Allahabad High Court
Shesh Mani Shukla vs The District Inspector Of Schools And ... on 23 April, 2004
Equivalent citations: 2004(3)AWC2407, (2004)3UPLBEC2560
Author: Dilip Gupta
Bench: Dilip Gupta
JUDGMENT Dilip Gupta, J.
1. The controversy to be determined in the present petition is whether the Committee of Management of an Intermediate College can ignore the recommendation of the District Inspector of Schools for making an ad hoc appointment in the CT grade under the provisions of the Uttar Pradesh Secondary Services Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as the 'First Removal of Difficulties Order, 1981) by direct recruitment on a resultant substantive vacancy and proceed to make an appointment of a person of its own choice completely defying the provisions of the aforesaid Order.
2. Briefly stated, the facts are that on 15.10.1985 a substantive vacancy arose in the CT grade in Satya Prakash Vivekanand Inter College, Musahari, district Deoria (hereinafter referred to as the 'College') since Sri Bansh Gopal Mishra left the Institution. The Committee of Management intimated the vacancy to the District Inspector of Schools but when the District Inspector of Schools did not send the name of any reserve pool teacher, the Committee of Management advertised the post in July, 1987 and invited applications from the local Employment Exchange. On receipt of the said list, the Committee of Management intimated the candidates to apply for the post but only three candidates applied. They were interviewed by the Selection Committee, which made recommendation in favour of the petitioner. A letter of appointment was consequently issued to the petitioner by the Committee of Management on 10.9.1987 and the petitioner joined his duties w.e.f. 11.9.1987. The Committee of Management intimated the District Inspector of Schools about the appointment of the petitioner and requested him to grant financial approval but the District Inspector of Schools by an order dated 20.4.1988 specifically disapproved the appointment of the petitioner since it had not been made in accordance with law. By the said order the District Inspector of Schools also reminded the Committee of Management of the earlier two letters dated 30.8.1987 and 10.12.1987 sent by him to the Committee of Management for issuing an appointment letter in favour of Sri Ali Hussain Ansari, respondent No. 3 in this petition. The Committee of Management was also directed to take immediate steps for appointment of the said Sri Ali Hussain Ansari failing which action would be taken against it. It is this order dated 20.4.1988 which has been challenged by the petitioner in the present petition and a further direction has been sought to treat the petitioner in continuous service and make payment of salary w.e.f. 11.9.1987.
3. A counter-affidavit has been filed by the District Inspector of Schools. It has been stated that a letter dated 5.5.1987 was sent by the Committee of Management to the District Inspector of Schools for filling up the vacancy. It was mentioned in the said letter that either the District Inspector of Schools should send a person or permission should be granted to it for making an appointment. The District Inspector of Schools, therefore, after making a selection in accordance with the provisions of the Removal of Difficulties Order, 1981 recommended the name of one Ali Hussain Ansari for appointment by means of his letter dated 8.6.1987. A reminder dated 14.9.1987 was also sent. However, the Committee of Management instead of appointing the said Ali Hussain Ansari, proceeded to appoint a person of its own choice, namely, the petitioner on 31.12.1987. It has also been stated that the Committee of Management did not permit Ali Hussain Ansari to join the College. This action of the Committee of Management was absolutely against the provisions of the Removal of Difficulties Order, 1981 and, therefore, the District Inspector of Schools did not grant approval to the appointment of the petitioner.
4. A counter-affidavit has also been filed by Ali Hussain Ansari. It has been stated that in spite of the letters dated 8.6.1987 and 3.8.1987 sent by the District Inspector of Schools to the Committee of Management, the Committee of Management did not issue any appointment letter in his favour and nor did it permit him to join the Institution. Reference has also been made to the communication dated 30.5.1988 sent by the District Inspector of Schools to the Manager wherein after making reference to the earlier letters he specifically directed the Committee of Management to permit Sri Ali Hussain Ansari to join his post and make payment of salary. The petitioner filed Rejoinder-Affidavits to both the counter-affidavits in 1991. After a lapse of about 15 years from the date of filing of the petition, the petitioner also filed an amendment application dated 29.9.2003 seeking to make amendments in the petition, the grounds and also in the relief clause. Primarily what has been sought to be challenged through the said amendment application is the procedure followed by the District Inspector of Schools under the Removal of Difficulties Order, 1981 in respect of the ad hoc appointment of Sri Ali Hussain Ansari.
5. I have heard Sri T.N. Tiwari, learned counsel for the petitioner, the learned Standing Counsel appearing for respondent No. 1 and Sri Arvind Srivastva, learned counsel appearing for respondent No. 3.
6. From a perusal of the records, it is clear that a substantive vacancy had occurred in the College in the CT grade on 15.10.1985. Section 18 of The Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982 (hereinafter referred to as the 'Act') as it then existed, provides that where the management has notified a 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 or the post of such teacher has actually remained vacant for more than two months, then, the Management may appoint, by direct recruitment or promotion, a teacher on purely ad hoc basis. Section 33 of the Act empowers the State Government to issue orders for the purposes of removing difficulties. In due exercise of the said power, the State Government issued the First Removal of Difficulties Order 1981. It provides that the management of an Institution may appoint by promotion or by direct recruitment a teacher on purely ad hoc basis in accordance with the provisions of the Order in the case of a substantive vacancy caused by death, retirement, resignation or otherwise. Paragraph 3 of the said order provides for the duration of the ad hoc appointment and while paragraph 4 relates to ad hoc appointment by promotion, paragraph 5 relates to ad hoc appointment by direct recruitment.
7. In the present case ad hoc appointment has been made by direct recruitment and, therefore, paragraph 5 of the aforesaid order which is the necessary paragraph for the purposes of adjudicating the controversy involved in the present petition is quoted below:-
"5. Ad hoc appointment by direct recruitment.-(1) Where any vacancy cannot be filed 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 points 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".
8. After making the selection under the provisions of the First Removal of Difficulties Order, 1981, the District Inspector of Schools by means of the letter dated 8.6.1987 forwarded the name of Ali Hussain Ansari, respondent No. 3 to the Committee of Management for issuance of a letter of appointment. The said letter was followed by reminders dated 3.8.1987, 14.9.1987, 10.11.1987 and 14.4.1988.
9. Surprisingly instead of appointing Ali Hussain Ansari, respondent No. 3 as a CT Grade Teacher in the College, the Committee of Management proceeded on its own to call the names from the Employment Exchange and not only made the selection of the petitioner but also issued an appointment letter to him on 10.9.1987 and permitted him to join. This could not have been done under the provisions of paragraph 5 of the First Removal of Difficulties Order, 1981. Even though the two letters dated 8.6.1987 and 3.8.1987 have been mentioned in the order dated 20.4.1988 of the District Inspector of Schools refusing to grant approval to the appointment of the petitioner, the petitioner neither made a mention of these letters in the writ petition and nor did he annex copies of the same. On the other hand, the petition proceeds on the footing that the District Inspector of Schools was compelling the management to appoint respondent No. 3 even though his candidature had been rejected by the Committee of Management at the time when it had proceeded to make the selection.
10. It is, therefore, apparent that the appointment of the petitioner was not made in accordance with the provisions of the First Removal of Difficulties Order, 1981. The effect of an appointment not made in accordance with the First Removal of Difficulties Order, 1981 has now to be examined. This matter was considered by a Full Bench of this Court in the case of Radha Raizada and others vs. Committee of Management, Vidyawati Darbari Girls Inter College and others reported in (1994) 3 UPLBEC 1551. The Full Bench clearly held that if the contingency arises for ad hoc appointment by direct recruitment, the procedure provided for under the First Removal of Difficulties Order, 1981 has to be followed and if the management makes an ad hoc appointment without following the procedure laid down in paragraph 5, the District Inspector of Schools would be justified in stopping the payment of salary of such a teacher. It has further been held that if the procedure is not followed, the appointment is void and cannot confer any right upon him.
11. The Supreme Court also had an occasion to examine the validity of the ad hoc appointments which were not made in accordance with the procedure provided for under paragraph 5 of the First Removal of Difficulties Order in the case of Prabhat Kumar Sharma and others Vs. State of U.P. and others reported in (1996) 10, SCC 62 and it was clearly held that any ad hoc appointment not made in accordance with paragraph 5 of the First Removal of Difficulties Order is an illegal appointment and is void and confers no right on the appointee. It may be useful to reproduce a passage from the judgment made in the context of paragraph 5 of the First Removal of Difficulties Order and it is as follows:-
"It is an inbuilt procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the management to any post in an aided institution. It is obvious that when the salary is paid by the State to the Government aided private educational institutions, public interest demands that the teachers' selection must be in accordance with the procedure prescribed under the Act read with the First 1981, Order".
12. In view of the law laid down in the aforesaid decisions, I am clearly of the opinion that the appointment of the petitioner having been made in utter violation of the provisions of the First Removal of Difficulties Order, 1981, is void and does not confer any right upon the petitioner and is, therefore, liable to be ignored.
13. Learned counsel for the petitioner then submitted that the petitioner is continuing to receive salary under the interim order dated 27.1.1992 passed by this Court and as such he should not be disturbed at this stage. The Court has, therefore, been called upon to balance the equities between the petitioner and respondent No. 3. The appointment of the petitioner, as I have already held, is completely dehors the provisions of the First Removal of Difficulties Order, 1981 and does not confer any right upon him. On the other hand, the appointment of respondent No. 3 is in accordance with the provisions of the First Removal of Difficulties Order, 1981. The management for reasons best known to it, in complete defiance of the provisions of the First Removal of Difficulties Order, 1981 and the directions of the District Inspector of Schools, appointed the petitioner. The question, therefore, for consideration is whether the Court should approve of the illegal action of the Committee of Management and consequently keep out of employment a person in whose favour the Committee of Management was bound to issue an appointment letter.
14. In my opinion, the petitioner is not entitled to a relief from this Court merely on the ground that an interim order had been passed in his favour under which he continued to receive salary. The petitioner has to give way to the candidate who had been appointed in accordance with the procedure then prescribed for making an ad hoc appointment. In this context it may be useful to reproduce a passage from the judgment of the Supreme Court in the case of State of Madhya Pradesh and another Vs. Dharam Bir reported in JT 1998 (4) SC 363 wherein it has been observed as follows:-
"The plea that the Court should have a "human approach" and should not disturb a person who has already been working on this post for more than a decade also cannot be accepted as the Courts are hardly swayed by emotional appeals. In dispensing justice to the litigating parties, the Courts not only go into the merits of the respective cases, they also try to balance the equities so as to do complete justice between them. Thus the Courts always maintain a human approach. In the instant case also, this approach has not been departed from. We are fully conscious that the respondent had worked on the post in question for quite a long time but it was only in ad hoc capacity. We are equally conscious that a selected candidate who also possesses necessary educational qualification is available. In this situation, if the respondent is allowed to continue on this post merely on the basis of his concept of "human approach", it would be at the cost of a duly selected candidate who would be deprived of employment for which he has striven and had ultimately cleared the selection. In fact, it is the "human approach"
which requires us to prefer the selected candidate over a person who does not possess even the requisite qualification."
15. The Supreme Court in the case of Kishorilal Charmakar and another Vs. District Education Officer and another reported in (1998) 9, SCC 395 examined the termination of persons who had been appointed under a bona fide mistake by considering them as Scheduled Tribes candidates and the mistake had not occurred on their account. It was submitted on their behalf that they had worked for 10 years as teachers under the interim orders granted by the Court in their favour and since they were not responsible for the mistake they should be allowed to continue. The Court rejected this contention holding that this alone could not entitle them to retain the undeserved benefit which had accrued to them. In yet another case the Supreme Court in the matter of State of Rajasthan Vs. Hitendra Kumar Bhatt (1997) 6 SCC 574 examined the effect of an interim order on the dismissal of the petition. In the said case the respondent was not called for an interview since he did not possess the technical qualification. However, pursuant to the interim order passed by the High Court requiring the appellant to call him for interview he was interviewed and his name was included in the list of selected candidates. He was also appointed on a provisional basis and was also subsequently confirmed. The writ petition was ultimately dismissed by the High Court holding that on the cut of date, he did not possess the requisite qualification. It was submitted by the respondent before the Supreme Court that since he had been continued in service and had also been confirmed, the Court should not disturb his appointment and his case should be considered sympathetically. The Supreme Court observed that the appellants had taken the correct stand right from the beginning and the respondent's application was not considered and he was not called for interview. It was only on account of the interim orders, which were obtained by the respondent that he was given an appointment and continued. He was aware that his appointment was subject to the out come of the petition. As such a sympathetic view could not be taken. In the present case the District Inspectors of Schools had taken a very clear and categorical stand right from the beginning that the respondent Ali Hussain Ansari should be given an appointment letter by the Committee of Management. The District Inspectors of Schools had also not approved the appointment of the petitioner. It is only under the interim order passed by this Court that the petitioner received the salary. The petitioner therefore was aware throughout that his appointment had not been approved. The payment of the salary, which the petitioner received, was obviously subject to the decision of the writ petition.
16. The Court cannot loose sight of the fact that the Committee of Management has been able to stall the appointment of a person appointed in accordance with law by making an appointment of its own choice which power had been completely taken away from the Committee of Management under the First Removal of Difficulties Order, 1981 in order to avoid manipulation and nepotism in the selection and appointment of the teachers. In order to invoke the extra ordinary jurisdiction of the Court under Article 226 of the Constitution of India, the petitioner has to establish his right. The petitioner has not been able to establish that his appointment was made in accordance with law. Therefore, the question of exercising the discretion in favour of the petitioner whose appointment is illegal and dehors the Rules, does not arise. In view of the aforesaid facts and in view of the principles laid down by the Supreme Court in the aforesaid cases I am unable to accept the argument put forth by the learned counsel for the petitioner that even if it is held that the appointment of the petitioner was made in violation of the provisions of the First Removal of Difficulties Order, 1981, the Court should take a sympathetic view and allow the petition since he had received salary on the basis of the interim order which he has enjoyed for all these 11 years. Learned counsel for the petitioner then vehemently urged that respondent No. 3, who had been recommended for appointment by the District Inspector of Schools had not been selected in accordance with the procedure laid down in the said First Removal of Difficulties Order, 1981 and for this he relied upon the averments made in the amendment application filed after a lapse of 15 years from the date of the filing of the petition. Before examining this aspect, it must be pointed out that the Committee of Management had never questioned the recommendation of the District Inspector of Schools. The present petition has been filed by a candidate who was given appointment by the Committee of Management. It has, therefore, to be examined whether it is at all open to the petitioner to challenge the procedure adopted by the District Inspector of Schools in recommending the name of respondent No. 3 for appointment. In my opinion, the petitioner cannot be permitted to challenge the recommendation of the District Inspector of Schools for appointment of respondent No. 3. The Committee of Management alone could have done so but it did not do so.
17. This apart, even if the Committee of Management thought that the name of respondent No. 3 had been recommended by taking recourse to a procedure contrary to the provisions of the First Removal of Difficulties Order, 1981, then too it could have either challenged the said recommendation before this Court or it could have pointed out the alleged defects to the District Inspector of Schools, who upon being satisfied, could have initiated fresh steps. What is disturbing is that the Committee of Management in the present case completely ignored the recommendation of the District Inspector of Schools for issuance of an appointment letter in favour of respondent No. 3 and proceeded on its own, as if it had the power to do so, under the First Removal of Difficulties Order, 1981. I am clearly of the view that the Committee of Management did not have the authority to make selection and appoint the petitioner. Further a person who himself was not appointed in accordance with law cannot challenge the appointment of a person on the ground that his name was recommended without following the procedure prescribed. Thus also it is not open to the petitioner to challenge the communication dated 8.6.1987 sent by the District Inspector of Schools. Now coming to the averments made in the amendment application it is to be seen that the amendment application was moved after a long period of 15 years from the date of the filing of the petition. As stated above, in the entire petition there was no reference to the communications dated 8.6.1987 and 3.8.1987 sent by the District Inspector of Schools and the petition was filed on the footing that even though the petitioner had been appointed in accordance with the First Removal of Difficulties Order, 1981 the District Inspector of Schools was insisting that respondent No. 3 should be appointed even though his candidature had been rejected by the Committee of Management when he appeared along with the petitioner before the Selection Committee constituted by the Committee of Management. The petitioner should have been aware of the recommendation made for issuance of appointment letter in favour of respondent No. 3 since these facts were mentioned in the communication dated 20.4.1988 sent by the District Inspector of Schools refusing to grant approval to the petitioner's appointment but the petitioner did not challenge these orders. It is after a lapse of 15 years that the petitioner has questioned the procedure adopted by the District Inspector of Schools for selecting respondent No. 3 for appointment on ad hoc basis under the First Removal of Difficulties Order, 1981. I have great doubts as to whether such an amendment application can be allowed after a period of 15 years but it not necessary for me to dwell further on this question since I have already held that it is not open for the petitioner to challenge the recommendation of the District Inspector of Schools for issuance of appointment letter in favour of respondent No. 3. In the end, it was also submitted by the learned counsel for the petitioner that in view of the provisions of Section 33-E of the Act whereby the Removal of Difficulties Order, 1981 has been rescinded there is no power left for making ad hoc appointments and, therefore, at this stage a direction cannot be issued for issuance of appointment letter in favour of respondent No. 3 under the provisions of the First Removal of Difficulties Order, 1981. This contention cannot also be accepted for the simple reason that on 8.6.1987 when the District Inspector of Schools made his recommendation for issuance of the appointment letter in favour of respondent No. 3, the First Removal of Difficulties Order, 1981 existed. The District Inspector of Schools had been repeatedly insisting upon the Committee of Management to appoint the respondent No. 3 and in fact had even disapproved the appointment of the petitioner. It is only because of the interim order passed by this Court that the District Inspector of Schools could not enforce his directions. It cannot, therefore, be contended that since the First Removal of Difficulties Order, 1981 has been rescinded a direction cannot be issued for the appointment of respondent No. 3.
The writ petition, therefore, fails and is dismissed. The interim order dated 27.1.1992 stands vacated.