RAVINDRA SINGH versus DISTRICT INSPECTOR OF SCHOOLS AND ORS. on 6 November 2019

1. This appeal is directed against the Judgment and Order dated20.05.2016 in the Special Appeal No. 345 of 2016, of the High Court ofJudicature of Allahabad. Under the impugned order, the Division Benchrejected the Appeal of the Writ Petitioner and upheld the judgment dated12.04.2016 whereby, the learned Single Judge dismissed the Writ - ANo.38790 of 2000, filed by the present appellant.

2. Before the High Court, the appellant challenged the decisiondated 16.02.2000 of the District Inspector of Schools, Kanpur Nagarwhereunder, the appellant’s representation for financial consent andapproval for his service was negated. While rejecting the representation,the authority observed in the speaking order that Government has placeda ban on all types of recruitment by the Management and that theconcerned Bilhaur Inter College, (hereinafter, “the Institution”), wasnot empowered to make any appointment. Moreover, the appellant wasfound to be appointed without any financial implication. The DistrictInspector of Schools passed the impugned speaking order in pursuanceto the High Court’s earlier direction dated 10.07.1998 in the Writ Petition(C) No.21713 of 1998 and hearing was afforded to the appellant and theManager of the Institution.

3. Adverting to the speaking order (16.02.2000) of the Inspectorof Schools, which was challenged in the Writ - A No.38790 of 2000, theLearned Judge noted that the appellant was appointed in a substantivevacancy which has occurred after transfer of one Ramesh ChandraPandey who was serving in the Institution as a LT Grade Teacher. Whileappointing against a substantive vacancy, the Management according tothe High Court, failed to adhere to the procedure contemplated inparagraph 5 of the First Removal of the Difficulties Order, 1981.The Learned Judge in his Judgment dated 12.04.2016 accordingly foundno infirmity in the authority’s decision, to refuse financial approval forappellant’s appointment.

4. The above decision was challenged in the Special Appeal wherethe appellant reiterated his argument that Management is competent toappoint even against a substantive vacancy. The full Bench Judgment inRadha Raizada vs. Committee of Management Vidyawati Darbari A

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AGirls Inter College and Ors.[1], was cited to argue that the ManagingCommittee is not denuded of its power during the ban period, to makead hoc appointment under Section 18 of the U.P. Act No.5 of 1982.

5. However those contentions did not impress the Division Benchand the High Court observed in the impugned order dated 20.05.2016Bthat the procedure prescribed under paragraph 5 of the First Removalof Difficulties Order, was disregarded by the Management, in appointingthe appellant. Accordingly, the appeal was found devoid of merit andsame was dismissed resulting in the present challenge.

6. We have heard Mr Manoj Prasad, the learned Senior AdvocateCrepresenting the appellant. The State of Uttar Pradesh and their officers(Respondent Nos.1, 2 & 4) are represented by Mr. Harish Pandey, thelearned Counsel. We have perused the impugned judgment andconsidered other the materials on record.

7. Assailing the legality of the impugned judgment of the AllahabadDHigh Court, Mr Manoj Prasad, the learned Senior Counsel projects thatthe appellant has served without remuneration since 1997 and, therefore,approval for paying his salary should have been accorded by theauthorities. According to the learned Counsel, the High Courtmisconstrued the ratio in Radha Raizada. The counsel argues that theManagement of the Institution is competent to make short term ad hocEappointment in available vacancies and since the appellant was appointedafter selection and advertisement, his salary should have been approvedby the authorities.

8. Per contra, Mr Harish Pandey, the learned Counsel representingthe authorities of the State of Uttar Pradesh firstly argues that duringFthe Government imposed ban period, the Management of the Institutionhad no authority to make appointment against substantive vacancy. TheGovernment Counsel then refers to the Uttar Pradesh SecondaryEducation Services Commission Procedure (Removal of Difficulties)Order, 1981 notified under Section 18 of the Uttar Pradesh Act No.5Gof 1982 and submits that at first instance, the Management shouldattempt to fill up the substantive vacancy by promotion and should nottake recourse to direct recruitment. Mr Pandey then refers to thedecision/ratio in Prabhat Kumar Sharma and Others vs. State of U.P.and Ors.[2], to point out that the High Court’s Judgment in Radha1 1994 All.L.J. 1077H2 (1996) 10 SCC 62

Raizada(supra) was approved by this Court and it is too late in the dayfor the appellant to argue that he is entitled to financial approval for hisservice, although he was unauthorizedly appointed against a substantivevacancy, by the Managing Committee of the Institution.

9. The UP Secondary Education Services Commission andSelection Boards Act, 1982 hereinafter “the Act, 1982”, was enactedto constitute Selection Committees and Selection Boards to select teachersfor appointment in Government Aided Private Educational Institutions.Since the Commission failed to commence functioning before 01.11.1983,in order to address the difficulties in the interregnum, the Governmenthad issued the First Uttar Pradesh Secondary Education ServiceCommission (Removal of Difficulties) Order dated 1981 followed bythe 2[nd ]Removal of the Difficulties Order, 1981, to fill up short termvacancies. The Section 16 of the Act of 1982, provides for recruitmentof teachers by the Commission on the requisition made by theManagement and then the selected teachers are allotted to the Intuitions/Colleges as per their requirement. When the Commission is unable toallot teachers, Section 18 comes into operation and permits appointmentof ad hoc teachers, as a transient measure.

10.1 Analyzing the above prescription of the 1982 Act and alsothe provisions of the Removal of the Difficulties Order, the AllahabadHigh Court in Radha Raizada(supra) had formulated for itself thefollowing two questions to be answered by the Full Bench:

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QUESTION NO. (c)

What would be the criteria and procedure for ad hoc appointmentof a teacher or Principal either under Removal of Difficulties Orderor under Section 18 of the U.P. Act, No. 5 of 1982?

QUESTION NO. (d)

Whether any approval or prior approval of the District Inspectorof Schools or Regional Inspectors of Girls Schools, as the casemay be, is necessary for making ad hoc appointment of a teacheror Principal either under Removal of Difficulties Order or underSection 18 of the Act?”

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A10.2 The Court then observed the following:

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AD HOC APPOINTMENT BY PROMOTION

35. Paragraph 5 of the First Removal of Difficulties Order providesthat where any vacancy cannot be filled by promotion underParagraph 4 of the order, same may be filled by direct recruitmentin accordance with the procedure laid down in Clauses 2 to 5 ofParagraph 5 of the order.

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36. Second Removal of Difficulties Order provides for ad hocappointment against the short-term vacancy in the posts of teachercaused by grant of leave to him or on account of his suspensionduly approved by the District Inspector of Schools or otherwise.Thus, these provisions show that section 18 and First Removal ofDifficulties Order, both independently empower the Managementof Institutions to make ad hoc appointment of teachers in theinstitutions. But section 18 does not provide the method and mannerof such appointment. Whereas Removal of Difficulties Order whileempowering the Management of the Institutions to appoint teacherson ad hoc basis further lay down the procedure of such ad hocappointment of teachers.

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37. When a substantive vacancy has been notified to theCommission and duly selected teacher is not available forappointment, controversy has arisen as to whether the managementis required to appoint teacher either by direct recruitment or bypromotion. The power of ad hoc appointment either by directrecruitment or by promotion can be exercised only when themanagement has notified the substantive vacancy to theCommission and the Commission has failed to recommend thename of suitable candidate within one year from the date of suchnotification or the posts of teacher has actually remained vacantfor more than two months. Thus one of the two conditions is sinequa non for enabling the management to exercise the power toappoint a teacher on ad hoc basis, either by promotion or by directrecruitment in the institution. If the condition is absent, such apower to appoint on ad hoc basis either by promotion or directrecruitment is not available to the management of the institution.In case the pre-condition is found to be present, the management F

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is first required to fill up the substantive vacancy by promotion onad hoc basis from amongst the senior most teachers of theinstitution. Paragraph 4 of the First Removal of Difficulties Orderprovides that every vacancy in the posts of teacher in lecturergrade shall be filled by promotion of the senior most teachers inthe institution in the trained graduate. Similarly, every vacancy inthe post of teacher in the trained graduate (grade) is to be filledby promotion by the senior most teacher of the institution fromthe trained undergraduate grade C.T. (grade (now we are notconcerned with it since it is reported abolished).

38. Paragraph 5 of the First Removal of Difficulties Order providesthat where any vacancy cannot be filled by promotion underparagraph 4 of the Order, same may be filled by direct recruitment.Thus, it is mandatory on the part of the Management to first fill upthe vacancy by promotion on the basis of seniority alone. Thismethod has to be resorted to as the teachers are available in theinstitution and any other method of recruitment may causedisturbance in teaching of the institution which may affect thecareer of student. Another reason why the vacancy has to befilled by ad hoc appointment by promotion is that it is a short termappointment in the sense that shortly a duly selected teacher wouldbe available for appointment against the said vacancy. So long theposts can be filled under paragraph 4 of the Order by promotion,it is not open to the Management to take resort to the power toappoint ad hoc teacher by direct recruitment under paragraph 5of the First Removal of Difficulties Order.

AD HOC APPOINTMENT OF TEACHERS BY DIRECTRECRUITMENT:

40. It has already been noticed that Section 18 of the PrincipalAct provides for power to appoint a teacher purely on ad hocbasis either by promotion or by direct recruitment against thesubstantive vacancy in the institution when the condition precedentfor exercise of powers exist namely that the Management hasnotified the said vacancy to the Commission in accordance withthe provisions of the Act and the Commission has failed torecommend the name of any suitable candidate for being appointedas teacher within one year from the date of such notification orthe post of such teacher has actually remained vacant for more AB

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than two months. However, since the State Government was aliveto the situation that the establishment of the Commission maytake long time and even after it is established, it may take longtime to make available the required teacher in the institution andas such issued three Removal of Difficulties Orders namelyRemoval of Difficulties Order dated 11-9-1981, Removal ofDifficulties Order dated 30-1-1982 and Removal of DifficultiesOrder dated 14-4-1982. In fact these Removal of DifficultiesOrders were issued to remove the difficulties coming in the wayof a Management in running the institution in absence of teachers.This power to appoint ad hoc teachers by direct recruitment thus,is available only when pre-conditions mentioned in Section 18 ofthe Act are satisfied, secondly the vacancy is substantive vacancyand thirdly, the vacancy could not be filled by promotion.

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Thus, if contingency arises for ad hoc appointment of teacher bydirect recruitment the procedure provided under the First Removalof Difficulties Order has to be followed. Paragraph 5 of the FirstRemoval of Difficulties Order provides that the management shall,as soon as may be, inform the District Inspector of Schools aboutthe details of vacancy and the District Inspector of Schools shallinvite application from the local employment Exchange and alsothrough public advertisement in at least two newspapers havingadequate circulation in Uttar Pradesh.

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41. In view of these provisions the ad hoc appointment of a teacherby direct recruitment can be resorted to only when the conditionprecedent for exercise of such powers as stated in paragraph 18of the Act are present and only in the manner provided for inparagraph 5 of the Removal of Difficulties Order. However, itgoes without saying that if a management without following theprocedure indicated above makes an ad hoc appointment theDistrict Inspector of Schools possess general power under thePayment of Salaries Act to stop payment of salary to suchteachers.

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11. The above analysis would suggest that the Management hasvery limited scope to make appointment to the substantive vacancy intheir Institution. Adverting to the ratio in Radha Raizada, the DivisionBench observed in the present impugned order that the Management ofthe Institution failed to adhere to the procedure under paragraph 5 ofthe First Removal of Difficulties Order, in appointing the appellant,against a substantive vacancy. On this basis, the High Court declined tointerfere with the salary disapproval decision of the District Inspector ofSchools, Kanpur Nagar.

12. Section 18 of the Act of 1982, lays down the process fordirect appointment of ad hoc teachers but before the Management takesany step to fill up vacancy, the conditions laid therein must be peremptorilysatisfied. The Management is required to firstly notify the vacancy tothe Commission and in turn, the Selection Commission is expected torecommend a suitable candidate within one year of such notification.Secondly, the post should have remained vacant for more than 2 months.Only if these two conditions are satisfied, the Management can takeshort term measures. Further stipulations to this process are provided inparagraphs 4 and 5 of the First Removal of Difficulties Order. Ascan be seen, only when the vacancy cannot be filled by promotion underparagraph 4, the paragraph 5 permits ad hoc appointment by directrecruitment. Besides, recourse to direct appointment is visualized only inaccordance under sub-clauses 2 to 5 of paragraph 5. It is also importantto bear in mind that when ad hoc appointments are made underparagraph 2 of the First Removal of Difficulties Order, the durationof such ad hoc appointment automatically expires after six months, underparagraph 3(b) of the Order.

13. Proceeding with the above understanding of the norms thequestion to be decided now is whether the High Court was correct in itsview that the Management of the Institution, did not adhere to theprocedure prescribed under the First Removal of Difficulties Order tomake appointment against a substantive vacancy. The paragraph 2 ofthe Removal of Difficulties Order, was substituted by the 2[nd] Removalof the Difficulties Order, which enabled the Management to makeappointment against substantive vacancy either by promotion or by directrecruitment. In the present matter, it was not the District Inspector ofSchools but the Management, which resolved to appoint the appellant.But as earlier discussed, this is contrary to the prescribed process in AB

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Aparagraph 5(4) of the First Removal of Difficulties Order. The learnedSingle Judge in the High Court specifically noted that there was noadherence to the procedure prescribed under paragraph 5 of the FirstRemoval of Difficulties Order. There was concurrence of views ofthe learned Single Judge and the Division Bench to the effect that theState authorities rightly denied financial approval to the illegal appointmentBof the appellant.

14. When the impugned judgment is analysed in light of theapplicable norms, there is no escape from the conclusion that theappellant’s appointment by the Management, was not in accordancewith paragraph 5 of the Removal of Difficulties Order. We are alsoCof the view that the ratio in Radha Raizada (supra) of the AllahabadHigh Court (approved by the Supreme Court in Prabhat Kumar Sharma(supra)) was correctly applied to the present facts. The State coffershould not according to us, be burdened with salary obligation for anappointment, not made by them. The decision repudiating the salary claimDfor the appellant is also found to be in order since the Managementfailed to adhere to the due process in filling up the substantive vacancy.Moreover, the State had imposed a ban on appointment during the relevantperiod. Therefore, the appellant cannot enforce a claim for salary againstthe State. The Appeal accordingly is found devoid of merit and isdismissed. The parties to bear their respective cost.

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Devika Gujral

Appeal dismissed.

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