JUDGMENT R.B. Mehrotra 1. Janta Inter College, Jeopur, District Ghazipur is an institution recognised, under the provisions of U. P. Intermediate Education Act 1921. The said College is being referred to as 'the institution' hereinafter. The institution is in grant-in-aid of the State Government and the teachers and employees are getting their salary under the provisions of U. P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act 1971. (U. P. Act No. 24 of 1971). 2. The Committee of Management of the institution has been dissolved and the institution is being run and controlled by an authorised controller. The principal, Government City Inter College, Ghazipur has been appointed as an authorised controller. The post of Sanskrit Lecturer fell vacant in the institution and the senior most L T. Grade Teacher Sri Shasnikant Tripathi was promoted on adhoc basis as Lecturer in Sanskrit in the institution. The adhoc promotion was approved by the District Inspector of Schools, Ghazipur (hereinafter referred to as the D.I.O.S.) with the conditions that till a regularly selected candidate, by the Higher Secondary Education Service Commission, Joins the post of Sanskrit Lecturer in the institution, Sri Shashikant Tripathi will continue, thereafter, he will be reverted back to the post of L.T, Grade Teacher. A short term vacancy arose in the institution on the post of Assistant Teacher L.T. Grade due to adhoc promotion of Sri Shashikant Tripathi on the post of Sanskrit Lecturer. The authorised controller after due information of such vacancy to the D.I.OS. advertised the vacancy on the notice board of the institution on 5-5-1993. The advertisement put on the notice board specifically stated that the vacancy is a short term vacancy and is reserved for scheduled caste candidate. In case no scheduled caste candidate is available then the post can be filled by general candidate. It was also stated in the advertisement notice, that the general candidates can also apply for the post. 3. In response to the aforesaid notice the petitioner's contention is that only three persons applied for the post namely; (1) Sri Krishna Nand Dwivedi, petitioner himself (2) Sri Veerendraj Singh and (3) Sri Guru Charan Singh Yadav. The petitioner had highest quality point, marks, amongst the three applicants. Accordingly the selection committee of the College selected the petitioner on the post of L.T. Grade Teacher in the College in the short term vacancy. The petitioner had highest quality point, marks, amongst the three applicants. Accordingly the selection committee of the College selected the petitioner on the post of L.T. Grade Teacher in the College in the short term vacancy. The authorised controller appointed the petitioner in the aforesaid short term vacancy as L.T. Grade Teacher on adhoc basis. The appointment of the petitioner was subject to the conditions that the petitioner will continue on the post till Sri Shashikant Tripathi joins back his original post or till the vacancy is filled by the Higher Secondary Education Service Commission (hereinafter referred to as the Commission). The authorised controller vide his letter dated 1-6-1993 forwarded the decision of the Selection Committee to the D.I.O.S. for formal approval along with the applications and the quality point marks of all the applicants and the copy of the resolution of the Selection Committee and copy of the advertisement for filling up the post. Despite several reminders and representations the D.I O.S. neither granted financial approval to the petitioner's appointment nor the petitioner is being paid salary under the provisions of High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. 4. In the aforesaid background the petitioner has filed the present writ petition seeking a writ of mandamus directing the opposite parties to make payment of the salary to the petitioner since the date of his appointment i.e. 9-7-1993 and for the future direction that the petitioner should be paid salary on month to month basis till Sri Shashikant Tripathi returns to his original post or till the duly selected candidate of the Commission joins the post. I have beard learned counsel for the petitioner and learned Standing Counsel. 5. The U. P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order 1981 provides the procedure for making appointment in short term vacancy. Short term vacancy is defined in the aforesaid Removal of Difficulties Order in Explanation 111 to paragraph 2 of the said Order. The post on which the petitioner was appointed is a short term vacancy within the meaning of Second Removal of Difficulties Order. Paragraph 2 of the Removal of Difficulties (Second) Order is relevant for the purposes. Paragraph 2 (3) (iii) provides that on receiving the request for approval for appointment sent by the management. The post on which the petitioner was appointed is a short term vacancy within the meaning of Second Removal of Difficulties Order. Paragraph 2 of the Removal of Difficulties (Second) Order is relevant for the purposes. Paragraph 2 (3) (iii) provides that on receiving the request for approval for appointment sent by the management. "The District Inspector of Schools shall communicate his decision within seven days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval." 6. On the basis of the aforesaid clause, the contention of the petitioner's counsel is that since the D.I.O.S. has not communicated his decision within seven days of the receipt of the particulars for appointment sent by the Management, the approval should be deemed to have been granted and the petitioner is entitled to get salary from the date of his appointment. In the present case post reserved for scheduled caste has been filled by the general candidate on the ground that no scheduled caste candidate is available for appointment. 7. Paragraph 2 (3) (i) of Removal of Difficulties (Second) Order provides procedures for publication of the vacancy by notifying the vacancy on the notice board of the institution. The question which calls for consideration, is, whether the requirement of notifying the vacancy on the notice board meets the requirement of giving public notice, for filling up the vacancy ? 8. Article 16 of the Constitution of India guarantees, equality of opportunity to all citizen in matters relating to employment or appointment to any office under the State. It is implicit, for complying the requirement of Article 16 in matter relating to employment of appointment to any post, a public notice should be given to all concerned who may know that, the post is required to be filled so that the persons who are qualified for the said post may seek employment. If a post is filled without giving public notice, it will be violative of guarantee of equality of opportunity in the matter of employment. The Teachers and Employees of those High School and Intermediate Colleges, who have been brought within the purview of U. P. Act No. 24 of 1971. are ensured their salary by the State Exchequer. If a post is filled without giving public notice, it will be violative of guarantee of equality of opportunity in the matter of employment. The Teachers and Employees of those High School and Intermediate Colleges, who have been brought within the purview of U. P. Act No. 24 of 1971. are ensured their salary by the State Exchequer. So the post of Assistant Teacher required to be filled in the present case, is a post under the 'State', within the purview of Article 16 (I) of the Constitution. 9. The nature of vacancy required to be filled is also to be examined, for determining the question, as to whether notifying a vacancy on the notice board of the institution, complies with the requirement of public notice, required to be given, for complying the mandate of Article 16 of the Constitution ? 10. The U. P. Secondary Education Services Commission and Selection Board Act, 1982 was enacted by the legislature, as it was felt, that under the provisions of U. P. Intermediate Education Act 1921 and the Regulations framed thereunder, the selection of Teachers was sometimes not free and fair and the field of selection was very much restricted which adversely affected the availability of suitable teachers and standard education. In the aforesaid background, under U. P. Secondary Education Service Commission and Selection Board Act 1982 and the Rules framed thereunder, it was contemplated that the selection Teachers for the High School and Intermediate Colleges should be held at the State level and all qualified Teachers, available at the State level should be appointed for teaching High School and Intermediate Classes recognised under the U. P. Intermediate Education Act 1921. Rule 5 of the Rules framed under U. P. Act No. 5 of 1982 provides "The Commission shall in respect of vacancies to be filled by direct recruitment advertise the vacancies in atleast two newspapers having wide circulation in the State and shall also notify the same to the Deputy Director. 11. Section 18 of U. P. Act 5 of 1982 provides that where the vacancy is not filled by the Commission within a year or where the post remains vacant for two months the adhoc appointment can be made by the Committee of Management. 11. Section 18 of U. P. Act 5 of 1982 provides that where the vacancy is not filled by the Commission within a year or where the post remains vacant for two months the adhoc appointment can be made by the Committee of Management. Since no procedure for making such appointment was provided, the Governor in exercise of power under section 33 of U. P. Ordinance No. 8 of 1981 issued the various Removal of Difficulties Orders. U. P. ordinance No. 8 of 1981 has been substituted by U. P. Act No. 5 of 1982. The U. P. Secondary Education Services Commission (Removal of Difficulties) Order 1981 provided procedures for filing up of substantive vacancies on adhoc basis. 12. Paragraph 5 (2) of the said order provided "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 advertisement in atleast two newspapers having adequate circulation in Uttar Pradesh." This procedure for filling of adhoc vacancy also contemplates a public notice for filling up the post by information to the Employment Exchange and also through public advertisement in atleast two newspapers having adequate circulation in U. P. 13. Analysis of the scheme of the U. P. Act No. 5 of 1982 and Removal of Difficulties Order 1981 issued under the said Act show that adhoc appointments are to continue till a candidate duly selected by the Commission joins the post. The practical experience has proved that the Commission appointed under the U. P. Act No. 5 of 1982 did not function effectively, as a result of which adhoc appointees continued for years. Naturally a demand was raised, for such adhoc appointees, who have continued for years and have devoted their best period of life, that the persons appointed as adhoc Teachers, should be regularised on their post ; the legislature interverned, amended the provisions of section 33 by adding 33-A onwards, made a provision, that adhoc Teachers appointed from the time to time in a particular period should be regularised Initially an appointment which was an adhoc appointment, has been converted into a permanent appointment. So the nature of the vacancy is not very relevant for determining, the nature of public notice, required for filling up the vacancies, as many times the adhoc appointments are regularised due to their long continuation on their post. 14. Various amendments have been made in U. P. Act No. 5 of 1982 the last of such amendment has been made by U. P. Act No. 1 of 1993. In U. P. Act No. 1 of 1993 the word Commission has been deleted in U. P. Act No. 5 of 1982 and the Commission has been abolished. In its place Boards have been constituted and the constitution of the Boards have also been changed. The Boards have not yet started functioning. The procedure for making appointments have not yet been notified. The position is that it is again likely to take some time, may be some years till the Boards constituted under U. P. Act No. I of 1993 start effective functioning. It may again result, in the situation where adhoc appointees may continue for years and ultimately situation may again arise where these adhoc employees may be regularised. The appointees on short term vacancy on adhoc basis, stand on the same footing on which an ad hoc appointee on substantive vacancy stands. If the adhoc appointees are to continue for years, the Teachers appointed in the short term vacancies caused by the vacancy of Teachers promoted on ad hoc basis are also likely to continue for years. Thus in the name of short term vacancy, under the provisions of Second Removal of Difficulties Order issued under Act No. 5 of 1982 the vacancy is also likely to continue for years. Consequently the adhoc appointees on short-term vacancies are also likely to continue for years under the scheme of the Act. There is no difference in the two appointments one as adhoc appointee on substantive vacancy and the other an adhoc appointee in a short term vacancy except that in first case the vacancy is to be notified to the Commission and in second case the vacancy is not to be notified. There is hardly any justification for adopting two different standards for advertising the vacancy of aforesaid two posts. 15. As noticed above under Second Removal of Difficulties Order 1981 the requirement is that the vacancy should be notified on the notice board of the institution. There is hardly any justification for adopting two different standards for advertising the vacancy of aforesaid two posts. 15. As noticed above under Second Removal of Difficulties Order 1981 the requirement is that the vacancy should be notified on the notice board of the institution. Notifying the vacancy on the notice board of the institution does not meet the requirement of public notice. No body visit the institution for knowing the vacancies. The Management of the College, the Principal of the College and the Employees and Teachers of the College only know about such publication of vacancy. Even all qualified applicants in the district are not supposed to know the publication of vacancies notified on the notice board. 16. This leads to the situation where many qualified and competent applicants are deprived of their right to apply for the post which has fallen vacant, a right which is guaranteed by Article 16 of the Constitution of India. Thus the procedure contemplated for notifying the short term vacancy on notice board in clearly violative of Article 16 of the Constitution. Though in the present case Dobody has come forward to claim such right as they do not know as to what is going on in the name of filing up short term vacancy in the institution. A judicial notice can be taken of the situation that there is a vast unemployment in the; country, many qualified and trained graduates are languishing for want of employment. There is no justification for permitting a procedure to continue, which deprives the qualified applicants for applying for the posts which have fallen vacant. On one hand the legislature has taken care to ensure that only most qualified candidates are appointed on the post of Teachers as the appointment is to be made only on the basis of quality point marks which does not leave any scope for manoeuvring. On the other hand such ;a lacuna has been left in the procedure for inviting application that appointments are manipulated on extraneous consideration. The interested party can get appointment as the qualified and competent aspirant do not even know regarding vacancies which are to be filled. On the other hand such ;a lacuna has been left in the procedure for inviting application that appointments are manipulated on extraneous consideration. The interested party can get appointment as the qualified and competent aspirant do not even know regarding vacancies which are to be filled. A provision of filling up the vacancy even if it is a short term vacancy in the present context, by notifying the vacancy on the notice board is resulting on one hand in depriving many qualified and competent aspirants all over the State from applying for the post, and on the other hand a back-door entry is manipulated by this procedure on extraneous consideration by the management and Principal of the College. THIS practice of notifying the vacancy on the notice board should be stopped. In S Nagaraj v. State of Karnataka, JT 1993 SC 17, the Honourable Supreme Court considered the question of the validity of the Rules made by the Government of Karnataka, providing scheme of employment to unemployed Graduates, Post Graduates and Diploma-holders and giving a fixed stipend to the families having less than Rs. 3600/- annual income, and there being no earning member in the family and thereafter making amendment in the Rule, providing stipendiary Graduates upto the extent of 50% quota will be absorbed in group O of State Civil Services without facing any interview or by passing any examination. The Court held as under : "Yet we cannot refrain from expressing that any laudable scheme or policy framed by a Government to help the educated unemployed to stand on their own is commendable and in keeping with spirit of Directive Principles of the Constitution. But any rule which results is undue benefit to one class to exclusion of others and permit entry ' in State Civil Service, the most coveted service wealthy without any competition or test written or oral of persons who are possessed of only one qualification that despite State help for five years or more they could not get entry anywhere is something which is breach of faith with others in society. A man in the street or a common man cannot have any knowledge how his right to enter into service has been eroded or curtailed by rules. Helping the week or poor is one of the primary functions of the Stats. A man in the street or a common man cannot have any knowledge how his right to enter into service has been eroded or curtailed by rules. Helping the week or poor is one of the primary functions of the Stats. But any such scheme should not be so manoeuvred by the State as to make an in road in right guaranteed to every citizen of equal treatment of catering into Service. Rules such as were framed by the Karnataka Government,, particulary in 1987, are against public policy." (at page 33) "The 1987 amendments have the effect of smuggling in thousands of persons into Government service by a back-door-without complying with the recruitments of Articles 14 and 16. One can understand the rules as framed in 1982, but it is extremely difficult to appreciate or understand the reasons for which the 1987 amendment was brought in. The question, to repeat, is whether this Court should extend its arm-its discretionary power under Articles 136 and 32, as the case may be, to implement such unconstitutional Rules and help these persons to gain a back-door entry into Government Service-that too at the highest level in group 'C services straightaway. It is true that no one has questioned the 1987 amendments. The petitioners do not question them because they are advantageous to them; they want them to be implemented. The Government cannot and does not question them because it has itself made them. The parties who are affected namely the persons awaiting employment under the government probably do not even know what is happening. But where an unconstitutional provision of such vast impact is brought to the notice of this Court and it is asked to enforce it, it is the constitutional duty of this Court to refuse to do so." (page 57). 17. But where an unconstitutional provision of such vast impact is brought to the notice of this Court and it is asked to enforce it, it is the constitutional duty of this Court to refuse to do so." (page 57). 17. In the aforesaid background though nobody has challenged the vires of Clause (3) (i) of para 2 of U. P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order 1932 to the extent it provides for notifying the vacancy of notice board, the said provision having come to the notice of the Court and the Court being satisfied that the said provision is violative of Article 16 of the Constitution of India, declare, that paragraph 2 (3) (i) of the U. P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 the following words are ultravires of Article 16 of the Constitution of India "shall also immediately notify the same on the notice board of the institution," It is hereby directed that all vacancies under U. P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order 1981 shall hereinafter be filled by notifying the vacancy atleast in two such newspapers which has wide circulation throughout the State and by an intimation to the local Employment Exchange. 18. However, it is being made clear that no appointment already made under U. P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order 1981 will be invalidated of this ground. The provision has been declared ultravires prospectively. Since in the present case the post was reserved for scheduled caste, it is necessary that it should be advertised in two newspapers having wide circulation throughout the State and also by sending the information to Employment Exchange thereafter the petitioner's application should be considered along with all such other applicants who may apply for the post. This procedure should be completed by respondent no. 2 within two months of the receipt of a certified copy of this order. The petitioner will produce a certified copy of this order to the respondent no. 2 and to the D.I.O.S. within ten days of the receipt of the certified copy of this order. A copy of this judgment should be circulated to the Secretary Education Department, State of UP. The petitioner will produce a certified copy of this order to the respondent no. 2 and to the D.I.O.S. within ten days of the receipt of the certified copy of this order. A copy of this judgment should be circulated to the Secretary Education Department, State of UP. and also to all the District Inspectors of Schools of the State for following the above procedure in future for filling up the short term vacancies under the (J. P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981. The Registrar of this Court will ensure that the necessary copies are so circulated. 19. The writ petition is accordingly disposed of with the aforesaid directions.