JUDGMENT R. M. Sahai, J.- 1. Clash of interest, more superficial than real, has arisen between ad-hoc teachers, appointed or promoted under Removal of Difficulties Orders issued from time to time by the Governor in exercise of powers under section 33 of Ordinance No. 8 of 1981 and reserve-pool-teachers-appointed between 9th and 19th January 1978 during mass strike by teachers of U. P. Madhyamic Sangh, due to addition of Chapter IV A and Section 33-A to U. P. Higher Education Service Commission Act (Act V of 1982) (hereinafter referred to as the Act) by Act 28 of 1985. Unfortunately it has been aggravated, further due to misapprehension about exact scope of these sections resulting in different orders by different Inspectors of Schools and directions by higher authorities. 2. For a proper grasp of the issue, mainly legal, it is necessary to narrate in brief the background which led to addition of these provisions and the objectives they seek to achieve. Education, particularly, at higher secondary level was regulated under U. P. Intermediate Education Act, 1921. It contained detailed provisions regarding Constitution of Board, recognition of institutions, conduct of examinations etc. Method of recruitment of teachers, their service conditions, however, were governed by regulations framed by the Board. From fiftees onwards greater attention towards education resulting in liberalised grants in aid and easier recognition of private institutions appears to have given rise to vested interests, exposing the teachers to exploitation by commercially minded managements. The evil became so rampant that the Legislature intervened and added Section 16-E to 1921 Act in 1958 to protect the interest of teachers by making their appointment and termination subject to approval of Inspector of Schools. The measure succeeded partially only. Therefore, in 1971, Act 24 was enacted providing for payment of salary to the teachers before expiry of 20th day of the next month, without deductions, except, those authorised by regulations or rules and in default by management to be paid by Inspector. Infact payment of salary became responsibility of State. But as is usual the well meaning move of government was attempted to be misused by management by unwarranted employment of teachers without any regard to necessity or the sanctioned strength. Infact payment of salary became responsibility of State. But as is usual the well meaning move of government was attempted to be misused by management by unwarranted employment of teachers without any regard to necessity or the sanctioned strength. To curb and control it and to improve efficiency in education for which the government was assuming more and more responsibility Act 26 of 1975 was enacted which added certain provisions which required appointment to be made by selection committee. Institutions were prohibited from creating new posts except with the approval of Director. It was, an effort to reduce power of management to appoint teachers and to improve standard of education, but period from 1975 to 1981 was marked with great agitation and disturbances. The system of selection committee did not appear to have proved successful, consequently government promulgated Ordinance No. 8 of 1981 on 10th July, 1981. The Scheme envisaged by it completely overhauled the mechanism of appointment of teachers It excluded the managements, altogether, from selection and confined its role to making of recommendations only It purported to set-up a commission for selection at higher level and regional boards at lower level. But the establishment and constitution of commission, the procedure of selection contemplated were likely to take some time whereas large number of vacancies were existing in every institution as appointments had earlier been stayed by government, which was causing great difficulty therefore, the State Government in exercise of power conferred on it under section 33 of the Ordinance issued Removal of Difficulties Order (First) on 31st July, 1981 empowering a management to appoint by promotion or direct recruitment a teacher purely on ad hoc basis in cases of substantive vacancies existing on the date of commencement of order or which came into existence within a period of two months from the date the order was issued till regularly selected candidate by commission joined the post or period of six months whichever expired earlier. Relevant paragraphs 2 and 3 of the Order are extracted below : "2. Vacancies in which ad hoc appointment can be made. Relevant paragraphs 2 and 3 of the Order are extracted below : "2. Vacancies in which ad hoc appointment can be made. The management of an institution may appoint by promotion or by direct recruitment a teacher on purely ad hoc basis in accordance with the provisions of this Order in the following cases, namely ; (a) in the case of a substantive vacancy existing on the date of commencement of this Order caused by death, retirement, resignation or otherwise ; (b) in the case of a leave vacancy, where the whole or unexpired portion of the leave is for a period exceeding two months on the date of such commencement ; (c) where a vacancy of the nature specified in clause (a) or clause (b) comes into existence within a period of two months subsequent to the date of such commencement. (d) Duration of ad hoc appointment Every appointment of an ad hoc teacher under Paragraph 2 shall cease to have effect from the earliest of the dates, namely ; (a) when the candidate recommended by the commission or the Board joins the post; or (b) when the period of six months from the date of such ad hoc appointment expires ". 3. It appears commission could not be constituted immediately, therefore, second Removal of Difficulties Order was issued on 11th September, 1981 introducing concept of short-term vacancy caused due to grant of leave, duly approved suspensions or otherwise. But the most significant change introduced by it was substitution of paragraph 2 of the First Order by the paragraph extracted below ; "2. The management of an institution may appoint by promotion or by direct recruitment, a teacher on purely ad hoc basis in accordance with the provisions of this Order in case of a substantive vacancy caused by death, retirement, resignation or otherwise ". The effect of substitution was that the Managements were empowered to appoint ad hoc teachers not only in vacancies existing on the commencement of the first order or within two months, but even thereafter whenever vacancy arose. IT would be made in 1981, 1982 or even 1985. There was no change in duration of these appointments, which could continue at the most for six months, presumably, because it must have been contemplated to constitute commission in the meantime. IT would be made in 1981, 1982 or even 1985. There was no change in duration of these appointments, which could continue at the most for six months, presumably, because it must have been contemplated to constitute commission in the meantime. Since the commission could not be constituted the government on 30th January, 1982, that is one day before expiry of six months, issued third Removal of Difficulties Order substituting paragraph (3) of the first Order and deleting clause (b) of it. The substituted paragraph reads as under : "Every appointment of an ad hoc teacher under paragraph shall cease to have effect when a candidate recommended by the commission or the Board as the case may be joins the post". This again was very material change as hence forward a teacher appointed against substantive vacancy under Removal of Difficulties Order continued till regularly selected teacher from commission joined. The ad hoc appointment did not come to an end automatically after six months. That is appointments against substantive vacancies caused by death, retirement, or resignation etc. were to continue from the date of appointment till the date and candidate selected from commission joined the post. In February, 1982 Act no. 5 of 1982 repealed second Ordinance no- 23 of 1981. The Act came into force with effect from 14th July, that is, the date on which Ordinance no. 8 was issued. By subsection (2) of section 36 it validated all actions done under Ordinance no. 8 of 1981 as having been done under the Act. Section 18 of it empowered the management to appoint by direct recruitment or promotion a teacher on purely ad hoc basis from amongst the persons possessing the qualifications prescribed under Intermediate Education Act if the Commission failed to recommend any suitable candidate for being appointed as a teacher within one year from the date the Management notified vacancies or the post of a teacher actually remained vacant for more than two months. Duration of such appointments at the most could last till 30th June following the date of appointment. The Commission was constituted in November, 1982. And Rules under Act V of 1982 were framed in January, 1983. In July, 1983 U.P. Secondary Education Service Commission First Regulation 1983 came into force. Duration of such appointments at the most could last till 30th June following the date of appointment. The Commission was constituted in November, 1982. And Rules under Act V of 1982 were framed in January, 1983. In July, 1983 U.P. Secondary Education Service Commission First Regulation 1983 came into force. In 1985 Section 33-A was added to the Act regularising appointment of a teacher directly appointed before the commencement of Uttar Pradesh Secondary Education Service Commission and Selection Board (Amendment) Ordinance, 1985 on ad hoc basis against substantive vacancy in accordance with para 2 of Uttar Pradesh Secondary Education Service Commission (Removal of Difficulties) Order, 1981 as amended from time to time provided he was qualified and was serving the institution continuously from the date of appointment to the date when the Ordinance was issued. This in brief is the history of provisions of ad hoc appointments under the Removal of Difficulties Orders and under Sec. 18 of the Act. 4. As mentioned earlier by same Ordinance issued in 1985 (Chapter IV-A) dealing with reserve-pool-teachers was added to the Act. Section 21-B of the Act provided for absorption of reserve-pool-teachers. What is meant by reserve- pool-teachers is mentioned in section itself by saying that those teachers who had been appointed in any institution either by Management or any Inspector under sub-section (4) of U. P. Payment of Salaries Act, while U. P. High School and Intermediate Payment of Salaries and other Employees Ordinance, 1977 was enforced and who had actually joined their duties in pursuance of the said provision between January 9, 1978 and January 19, 1978. Sub-section (2) provides that if such teacher continued in service by reason of any order of the court or by any other reason then he shall be deemed to nave been regularly appointed to such post and shall be entitled to confirmation with effect from the date on which he would have been confirmed in normal course. Sub-section (3), which is relevant, is extracted below : "Where any substantive vacancy in post of teacher in an institution is to be filled by direct recruitment, such post at the instance of the Inspector be offered by the Management to a teacher other than the teacher referred to in sub-section (2) whose name is entered in the register referred to in subsection (1)." These provisions, also, have a background. In 1977 90 percent of the teachers of recognised institutions went on indefinite strike from 2nd December in respect of a call by their association. The reason for the strike, its effect etc have been mentioned in detail in Prabodh Verma v. State of U. P., 1984 ALJ 931. What is relevant to be mentioned is that services of more than two thousand striking teachers had come to an end because they did not comply with various orders issued by the government and their places were occupied by fresh appointments. But when settlement was arrived at between government and Madhyamik Shikshak Sangh then services of those teachers who had been appointed in place of striking teachers were terminated. This naturally caused resentment and the government promulgated an Ordinance no. 10 providing for maintenance of a list of such teachers to be known as reserve-pool-teachers for appointment in direct and substantive vacancies occurring thereafter. It was succeeded by another Ordinance known as Ordinance No. 22 of 1978. Both these Ordinances were struck down by this court, being violative of Article 14. The judgment was, however, set aside by the Supreme Court in the above mentioned case and it was directed that those reserve-pool-teachers who had been appointed under the Ordinances and were continuing under interim orders were entitled to be confirmed. And those who could not be appointed because of judgment of High Court were entitled to be appointment. It is this decision which gave birth to Chapter IV-A of the Act which obviously has been enacted to give effect to the decision in the case of Prabodh Verma Therefore, by virtue of U. P. Act No. 28 of 1985 two provisions were added to Act V of 1982, simultaneously, the one by which reserve-pool-teachers already working have been regularised and those who are not in service have been directed to be appointed and by the other even ad hoc appointment made under the Removal of Difficulties Orders have been made substantive. Prior to examining their scope and applicability it may be worthwhile ascertaining circumstances which existed at the time the statute was passed, the evils which the provision designedly seek to remedy as the legislature is deemed to be aware of the circumstances which were prevalent at time of passing of the Act (see Sangheeri Jeerraj v. M.G.G. and K.M.W. Union, AIR 1969 SC 530 , Keats Lewis Marthoyer Consolidated Coller Ltd. 1911 SC 641, Abraham v. Mac Fisheru Ltd., 1925 2 KB 18, Beads v. King, 22 J.C.L. (III). As has been mentioned earlier the birth of Chapter IV was necessitated due to decision of Prabodh Verma's case. Its effect is that those teachers who were appointed during 9th and 19th January, 1978 have become entitled to be permanent teachers against substantive vacancies by operation of law, without facing any committee or commission or Board. They are not required to pass through any eligibility test. But in between passing of Ordinance 8 of 1978 its challenge in High Court, grant of interim orders, its striking down and then the Supreme Court decision circumstances entirely changed because of Act V of 1982 and appointment of ad hoc teachers under Removal of Difficulties Orders. Therefore, when the Supreme Court set aside the order of this court in Prabodh Verma's case and directed the reserve-pool- teachers to be appointed against substantive vacancies then a piquant situation arose. On the one hand were the teachers whose merit was that they had worked for a short while during strike period on the other hand were those who had been appointed ad hoc and had been working for the last two to three years. If no effort would have been made to protect the interest of ad hoc teachers it would have resulted in injustice to them. Therefore the Legislature while adding Chapter IV- A to the Act providing for treating reserve-pool-teachers working in any institution as substantive appointee and filling up any vacancy in future by appointing them only made provision by enacting section 33-A for treating ad hoc teachers appointed under Removal of Difficulties Order as substantive appointees. Therefore the Legislature while adding Chapter IV- A to the Act providing for treating reserve-pool-teachers working in any institution as substantive appointee and filling up any vacancy in future by appointing them only made provision by enacting section 33-A for treating ad hoc teachers appointed under Removal of Difficulties Order as substantive appointees. The legislative intention of accommodating one without being unjust to another is already discernable not only from the circumstances which compelled the Legislature to give up its policy for the time being of appointing teachers selected from commission only but also from combind reading of Chapter IV- A and Section 33-A. Both these provisions, therefore, have to be read and construed in a manner which may advance the objective of keeping the balance even. In absence of Section 33-A the addition of Chapter IV- A would have resulted in grave injury to ad hoc teachers, who may have been working for number of years. Although it resulted in upsetting the laudable objective of Act V of 1982 of appointing a teacher selected by Commission but in view of changed circumstances this probably was the best that could have been done. 5. In Prabodh Verma's case it was observed that, 'Government being the largest employer in the country and employment or appointment to an offer under it is a valuable right possessed by citizens. Therefore, effort should be made that, 'all persons similarly circumscribed should be treated alike and there should be no discrimination between one person and another as regards the subject matter of legislation'. That is the legislation should be fair while dealing with persons similarly circumscribed. Chapter IV-A and Section 33-A are crystalisation of this principle. The two class of persons namely reserve-pool-teachers and ad hoc teachers have been dealt with by the Act in a manner that no discrimination may arise among them. The ad hoc appointees too had been appointed to meet the exigency of filling up vacancies in the institution to enable it to function smoothly as regular selections through commission were not being made. Such appointees had a valuable right to continue in employment. This was recognised by third Removal of Difficulties Order which substituted the earlier order by removing time limit for such appointments by permitting them to continue till regular selected candidate joined. Such appointees had a valuable right to continue in employment. This was recognised by third Removal of Difficulties Order which substituted the earlier order by removing time limit for such appointments by permitting them to continue till regular selected candidate joined. This scheme under the order which conferred a valuable right and ad hoc employees was in danger of being annihilated. To overcome it the legislature appropriately put both the reserve-pool and ad-hoc teachers in same class so far benefit of regularisation was concerned. Large number of decisions were placed by learned counsel for reserve-pool-teachers on Article 14 of the Constitution and it was urged that it was open to legislature to classify and so long the classification had a reasonable nexus it did not violate the Constitutional guarantee of equal protection. Argued learned counsel that Section 33-A in excluding these ad hoc teachers who had been appointed after constitution of commission from benefit of regularisation cannot be said to have acted arbitrarily or discriminately. The argument appears not only to be misplaced but proceed on complete misapprehension. That it is permissible for legislature to classify cannot be disputed and is firmly settled. But a bare perusal of Section 33-A indicates that no such attempt has been made by legislature. It does not make any distinction between ad hoc teachers appointed in 1982 or before constitution of the commission, or after it. The benefit of regularisation is available to all those who were appointed under paragraph 2 of Removal of Difficulties Order as amended from time to time and satisfied the conditions mentioned in the section. It is not dependent on time of appointment. The fallacy in the argument shall further stand exposed when various conditions entitling ad hoc teachers for regularisation are discussed later. 6. Truely speaking the problem has arisen because Director of Education after addition of Chapter IV A issued letters to Inspectors of Schools directing to make all appointments of reserve pool teachers. If the matters would have rested there probably, not much difficulty would have arisen. But it appears misgiving arose in implementation of these provisions. For instance, in one of the Civil Misc. If the matters would have rested there probably, not much difficulty would have arisen. But it appears misgiving arose in implementation of these provisions. For instance, in one of the Civil Misc. Writ No. 10948 of 1986, copy of letter issued from office of Director of Education in connection with continuance of the ad hoc teacher and payment of her salary shows that the Directorate was of opinion that she should not be treated as regular appointee after constitution of Commission in November 1982 as her appointment could be deemed to be under section 18 of Act only which came to end after 30th June. How for this view is correct shall be dealt with later. But this approach both at higher level and also by Inspectors of Schools of various districts resulted in termination of service of ad hoc teachers who were appointed prior to 12th June 1985 and whose appointments had been approved by Inspector of Schools to make room for reserve pool teachers. The stand of government also appears more or less the same. In counter affidavit filed in Civil Misc. Writ Petition No. 10122 the legal stand which is stated to be applicable to all petitions is explained by classifying ad hoc teachers as under ; (A) C. T. grade Ad hoc teachers (B) L. T./Lecturer grade ad hoc teachers appointed on or before 1-11-1982 (C) L. T./Lecturer grade Ad hoc lecturer appointed on or after 2nd November, 1982 and before 12th June, 1985. (D) Ad hoc lecturers appointed under section 18 of the Act. So far the teachers of group A and B are concerned it is conceded that they stand regularised under section 33-A. But in respect of C it is claimed that all appointments made under Removal of Difficulties Orders after constitution or Commission in November, 1982 could be deemed to be under section 18 only. And as benefit of regularisation has been extended only to those who were appointed before November 1982 the ad hoc appointees after that date have to make way for reserve pool teachers. Similarly the teachers covered in group D could not claim any regularisation. And as benefit of regularisation has been extended only to those who were appointed before November 1982 the ad hoc appointees after that date have to make way for reserve pool teachers. Similarly the teachers covered in group D could not claim any regularisation. There is thus no dispute as regards A B and D. What remains to be examined is if an ad hoc teacher appointed after November 1982 and before June 1985 is entitled to benefit of regularisation under section 33-A. It may be pointed out that although commission was constituted in November, 1982 but the rules were framed in January, 1983 and the first regulation of commission came into force in July 1983. In absence of these rules and regulations the Commission could not function. It was in the circumstances not seriously disputed either by the learned Standing Counsel or the learned counsel who argued for the reserve-pool-teachers that the ad hoc appointees till July 1983 could claim benefit of Section 33-A. But nothing turns on it as the exact scope of Section 33-A has to be examined in either case. For convenience it is extracted below : " 33-A. Regularisation of certain appointment- Every teacher directly appointed before the commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Ordinance 1985, on ad hoc basis against a substantive vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 as amended from time to time, who possesses the qualifications, prescribed under, or is exempted from such qualifications in accordance with the provisions of the Intermediate Education Act, 1921, shall, with effect from the date of such commencement, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such appointment upto the date of such commencement. (2) Every teacher deemed to have been appointed in a substantive capacity under sub-section (1), shall be deemed to be on probation from the date of such commencement. (2) Every teacher deemed to have been appointed in a substantive capacity under sub-section (1), shall be deemed to be on probation from the date of such commencement. (3) Nothing in this section shall be construed to entitle any teacher to substantive appointment- (a) if on the date of such commencement, such post had already been filled or selection for such post had already been made in accordance with this Act, or (b) if such teacher was related to any member of the Committee of Management or the Principal, or Head Master of the institution concerned. " A bare perusal of it makes it clear that an ad hoc appointee must satisfy five conditions before he can be treated to be in substantive capacity (1) He must have been appointed before commencement of Act 28 of 1985 that is prior to 12th June, 1985, (ii) The appointment must have been against substantive vacancy; (iii) Under paragraph 2 of Removal of Difficulties Order, as amended from time to time; (iv) Possessed the prescribed qualifications; (v) Has been continuously serving the institution from the date of such appointment upto the date the order was issued in 1985. The first, second and fourth do not present any difficulty. But confusion appears to be prevailing regarding third and fifth. 7. As regards third it has already been explained that Section 33-A does not specify any date for purposes of regularisation. It confers benefit on every teacher appointed in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Service Commission (Removal of Difficulties) Order, 1981 as amended from time to time. How and why these orders were issued has already been noticed earlier. The argument that the first order ceased to be in operation after second order was issued proceeded more on assumptions than on any express or implied provisions in the Act. Section 33 empowered the State Government to specify the period during which the order could remain in operation. The orders are silent in this regard. Their life was not restricted to the date of passing of this Act or six months or any period after cons itution of the commission or Board. In fact they operate even today as Regional Boards have not been constituted till now. The appointment of teachers at junior level has still to be made under these orders. Their life was not restricted to the date of passing of this Act or six months or any period after cons itution of the commission or Board. In fact they operate even today as Regional Boards have not been constituted till now. The appointment of teachers at junior level has still to be made under these orders. That is why in the counter affidavit the regularisation of C. T. teachers is not disputed. The fourth order was issued after the Act came into force. It adds clause (b) to sub-paragraph (4) of paragraph 5 of the first order. It dispels any doubt if there was any about continuance of these orders. In other words ad hoc appointments could be made not only before constitution of commission, but even thereafter. Could such appointments be deemed to be ad hoc appointments under section 18 of the Act, as claimed in counter affidavit or as argued. For that it is necessary to reproduce Section 18 itself : "18. Ad hoc Teachers-(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'. (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." It obviously empowers managements to appoint ad hoc teachers in the two contingencies contemplated by it. So far the first is concerned it could or can apply only if the commission failed to discharge its obligations of selecting a teacher for the institution within one year. But the jurisdiction or power of commission is dependent on notifying of vacancy by the management under section 10 of the Act in accordance with procedure provided in rule 4 and within the period specified therein. If the management failed to perform its duty then sub-rule (6) of Rule 4 empowers the commission to require Inspector to notify vacancy which under clause (ii) of sub-Rule (6) has to be deemed to be notification by the management. The sub-rule (4) of Rule 4 required the Director to ensure that all vacancies were notified to commission by February 28, 1983. But it does not appear to have been strictly followed. May be because the panel etc. was not formed till July, 1983. The basic requirement of notifying vacancy has not been adhered to. And the managements have been appointing ad hoc teachers against substantive vacancies with approval of Inspector of Schools. The objective of pointing out all this is to demonstrate that an ad-hoc appointment made by management could be deemed to be under section 18 (1) only if the vacancy had been notified. Therefore, in absence of notification vacancy or any provision providing for deeming a vacancy to be notified except the one mentioned in sub-rule (6) of Rule 4 no ad hoc appointment can be deemed to be under section 18 (1) (a). Nor is section 18 (1) (b) of any assistance. Therefore, in absence of notification vacancy or any provision providing for deeming a vacancy to be notified except the one mentioned in sub-rule (6) of Rule 4 no ad hoc appointment can be deemed to be under section 18 (1) (a). Nor is section 18 (1) (b) of any assistance. It does not deal with substantive vacancies or even short term vacancies as contemplated in Removal of Difficulties Order. In fact the word, 'such' indicates that it has to be read along with clause (a). For instance a vacancy may be notified in contemplation of its falling vacant. If no recommendation is made within one year and the post has fallen vacant the management may appoint under section 18 (1) (a). If after notifying the vacancy the post becomes vacant say by death etc. and it continues for two months then the appointment may be made under section 18 (1) (b). Even if it is assumed that this clause may apply to vacancies other than those covered by clause (a) then it applies to very limited cases. It cannot apply to ad hoc appointments made against substantive or short term vacancies as defined in the Difficulties Order issued under section 33 of the Ordinance or Act. Therefore, appointments under Removal of Difficulties Order and under section 18 are made under entirely different circumstances. They do not overlap. The one has nothing to do with other. Section 18 does not operate on its own. The management under this provision is empowered to make ad hoc appointment only if the commission fails to recommend any teacher in a vacancy notified. Vacancy in an institution could be notified under sub-rule (1) of Rule which requires the management to determine and intimate to the commission in the proforma the number of vacancies which were existing or were likely to fall vacant in a year. The statement could be sent under sub-rule (2) of Rule 4 by 15th of May. If the vacancy was notified then the Commission under rule 6 could require Inspector to notify the vacancy. That is either the management or Commission has been authorised to notify vacancy. The Inspector of Schools who under the scheme of U. P. Intermediate Education Act is responsible for effective management of the institution has been surprisingly left out. If the vacancy was notified then the Commission under rule 6 could require Inspector to notify the vacancy. That is either the management or Commission has been authorised to notify vacancy. The Inspector of Schools who under the scheme of U. P. Intermediate Education Act is responsible for effective management of the institution has been surprisingly left out. He has not been assigned any role in notification of vacancy except as forwarding officer if it is notified by Management or notifying officer if the Commission requires him to do so. But no machinery has been devised for commission to acquire informations about existence of vacancy in an institution. In fact to this extent the rule is defective. It should have made a provision that in absence of notification of vacancy by management by 15th September the Inspector of Schools shall notify the vacancy. It may further be added that although the rule 4 (4) required Director to ensure that all vacancies were notified to Commission by February 28, 1983 but the Commission itself having been constituted, properly, in July 1983 the rule could not operate. The Director, therefore, could not exercise his power. Thereafter, neither the rule was amended nor the Government appears to have issued any directive fixing any date for notification of vacancy. In absence of any notification of vacancy section 18 does not operate. Therefore, the argument that the appointments under orders should be deemed to have been made under section 18 does not appear to be correct. The apprehension of learned Standing Counsel that it may result in nullifying the method of selection by commission may be justified but the remedy lies in amending the rules in a manner that the objective of selection by commission may become effective. Provision should be made for penalising the management if it does not notify the vacancy. Further Inspector of Schools should be empowered to take action against the management if they failed to perform their duty. They may also be authorised to notify the vacancy if the management fails to do so. Amendment should also be made rendering all appointments made without notifying vacancy as invalid. And the payment of salary of such appointees should not be the responsibility of the State. But in absence of these there is no option but to hold that appointments under the orders cannot be taken to be under section 18. 8. Amendment should also be made rendering all appointments made without notifying vacancy as invalid. And the payment of salary of such appointees should not be the responsibility of the State. But in absence of these there is no option but to hold that appointments under the orders cannot be taken to be under section 18. 8. Coming to the last and fifth condition for regularisation under section 33-A namely, 'such teacher has been continuously serving the institution from the date of such appointments upto the date of such commencement that is 15th June 1985 it may be stated at the outset that it is likely to create problem in most of the cases as the Inspector of Schools right from the beginning have been terminating services of ad hoc teachers after expiry of six months or after 30th June from the date of appointment and then re-appointing them after break of a day or two or at times even after month. Unfortunately it continued unabated even after clause (3) of first Order was substituted by third Order. A perusal of the duration of ad hoc appointment under First and Second Removal of Difficulties Order and Sec. 18 (3) indicates that different durations have been provided for different appointments in these provisions. For instance, an appointment against substantive vacancy under Removal of Difficulties Order continues from the date of appointment till the regularly selected candidate from Commission, joined. And the appointment against substantive vacancy could not be terminated nor the payment of salary be stopped by Inspector of Schools because six months expired. It was held so by this Court in Committee of Management Sanatan Dharm Inter College v. District Inspector of Schools, 1985 Education Cases 322 and Shiv Chandra Misra v. D. I. O. S., 1986 Education Cases 35. After these decisions the Inspector of Schools appear to have taken recourse of treating appointments under Section 18 and terminating it after 30th June. This could not be done as appointments under the Orders could not be deemed to be appointment under Section 18 for reasons already explained. But factually it has been done. This was both illegal and unfair. It can better be explained by taking an illustration. This could not be done as appointments under the Orders could not be deemed to be appointment under Section 18 for reasons already explained. But factually it has been done. This was both illegal and unfair. It can better be explained by taking an illustration. For instance if an ad hoc teacher was appointed in July 1983 or January 1984 by Management in a substantive vacancy with approval of Inspector of Schools and his services were terminated on 30th June 1984, then he was re-appointed after some days or months. Can it be legitimately said that there was a break in service ? The answer has to be in negative both on principle or fairness and law. It has been seen earlier that the first order no doubt restricted the life of such appointments to the date regularly selected candidate joined or six months whichever was earlier But after its substitution by third Order the appointments were to continue, till the regularly selected candidate joined. In other words if an ad hoc teacher was appointed in accordance with the Difficulties Orders then his services could not be terminated because six months expired or 30th June expired. Any order passed by Inspector of Schools or Management was illegal and has to be ignored. All such breaks could not result in discontinuance of service. It is unfair as a teacher is left on mercy of Inspector of Schools and Management and has to depend every year for his continuance on them. Therefore, an ad hoc teacher appointed under Removal of Difficulties Order satisfying other requirements shall be deemed to continue to have served the institution continuously despite termination of his services after six months or 30th June and re-appointment. Even if there was break for some period due to delayed re-appointment or he had to come to this court and was granted relief then he shall be deemed to have been continuously serving the institution. Keeping in mind the purpose and objective of addition of this section the expression, ' continuously serving the institution from the date of such appointment to the date of such commencement ' has to be construed liberally in favour of ad hoc teachers. The provisions being beneficient in nature a teacher has to be deemed to be continuously serving unless he resigned, was removed, left the institution etc. The provisions being beneficient in nature a teacher has to be deemed to be continuously serving unless he resigned, was removed, left the institution etc. It could not apply to those terminations which were done under misapprehension of its automatically coming to an end after six months or after 30th June following the date of appointment. Having dealt with the efficacy of Removal of Difficulties Orders their effect on the Act, the backgrounds in which Section 33-A was enacted, the purpose and objective it seeks to achieve and the ambit and scope of its applicability it appears necessary to examine if the ad hoc appointments suffered from any infirmity or illegality specially after constitution of Commission. Because if the appointments were against law or were void then whatever be the equitable consideration it cannot be given effect to. In this connection it is necessary to extract Section 16 which has been the sheet anchor of opposite parties who have placed implict reliance on it. " 16. Appointments to be made only on recommendations of the Commission or the Board- (1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the Regulations made thereunder but subject to the provisions of Sections 18, 21-B, 21-C, 21-D, 33 and 33-A- (a) every appointment of a teacher specified in the Schedule shall, on or after July 10, 1981, be made by the management only on the recommendation of the Commission; (b) every appointment of a teacher (other than a teacher specified in the Schedule) shall, on or after July 10, 1981, be made by the management only on the recommendation of the Board ; Provided that in respect of retrenched employees the provisions of Section 16-EE of the Intermediate Education Act, 1921, shall apply with the modification that in sub-section (2) of the aforesaid section for the words 'six months' the words 'two years' shall be deemed to have been substituted. (2) Every appointment of a teacher, in contravention of the provisions of sub-section (1), shall be void ". What strikes immediately is that it does not apply to ad hoc appointments. Section 16 (1) as it originally stood excluded appointments made under section 18 and 33 that is the ad hoc appointments under the Act or the Order from its purview. What strikes immediately is that it does not apply to ad hoc appointments. Section 16 (1) as it originally stood excluded appointments made under section 18 and 33 that is the ad hoc appointments under the Act or the Order from its purview. And that scheme has been maintained even after the Act was amended in 1985 as while inserting Chapter IV- A and Section 33-A this section was also amended and the appointments made under Sees. 18, 21-B, 21-C, 33 and 33-A have been excluded from its operations. Therefore, even if ad hoc appointments were made against substantive vacancies without notifying vacancy as required by section 10 read with rule it cannot be deemed to be in violation of any statutory provision. The reason is not far to seek. These orders have been issued under section 33 of the Ordinance and Act which empowered the State Government to issue order for removing any difficulty during such period as may be specified in the order. Since no time limit has been fixed the orders continue to operate. What is the effect of these orders is clear from the section itself which provides that provisions of the Act shall have effect subject to such adaptation, whether by way of modification, addition or omission, as may be necessary. That is the provisions of the Act shall stand modified to the extent it is covered by the orders and if there is no provision in the Act then the provisions of the order shall be read in addition to the provisions of the Act. In short either the provisions of the Act shall stand modified or the provisions of the order shall be deemed to be added to the Act. And this continued not only till 1982 but in 1985 and even now. As the appointments under orders have to be deemed to be under the Act itself the legislation (sic) it from the operation of Section 16. Provision in the Removal of Difficulties Order for appointing ad hoc teachers in substantive vacancy have, therefore to be read as part of the Act itself, specially when it does not lead to any clash with any provisions in the Act. 9. Ad-hoc appointments have also been made by promotion. Such appointments, if made in substantive vacancies against 40% quota reserved for promotion satisfying other requirements also stand regularised. 10. 9. Ad-hoc appointments have also been made by promotion. Such appointments, if made in substantive vacancies against 40% quota reserved for promotion satisfying other requirements also stand regularised. 10. But the ad-hoc appointments after June, 1985 are not entitled to benefit of Section 33-A. All vacancies existing on the date when Chapter IV A came into force or occurring in future could be filled by reserve-pool- teachers only. Coming to Chapter IV A it is clear that reserve pool teachers have been grouped in two, one who are working by reasons of any order of court or by any other reason and others who are out of employment. The former have been deemed by fiction of law to be regularly appointed and are entitled for confirmation from the date they would have been confirmed in normal course. It presents no difficulty. The others, that is those who are not working have been given right to be appointed against substantive vacancy. It could obviously be done in future. The use of word 'is' in sub-section (3) is not without purpose. It is not retrospective. It applies to a vacancy which has to be filled after coming into force of the Act. Normally, therefore, a reserve-pool-teacher shall have right to be appointed only against the substantive vacancy which the management is required to fill after June 1985. The expression 'is to be filled' may also apply to a vacancy which had not been filled or was vacant on the date the Ordinance was issued or was occupied by a teacher appointed under section 18 (1) (b) or an ad hoc teacher who was not entitled to be appointed in substantive capacity under section 33-A. But he cannot be appointed against those vacancies on which ad hoc teachers are working after their appointment under Removal of Difficulties Orders. A word about reserve pool teachers of other districts. Although Section 21 of Chapter IV permits such appointment but the very fact that it requires permission of Director it has to be construed strictly. In no case the appointment of reserve pool-teacher of other district should be made unless permission for addition of such teachers in the list of one district is obtained. 11. The conclusion that follows from the discussions are as follows :- 1. In no case the appointment of reserve pool-teacher of other district should be made unless permission for addition of such teachers in the list of one district is obtained. 11. The conclusion that follows from the discussions are as follows :- 1. That ad hoc appointments of teachers could be made under Difficulties Orders not only before Constitution of Commission but even after it. 2. Appointment of ad hoc teachers even after constitution of Commission, except those covered by clause (a) and (b) of sub-section (1) of Section 18 are governed by provisions of the Orders only. 3. An appointment under Removal of Difficulties Order could not be converted nor it could be deemed to be an appointment under section 18 of the Act. 4. The appointment of ad-hoc teachers under Removal of Difficulties Orders did not come to an end after expiry of 30th June following the date of appointment. 5. Termination of ad hoc appointees under Orders after expiry of six months or because of 30th June following the date of appointment and their re-appointment after some time could not be deemed to be break in service. 6. Practice of discontinuing services of ad-hoc appointees because of 30th June is illegal and unwarranted. 7. Appointments made under Removal of Difficulties Orders are neither invalid nor void under section 16 of the Act. 8. Reserve-pool-teachers who have not been working on the date of enactment of Chapter IV have to be appointed against substantive vacancies to be filled by direct recruitment occurring after the date of enactment. 9. Substantive vacancies existing in the college on which no ad-hoc appointee has been working or is not entitled to be deemed appointed in substantive capacity has also to be filled by reserve -pool-teachers till the list of the district is exhausted. 10. No reserve-pool-teacher can be appointed under sub-section (3) of Sec. 21-B against 40 per cent reserved for promotees. 11. No reserve-pool-teacher of another district can be appointed except after obtaining permission from Director, which should be granted only if it is necessary or expedient. 12. Any ad-hoc teacher appointed after June, 1985 is not entitled to regularisation. And the vacancy could be filled by reserve-pool-teacher. 12. 11. No reserve-pool-teacher of another district can be appointed except after obtaining permission from Director, which should be granted only if it is necessary or expedient. 12. Any ad-hoc teacher appointed after June, 1985 is not entitled to regularisation. And the vacancy could be filled by reserve-pool-teacher. 12. Since these petitions were heard at admission stage after inviting counter- affidavit of State on question of law the factual position in light of what has been stated above shall have to be ascertained by the Inspector of Schools and pass order accordingly. For instance in Civil Misc. Writ No. 10943, 10666, 10070, 10948, 10895 and 10924 the ad-hoc teachers were appointed prior to 1985. It is not clear if appointments were made after notifying vacancy to commission. The Inspector of Schools shall ascertain it. And if the vacancies had been notified then petitioners shall have to give way to reserve-pool-teachers But in case they were not notified and the appointment of petitioners have been made under Removal of Difficulties Orders their services shall be regularised under Section 33-A and the orders appointing reserve-pool-teachers shall be withdrawn. It shall be treated as non-est. In Civil Misc. Writ Nos. 11045, 10937, 10871 and 10344 the petitioners were appointed after June, 1985. They can have no claim under Section 33-A. The vacancy could be filled by reserve-pool-teachers. The petitioners are not entitled to any relief. 13. Civil Misc. Writ No. 10942. Counter-affidavit has been filed by reserve-pool-teacher that vacancy had been notified. But in absence of any counter-affidavit from management and Inspector of Schools this has to be verified by the Inspector of Schools, who, thereafter shall pass order as indicated above. 14. Civil Misc. Writ Nos. 10896 and 10922. The petitioner in 10922 was promoted to lecturer grade. It is claimed it was against 40 percent quota. This has to be ascertained by Inspector of School. If it is against 40 percent then the benefit of Section 33-A shall be available to him. The petitioner in 10896 was appointed in the vacancy thus caused. His services cannot be terminated unless the claim of petitioner in 10922 is decided. If he stands regularised under Section 33-A then the petitioner appointed in C.T. grade shall also be entitled to benefit of Sec. 33-A. Civil Misc. Writ No. 10921. Inspector of Schools may ascertain if Asha Bhatt resigned prior to June, 1985 or after it. His services cannot be terminated unless the claim of petitioner in 10922 is decided. If he stands regularised under Section 33-A then the petitioner appointed in C.T. grade shall also be entitled to benefit of Sec. 33-A. Civil Misc. Writ No. 10921. Inspector of Schools may ascertain if Asha Bhatt resigned prior to June, 1985 or after it. In case she resigned earlier services of petitioner shall stand regularised. 15. Civil Misc. Writ No. 10667. Since petitioner claims to have been promoted in 40 percent quota no counter-affidavit could be filed on behalf of District Inspector of Schools. We leave it for the District Inspector of Schools to ascertain if petitioner's promotion is against 40 percent quota and if he has been appointed in substantive vacancy. 16. For the reasons stated above the writ petitions are decided in the light of observations made above. There shall be no order as to costs.