1

A.F.R.

Court No.39

Case :- SPECIAL APPEAL No. - 949 of 2013

Appellant :- Mahesh Kumar Gupta (since deceased)

Respondent :- State Of U.P. And 3 Others

Counsel for Appellant :- Pradeep Chandra,Pankaj Kumar Shukla,Sunil

Kumar Srivastava

Counsel for Respondent :- C.S.C.,R.K. Srivastava

Hon'ble Dilip Gupta, J.

Hon'ble Vinod Kumar Misra, J.

This Special Appeal arises out of a judgment and order dated 17

May 2013 of a learned Judge of this Court by which Writ-A No.10297 of

1994 that had been filed for quashing the orders dated 27 August 1993

and 15 February 1994 passed by the District Inspector of Schools, Jalaun

denying payment of salary to the writ petitioner for the reason that he had

not been appointed in accordance with the procedure prescribed under the

provisions of Section 18 of the Uttar Pradesh Secondary Education

Services Selection Board Act, 1982

1

, was dismissed.

In order to appreciate the controversy involved in this Special

Appeal, it would be appropriate to refer to some necessary facts. The writ

petitioner asserted that by an order dated dated 30 November 1992, the

Deputy Director of Education had created a new post of L.T. Grade

Teacher in Science/Mathematics in Beni Madho Tiwari Inter College,

Jalaun

2

which is a College recognised under the provisions of the U.P.

Intermediate Education Act, 1921

3

. Subsequently, by an order dated 20

1the 1982 Act

2the College

3the 1921 Act

Neutral(;itation(NoT(R(J7yW8“H;8ywFwbDR”'

2

February 1993, the Deputy Director of Education converted the said post

of L.T. Grade Teacher in Science/Mathematics to a post of L.T. Grade

Teacher in Biology. The writ petitioner further asserted that by a

communication dated 16 March 1993, the Committee of Management of

the College submitted a requisition for filling up the aforesaid post of

L.T. Grade Teacher in Biology to the District Inspector of Schools but as

neither a regular appointment nor an ad hoc appointment was made, the

Committee of Management on its own published a notice on the notice

board of the College inviting applications for making a temporary

appointment. The name of the petitioner was ultimately recommended by

the Selection Committee and the Committee of Management of the

College in its meeting held on 22 June 1993 granted ad hoc appointment

to the writ petitioner till a regularly selected candidate sent by the

Commission joined the post. On the basis of the aforesaid resolution of

the Committee of Management of the College, an order dated 23 June

1993 was issued in favour of the writ petitioner granting ad hoc

appointment and thereafter papers were forwarded to the District

Inspector of Schools by a letter dated 5 July 1993 for granting approval to

the payment of salary to the writ petitioner. The District Inspector of

Schools, however, by a letter dated 27 August 1993 returned the papers

with an observation that the appointment could only have been made

under the amended provisions of Section 18 of the 1982 Act which had

come into effect from 14 July 1992. On receiving the said communication

from the District Inspector of Schools, the Management again sent a

3

communication dated 31 January 1994 to the District Inspector of

Schools pointing out that since no appointment had been made by the

Commission nor by the District Inspector of Schools, the Committee of

Management in the interest of the College as also the students made the

ad hoc appointment of the writ petitioner. The District Inspector of

Schools did not accept the plea of the Management and by order dated 15

February 1994 denied payment of salary for the reason that the writ

petitioner had not been appointed in accordance with the procedure

prescribed under the amended portion of Section 18 of the 1982 Act.

Initially, an interim order dated 13 January 1997 was passed by the

Court in the writ petition that the petitioner shall not be disturbed from

the post on which he was working provided a duly selected candidate by

the Commission had not already joined. The writ petition was finally

dismissed on 17 May 2013. The learned judge, after placing reliance on

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

Committee of Management, Vidyawati Darbari Girls Inter College &

Ors.

4

, held that since the appointment of the writ petitioner had not been

made in accordance with the provisions of paragraph 5 of the Uttar

Pradesh Secondary Education Services Commission (Removal of

Difficulties) Order, 1981

5

, the order passed by the District Inspector of

Schools denying payment of salary was justified.

This Special Appeal has been filed to assail the aforesaid judgment

dated 17 May 2013. It needs to be noticed that during the pendency of

this Special Appeal the sole writ petitioner and the sole appellant in this

4(1994) 3 UPLBEC 1551

5the First Order

4

Appeal, expired on 4 July 2014. However, his widow and the two

children have been substituted in his place.

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

has pointed out that the District Inspector of Schools was aware that a

substantive vacancy on the post of L.T. Grade Teacher in Biology existed

in the College as intimation for filling up the aforesaid vacancy had been

sent to the Commission through the District Inspector of Schools and the

said communication was received in the office of the District Inspector of

Schools on 16 March 1993. It is, therefore, his submission that once this

information had been received, it was obligatory on the part of the

District Inspector of Schools to have made an ad hoc appointment under

Section 18 of the 1982 Act to fill up that vacancy and that having not

been done, the Committee of Management was justified in making the ad

hoc appointment on its own as it had to ensure that the interest of the

students did not suffer because of inaction on the part of the District

Inspector of Schools. In support of this contention, learned Senior

Counsel has placed reliance upon a Division Bench judgment of this

Court in Daya Shankar Mishra Vs. District Inspector of Schools &

Ors.

6

. It is also the contention of learned Senior Counsel for the

appellants that since the writ petitioner had continued to work for a

substantial period of time on the basis of an interim order, a sympathetic

view should be taken in the matter, particularly when the writ petitioner is

dead and his widow would merely get some benefits towards the payment

of arrears of salary and funds.

62010 (10) ADJ 829

5

Learned Standing Counsel appearing for the respondents has,

however, submitted that any appointment made dehors the provisions of

Section 18 of the 1982 Act as it stood at the time the ad hoc appointment

was made, is void ab-initio and does not confer any right on the

appointee. It is his submission that Section 18 of the 1982 Act at the

relevant point of time provided a complete procedure for making ad hoc

appointment in case a substantive vacancy remained vacant for more than

two months but in the instant case, the Committee of Management on its

own had made an ad hoc appointment which appointment is illegal. In

support of his contention that appointment made dehors the provisions of

Section 18 of the 1982 Act is void ab-initio, learned Standing Counsel

has placed reliance upon the decisions of the Supreme Court in Prabhat

Kumar Sharma Vs. State of U.P. & Ors.

7

and Shesh Mani Shukla Vs.

District Inspector of Schools, Deoria

8

as also the decision of the Full

Bench of this Court in Radha Raizada (supra). Learned Standing

Counsel has also submitted that merely because the writ petitioner had

continued to work on the basis of an interim order passed by the Court,

no benefits would accrue if ultimately it is found that the initial ad hoc

appointment was found to be void.

We have considered the submissions advanced by the learned

counsel for the parties.

It is stated that a post of Lecturer in Science/Mathematics was

sanctioned for the College by an order dated 30 November 1992 but

subsequently this order was modified and the said post was converted to a

7(1996) 10 SCC 62

8(2009) 15 SCC 436

6

post of L.T. Grade Teacher in Biology by order dated 20 February 1993.

Even if it is accepted that the Committee of Management of the College

had duly notified the vacancy to the Commission through the District

Inspector of Schools on 16 March 1993 (on which date it is stated that the

papers were received in the office of the District Inspector of Schools,),

then too the vacancy was required to be filled up on ad hoc basis only in

terms of Section 18 of the 1982 Act as amended with effect from 14 July

1992. The amended provisions of Section 18 of the 1982 Act are

reproduced below:-

“18. Ad hoc Teachers.-(1) Where the management

has notified a vacancy to the Commission in

accordance with the provisions of this Act, and the

post of such teacher has actually remained vacant for

more than two months, the management may appoint

by direct recruitment or promotion a teacher, on

purely ad hoc basis, in the manner hereinafter

provided in this section.

(2)A teacher, other than a Principal or Headmaster,

who is to be appointed by direct recruitment, may be

appointed on the recommendation of the Selection

Committee referred to in sub-section (9).

(3)A teacher, other than a Principal or Headmaster,

who is to be appointed by promotion, may in the

manner prescribed be appointed by promoting the

seniormost teacher possessing prescribed

qualifications-

(a)in the trained graduate's grade, as a

lecturer, in the case of a vacancy in lecturer's

grade ;

(b)in the Certificate of Teaching grade, as a

teacher in the trained graduate's grade, in the

case of vacancy in trained graduate's grade.

(4)A vacancy in the post of a Principal may be

filled by promoting the seniormost teacher in the

lecturer's grade.

(5)A vacancy in the post of a Headmaster may be

filled by promoting the seniormost teacher in the

trained graduate's grade.

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(6)For the purpose of making appointments under

sub-sections (2) and (3), the management shall

determine the number of vacancies, as also the number

of vacancies to be reserved for the candidates

belonging to the Scheduled Castes, Scheduled Tribes

and other categories of persons in accordance with the

rules or orders issued by the State Governance in this

behalf. If in determining the vacancies it is found that

persons belonging to such categories are not holding

such number of posts as should have been held by

them in accordance with such rules or orders, then the

vacancies shall be so determined that first and every

alternate vacancy shall be reserved for the persons of

such categories until the required percentage of posts

is held by them.

(7)After determining the number of vacancies as

provided in sub-section (6) the management shall

within fifteen days from the date of the

commencement of the Uttar Pradesh Secondary

Education Service Commission and Selection Board

(Second Amendment) Act, 1992 intimate the

vacancies to be filled by direct recruitment to the

District Inspector of Schools. If the management fails

to intimate such vacancies within the said period of

fifteen days, the District Inspector of Schools may,

after verification from such institutions or from his

own records, determine such vacancies himself.

(8)The District Inspector of Schools shall, on

receipt of intimation of vacancies or as the case may

be, after determining the vacancies under sub-section

(7), invite applications, from the persons possessing

qualifications prescribed under the Intermediate

Education Act, 1921 or the regulations made

thereunder, for ad hoc appointment to the post of

teachers, other than Principal or Headmasters in such

manner as may be prescribed.

(9)(a) For each district, there shall be a Selection

Committee for selection of candidates for ad hoc

appointment by direct recruitment comprising-

(i)District Inspector of Schools, who shall

be the Chairman;

(ii)Basic Shiksha Adhikari;

(iii)District Inspectress of Girls Schools, and

where there is no such Inspectress, the Principal

of the Government Girls Intermediate College

and where there are more than one such

colleges, the seniormost Principal of such

College and where there is no such College, the

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Principal of the Government Girls Intermediate

College as nominated by the State Government.

(b)The Selection Committee constituted under

clause (a) shall make selection of the candidates,

prepare a list of the selected candidates, allocate them

to institutions and recommend their names to the

management for appointment under sub-section (2).

(c)The criteria and procedure for selection of

candidates and the manner of preparation of list of

selected candidates and their allocation to the

institutions shall be such as may be prescribed.

(10)Every appointment of an ad hoc teacher under

sub-section (1) shall cease to have effect from the date

when the candidate recommended by the Commission

or the Board joins the post.

(11)The provisions of sections 21-D shall, mutatis

mutandis, apply to the teachers who are to be

appointed under the provisions of this section.”

It would, therefore, be seen that Section 18 of the 1982 Act

requires that where the Management has notified a vacancy to the

Commission and the post of such teacher has actually remained vacant

for more than two months, the Management may appoint a teacher on

purely ad hoc basis in the manner provided for in this Section. It requires

the Management to determine the number of vacancies in the manner

provided for in sub-section (6) and then intimate the vacancies to be filled

up by direct recruitment to the District Inspector of Schools. On receipt of

the intimation of vacancies, the District Inspector of Schools shall invite

applications from the persons possessing qualifications prescribed under

the 1921 Act or the Regulations made thereunder for ad hoc appointment

to the post of teacher. Sub-section (9) of Section 18 of the 1982 Act

provides for the constitution of the Selection Committee.

9

The ad hoc appointment had to be made in accordance with the

procedure prescribed under the amended Section 18 of the 1982 Act.

What we do find from the records is that the Committee of

Management of the College, on its own, had proceeded to advertise the

vacancy on the notice board of the College and ultimately granted ad hoc

appointment to the writ petitioner on the basis of a decision that had been

taken in the meeting held on 23 June 1993. Papers were, thereafter, sent

by the Committee of Management to the District Inspector of Schools for

granting approval to the payment of salary to the writ petitioner. The

District Inspector of Schools by communications dated 27 August 1993

and 15 February 1994 made it clear to the Committee of Management of

the College that it was not possible to grant any financial approval to the

payment of salary to the writ petitioner for the reason that his

appointment had not been made in accordance with the provisions of

Section 18 of the 1982 Act.

It is not disputed by learned Senior Counsel for the appellants that

the appointment of the writ petitioner had not been made in accordance

with the provisions of Section 18 of the 1982 Act, but what is sought to

be contended is that the Committee of Management was left with no

option but to make an ad hoc appointment in order to protect the interest

of the College and the students as the District Inspector of Schools did

not proceed to make an ad hoc appointment under Section 18 of the 1982

Act.

10

We express our inability to accept this submission of learned

Senior Counsel for the appellants. When a detailed procedure is

prescribed in Section 18 of the 1982 Act for making an ad hoc

appointment under certain contingencies, such an appointment can be

made only in accordance with the procedure prescribed therein. There is

nothing on the record to indicate that the Committee of Management of

the College ever made a request to the District Inspector of Schools for

making ad hoc appointment as the post of L.T. Grade Teacher had

remained vacant for more than two months from the date the papers were

forwarded to the Commission for filling up the said vacancy and, if such

an appointment was not made, the Committee of Management of the

College could approach this Court with a prayer that the District

Inspector of Schools should be directed to act in accordance with the

provisions of Section 18 of the 1982 Act for making an ad hoc

appointment to fill up the vacant post.

It needs to be noticed that prior to the amendments made in Section

18 of the Act, a detailed procedure had not been prescribed for making ad

hoc appointments under Section 18 of the 1982 Act. The State

Government had, in such circumstances, notified the First Order and the

Uttar Pradesh Secondary Education Services Commission (Removal of

Difficulties) Second Order, 1981

9

for making ad hoc appointments

against the substantive vacancies or short-term vacancies as the case

could be, respectively. The issue regarding appointments not made in

accordance with the provisions of the First Order or the Second Order fell

9the Second Order

11

for consideration before a Full Bench of this Court in Radha Raizada

(supra). It was observed that appointments made dehors the aforesaid two

Orders would be void ab-initio and would not confer any right on the

appointees to claim salary. 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 (supra). 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 (supra) the

Supreme Court reiterated what was earlier observed in Prabhat Kumar

Sharma (supra).

The contention of learned Senior Counsel for the appellants,

however, is that in view of the decision of the Division Bench of this

Court in Daya Shankar Mishra (supra), the Committee of Management

was justified in making ad hoc appointment. This decision does not help

the writ petitioner at all. The Division Bench was dealing with a situation

when Section 18 of the 1982 Act had been rescinded. It is, in such

circumstances, that the Division Bench placed reliance upon the

provisions of Section 16-E of the 1921 Act for granting power to the

Committee of Management of the College to make ad hoc appointments

till the end of the Academic Session. This decision was recently

considered by the Full Bench of this Court in Santosh Kumar Singh Vs.

State of U.P. & Ors.

10

. In the present case, the amended provision of

10Special Appeal Defective No.215 of 2015, decided on 22 July 2015

12

Section 18 of the 1982 Act did provide a procedure for making ad hoc

appointment. An ad hoc appointment was, therefore, required to be made

under that provision and what has been pointed out in this connection

with regard to the provisions of the First Order and the Second Order

would also be applicable to cases where an appointment has been made in

contravention of the procedure prescribed under the amended Section 18

of the 1982 Act.

The learned Judge has placed reliance upon the provision of the

First Order. This Order would not be applicable as the amended Section

18 of the 1982 Act itself provided a complete procedure for making ad

hoc appointment. The appointment of the writ petitioner had not been

made in accordance with the provision of Section 18 of the 1982 Act and

the issue has been examined in the light of this provision.

We have, therefore, no hesitation in holding that the appointment

of the writ petitioner having made dehors the provisions of Section 18 of

the 1982 Act was void ab-initio and would not confer any right to claim

salary from the State.

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

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

the ad hoc appointment, the same should not deprive the writ petitioner in

claiming salary as he had continued to work for a substantial period of

time.

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

13

is reported in (2004) 3 UPLBEC 2560

11

. 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

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

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

14

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 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.”

15

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

12

. 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

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]}”

The writ petitioner was for all the reasons stated above not entitled

to any of the reliefs and the writ petition was liable to be dismissed.

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

16

There is, therefore, no merit in this Special Appeal. It is,

accordingly, dismissed.

Date:25.08.2015

SK

(Dilip Gupta, J.)

(Vinod Kumar Misra, J.)