Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4966 OF 2009
(Arising out of SLP (C) No.10606 of 2006)
Shesh Mani Shukla … Appellants
Versus
D.I.O.S. Deoria & Ors. … Respondents
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
2. Satya Prakash Vivekanand Inter College, Musahari District Deoria is
an institution recognized by the Board of High School and Intermediate
Education Act, 1921(for short, ‘the 1921 Act’) as also by the U.P. High
School and Intermediate Colleges (Payment of Salaries & Teachers and
Other Employees) Act, 1971 (for short, ‘the 1971 Act’).
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3. One B.G. Mishra was a teacher working in the said school in CT
grade. As he left the institution, a vacancy arose on 15.10.1985. The
Management of the college gave intimation of the said vacancy to District
Inspector of Schools on or about 19.10.1986 requesting the said authority to
forward the name of an eligible teacher for occupying the vacant post.
Pursuant thereto or in furtherance thereof, the name of respondent No.3, Ali
Hussain Ansari, was recommended. However, the Management Committee
did not find him suitable therefor.
4. Management Committee, ignoring the said recommendations made by
the District Inspector of Schools issued advertisement on or about 8.7.2987.
Names were called for from the Employment Exchange. From amongst the
candidates whose names were sent by the Employment Exchange, the
appellant was selected by the Managment Committee on 10.9.1987. The
School Authorities, however, refused to grant approval to his appointment
and by an order dated 10.12.1987 insisted on the Management to accept
joining of respondent No.3. Despite the same, the respondent No.2 was not
given any offer of appointment, inter alia, on the premise that he was not
suitable for holding the post of Assistant Teacher. Indisputably,
recommendation of the name of the appellant for his appointment was
disapproved by the District Inspector of Schools by an order dated
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24.4.1988. Appellant, however, continued to work in the school as an ad
hoc employee.
5. Questioning, inter alia, the legality of the said order dated 24.4.1988,
the appellant filed a writ application before the High Court of Judicature at
Allahabad which was marked as Civil Miscellaneous Writ Petition
No.14530 of 1988. By reason of an order dated 23.4.2004, the writ petition
was dismissed by a learned Single Judge of the said Court, inter alia,
holding:
“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 Remopval 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
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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.”
An intra court appeal preferred thereagainst has been dismissed by
reason of the impugned judgment.
6. Mr. S.R. Singh, learned senior counsel appearing on behalf of the
appellant, would contend that the High Court committed a serious error
insofar as it failed to take into consideration that the Committee of
Management was entitled to make selection and appointment of teachers
whenever ad hoc appointment is to be made due to non-availability of a
candidate selected by the Commission in terms of the provisions of Section
18(2) of the UP Secondary Education Services Commission and Selection
Boards Act, 1982 read with para 5 of the First Removal of Difficulties
Order, 1981.
7. Dr. R.G. Padia, learned counsel appearing on behalf of the
respondent, on the other hand, urged that as the respondent No.3 has been
working and getting his salary, this Court should not exercise its
discretionary jurisdiction under Article 136 of the Constitution of India.
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8. The short question which arises for our consideration in this appeal is
as to whether the Committee of Management can make appointment in the
post of a teacher ignoring the recommendations of the District Inspector of
Schools.
A substantive vacancy arose on or about 15.10.1985. Section 16 of
the Act prescribes for the procedure for appointment of teachers by the
Commission. Section 18 of the Act as it then stood empowered the
Management to make appointment of the ad hoc teachers. It is also not in
dispute that the State of Uttar Pradesh in exercise of its power of Removal of
Difficulties in terms of Section 33 of the Act issued an order in the year
1981, para 5 whereof reads as under :
“ 5. Ad hoc appointment by direct recruitment .—
( i ) Where any vacancy cannot be filled by
promotion under paragraph 4, the same may be
filled by direct recruitment in accordance with
clauses (2) to (5).
( ii ) 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 advertisements
in at least two newspapers.
( iii ) Every application referred to in clause (2)
shall be addressed to the District Inspector of
Schools and shall be accompanied—
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( 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.
( iv ) 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 retired Gazetted government servants under the
personal supervision of such Inspector.
( v ) If more than one teacher of the same subject or
category is to be recruited for more than one
institution, the names of selected teachers and
names of the institution 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 institution. This process shall be
repeated till both the lists are exhausted.”
9. A Full Bench of the High Court in Radha Raizada v. Committee of
Management, Vidyawati Darbari Girls’ College [(1994) 3 UPLBEC 1551
(FB)] held the said provision to be ultra vires.
Correctness of the said decision came up for consideration before this
Court in Prabhat Kumar Sharma & Ors. v. State of U.P. & Ors. [(1996) 10
SCC 62], wherein it was held :
“7. It would thus be clear that any ad hoc
appointment of the teachers under Section 18 shall
be only transient in nature, pending allotment of
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the teachers selected by the Commission and
recommended for appointment. Such ad hoc
appointments should also be made in accordance
with the procedure prescribed in para 5 of the First
1981 Order which was later streamlined in the
amended Section 18 of the Act with which we are
not presently concerned. Any appointment made in
transgression thereof is illegal appointment and is
void and confers no right on the appointees. The
removal of difficulties envisaged under Section 33
was effective not only during the period when the
Commission was not constituted but also even
thereafter as is evident from the second para of the
preamble to the First 1981 Order which reads as
under:
‘And whereas the establishment of the
Commission and the Selection Boards is
likely to take some time and even after the
establishment of the said Commission and
Boards, it is not possible to make selection
of the teachers for the first few months.’”
This Court, however, in that decision itself, held :
“10. These principles are unexceptionable.
However, the question is whether they get attracted
to the facts of this case. It is seen that when
intimation was given by the college to the
Commission for allotment of the teachers, the Act
envisaged that within one year the
recommendation would be made by the
Commission for appointment; but within two
months from the date of the intimation if the
allotment of the selected candidates is not made to
obviate the difficulty of the Management in
imparting education to the students, Section 18
gives power to the Management to make ad hoc
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appointments. Section 16 is mandatory. Any
appointment in violation thereof is void. As seen
prior to the Amendment Act of 1982 the First 1981
Order envisages recruitment as per the procedure
prescribed in para 5 thereof. It is an inbuilt
procedure to avoid manipulation and nepotism in
selection and appointment of the teachers by the
Management to any posts 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. Therefore, the Order is a
permanent one but not transient as contended for.
The Full Bench of the High Court has elaborately
considered the effect of the Order and for cogent
and valid reasons it has held that the Order will
supplement the power to select and appoint ad hoc
teachers as per the procedure prescribed under
Section 18 of the Act. The view taken by the
Division Bench following the Full Bench decision,
therefore, cannot be faulted with. Accordingly, we
find no merit in the special leave petition.”
10. Section 18 of the Act reads as under :
“18. Ad hoc Teachers.— (1) Where the
management has notified a vacancy to the
Commission in accordance with the provisions of
the 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
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( 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—
( 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.”
11. Intimation as regards vacancy was given on 19.9.1986.
Recommendation of respondent No.3 by the District Inspector of Schools
was made on 8.6.1987. Thus, a recommendation had been made within a
period of one year. On what premise, the candidature of respondent No.3
was not found suitable or he was otherwise found to be ineligible for holding
the said post has not been disclosed. The conduct of the Committee of
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Management of the institution, thus, is required to be considered having
regard to the aforementioned provisions.
12. We have noticed hereinbefore paragraph 5 of the First 1981 Order.
Para 6 of the Order provides for eligibility for appointment. Para 7 thereof
provides that in the event of any dispute in respect of the promotion or direct
recruitment, the same would be referred to the Director whose decision shall
be final. The District Inspector of Schools in his letter dated 8.6.1987
addressed to the manager of the Institution, directed :
“According to the abovesaid order of the
Government, you have been selected by the
Regional Selection Board, orders are given for
issue of appointment letters to the selected
candidates, on temporary basis. In case of need,
without any prior notice the service can be
terminated. The selected candidates may take over
the charge after verification of the certificates of
their date of birth, educational qualifications, with
their original certificates. Intimation of joining
duty may be sent to this officer, within one week
of joining the duties.
432. Name of the
selected candidate
Qualification Category
Ali Hussain Ansari
Vill. Barwa Bazar,
Post : Sekhwaria,
Distt. Dewaria,
UP
High School
Intermediate
B.A.
M.A.
B.Ed. –
Theory
Practical
II
II”
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13. A reminder thereto was also sent by the District Inspector of Schools
on 3.8.1987 as respondent No.3 was not allowed to join his service. Yet
again, by order dated 20.4.1988, it was directed :
“It is regretted that till now, this Department has
not received the intimation about joining of the
duties by Ansari. It is your submission that you
have appointed one person, in place of Shri Ansari.
Your this act is absolutely illegal, on which it is
not possible for this office to give consent, because
no directions have been to you, by this office for
appointment of any person.
Hence you are again directed to kindly take
necessary action immediately for getting joining of
duty done by Shri Ansari, otherwise, by being
compelled Departmental action shall be taken
under the Administrative provisions.”
14. 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
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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 corresponding legal
duty in the State. {See Food Corporation of India & Ors. v. Ashis 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.
[(2008) 1 SCC 456]}
15. For the reasons aforementioned, there is no merit in this appeal. It is
dismissed accordingly. However, in the facts and circumstances of the case,
there shall be no order as to costs.
……………………………….J.
[S.B. Sinha]
..…………………………..…J.
[Cyriac Joseph]
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New Delhi;
July 31, 2009