Full Judgment Text
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9228 OF 2016
RAVINDRA SINGH APPELLANT(S)
VERSUS
DISTRICT INSPECTOR OF SCHOOLS AND ORS. RESPONDENT(S)
J U D G M E N T
Hrishikesh Roy, J.
This appeal is directed against the Judgment and Order
dated 20.05.2016 in the Special Appeal No. 345 of 2016, of
the High Court of Judicature of Allahabad. Under the
impugned order, the Division Bench rejected the Appeal of
the Writ Petitioner and upheld the judgment dated 12.04.2016
whereby, the learned Single Judge dismissed the Writ - A
No.38790 of 2000, filed by the present appellant.
2. Before the High Court, the appellant challenged the
Signature Not Verified
decision dated 16.02.2000 of the District Inspector of
Digitally signed by
MADHU BALA
Date: 2019.11.06
14:21:13 IST
Reason:
Schools, Kanpur Nagar whereunder, the appellant’s
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representation for financial consent and approval for his
service was negated. While rejecting the representation,
the authority observed in the speaking order that Government
has placed a ban on all types of recruitment by the
Management and that the concerned Bilhaur Inter College ,
(hereinafter, “the Institution”), was not empowered to make
any appointment. Moreover, the appellant was found to be
appointed without any financial implication. The District
Inspector of Schools passed the impugned speaking order in
pursuance to 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 the Manager of the
Institution.
3. Adverting to the speaking order (16.02.2000) of the
Inspector of Schools, which was challenged in the Writ - A
No.38790 of 2000, the Learned Judge noted that the appellant
was appointed in a substantive vacancy which has occurred
after transfer of one Ramesh Chandra Pandey who was serving
in the Institution as a LT Grade Teacher. While appointing
against a substantive vacancy, the Management according to
the High Court, failed to adhere to the procedure
contemplated in paragraph 5 of the First Removal of the
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Difficulties Order, 1981 . The Learned Judge in his Judgment
dated 12.04.2016 accordingly found no infirmity in the
authority’s decision, to refuse financial approval for
appellant’s appointment.
4. The above decision was challenged in the Special Appeal
where the appellant reiterated his argument that Management
is competent to appoint even against a substantive vacancy.
The full Bench Judgment in Radha Raizada vs. Committee of
1
Management Vidyawati Darbari Girls Inter College and Ors. ,
was cited to argue that the Managing Committee is not
denuded of its power during the ban period, to make ad hoc
appointment under Section 18 of the U.P. Act No.5 of 1982 .
5. However those contentions did not impress the Division
Bench and the High Court observed in the impugned order
dated 20.05.2016 that the procedure prescribed under
paragraph 5 of the First Removal of Difficulties Order, was
disregarded by the Management, in appointing the appellant.
Accordingly, the appeal was found devoid of merit and same
was dismissed resulting in the present challenge.
1
1994 All.L.J. 1077
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6. We have heard Mr Manoj Prasad, the learned Senior
Advocate representing the appellant. The State of Uttar
Pradesh and their officers (Respondent Nos.1, 2 & 4) are
represented by Mr. Harish Pandey, the learned Counsel. We
have perused the impugned judgment and considered other the
materials on record.
7. Assailing the legality of the impugned judgment of the
Allahabad High Court, Mr Manoj Prasad, the learned Senior
Counsel projects that the appellant has served without
remuneration since 1997 and, therefore, approval for paying
his salary should have been accorded by the authorities.
According to the learned Counsel, the High Court
misconstrued the ratio in Radha Raizada . The counsel argues
that the Management of the Institution is competent to make
short term ad hoc appointment in available vacancies and
since the appellant was appointed after selection and
advertisement, his salary should have been approved by the
authorities.
8. Per contra, Mr Harish Pandey, the learned Counsel
representing the authorities of the State of Uttar Pradesh
firstly argues that during the Government imposed ban
period, the Management of the Institution had no authority
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to make appointment against substantive vacancy. The
Government Counsel then refers to the Uttar Pradesh
Secondary Education Services Commission Procedure ( Removal
of Difficulties) Order, 1981 notified under Section 18 of
the Uttar Pradesh Act No.5 of 1982 and submits that at first
instance, the Management should attempt to fill up the
substantive vacancy by promotion and should not take
recourse to direct recruitment. Mr Pandey then refers to
the decision/ratio in Prabhat Kumar Sharma and Others vs.
2
State of U.P. and Ors. , to point out that the High Court’s
Judgment in Radha Raizada (supra) was approved by this Court
and it is too late in the day for the appellant to argue
that he is entitled to financial approval for his service,
although he was unauthorizedly appointed against a
substantive vacancy, by the Managing Committee of the
Institution.
9. The UP Secondary Education Services Commission and
Selection Boards Act, 1982 hereinafter “the Act, 1982”, was
enacted to constitute Selection Committees and Selection
Boards to select teachers for appointment in Government
Aided Private Educational Institutions. Since the Commission
2
(1996) 10 SCC 62
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failed to commence functioning before 01.11.1983, in order
to address the difficulties in the interregnum, the
Government had issued the First Uttar Pradesh Secondary
Education Service Commission (Removal of Difficulties)
nd
Order dated 1981 followed by the 2 Removal of the
Difficulties Order, 1981, to fill up short term vacancies.
The Section 16 of the Act of 1982, provides for recruitment
of teachers by the Commission on the requisition made by the
Management and then the selected teachers are allotted to
the Intuitions/Colleges as per their requirement. When the
Commission is unable to allot teachers, Section 18 comes
into operation and permits appointment of ad hoc teachers,
as a transient measure.
10.1 Analyzing the above prescription of the 1982 Act
and also the provisions of the Removal of the Difficulties
Order, the Allahabad High Court in Radha Raizada (supra) had
formulated for itself the following two questions to be
answered by the Full Bench:
“. . . . . . . . . . . . . . . . . . . . .
QUESTION NO. (c)
What would be the criteria and procedure
for ad hoc appointment of a teacher or
Principal either under Removal of
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Difficulties Order or under Section 18 of
the U.P. Act, No. 5 of 1982?
QUESTION NO. (d)
Whether any approval or prior approval
of the District Inspector of Schools or
Regional Inspectors of Girls Schools, as the
case may be, is necessary for making ad hoc
appointment of a teacher or Principal either
under Removal of Difficulties Order or under
Section 18 of the Act?”
. . . . . . . . . . . . . . . . . . . . .
10.2 The Court then observed the following:
“......................................
AD HOC APPOINTMENT BY PROMOTION
35. Paragraph 5 of the First Removal of
Difficulties Order provides that where any
vacancy cannot be filled by promotion under
Paragraph 4 of the order, same may be filled
by direct recruitment in accordance with the
procedure laid down in Clauses 2 to 5 of
Paragraph 5 of the order.
36. Second Removal of Difficulties Order
provides for ad hoc appointment against the
short-term vacancy in the posts of teacher
caused by grant of leave to him or on
account of his suspension duly approved by
the District Inspector of Schools or
otherwise. Thus, these provisions show that
section 18 and First Removal of Difficulties
Order, both independently empower the
Management of Institutions to make ad hoc
appointment of teachers in the institutions.
But section 18 does not provide the method
and manner of such appointment. Whereas
Removal of Difficulties Order while
empowering the Management of the
Institutions to appoint teachers on ad hoc
basis further lay down the procedure of such
ad hoc appointment of teachers.
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37. When a substantive vacancy has been
notified to the Commission and duly selected
teacher is not available for appointment,
controversy has arisen as to whether the
management is required to appoint teacher
either by direct recruitment or by
promotion. The power of ad hoc appointment
either by direct recruitment or by promotion
can be exercised only when the management
has notified the substantive vacancy to the
Commission and the Commission has failed to
recommend the name of suitable candidate
within one year from the date of such
notification or the posts of teacher has
actually remained vacant for more than two
months. Thus one of the two conditions is
sine qua non for enabling the management to
exercise the power to appoint a teacher on
ad hoc basis, either by promotion or by
direct recruitment in the institution. If
the condition is absent, such a power to
appoint on ad hoc basis either by promotion
or direct recruitment is not available to
the management of the institution. In case
the pre-condition is found to be present,
the management is first required to fill up
the substantive vacancy by promotion on ad
hoc basis from amongst the senior most
teachers of the institution. Paragraph 4 of
the First Removal of Difficulties Order
provides that every vacancy in the posts of
teacher in lecturer grade shall be filled by
promotion of the senior most teachers in the
institution in the trained graduate.
Similarly, every vacancy in the post of
teacher in the trained graduate (grade) is
to be filled by promotion by the senior most
teacher of the institution from the trained
undergraduate grade C.T. (grade (now we are
not concerned with it since it is reported
abolished).
38. Paragraph 5 of the First Removal of
Difficulties Order provides that where any
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vacancy cannot be filled by promotion under
paragraph 4 of the Order, same may be filled
by direct recruitment. Thus, it is mandatory
on the part of the Management to first fill
up the vacancy by promotion on the basis of
seniority alone. This method has to be
resorted to as the teachers are available in
the institution and any other method of
recruitment may cause disturbance in
teaching of the institution which may affect
the career of student. Another reason why
the vacancy has to be filled by ad hoc
appointment by promotion is that it is a
short term appointment in the sense that
shortly a duly selected teacher would be
available for appointment against the said
vacancy. So long the posts can be filled
under paragraph 4 of the Order by promotion,
it is not open to the Management to take
resort to the power to appoint ad hoc
teacher by direct recruitment under
paragraph 5 of the First Removal of
Difficulties Order.
AD HOC APPOINTMENT OF TEACHERS BY DIRECT
RECRUITMENT:
40. It has already been noticed that Section
18 of the Principal Act provides for power
to appoint a teacher purely on ad hoc basis
either by promotion or by direct recruitment
against the substantive vacancy in the
institution when the condition precedent for
exercise of powers exist namely that the
Management has notified the said vacancy to
the Commission in accordance with the
provisions of the Act and the Commission has
failed to recommend the name of any suitable
candidate for being appointed as teacher
within one year from the date of such
notification or the post of such teacher has
actually remained vacant for more than two
months. However, since the State Government
was alive to the situation that the
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establishment of the Commission may take
long time and even after it is established,
it may take long time to make available the
required teacher in the institution and as
such issued three Removal of Difficulties
Orders namely Removal of Difficulties Order
dated 11-9-1981, Removal of Difficulties
Order dated 30-1-1982 and Removal of
Difficulties Order dated 14-4-1982. In fact
these Removal of Difficulties Orders were
issued to remove the difficulties coming in
the way of 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 of
the Act are satisfied, secondly the vacancy
is substantive vacancy and thirdly, the
vacancy could not be filled by promotion.
. . . . . . . . . . . . . . . . . . . . . .
Thus, if contingency arises for ad hoc
appointment of teacher by direct recruitment
the procedure provided under the First
Removal of Difficulties Order has to be
followed. Paragraph 5 of the First Removal
of Difficulties Order provides that the
management shall, as soon as may be, inform
the District Inspector of Schools about the
details of vacancy and the District
Inspector of Schools shall invite
application from the local employment
Exchange and also through public
advertisement in at least two newspapers
having adequate circulation in Uttar
Pradesh.
. . . . . . . . . . . . . . . . . . . . . .
41. In view of these provisions the ad hoc
appointment of a teacher by direct
recruitment can be resorted to only when the
condition precedent for exercise of such
powers as stated in paragraph 18 of the Act
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are present and only in the manner provided
for in paragraph 5 of the Removal of
Difficulties Order. However, it goes without
saying that if a management without
following the procedure indicated above
makes an ad hoc appointment the District
Inspector of Schools possess general power
under the Payment of Salaries Act to stop
payment of salary to such teachers.
. . . . . . . . . . . . . . . . . . . . . .”
11. The above analysis would suggest that the Management has
very limited scope to make appointment to the substantive
vacancy in their Institution. Adverting to the ratio in
Radha Raizada , the Division Bench observed in the present
impugned order that the Management of the Institution failed
to adhere to the procedure under paragraph 5 of the First
Removal of Difficulties Order, in appointing the appellant,
against a substantive vacancy. On this basis, the High
Court declined to interfere with the salary disapproval
decision of the District Inspector of Schools, Kanpur Nagar.
12. Section 18 of the Act of 1982, lays down the process
for direct appointment of ad hoc teachers but before the
Management takes any step to fill up vacancy, the conditions
laid therein must be peremptorily satisfied. The Management
is required to firstly notify the vacancy to the Commission
and in turn, the Selection Commission is expected to
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recommend 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 take short term measures.
Further stipulations to this process are provided in
paragraphs 4 and 5 of the First Removal of Difficulties
Order. As can be seen, only when the vacancy cannot be
filled by promotion under paragraph 4, the paragraph 5
permits ad hoc appointment by direct recruitment. Besides,
recourse to direct appointment is visualized only in
accordance under sub-clauses 2 to 5 of paragraph 5 . It is
also important to bear in mind that when ad hoc appointments
are made under paragraph 2 of the First Removal of
Difficulties Order , the duration of such ad hoc appointment
automatically expires after six months, under paragraph
3(b) of the Order.
13. Proceeding with the above understanding of the norms the
question to be decided now is whether the High Court was
correct in its view that the Management of the Institution,
did not adhere to the procedure prescribed under the First
Removal of Difficulties Order to make appointment against a
substantive vacancy. The paragraph 2 of the Removal of
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nd
Difficulties Order, was substituted by the 2 Removal of
the Difficulties Order, which enabled the Management to make
appointment against substantive vacancy either by promotion
or by direct recruitment. In the present matter, it was not
the District Inspector of Schools but the Management, which
resolved to appoint the appellant. But as earlier
discussed, this is contrary to the prescribed process in
paragraph 5(4) of the First Removal of Difficulties Order .
The learned Single Judge in the High Court specifically
noted that there was no adherence to the procedure
prescribed under paragraph 5 of the First Removal of
Difficulties Order . There was concurrence of views of the
learned Single Judge and the Division Bench to the effect
that the State authorities rightly denied financial approval
to the illegal appointment of the appellant.
14. When the impugned judgment is analysed in light of the
applicable norms, there is no escape from the conclusion
that the appellant’s appointment by the Management, was not
in accordance with paragraph 5 of the Removal of
Difficulties Order . We are also of the view that the ratio
in Radha Raizada (supra) of the Allahabad High Court
(approved by the Supreme Court in Prabhat Kumar Sharma
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(supra)) was correctly applied to the present facts. The
State coffer should not according to us, be burdened with
salary obligation for an appointment, not made by them. The
decision repudiating the salary claim for the appellant is
also found to be in order since the Management failed to
adhere to the due process in filling up the substantive
vacancy. Moreover, the State had imposed a ban on
appointment during the relevant period. Therefore, the
appellant cannot enforce a claim for salary against the
State. The Appeal accordingly is found devoid of merit and
is dismissed. The parties to bear their respective cost.
………………………………………………J.
[R.BANUMATHI]
………………………………………………J.
[A.S.BOPANNA]
………………………………………………J.
[HRISHIKESH ROY]
NEW DELHI
NOVEMBER 6, 2019
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