1

A.F.R.

Court No.39

Case :- SPECIAL APPEAL No. - 1958 of 2011

Appellant :- Hari Shankar Ojha And Another

Respondent :- District Inspector Of Schools, And Others

Counsel for Appellant :- B.P. Singh,Gaurav Kumar Chand,Neeraj

Singh,R.K.Ojha

Counsel for Respondent :- C.S.C.,A.P. Tiwari,Ashok Kumar

Singh,Chandan Sharma,V.K. Singh

Hon'ble Dilip Gupta, J.

Hon'ble Mahesh Chandra Tripathi, J.

This Special Appeal has been filed under Chapter VIII Rule 5 of

the Allahabad High Court Rules, 1952 to assail the judgment dated 12

March 2008 of a learned Judge of this Court by which Writ Petition

No.11698 of 1990 that had been filed by the appellants for a direction

upon the District Inspector of Schools to make payment of salary due to

them since November 1988 as they had been validly appointed as ad hoc

teachers in the C.T. Grade in the National Inter College, Barhalganj,

District Gorakhpur

1

, was dismissed. The appellants have also sought the

quashing of the order dated 5 December 2008 by which the review

application filed by them was rejected by the learned Judge on the ground

that it had been filed by a counsel who had not argued the matter.

The facts as they emerge from a perusal of the records would

indicate that the writ petitioners claimed that two short-term vacancies

had arisen in the C.T. Grade in the College on 13 November 1988 and the

Committee of Management of the College on the same date resolved to

1the College

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grant ad hoc appointments to the two writ petitioners in the C.T. Grade

under the provisions of the Uttar Pradesh Secondary Education Services

Commission (Removal of Difficulties) (Second) Order, 1981

2

. The papers

were forwarded to the District Inspector of Schools for granting financial

approval to the aforesaid two ad hoc appointments but as no orders were

passed, a writ petition bearing No.11698 of 1990 was filed in which an

interim order was granted in 1995 and it is stated that on the basis of the

interim order passed by the Court, the two writ petitioners continued to

work and received their salary till the dismissal of the writ petition in

March 2008.

The learned Judge dismissed the writ petition for the reason that

the procedure contemplated in paragraph 2 of the Second Order had not

been followed and that the order dated 18 January 1989 passed by the

District Inspector of Schools refusing to grant financial approval to the

payment of salary to the two writ petitioners had not been assailed in the

writ petition.

Sri R.K. Ojha, learned Senior Counsel for the appellants has

submitted that the Committee of Management of the College at the

relevant point of time could make ad hoc appointments and as two short-

term vacancies had arisen and both the writ petitioners were not only

qualified and eligible but had also been appointed in accordance with the

procedure prescribed in the Second Order, the District Inspector of

Schools should have granted financial approval for payment of salary to

them. It is his submission that the learned Judge failed to appreciate this

2the Second Order

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fact. Alternatively, learned Senior Counsel submitted that even if there

were some minor procedural irregularities in the making of these ad hoc

appointments of the two writ petitioners, the same should be overlooked

as they had continued to work for such a long period of time. In support

of this contention, learned Senior Counsel for the appellants has placed

reliance upon a decision of the Supreme Court in Roshni Devi & Ors.

Vs. State of Haryana & Ors.

3

and also the decisions of the Division

Benches of this Court in Ashika Prasad Shukla Vs. District Inspector

of Schools, Allahabad

4

and Rajindra Prasad Srivastava Vs. District

Inspector of Schools, Gorakhpur

5

.

Learned Standing Counsel appearing for the respondents has,

however, submitted that the ad hoc appointments of the two writ

petitioners were void ab-initio for the reason that the procedure as

contemplated in the Second Order had not been followed. It is also his

submission that mere working on the basis of an interim order would not

confer any right on the writ petitioners to claim salary.

Sri Chandan Sharma, learned learned counsel appearing for the

respondent-Committee of Management has also submitted that the writ

petitioners are not entitled to any relief as the procedure contemplated in

the Second Order had not been followed in making the ad hoc

appointments.

We have considered the submissions advanced by the learned

counsel for the parties.

3(1998) 8 SCC 59

4(1998) 3 UPLBEC 1722

51994 (3) ESC 117

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What has been contended by learned Senior Counsel for the

appellant and what has also been observed by the learned Judge is that

two short-term vacancies had arisen in the C.T. Grade in the College on

13 November 1988.

Section 18 of the U.P. Secondary Education Services Commission

and Selection Board Act, 1982

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at the relevant time dealt with ad hoc

appointments of teachers in the Institutions till the availability of a

selected candidate by the Commission.

Section 18 of the Act, as it stood prior to its substitution by UP Act

No. 24 of 1992, is reproduced below:

“18.- (1) Where the management has notified a

vacancy to the Commission in accordance with the

provisions of this Act, and

(a)the Commission has failed to recommend

the name of any suitable candidate for being

appointed as a teacher specified in the Schedule

within one year from the date of such

notification; or

(b)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 from amongst the persons

possessing qualifications prescribed under the

Intermediate Education Act, 1921 or the

regulations made thereunder.

(2) The provisions of sub-section (1) shall also apply

to the appointment of a teacher (other than a teacher

specified in the Schedule) on ad hoc basis with the

substitution of the expression 'Board' for the

expression “Commission”.

(3) Every appointment of an ad hoc teacher under sub-

section (1) or sub-section (2) shall cease to have effect

from the earliest of the following dates, namely-

6-the Act

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(a)when the candidate recommended by the

Commission or the Board, as the case may be,

joins the post;

(b)when the period of one month referred to

in sub-section (4) of section 11 expires;

(c)thirtieth day of June following the date of

such ad hoc appointment.”

Since the Commission had not been established when the Act was

enforced, the Uttar Pradesh Secondary Education Services Commission

(Removal of Difficulties) Order, 1981

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was issued by the State

Government under Section 33 of the Act on 31 July 1981. It provided that

the Management of an Institution could appoint by promotion or by direct

recruitment a teacher purely on ad hoc basis in accordance with the

provisions of the First Order in the case of a substantive vacancy caused

by death, retirement, promotion or otherwise. Soon thereafter, the Second

Order was issued on 11 September 1981. It provided for ad hoc

appointment against a short-term vacancy on the post of a teacher caused

by grant of leave or on account of suspension duly approved by the

District Inspector of Schools or otherwise.

Thus, the provisions of Section 18 of the Act, the First Order and

the Second Order independently empowered the Management of the

Institution to make ad hoc appointments of teachers in the Institution.

Section 18 of the Act, at the relevant time, did not provide the method

and manner of such appointments, while the First Order and the Second

Order provided a procedure for such ad hoc appointments of teachers.

A Full Bench of this Court in Radha Raizada & Ors. Vs.

Committee of Management, Vidyawati Darbari Girls Inter College &

7the First Order

6

Ors.

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held that ad hoc appointments of teachers either under Section 18

of the Act or under the provisions of the First Order or the Second Order

have to be made in the manner provided therein. The Full Bench also

pointed out that the First Order dealt with ad hoc appointment either by

promotion or direct recruitment only against a substantive vacancy which

had been notified to the Commission and the Second Order dealt with

short-term vacancies which could arise on account of a teacher going on

leave or on account of suspension pending disciplinary proceedings. The

Full Bench also observed that by merely notifying the short-term vacancy

on the notice board did not give equal opportunity to all eligible

candidates and would, therefore, not satisfy the requirements of Article

16 of the Constitution. The Full Bench, therefore, held that the procedure

for notifying a short-term vacancy under the Second Order should be the

same as provided for under the First Order, namely that the Management

after intimating the vacancy to the District Inspector of Schools should

also advertise such short-term vacancy in at least two newspapers having

wide circulation in the State.

A short-term vacancy can, therefore, be filled up only in

accordance with the procedure contemplated under the provisions of the

Second Order and paragraph 2 of the Second Order, which deals with the

procedure, is reproduced below :-

"2. Procedure for filling up short-term vacancies.--

(1)A short term vacancy in the post of a teacher,

caused by grant of leave to him or on account of

his suspension duly approved by the District

Inspector of Schools or otherwise, shall be filled

81994 (3) UPLBEC 1551

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by the Management of the institution, by

promotion of the permanent senior most teacher

of the institution, in the next lower grade. The

management shall immediately inform the

District Inspector of Schools of such promotion

alongwith the particulars of the teacher so

promoted.

(2) Where any vacancy, referred to in clause (1)

cannot be filled by promotion, due to non-

availability of a teacher in the next lower grade

in the institution, possessing the prescribed

minimum qualifications, it shall be filled by

direct recruitment in the manner laid down in

clause (3).

(3) (i) The Management shall intimate the vacancies to

the District Inspector of Schools and shall also

immediately notify the same on the notice board of the

institution, requiring the candidates to apply to the

Manager of the institution alongwith the particulars

given in Appendix 'B' to this Order. The selection

shall be made on the basis of quality point marks

specified in the Appendix to the Uttar Pradesh

Secondary Education Services Commission (Removal

of Difficulties) Order, 1981, issued with Notification

No. Ma-4993/ XV-7-1(79)-1981, dated July 31, 1982,

hereinafter to be referred to as the First Removal of

Difficulties Order, 1981. The compilation of quality

point marks shall be done under the personal

supervision of the Head of institution.

(ii) The names and particulars of the candidate

selected and also other candidates and the quality

point marks allotted to them shall be forwarded by the

Manager to the District Inspector of Schools for his

prior approval.

(iii) The District Inspector of Schools shall

communicate his decision within seven days of the

date of receipt of particulars by him failing which the

Inspector will be deemed to have given his approval.

(iv) On receipt of the approval of the District Inspector

of Schools or, as the case may be, on his failure to

communicate his decision within seven days of the

receipt of papers by him from the Manager, the

Management shall appoint the selected candidate and

an order of appointment shall be issued under the

signature of the Manager.

Explanation.--For the purpose of this paragraph--

(i) the expression 'senior-most teacher' means the

teacher having longest continuous service in the

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institution in the Lecturer's grade or the Trained

Graduate (L.T.) grade, or Trained under-graduate

(C.T.) grade or J.T.C. or B.T.C. Grade, as the case

may be;

(ii) in relation to institution imparting instructions to

women, the expression 'District Inspector of Schools'

shall mean the 'Regional Inspectress of Girls Schools';

(iii) 'short term vacancy' means a vacancy which is not

substantive and is of a limited duration."

It needs to be noticed that according to the writ petitioners, a notice

had been put up on the notice board of the College on 13 November 1988

for filling up the two short-term vacancies on the post of C.T. Grade

Teachers in the College that arisen on 13 November 1988 and the

Selection Committee also met on 13 November 1988 to make its

recommendation. It has also been asserted by the writ petitioners that the

procedure as contemplated in paragraph 2 of the Second Order was

followed.

What is important is that the Second Order requires that

information of the vacancies should be given to the District Inspector of

Schools. There is nothing on the record which may substantiate that any

information was given by the Committee of Management of the College

to the District Inspector of Schools. What is also important to notice is

that the notice was put up on the notice board of the College on 13

November 1988 and on the same date the Committee of Management of

the College resolved to fill up these two vacancies by granting

appointments to the writ petitioner on ad hoc basis. The purpose of

putting up a notice on the notice board is not an empty formality. Due

notice has to be given so that all eligible candidates can respond to the

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notice. Even if it is assumed that the notice was put up on the notice

board of the College on 13 November 1988 in the morning, then too we

fail to appreciate as to how the Committee of Management of the College

can consider granting ad hoc appointments on the same date. The

procedure, which has been followed, clearly contravenes the well

established principles laid down in Articles 14 and 16 of the Constitution

which guarantee equal opportunity to all persons. Thus, we are more than

satisfied that the most important requirement of sub-paragraph (3) of

paragraph 2 of the Second Order that vacancies should be intimated to the

District Inspector of Schools and that due notice should be put up on the

notice board, has not been complied with. This is an important and

integral part of the procedure contemplated in the Second Order and any

violation thereof would clearly render an ad hoc appointment made under

the Second order void ab initio.

We are conscious of the fact that a Full Bench of this Court in

Radha Raizada (supra) in regard to the Second Order held that putting

up a notice on the notice board does not satisfy the requirements of

Articles 14 and 16 of the Constitution and the procedure of causing an

advertisement in at least two newspapers having wide circulation in the

area as contemplated in the First Order should be followed but we are

also conscious of the fact that the two ad hoc appointments in the present

case were made in 1988 much before the decision was rendered by the

Full Bench in Radha Raizada (supra). It is for this reason that we have

examined the issue raised by learned Senior Counsel for the appellants

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taking into considerations the provisions of the Second Order as they

stood.

What is also important to note is that sub-paragraph (3) of

paragraph 2 of the Second Order also requires the compilation of quality

point marks under the supervision of the Head of the College and the

forwarding of these quality point marks allotted to the candidates by the

Manager of the College to the District Inspector of Schools for his prior

approval. The writ petition is silent about this aspect.

The Full Bench of this Court in Radha Raizada (supra), though in

respect of an ad-hoc appointment made under the First Order, held that

any ad-hoc appointment made without following the procedure laid down

in the First Order would be void and would not confer any right on such

appointees.

The Supreme Court also had an occasion to examine the validity of

ad-hoc appointments which were not made in accordance with the

procedure provided for under paragraph 5 of the First Order in the case of

Prabhat Kumar Sharma and others Vs. State of U.P. and others

9

.

The Supreme Court held that any ad-hoc appointment not made in

accordance with paragraph 5 of the First Order would be illegal and void

and would not confer any right on the appointee.

In Shesh Mani Shukla vs. The District Inspector of Schools,

Deoria

10

, the Supreme Court reiterated what was earlier observed in

Prabhat Kumar Sharma (supra).

9- (1996) 10 SCC 62

10- JT 2009 (10) SC 309

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It has, however, also been submitted by learned Senior Counsel for

the appellants that even if there were some minor irregularities in making

the ad hoc appointments, the same should not deprive the writ petitioners

in claiming salary as they had continued to work for a substantial period

of time from 1995 upto 2008, when the writ petition filed by them was

dismissed by the learned Judge.

A similar submission was made before the High Court in the writ

petition filed by Shesh Mani Shukla but it was not accepted. The decision

is reported in (2004) 3 UPLBEC 2560

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. While rejecting the aforesaid

contention, the Court held as follows :-

“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

11-Shesh Mani Shukla vs.  The District Inspector of Schools, Deoria

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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."

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

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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 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.”

The Special Appeal filed against the aforesaid decision was

dismissed by a Division Bench of the High Court.

These two judgments were challenged before the Supreme Court.

The Supreme Court did not accept the contention raised by the appellants

and the decision is reported in JT 2009 (10) SC 309

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. The observations

are as follows :-

“Both the learned Single Judge as also the Division

Bench have found that the institution has not complied

with the provisions of the 1981 Act as amended as

also para 5 of the 1981 order. If the appointment of the

appellant was not valid, the question of granting any

approval thereto did not arise. Action, on the part of

the Committee of the Management to hold selection,

being not consistent with para 5 of the Order has

rightly been held to be wholly unsustainable. It is true

that the appellant has worked for a long time. His

appointment, however, being in contravention of the

statutory provision was illegal, and, thus, void ab-

initio. If his appointment has not been granted

approval by the statutory authority, no exception can

be taken only because the appellant had worked for a

long time. The same by itself, in our opinion, cannot

form the basis for obtaining a writ of or in the nature

of mandamus; as it is well known that for the said

12-Shesh Mani Shukla vs.  The District Inspector of Schools, Deoria

14

purpose, the writ petitioner must establish a legal right

in himself and a correspondent legal duty in the State.

{See Food Corporation of India & ors. V. Ashish

Kumar Ganguly & ors. [2009 (8) Scale 218]}.

Sympathy or sentiments alone, it is well settled,

cannot form the basis for issuing a writ of or in the

nature of mandamus. { See State of M.P. & Ors. v.

Sanjay Kumar Pathak & Ors. [JT 2007 (12) SC

219: (2008) 1 SCC 456]}”

Learned counsel for the appellant has, however, relied upon the

decision of a Division Bench in Rajidra Prasad Srivastava (supra) in

which it has been held that since the appellant therein had worked for

about twenty years in view of the interim order passed by the Court, it

would be unfair to remove him on the ground that his initial appointment

is illegal.

This decision, is clearly contrary to the position of law explained

by the Supreme Court in Kishorilal Charmakar (supra) and Hitendra

Kumar Bhatt (supra) as also a decision of the Supreme Court in Shesh

Mani Shukla (supra) case.

The decision of the Supreme Court in Roshni Devi & Ors.,

(supra) which had been relied upon by learned counsel for the appellant

would also not help the appellant. In a subsequent decision of the

Supreme Court in State of Karnataka & Ors., Vs. Uma Devi (3) &

Ors.,

13

the Supreme Court clearly held that no benefit can accrue to a

person whose initial appointment was bad in law merely because that

person had continued to work for some period.

13(2006) 4 SCC 1

15

In this view of the matter, we see no justification to grant any relief

to the two writ petitioners only because they had continued to teach on

the basis of the interim order passed by the Court. We have found as a

fact that the writ petitioners were granted ad hoc appointments by the

Committee of Management of the College without following the

procedure contemplated under the Second Order. The two writ petitioners

are, therefore, not entitled to any relief. The judgments under Appeal, in

such circumstances, do not call for any interference.

The Special Appeal is, accordingly, dismissed.

Date:31.08.2015

SK

(Dilip Gupta, J.)

(Mahesh Chandra Tripathi, J.)