decision in Smt. Ram Dulari Devi and Ors. v. Joint Director of Education, Varanasi Region, Varanasi and Ors. (1999) 3 UPLBEC 2069 wherein a Division Bench of this Court in para 7 of the decision has laid down a broad proposition to the effect that decisions unless specifically lay down, do not operate retrospectively in order to render all actions taken prior to such decisions void. In this connection it is noteworthy to mention that the aforesaid broad proposition laid down by this Court runs contrary to the decision of Hon'ble Apex Court in Golak Nath's case. Although the aforesaid decision of Apex Court has been subsequently overruled by Hon'ble Apex Court in Keshwanand Bharti v. State of Kerela , but the aforesaid principles of law laid down in Golak Nath's case in respect of prospective overruling has not been touched in Keshwanand Bharti's case rather the same principle has been applied by Hon'ble Apex Court in cases referred herein before and also followed and discussed in Managing Director E.C.I.L., Hyderabad v. B. Karunakar , wherein the Hon'ble Apex Court has reiterated again the view taken in Golak Nath case. Therefore, with all respect to Hon'ble Judges of this Court the aforesaid broad proposition laid down by this Court Smt. Ram Dulari's case (supra) runs contrary to the decisions of Hon'ble Apex Court and as such, held to be per incuriam as given in ignorance of binding precedent, and law declared by the Supreme Court.
17. In this connection it is also necessary to point out that in K.N. Dwivedi v. District Inspector of Schools 1994 (1) UPLBEC 461, a learned Single Judge of this Court while holding the provisions providing for ad hoc appointment by direct recruitment against short term vacancy 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. And some words have been read in the Statute i.e. Second Removal of Difficulties Order both in K.N. Dwivedi and Radha Raizada's case and it was held that procedure for notifying the short term vacancy can be same as it is for ad hoc appointment by direct recruitment in substantive vacancy under the First Removal of Difficulties Order, therefore, the same is tantamount to amending the statute by reading therein the requirement of public notice of the vacancy in addition to its notice on the notice board of the institution with a view to save 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. This question, however, was neither raised nor decided by the Full Bench in Radha Raizada's case and Radha Raizada's case has not overruled the aforesaid previous decision of this Court on the question as to whether the appointment of a teacher by direct recruitment in a short term vacancy by notifying the vacancy on notice board of the institution alone would be void. The aforesaid view taken in K.N. Dwivedi's case has been reiterated by Division Bench of this Court in Ashika Prasad Shukla v. District Inspector of Schools, Allahabad and Anr. (1998) 3 UPLBEC 1722, but the aforesaid decisions were rendered by this Court in respect of direct recruitment on ad hoc basis against short term vacancy not against substantive vacancy, whereas the case in question pertains to appointment, through direct recruitment on ad hoc basis against substantive vacancy and further no such question arises in this case.
18. In Smt. Ram Dulari Devi's case (supra) while dealing with the controversy in connection of effect of decision rendered by Full Bench in Radha Raizada's case a Division Bench of this Court has held in para 8 of the decision that the Full Bench decision may not reopen an appointment made prior to the Full Bench decision and expose them to scrutiny and cancellation, after appointment having been approved or deemed to have if been approved in case of direct appointment against short term vacancy. Whereas in case of adhoc appointment against substantive vacancy there being no scope of approval, grant of financial sanction to such appointment without the aid of any interim order passed in a Court proceeding pending after decision in Radha Raizada's case shall be treated to be deemed approval. Such a deemed approval shall also include those cases where financial sanction was granted pursuant to interim order or otherwise in a proceedings concluded before the decision in Radha Raizada case (supra) making such interim order or direction absolute. In this connection it is necessary to point out that so far as the observations of Division Bench of this Court in context of adhoc appointment through direct recruitment against short term vacancy is concerned there is no quarrel with the proposition laid down by the Division Bench of this Court as earlier in Ashika Prasad Shukla case and decision rendered by the learned Single Judge in K.N. Dwivedi's case but so far as the observation made by the Division Bench in respect of adhoc appointment through direct recruitment against substantive vacancy to the effect that such deemed approval shall also include those cases where financial sanction was granted pursuant to the interim order or otherwise in a proceedings concluded before the decision in Radha Raizada's case making such interim order or direction absolute, is concerned, in my considered opinion the observations of the Division Bench of this Court runs contrary to the decision rendered by the Supreme Court to which I shall refer a little later. Thus the observations made by the Division Bench of this Court to that extent cannot be said to be good law and has to be held that the decision rendered as per incuriam.
19. In N.Mohanan v. State of Kerala and Ors. . In para 3 of the decision the Hon'ble Apex Court has held that appointment made by interim order does not create any right to be appointed as interim order is always subject to the outcome of final adjudication and if the petitioner is not successful in the final decision, the interim order would stand set aside. For ready reference para 3 of the decision is reproduced as under:
3. Sri T.L V. Iyer, learned senior counsel contends that the list was not published and so the life of the panel did not expire. We find no force. The fact that candidates were appointed from the panel is proof of its publication. It is then contended that even though the petitioner has no right to be appointed since he was appointed on the basis of the order of the Court provisionally, the appointment already made should be allowed to be continued and should be regularised. The High Court has negatived this contention and in our view rightly. The interim order is subject to result of outcome of the final adjudication. If the petitioner is not successful in the final decision, the interim order would stand set aside. So appointment by interim order does not create any right nor the petitioner gets any right to regularisation on that basis....
20. Similarly in Committee of Management, Arya Nagar Inter College, and Anr. v. Sree Kumar Tiwary and Anr. , the first respondent came to be appointed as an ad hoc teacher on 12 July 1985 against a short term vacancy caused by promotion of incumbent on ad hoc basis to the next higher post. His appointment came to be terminated on May 30, 1988 w.e.f. 30 June 1988. The respondent challenged the order of termination in writ petition. Pending writ petition an interim order of stay though vacated by learned Single Judge, the same was granted by Division Bench. The learned Single Judge on merits dismissed the writ petition. On appeal it appears that while taking note of provisions of regularisation under Section 33-B(1) (a) (i) of U.P. Act No. 5 of 1982, vide impugned order Division Bench has held that the first respondent came to be regularised. However on consideration of entire matter Division Bench further held that impugned order passed by learned Single Judge will not stand on the continuation in service of the appellant before the High Court and first respondent before the Apex Court in pursuance of the order dated 27.10.1995 passed by D.I.O.S. regularising his services till an order contrary is passed by competent authority in accordance with law. The said order was subject matter of appeal before the Apex Court, wherein the questions involved have been dealt with by the Hon'ble Apex Court in para 6 and 7 as under:
6. In view of the respective contentions, the question that arises for consideration is; whether the respondent is entitled to the benefit of the Third Removal of Difficulties Order as indicated hereinbefore? Section 33-B (1) (a)(i) of U.P. Secondary Education Sendees Commission Act, 1982 postulates among others, regularisation of a candidate who was appointed by promotion or by direct recruitment in the certificate of teaching grade before May 13, 1989 against a short term vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 and such vacancy was subsequently converted into a substantive vacancy. It is seen that the regular incumbent retired from service on June 30, 1988. Consequently, the temporary vacancy was deemed to have been converted into a substantive vacancy w.e.f. June 30, ]988. But the crucial question is: whether the respondent was continuously serving the institution under Clause (c) of Section 33-B(i)? Admittedly, the service of the respondent came to be terminated w.e.f. June 30, 1988. Though he had obtained the stay order and continued to be in service, it was not by virtue of his own right under an order of appointment, he continued in the office with permission of the management. In fact, in the recommendation made before the Selection Committee, they have stated as under:
Ad hoc appointment of Shri Sri Kumar Tiwari was made on 1.8.1986 L.T. Grade and vide notice dated 30.5.88 his services were terminated. On the basis of the above order Shri Sri Kumar Tiwari obtained stay order No. 13565 dated 29.7.1988 from Hon'ble High Court. Therefore, appointment is disputed.
7. In fact, the regularisation order passed by the District Inspector of Schools also says that it was subject to the result in the writ petition. The appeal being the continuation of the writ petition, the question arises; whether the respondent is entitled to claim the benefit of Section 33-B(1)(a)(i) of the U.P. Secondary Education Services Commission Act, 1982. We have seen that his services came to be terminated on May 30, 1988 and the Amendment Act has no application. Hence, the Division Bench was not right in giving direction that his regularisation will be subject to the future orders since the regularisation order itself means that it was subject to the result of the writ petition.
21. In view of the aforesaid settled legal position it is clear that if the writ petition is dismissed, the interim order passed therein would be merged in such final order of dismissal and order under challenge in the writ petition would take effect from the date on which it was passed and such interim order so passed during the pendency of the writ petition does not confer any independent right. Similar is also case in respect of interim order passed in suits or other proceedings wherein at the most interim order shall continue till the suit or proceeding would continue and it would be lost at the end of such proceeding, therefore, the order of financial sanction passed by the departmental authority, unless attained finality, and remained unchallenged till the decision of Full Bench in Radha Raizada case the same cannot be treated to be immune from scrutiny in light of law laid down in Radha Raizada case or in concluded court proceeding the order of financial sanction reached at finality prior to the decision of aforesaid Full Bench except in aforesaid situation in other situation the decision can be examined and tested on the touch stone of principle and law laid down by Full Bench of this Court in Radha Raizada's case. The observations made by Division Bench of this Court in Smt. Ram Dulari's case, runs contrary to the dictum of Apex Court in the cases, referred herein before, therefore, held to be per in curiam as given in ignorance of binding precedent and held to be no longer good law on the point in issue.
22. In view of aforesaid discussion, there can be no scope for doubt to hold that only those orders of financial sanction for ad hoc appointment through direct recruitment against substantive vacancy by departmental authorities should be treated to be final which have attained finality as remained unchallenged prior to the date of judgement rendered by full Bench of this Court in Radha Raizada case. If any such decision by departmental authority is challenged prior to 12 th July 1994 and any proceeding is pending in connection thereof and during the pendency of such proceeding even if any interim order is passed and become absolute directing the authority to grant such financial sanction and pursuant thereto if any financial sanction is given by the departmental authority even prior to the Full Bench decision of this Court, the same cannot be treated to be final so as to escape from scrutiny in light of law laid down by this Court in the aforesaid full Bench decision. The order of courts proceeding cannot be said to be final in respect of grant of financial sanction for such appointment unless such order is passed by the court in concluded proceeding and remained unchallenged further in courts proceeding at forum available under law prior to the aforesaid decision of full Bench.
23. Now coming to the another leg of submission of learned Counsel for the petitioner, that appointments made on ad hoc basis under Section 18 of the Act 1982, does not require approval or financial sanction of District Inspector of Schools is concerned, it is necessary to be pointed out that from a bare reading of paragraph 42 of decision of Full Bench of this Court in Radha Raizada's case it is clear that this Court has held that when a teacher is appointed on ad hoc basis in accordance with paragraph 5 of the First Removal of Difficulties Order, there is no further requirement of prior approval of the District Inspector of Schools for such appointment, however, it goes without saying that if Committee of Management without following the procedure indicated hereinbefore makes an ad hoc appointment, the District Inspector of Schools possess general power under the Payment of Salaries Act to stop the payment of salary to such teachers. Therefore, in view of such legal position, in my opinion prior approval of ad hoc appointment made under Section 18 read with para 5 of First Removal of Difficulties Order against substantive vacancy through direct recruitment does not require for another reason also that selection itself has to be made by District Inspector of Schools, therefore, there can be no sense of approval by same authority but before directing payment of salary to such teachers the District Inspector of Schools under the provisions of Payment of Salaries Act has ample power to verify and satisfy about the validity and legality of the appointment so made. Thus, unless financial sanction is accorded by District Inspector of Schools, no direction for payment of salary to such ad hoc teachers appointed under Section 18 read with para 5 of First Removal of Difficulties Order can be made, therefore, the submission of learned Counsel for the petitioner in this regard appears to be misplaced and has to be rejected. Another submission of learned Counsel for the petitioner is that once the petitioner is appointed earlier to the decision of Full Bench of this Court in Radha Raizada's case, the appointment of petitioner has already attained finality, also appears to be misconceived for simple reason that according to petitioner's own case, his appointment was allegedly approved on 8.8.1997 by the District Inspector of Schools as contained in Annexure-5 of the writ petition subsequent to the decision of Full Bench of this Court in Radha Raizada's case, therefore, it cannot be said that the petitioner's appointment has already attained finality prior to the said decision of Full Bench of this Court, thus the submission of learned Counsel for the petitioner appears to be contradictory in terms, besides being misconceived hence has to be rejected. Therefore, the decision rendered by Division Bench of this Court in Smt. Ram Dulari's case can be of no assistance to the case of the petitioner, whereas the decision rendered in Ashika Prasad Shukla's case by this Court pertains to appointment against short term vacancy, therefore, the aforesaid decision cited and relied by learned Counsel for the petitioner can also be of no assistance to the case of petitioner.
24. Thus, in view of the aforesaid discussions since I have already held that the petitioner's appointment was admittedly made on selection held by Committee of Management of the institution and his appointment was not made in the manner provided under Section 18 read with para 5 of First Removal of Difficulties Order 1981, therefore, void ab-initio and does not confer any right upon him, accordingly no direction for payment of his salary from State exchequer can be issued by this Court. However, it shall be open to the petitioner to recover his salary from the Committee of Management of the institution at appropriate forum if at all available under law in given facts and circumstances of the case, which shall pay from its own resources if the petitioner's appointment by the Committee of Management is found to be proved, and claim of petitioner's arrears of salary is found to be not barred by law of limitation.
25. Now further question arises for consideration as to whether the alleged order dated 8.8.1997 passed by District Inspector of Schools approving the appointment of petitioner on ad hoc basis and subsequent order of District Inspector of Schools dated 21/22.3.1999 whereby the petitioner's payment of salary was directed to be made by him with immediate effect are genuine or not? And as to whether this Court is required to investigate and examine the matter in given facts and circumstances of the case or not? In this connection, it is necessary to point out that in view of my observations in preceding part of the judgement, I do not find further necessary to enquire about the genuineness of the aforesaid orders passed by District Inspector of Schools. Besides this the stand taken in the counter affidavit by the respondents in this regard appears to be correct for the simple reason that if the aforesaid order of approval dated 8.8.1997 (Annexure-5 of the writ petition) would have been passed by District Inspector of Schools approving the appointment of petitioner w.e.f. initial date of his appointment i.e. from the date of his joining on 24.1.1991, there was no need to pass subsequent order dated 21/22.3.1999(Annexure-10 of the writ petition) whereby direction was made to make payment of salary to the petitioner w.e.f. the date of order without directing for making payment of arrears of salary prior to the aforesaid date nevertheless no payment has been made in pursuance of the aforesaid orders. Thus the aforesaid orders appear to be fake and not genuine as indicated in paragraphs 3 and 13 of the counter affidavit filed on behalf of respondents.
26. In view of the aforesaid discussion the writ petition is devoid of merit hence liable to be dismissed.
27. Accordingly, the same is hereby dismissed.