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Learned Senior Counsel would submit that appointment of the petitioners have been made in terms of Section 16-E(11) of the Intermediate Act, therefore, petitioners are entitled to salary.

Learned standing counsel would submit that there is no provision for adhoc appointment, therefore, appointment of the petitioners cannot be held to be valid under the Intermediate Act.

The writ petition, on consent, is being decided at the admission stage without calling for counter affidavit as per Rules of the Court.

The facts, inter se, parties is not in dispute. The question for determination, in the given facts, is as to whether the Management has a right to make adhoc appoint of a teacher other than Headmaster or Principal, in terms of sub-section (11) of Section 16-E of Intermediate Act; and whether the appointed teacher is entitled to salary under Act 1971.

Under the Intermediate Act, as it was enacted, the power to make appointments of teachers of institutions was vested in the Committee of Management under sub-section (1) of Section 16-E. Sub-section (2) and the succeeding provisions of Section 16-E regulated the procedure for making of appointments by stipulating the intimation of vacancies to the Inspector, advertising of vacancies, the convening of a Selection Committee, the award of quality points by the Inspector and the preparation of the select list by the Selection Committee in order of preference. Sub-section (11) of Section 16-E specifically deals with appointments in the case of a temporary vacancy caused by the grant of leave to an incumbent not exceeding six months or in the case of death, termination or otherwise, of an incumbent occurring during an educational session. Under sub-section (11), it is stipulated that temporary vacancies of that nature would be filled up by direct recruitment or promotion without reference to the Selection Committee in such manner and subject to such conditions as may be prescribed. Under the proviso to sub-section (11), it has been stipulated that no appointment which is made under this sub-section shall, in any case, continue beyond the end of the educational session during which the appointment was made. In other words, the end of the educational session is marked under sub-section (11) as the terminal date upon which an appointment which is made either by direct recruitment or by promotion against a temporary vacancy of the nature prescribed in sub-section (11) will cease to exist.

The object of enacting the Uttar Pradesh Secondary Education Services Selection Board Act, 19824 was to deal with a situation where it was felt by the legislature that the selection of teachers under the provisions of the Intermediate Act, and its regulations had not been free and fair. The field of selection was restricted, which, in the view of the legislature, had adversely affected the availability of suitable teachers and the standards of education. Hence the Secondary Education Services Selection Board came to be constituted. Under the provisions of Section 16, it came to be stipulated that notwithstanding anything contained in the Intermediate Act, or the regulations made thereunder, every appointment of a teacher shall be made only on the recommendation of the Board by the management. The position that an appointment made otherwise than on the recommendation of the Board cannot be permissible is elucidated in sub-section (2) which provides that an appointment made in contravention of the provisions of sub-section (1) shall be void.

Learned standing counsel, however, would not dispute that Management shall have right and authority to make appointment of teachers for eleven months in terms of Section 16-E(11) against substantive vacancies in an academic session or for the period of absence of a teacher against short term vacancy, which, in any event shall not exceed eleven months in an academic session. For such an appointment, teacher would be entitled to salary under the Act 1971.

The Act of 1982 prohibits the Management from making appointment on substantive vacancy. 'Vacancy' and 'substantive appointment' has been defined under the various Rules10/11 framed thereunder. Section 16 begins with a non obstante clause, thereby, making all appointments in contravention of Act of 1982 void. Substantive appointment defined under the Rules framed under Act of 1982 does not include adhoc appointment. Section 32 provides that the provisions of Intermediate Act and Regulations framed thereunder, insofar as they are not inconsistent with the provisions of Act of 1982 or Rules or Regulations framed thereunder shall continue to be inforce for the purpose of selection, appointment, promotion etc. of a teacher. On a plain reading of the provisions, it is clearly inferable that the Management continues to have power and authority to make appointment, temporary/adhoc under sub-section (11) of Section 16-E of Intermediate Act for a period not exceeding eleven months. The salary of such teachers insofar it pertains to the institutions under the grant-in-aid would necessarily have to be borne by the State under the Act 1971.