V. N. KHARE J. Over a decades history of recruitment of teachers in the Government aided recognised institutions run by the private manage ments in the State of Uttar Pradesh discloses that the recruitment of teac hers began with ad hoc appointment which was subsequently regularised by legislative intervention. In fact the Government could not achieve its object to recruit competent teachers through fair selection by instrumentality of the U. P. Secondary Education Services Commission (hereinafter referred to as the Commission) initially due to its non-establishment and subsequently due to long delay entailed in the process of selection of teachers. Thus, due to non-availability of duly selected teachers, who were urgently required in the institutions the whole machinary got involved in recruiting teachers by ad hoc appointment in the institutions. In the absence of com plete legislation in respect of method of appointment of ad hoc teachers the management of the institutions resorted to make ad hoc appointment in the manner which suited them best and this gave rise to enormous litigations which have brought burden on the Court as well as on public exchequer and further affected the standard of the education in this State. Despite illustritious judgments rendered by this Court the controversy in respect of ad hoc appointment of teachers/principal in the institutions continued to be deba ted in this Court. It is in this back ground when these writ petitions came up before the learned Single Judge the controversy as to whether the ad hoe appointment of Principal in the institution is to be done either by promo tion from amongst the senior most teacher or by direct recruitment, was raised. In the special appeal also the question raised was as to whether any approval or prior approval of the District Inspector of Schools in the matter of ad hoc appointment of teacher is required or not. In the writ petition the question raised before the learned Single Judge was that since the U. P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 has ceased to be operative the ad hoc appointment of principal in the institution has to be done in accordance with the provisions of the U. P. Intermediate Education Act, 1921 (hereinafter referred to as, the Intermediate Education Act) and the regulations framed thereunder. According to the learned Single Judge various Removal of Difficulties Order issued by the State Government under Section 33 of the U. P. Secon dary Education of Services Commission and Selection Board Act 1981 (herein after referred to as the Act) cannot continue for unlimited period of time inasmuch as the reason for issuing of removal of Difficulties Orders by the State Government has attained its purpose by adding a new Section 33-A by which all the ad hoc appointments made there stood regularised and as such First Removal of Difficulties Order as amended by subsequent order has ceased to be operative. In view of this, the learned Single Judge was of opinion that ad hoc appointment of Principal in the institution is permissi ble under the provisions of the U. P. Intermediate Education Act and under the regulations thereunder and not under the Removal of Difficulties Order issued under the Act. The learned Single Judge was of further opinion that the questions involved in the writ petitions require to be considered by a Full Bench of this Court. The learned Single Judge by order dated 31st March, 1992 framed five questions of law to be answered by a Full Bench. Before the learned Single Judge, it appears that certain amendments in the Act were not brought to his notice and further subsequent to the date of reference the Act has under gone through major legislative changes which are being mentioned hereinafter. By U. P. Act No. 26 of 1991, in Section 33-1, three sub-sections namely sub-section (I-A), (I-B) and (I-C) were added and further sub-section (2) of Section 33-A was substituted by new sub section (2 ). By this new sub-section certain categories of teachers who were appointed on ad hoc basis, either by promotion or direct recruitment, their services were regularised. By U. P. Act No. 1 of 1993 a Proviso was added in sub-section (1) of Section 33 of the Principal Act which is in the following terms: "provided that no such order shall be made after two years from the date of commencement of U. P. Secondary Education Services Commission & Selection Boards (Amendment) Act, 1992 (U. P. Act No. 1 of 1992 ). " Thus, this Proviso gave power to the State Government to issue Removal of Difficulties Orders for a further period of two years from coming into force of Act No. 1 of 1993. The view taken by the learned Single Judge that since original Proviso to Section 33 of the Act prohibited issuance of Removal of Difficulties Order after two years of common cement of the Act, namely 14th July, 1981, there is no justification for treating the Removal of Difficulties Orders to be continuing in force, lost its relevance in view of substitution of new Proviso in sub-section (1) of Section 33 of the U. P. Act No. 1 of 1993. Since the very premise on which the questions framed were required to be answered by Full Bench has disappeared, we were inclined to send the case back to the learned Single Judge for decision on merit. How ever, since the learned counsel for the parties questioned the validity of Section 33 of the Act which empowers the State Government to issue Re moval of Difficulties Orders and also various Removal of Difficulties Orders issued by the State Government, we with the consent of the parties by our order dated 17-9-1993 refrained the following questions : (a) Whether Section 33 of the U. P. Act No. 5 of 1982 suffers from vice of excessive delegation of legislative power and as such it is void? (b) If the answer to question No. (a) is in negative, whether Remo val of Difficulties Orders published on 31st July, 1981, Removal of Difficulties (Second) Order published on 11th September 1981 and Removal of Difficulties (Third Order published on 30th January, 1982, issued by the Government tend to amend, scheme and essential features of the Act and as such are ultravires the provisions of Section 33 of the Act. (c) Whet would be the criteria and procedure for ad hoc appoint ment of a teacher or principal either under the Removal of Difficulties Order or under Section 18 of the U. P. Act No. 5 of 1982? (d) Whether any approval or prior approval of the District Inspector of Schools or Regional Inspectress of Girls Schools, as the case may be, is necessary for making ad hoe appointment of a teacher or Principal either under the Removal of Difficulties Order or under Section 18 of the Act ? 2. (d) Whether any approval or prior approval of the District Inspector of Schools or Regional Inspectress of Girls Schools, as the case may be, is necessary for making ad hoe appointment of a teacher or Principal either under the Removal of Difficulties Order or under Section 18 of the Act ? 2. Before I answer to these questions, it is necessary to give brief facts of the petitions which have given rise to the questions require to be answered by this Full Bench. In Civil Misc. Writ Petition No. 18934 of 1991 the vacancy in the post of principal of the College came into existence on account of retirement of permanent Principal. Although the Manage ment notified the vacancy to the Commission yet the Commission was not able to send duly selected Principal for appointment to the said post. Since duly selected Principal by the Commission was not available the Management appointed contesting respondent on ad hoc basis to the post of principal. This appointment was challenged by the petitioner claiming that in fact the ad hoc appointment to the post of Principal has to be done on the basis of promotion, amongst the senior most teacher in the lecturer grade. In Civil Misc Writ petition No. 23642 of 1991 the Committee of Manage ment instead of taking recourse to the method of promotion for filling the vacancy in the post of Principal, resorted to the method of direct recruit ment for ad hoc appointment to the said post and on that basis the contest ing respondent was appointed on ad hoc basis as principal of the institution and who is the petitioner in the Civil Misc. Writ Petition No 23737 of 1991. The third Civil Misc. Writ Petition No. 23737 of 1991 has been filed by the ad hoc principal, appointed by direct recruitment challenging the order of the District Inspector of Schools directing the Management to fill the said post by promotion. In Special Appeal No. 31 of 1991 the appellant was appointed by letter dated 6-1-1989 only for a period up to 30th April, 1989 without obtaining any approval from the District Inspector of Schools. In Special Appeal No. 31 of 1991 the appellant was appointed by letter dated 6-1-1989 only for a period up to 30th April, 1989 without obtaining any approval from the District Inspector of Schools. This petition was dismissed against which the special appeal was filed wherein it was contended that for ad hoc appointment it is not necessary to comply with the provisions contained in the first Removal of Difficulties Order issued under Section 33 of the Act. The validity of Section 33 of the Act as well as various Removal of Difficulties Orders has been questioned by the respondents presumably on this hope that in case Section 33 of the Act or various Removal of Difficulties Orders issued by the State Government if found void, it would not be necessary for the Management to comply with the provisions of first Removal of Difficulties Order. In the light of the aforesaid allegations in the writ petitions and special appeal, I proceed to answer the questions reframed by us: Question No, 1 (a ).-"whether Section 33 of the U. P. Act No. 5 of 1982 suffers from vice of excessive delegation of legislative power and as such it is void ? 3. Question No. 1 raises the validity of Section 33 of the Act, which is in following terms; "38. Power to remove difficulties- (1) The State Government may, for purpose of removing any difficulty, by a notified order, direct that the provisions of this Act shall during such period as may be specified in the order have effect subject to such adoptations, whether by way of modification, addition or omis sion, as it may deem to be necessary or expedient; Provided that no such order shall be made after two years from the date of commencement to this Act; (2) Every order made under sub-section (1) shall be laid before the House of State Legislature; (3) No order under sub-section (1) shall be called it question in any Court on the ground that no difficulty as is referred to in sub section (1) existed or required to be removed. " 4. " 4. The provision like Section 33 of the Act quoted above which empowers the State Government or any other body to issue Removal of Difficulties Order by directing that the provisions of the Act shall have effect subject to such adoptation whether by modification addition or omis sion after the Act has come into force has been nick named "the Henry VIII Clause" presumably because the British Monarch Henry VIII, who was well known for his autocracy persuaded the British Parliament to enlarge his power to make law by means of proclamation. Initially, inclusion of such provision in Statute in England invited uncharitable comments. The Committee on Ministers powers while admitting such a provision be rarely incorporated in a statute which is cited in re Article 143 of the Constitution of India and Delhi Laws Act, is extracted below: ". . . . . . . . We are clear in our opinion first that the adoption of such a clause ought one each occasion when it is on the initiative of the Minister incharge of the Bill, proposed to Parliament to be justified by hint up to the essential. It can only be essential for the limited purpose of bringing an Act into operation and it should accordingly be in most precise language restrict to those purely machinery arrangements vitially requisite for that pur pose; and the clause should always contain a maximum time limit of one year after which the power should lapse. If in the even the time limit proves too short which is unlikely the Government should then come back to Parliament with a one clause Bill to extend it. " 5. Although the Henry VIII Clause was much frowned upon in England yet such clause continued to find place in number of statute enacted by British Parliament presumably to shield the drafts mans inabi lity to for see all the difficulties that might arise in future in giving effect to that statute. The above reason for retention of such clause in the Statute find support from Sir Thomes Corrs Book concerning English Administrative law which is reproduced below: "of all the types of orders which alter statutes, the so called "henry VIII Clause" sometimes inserted in big and complicated Acts, has probably caused the greatest flutter in England. The above reason for retention of such clause in the Statute find support from Sir Thomes Corrs Book concerning English Administrative law which is reproduced below: "of all the types of orders which alter statutes, the so called "henry VIII Clause" sometimes inserted in big and complicated Acts, has probably caused the greatest flutter in England. It enables the Minister by order to modify the Act itself so far as necessary for bringing it into operation. Anyone who will look to see what sort of orders have been made under this power will find them surprisingly innocuous. The device is partly a draftsmans insurance policy, in case he has overlooked something, and is partly due to the immense body of local Acts in England creating special difficulties in particular areas. These local Acts are very hard to trace, and the draftsman could never be confident that he has examined them all in advance. The Henry VIII Clause ought, of course to be effective for a short time only. " 6. The rapid changes in the society in post independent era in India brought more responsibility on Statute to meet the need and aspiration of people which are legitimately expected from a welfare State which resulted in multifarious activities by the State. This brought tremendous pressure on legislature to enact numerous laws. Seeing the pressure of legislatures time, the technical character of modern law, need for flexibility and the amount of time which is being consumed in amending laws, the legislature though fit and expedient only to concentrate on essential leaving the details to be worked out by the executive by making such adaptation whether by way of modification, addition or omission. Of course without doing any violence to the essential feature and purposes of the Statute. This course was adopted by the legislature in order to implement the Statute more effectively and without waiting for amending process in the legislature which often took lot of time. 7. It is in this back ground. I proceed to examine the arguments of Sri P. G. Padia, learned counsel appearing for the respondent in Civil Misc. Writ petition No 23642 of 1991, who contends that Section 33 of the Act is void as it permits the State Government to alter the provisions of the Act. 7. It is in this back ground. I proceed to examine the arguments of Sri P. G. Padia, learned counsel appearing for the respondent in Civil Misc. Writ petition No 23642 of 1991, who contends that Section 33 of the Act is void as it permits the State Government to alter the provisions of the Act. It is also contended that the Section 33 of the Act is also void on the ground that the Removal of Difficulties Orders issued by the State Government have been made beyond the purview of the judicial review by the Court. On the other hand Sri Rakesh Dwivedi, learned Additional Advocate General, who appeared for the State Government, contended that the power given to the State Government to issue Removal of Difficulties Order is uncontrolled or unfettered and in fact it is the conditional and restricted. He further argued that Section 33 of the Act does not suffer from vice or delegation of essential legislative function on the executive and infact it is the valid piece of legislation. 8. The provision like Section 33 of the Act has not come for interpretation for the first time before this Court. In fact, it was subject matter of interpretation before English Court as well as in India before the appex Court including in various High Courts. I, therefore propose to refer the decisions of the Supreme Court on the provisions like Section 33 of the Act which empowers the State Government to issue Removal of Difficul ties Orders for removing the difficulties in giving effect to the provisions of the Act. 9. In the case of Commissioner of Income Tax v. Dewan Bahadur Ramgopal Mills Ltd. , AIR 1961 SC 338 , the validity of Order known as Taxation Laws (Part-B States) (Removal of Difficulties) Order (1950) issued under Section 12 of the Finance Act, 1950 was challenged. While examin ing the validity of the Order the Supreme Court held as thus:- "furthermore the true scope and effect of Section 12 seems to be that it is for the Central Government to determine if any difficulty of the nature indicated in the section has arisen and then to make such order, or give such direction, as appears to it to be necessary to remove the difficulty. Parliament has left the matter to the executive but that does not make the notification of 1956 bad. Parliament has left the matter to the executive but that does not make the notification of 1956 bad. In Banarsi Das Bhanot v. State of Madhya Pradesh, 1959 SCR 427 : AIR 1958 SC 909 . We said at page 435 "now, the authorities are clear that it is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods and the like. "we are, therefore, of the view that the notification of 1956, was validity made under Section 12 and is not ultra vires the powers conferred on the Central Government by that section. " 10. In the case of Kalawati Devi Harlalka v. The Commissioner of Income Tax, ( AIR 1968 SC 162 ) the constitutionality of Section 298 of the Income Tax Act, 1961 was challenged which empowered the Central Government to issue general or special order in case any difficulty arises in giving effect to the provisions of the Act, While upholding its validity the Supreme Court held as follows : "in Banarsi Das Bhanot v. State of Madhya Pradesh, (1958) 9 STC 388, we said at p. 435 "now the authorities are clear that it is not upconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods, and the like. We are, therefore, of the view that the notification of 1958 was validly made under Section 12 and is not ultra vires the powers conferred on the Central Government by that section. It is true that in that case the attack was on the notification and not on the section itself, but it seems to us that the ratio given by the Court is appropriate to cover the validity of the section itself. " 11. It is true that in that case the attack was on the notification and not on the section itself, but it seems to us that the ratio given by the Court is appropriate to cover the validity of the section itself. " 11. In the case of M/s. Gammon India Ltd. v. Union of India AIR 1975 SC 797 , the Taxation Laws (Extention to Union Territories) (Removal of Difficulties) Order (2 of 1970) issued under Clause 7 of the Taxation Laws (Extension to Union Territories) Regulation (III of 1963) was challenged. Clause 7 of the Regulation empowers the Central Government to issue a general or special order in case any difficulty arises in giving effect to the provisions of the Act. The Supreme Court in this case while interpreting Clause 7 held as thus: "now let us turn to clause (7) of the Regulation. It will be seen that the power given by it is not uncontrolled or unfettered. It is strictly circumscribed, and its use is conditioned and restricted. The existence or arising of a difficulty" is the sine quo non for the exercise of the power. If this Condition precedent is not satisfied as an objective fact, the power under this clause cannot be invoked at all. Again, the "difficulty" contemplated by the clause must be a difficulty arising in giving effect to the provi sions of the Act and not a difficulty arising aliunde, or an extraneous difficulty. Further, the Central Government can exercise the power under the Clause only to the extent it is necessary for applying or giving effect to the Act etc. , and no further. It may slightly tinker with the Act to round off angularities, and smoothen the joints or remove minor obscurities to make it workable, but it cannot change, disfigure or do violence to the basic structure and primary features of the Act. In the case, can it, under the guise of removing a difficulty, change the scheme and essential provisions of the Act. " 12. In the case of Maharane Mills Pvt. Ltd. v. Income Tax Tribunal Ahmedabad and others, AIR 1989 SC 1719 , the Supreme Court approved the earlier decision of Supreme Court rendered in the case of Dewan Bahadur Ramgopal Mills, Ltd. (Supra ). " 12. In the case of Maharane Mills Pvt. Ltd. v. Income Tax Tribunal Ahmedabad and others, AIR 1989 SC 1719 , the Supreme Court approved the earlier decision of Supreme Court rendered in the case of Dewan Bahadur Ramgopal Mills, Ltd. (Supra ). 13 In the case of Bengal Iron Corporation and another v. Commercial Tax Officer and others, 1993 Vol III Judgments Today, 134, the validity of Section 42 of the Andhra Pradesh General Sales Tax Act, which authorised the State Government to issue orders as appear to them to be necessary or expedient for removing the difficulty, in case any difficulty arises in giving effect to the provisions of the Act was up- held. 14. The analysis of the aforesaid decisions would show that the provi sion like Section 33 of the Act, which provides that the State Government for the purposes of removing any difficulty, by a notified order, direct the provisions of the Act shall have effect subject to such adaptation whether by modification, addition or omission as it may deem necessary or expedient, is not uncontrolled or unfettered power. In fact such power conferred upon the Government is restricted and has to be exercised in consonance with the essential feature of the Act. It may be emphasised that such an order is not permitted to violate the basic structure of the provisions of the Act and further it could be only issued when there is real difficulty arises in giving effect to the provisions of the Act. 15 Learned counsel for the respondents urged that Section 33 of the Act permits adaptation whether by way of modification, addition or omis sion which in fact delegation of essential legislative function on the State Government. It is true that if the argument of learned counsel for the respondents is taken literally it may appear that the section gives unfettered power of modifying and amending the Act but such interpretation has not been accepted by the Courts. In Blacks Law Dictionary, Vth Edition, "adapted means "capable of use", has been made fit by alteration. " Thus by adaptation the essential features of the Act are preserved and this does not amount to conferment of essential legislation function on the State Government Similarly the word modification also has restricted meaning. The power to modify the Act is controlled and restricted. " Thus by adaptation the essential features of the Act are preserved and this does not amount to conferment of essential legislation function on the State Government Similarly the word modification also has restricted meaning. The power to modify the Act is controlled and restricted. The Act can be modified to the extent only for making the enactment suitable for giving effect to as observed by the Supreme Court in the case of Madeva Upendra Sinai (supra) that it may slightly tinker with the Act to round off angularities, and smoothen the joints or remove minor obseruties to make it workable. The power to modify the Act does not cover any amendment in essential features of the Act or object of the Act. Further the section does not give any discretionary power to the State Government to modify or amend the Act or change the policy contain in the Act. In the case of Lachmi Narain v. Union of India, AIR 1976 SC 714 , the provision empowering the Government to modify the Act by an order came for interpretation before the Supreme Court. Their Lordship held us thus; "we must therefore, confine the scope of the words restrictions and modifications about to alterations of such a character which keep the in built policy essence and substance of the enactment sought to be extended in fact and introduce only such peripheral or in substantial changes which are appropriate and necessary to adapt and adjust it to the local condition of the Union Territory. " There are number of decisions of the Supreme Court on this point which I need not refer. Suffice it is to say that the consistent view is that the power conferred on the executive to modify the Act is only to the extent that such modification shall not affect the object of the Act or essential features or bring any essential change in the Act. It is true where a modification affects the redical change in the basic structure or object of the Act no doubt such power could not be delegated to the executive and such delegation of power then would be ultra vires. It is true where a modification affects the redical change in the basic structure or object of the Act no doubt such power could not be delegated to the executive and such delegation of power then would be ultra vires. Section 33 (1) and (2) of the Act does not permit the State Government to change the basic structure of Act and, therefore, such power to modify the Act is not ultra vires or suffers from vice of delegation of essential legislative function on the executive. 16. The validity of Section 33 of the Act can be examined from another angle also. A reading of Section 33 would show that the power conferred on the State Government to adapt whether by way of modification addition or omission is not unrestricted and in fact is a controlled one. Section 33 embodies several safe-guards in the mater of issuing Removal of Difficulties Order by the State Government. The first safe-guard is that the power has been given to the State Government to issue such an order only for remov ing any difficulty which might have come in the way of State Government in giving effect to the provisions of the Act. The existence of difficulty is sine qua non for exercises of power under Section 33 of the Act The exis tence of difficulties is not depended upon the subjective opinion of the State Government but objectively it has to be demonstrated that there are diffi culties in the way of giving effect to the provisions of the Act which has necessitated to issue the Removal of Difficulties Orders. 17. The second safe-guard is born out from Section 33 itself is that the power to issue the Removal of Difficulties Order can be exercised only when it is necessary or expedient. The meaning of word expedient in Blacks Law Dictionary, Vth Edition is suitable or appropriate. Thus the power of the State Government to issue Removal of Difficulties order can only be exercised when it is appropriate and necessary. 18. The third safe-guard provided is that if the order is made under sub-section (1) of Section 33 the same has to be laid before the House of Legislature. Thus the power of the State Government to issue Removal of Difficulties order can only be exercised when it is appropriate and necessary. 18. The third safe-guard provided is that if the order is made under sub-section (1) of Section 33 the same has to be laid before the House of Legislature. In view of the aforesaid discussions, I am of opinion that the power given to the executive to adapt whether by way of modification, addition or omission is not akin to the power to amend law as to defence the basic structure of the Act but is a power conferred to the executive due to pressure of time on tie Parliament or the Legislature. Learned counsel Sarvsri R. G. Padia and R. C. Shukla strongly relied upon the decision of Supreme Court in the case of Jain Trading Co. v. Mill Mazdoor Sabha, AIR 1967 SC 69, which is the sheet anchor of their argument. Although the decision of Supreme Court in the case of Jalan Trading Co. (Supra) is not overruled but consistently it has been distinguished on the ground that Section 37 of the Payment of Bonus Act authorised the Government to determine for itself what the purposes of the Act were and to make provi sion for removal of doubts and difficulties and secondly the power to remove the doubts and difficulties by altering the purposes of the Act would amount to exercise of legislative authority which could not be delegated to executive. In the present case Section 33 of the Act does not empower State Government to determine for itself what are the purposes of the at all. I am, therefore, of the view that learned counsel do not derive a assistance from the decision in the case of Jalan Trading Co. (Supra) fact it is distinguishable. Thus, in view of the aforesaid discussions I of view that Section 33 (1) and (2) of the Act does not confer on the State Government essential legislative function. In fact Sections 33 (1) and (2) a valid piece of legislation. 19. (Supra) fact it is distinguishable. Thus, in view of the aforesaid discussions I of view that Section 33 (1) and (2) of the Act does not confer on the State Government essential legislative function. In fact Sections 33 (1) and (2) a valid piece of legislation. 19. Sri R. G. Padia, learned counsel for the respondent then referred to sub-section (3) of Section 33 of the Act which provides that no order issued under sub-section (1) of Section 33 shall be called in question in as Court on the ground that no difficulty existed or required to be remove On the strenght of this sub-section (3) of Section 33 it was argued the since sub-section (3) of Section 33 debars the judicial review of the order issued under sub-section (1) of Section 33 on the ground that no difficult existed or required to be removed and as such the whole section is Learned counsel Sri R. G. Padia strongly relied upon the decision of Supreme Court in the case of Jalan Trading Co (Supra) Sub-section (3) of Section 33 of the Act is in the following terms: "no order in sub-section (1) shall be called in question in any court on the ground that no difficulty as is referred to in sub-section (1) existed or required to be removed," It is true that existence of difficulty in giving effect to the provisions of the Act is condition precedent for issuing the Removal of Difficulties Order under Section 33 of the Act, The arising of difficulty is not a matter of subjective satisfaction of the Government and it has to be demonstrated objectively. Sub- section (3) of Section 33 prohibits the judicial review of the existence of difficulty in issuing the order under sub-section (1) of Section 33 of the Act, In the case of Jalan Traning Co. (Supra) Section 37 of the Payment of Bonus Act, 1965 which was is following terms was struck down by the Supreme Court: "37. Sub- section (3) of Section 33 prohibits the judicial review of the existence of difficulty in issuing the order under sub-section (1) of Section 33 of the Act, In the case of Jalan Traning Co. (Supra) Section 37 of the Payment of Bonus Act, 1965 which was is following terms was struck down by the Supreme Court: "37. Power to remove difficulties.-If any difficulty or doubt arises in giving effect to the provisions of this Act, the Central Govern ment may, by order published in the Official Gazette, make such provision, not inconsistent with the purposes of this Act as appears to it to be necessary or expedient for the removal of the difficulty or doubt and the order of the Central Government, in such cases shall be final. " The decision of Supreme Court in the case of Jalan Trading Co. (Supra) although is not overruled by any subsequent decision of Supreme Court but has been explained in later decisions in Gammon India Ltd etc. v. Union of India and others (Supra) and in the case of Bengal If on Corporation and another v. Commercial Tax Officer and others 1993 (3) Judgment Today page 134, by holding (that the decision in Jalan Trading Co. (Supra) was influenced by the words occurring at the end of Section 37 of the payment of Bonus Act to the effect that the direction of the Government issued thereunder was final Since existence of difficulty is the sine qua non for issuing an order under Section 33 of the Act no such provision like sub-section 3 of Section 33 of the Act can be enacted as to debar the judicial review by the Court in view of decision of Supreme Court in Jalan Trading Co. (supra) as explained in Gammon India Ltd. Co. (supra) and Iron Corporation (supra) Thus, sub-section (3) of Section 33 of the Act can be struck down on the ground that it debars the judicial review of order by the Court However, I refrain to strike down sub-section (3) of Section 33 of the Act on the grounds enumerated hereinafter. Firstly, sub- section (3) of Section 33 does not debar the judicial review of order by the High Court while exercising the power under Article 226 of the Constitution on the ground that no difficulty was in existence when the order was issued. Firstly, sub- section (3) of Section 33 does not debar the judicial review of order by the High Court while exercising the power under Article 226 of the Constitution on the ground that no difficulty was in existence when the order was issued. Article 226 of the Constitution is a constitutional remedy and no Act of Legislature can prohibit the judicial review of order by the High Court and in fact also it does not do so. Secondly, sub-section (3) of Section 33 of the Act is severable from sub-section (1) of Section 33 of the Act and even if it is struck down, the power to issue of Removal of Difficulties Order with the Govern ment remains. And, thirdly, a provision of an Act ordinarily should not be struck down unless it comes in the way of deciding a matter. Since, sub-section (3) of Section 33 of the Act does not prohibit the judicial review of the Removal of Difficulties order by the High Court while exercising the constitutional power under Article 226 of the Constitution, I am not inclined to strike down sub-section (3) of Section 33 of the Act and proceed to decide the validity of various Removal of Difficulties Orders issued by the State Government under sub-section (1) of Section 33 of the Act. QUESTION No. (b) "if the answer to question No. (a) is in negative, whether Removal of Difficulties Orders published on 31st July, 1981, Removal of Difficulties (Second) Order published on 11th September, 1981, and Removal of Difficulties (Third) order published on 30th January 1982 issued by the Government tend to amend, scheme and essential features of the Act and as such are ultra vires the provisions of Section 33 of the Act?" 20. In this respect learned counsel for the respondents contended that the provisions of the Act have been made subordinate to the Orders issued by the State Government under Section 33 of the Act in as much as the provisions of the Removal of Difficulties order over ride the provisions of the Act and as such are ultra vires. In support of his argument learned counsel referred to the statement and object stated in the Removal of Difficulties Orders issued by the State Government. In support of his argument learned counsel referred to the statement and object stated in the Removal of Difficulties Orders issued by the State Government. For appreciating the argument of the learned counsel it is necessary to extract the relevant portions of the object and reasons stated in the removal of Difficulties Order which is in following terms: "and whereas the establishment of the Commission and the Selec tion Boards is likely to take some time and even after the establishment of the said Commission and Boards it is not possible to make selection of the teachers for the first few months : And where as a number of vacancies in the posts of teachers in various institutions recognized under the Intermediate Education Act 1921, exist and the failure or delay in filling up of such vacancies is likely to create difficulties: Now, therefore, in exercise of the powers under Section 33 of the Uttar Pradesh Secondary Education Services Commission and Selection Board Ordinance, 1981 (U. P. Ordinance, No. 8 of 1981) the Governor is pleased to direct that the Provisions of the said Ordinance shall have effect subject to the provisions of the following order " 21. A perusal of the statement and reasons discloses that in the last paragraph which cite the power under which the Removal of Difficulties order has been issued provides that the provisions of the Ordinance (Act) shall have effect subject to the provisions of order. If the argument of the learned counsel is taken literally it may appear that the Act has been subjected to the Removal of Difficulties Order issued under Section 33 of the Act which is not permissible. But the question is as to whether such a recital in any statement and object is evidence of the fact that the provisions of the Removal Difficulties Order make the Act subordinate to it As regards the propriety of the reference to the statement of object and reasons in statute or in subordinate legislation is concerned it only explains the reasons which impelled the framer of such subordinate legislation but that statement may not correspond to the provisions of the subordinate legisla tion or the Removal of Difficulties Order issued under the Act. It has been invariably seen that the object and reasons so stated in statute or subor dinate legislation or Removal of Difficulties Order or altogether lost sight when ultimately the subordinate legislation attains finality. Thus, the intention of the framer of the subordinate legislation does not represent what are the provision of the subordinate legislation. Although it is permissible to consider the statement of the object and reasons for the purposes of interpreting the provisions of the Act or for the discovering the back ground of a particular statute but it cannot be taken as evidence of the fact that the provisions of the Removal of Difficulties Order really make the Act subordinate to it. We, therefore, have to see the provisions of the Act and various Removal of Difficulties Orders issued under the Act as to find out whether the Act has been subjected to the Removal of Difficulties Order or not. 22. The essential features of the Act are that Section 3 of the Act provides for the establishment of the Commission; Section 10 deals with the procedure of selection of the teachers, Section 11 requires that the Com mission shall after the notification of vacancy select the candidates; Sec tion 16 provides that subject to the provisions of Sections 18, 21-B, 21-C, 21-D, 33 and 33-A of the Act every appointment of teachers shall be made by the Management only or recommendations of the Commission. Sub section (2) of Section 16 provides that every appointment of a teacher in contravention of the provisions of sub- section (1) of Section 16 is void. Section 18 of the Act provides for ad hoc appointment of teachers in the institutions till the availability of the selected candidates by the Commis sion. Since the Commission was not established when the Ordinance or the Act was enforced and even after the establishment of the Commission it was not possible for the Commission to make available teachers for all the institutions as the Commission has necessarily to follow an elaborate pro cedure which is both time consuming and cumbersome and, therefore, in order to solve the difficulty the Government issued the Removal of the Difficulties Order which provided for appointment of teachers in the insti tutions either by promotion or direct recruitment, purely on ad hoc basis, The provisions of the Removal of Difficulties Order do not make the Act subordinate to it. In this connection it may also be noticed that the pro visions of the Removal of Difficulties Order do not override the provisions of the Act at all. Section 18 itself provides for appointment of teachers, purely on ad hoc basis. Even if there would have no such provision in the Act, in view of the difficulty, it was open to the Government to issue such an order under Section 33 of the Act, providing for ad hoc appointment of teachers in the institutions, either by promotion or direct recruitment in order to provide teachers to the institutions in the state of Uttar Pradesh. The provisions contained in the Removal of Difficulties Order do not pro vide for substantive appointments. By ad hoc appointment no right is conferred in favour of such teacher. In fact it is short term appointment for a period till the duly selected teacher joines the post. In fact such pro visions in an order in the words of Supreme Court (Madeva Upendra Sinai (Supra) slightly tinker with the Act to ground off angularities and smoothen the joints or remove minor obscurities to make it workable. In the case of Umesh Chandra v. District Inspector of Schools, 1987 UPLBEC 105, it was held as thus: "the power conferred on the management to file in substantive vacancies on ad hoc basis following the norms laid in the Remo val of Difficulties Orders is, it will be noticed, in addition or supplemental to the power conferred by Section 18 of the Act. This flows clearly from the purpose which Section 33 of the Act is designed to sub-serve in its terms. The Removal of Difficulties Orders occupy the field and provide the requisite mechanism for so long as the Act in all its relevant provisions cannot be implemented. True these in a sense amount to thinkerning with what the Act lays down (including in Section 18 ). " 23. In view of this decision the provisions contained in the Removal of Difficulties Orders empowering the management to appoint teachers on ad hoc basis either by promotion or direct recruitment in the manner laid down therein can be validity issued under Section 33 of the Act indepen dently of Section 18 of the Act. " 23. In view of this decision the provisions contained in the Removal of Difficulties Orders empowering the management to appoint teachers on ad hoc basis either by promotion or direct recruitment in the manner laid down therein can be validity issued under Section 33 of the Act indepen dently of Section 18 of the Act. I am, therefore, of view that neither provi sions of the Removal of Difficulties Orders make the provisions of the Act subordinate to it nor the Removal of Difficulties Order override the provisions of the Act. 24. It was then urged that in Act no difficulty existed when these Removal of Difficulties Orders were issued and at present no difficulty is in existence in giving effect to the provisions of the Act and as such various Removal of Difficulties Orders issued by the State Government are void, It is true, as held in the case of Madeva Upendra Sinai (supra) that the exis tence of arising of a difficulty is the sine qua non for the exercise of the power and if this condition precedent is not satisfied as an objective fact, the power under this clause cannot be invoked at all. Again, the difficulty contemplated by the clause must be a difficulty arising in giving effect to the provisions of the Act and not the difficulty arising aliunde or an extraneous difficulty. In view of this decision, the existence of difficulty in giving effect to the provisions of the Act is the condition precedent for the exercise of the power but in the present writ petitions, the allegation that there was no difficulty in existence when these Removal of Difficulties Orders were issued, has not been pleaded and as such the State has no opportunity to admit or deny the said allegation. As stated earlier the Act provides for substantive appointment of teachers or Principals against the substan tive vacancies to be selected by the Commission. At the time when the Ordinance and subsequently the Act was enforced, neither the Commission nor the Boards were established. No doubt after some time the Commission was established but as the Commission has necessarily to follow an elabo rate procedure to finalize the selection of the candidates while vacancies in the large number of institutions in the State continue to multiply. No doubt after some time the Commission was established but as the Commission has necessarily to follow an elabo rate procedure to finalize the selection of the candidates while vacancies in the large number of institutions in the State continue to multiply. In fact the Commission was not in position to send the required number of teachers in the institutions. Had these Removal of Difficulties Orders not been issued, the teaching in the institutions would have paralyzed. I am, therefore, of the opinion that there was a difficulty, which is still conti nuing, when these Removal of Difficulties Orders were issued by the State Government under Section 33 of the Act. Question No. (c) What would be the Criteria and procedure for ad hoc appointment of a teacher or Principal either under Removal of 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 Inspectress 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 Older or under Section 18 of the Act? 25. Since both the questions are overlapping, I purpose to answer these questions together. 26. As noticed earlier the Act which replaced the U. P. Ordinance No. 8 of 1981, came into force w. e. f. 14-7-81. The object and purpose of the Act is to provide teachers selected through the instrumentality of Corn-mission or the Board as the case may be in the institutions with a view to raised the standard of education. However Section 18 of the Act provides for appointment of teachers in the institutions purely on ad hoc basis on certain condition which I shall notice at appropriate place. Since after coming into force of the Ordinance which was subsequently replaced by the Act, the Commission of the Board was not constituted, therefore, certain difficulties arose in providing teachers who wet e urgently required in the institutions and as such the State Government by a notification issued first Removal of Difficulties Order by notification dated 31-7-81. This first Removal of Difficulties Order provides for ad hoc appointment of teachers either by direct recruitment or by promotion till the appointment of duly selected teachers or Principals by the Commission. This first Removal of Difficulties Order provides for ad hoc appointment of teachers either by direct recruitment or by promotion till the appointment of duly selected teachers or Principals by the Commission. By a notification dated 11-9-1981 the State Government issue a Second Removal of Difficulties Order. This Second Removal of Difficulties Order provides for appoint ment against the short term vacancies. Subsequently, by a notification dated 30-1- 1982, Government issued Third Removal of Difficulties Order. By this order amendments were made in cert tin paragraphs of the First Removal of Difficulties Order. 27. In short it was made open to the management of the Institutions to make ad hoc appointment of teachers against substantive vacancies either by promotion or by direct recruitment after following the procedure laid down in the Removal of Difficulties Order issued under Section 33 of the Act by the State Government. Subsequently by U. P. Act No. 24 of 1992 Section 18 of the Act was amended and was substituted by new Section 18. This amendment came into force on 14-7-1992. The substituted Section 18 provided the manner and method of ad hoc appointment of a teacher in the institutions either by promotion or direct recruitment. A Selection Com mittee for selection of candidates for ad hoc appointment was required to be constituted consisting of District Inspector of Schools, Basic Shiksha Adhikari and the District Inspectress of Girls Schools. In pith and subs tance the only departure from earlier procedure was that the ad hoc appoint ment by direct recruitment was required to be done by a selection committee consisting of three officials Thereafter U. P. legislature passed an Act known as U. P. Secondary Education Service Commission and Selection Board Amendment Act 1992 being U. P. Act No. 1 of 1993. This Act was pub lished in the U. P. Gazette on 6th January 1993, Sub-section 2 of Section 1 of this Act provided that the Act shall come into force on such date as the State Government may by notification appoint in this behalf and different dates may be, appointed for different provisions. This amendment Act brought several amendments in the Principal Act. Since I am not concerned with all the provisions of this amendment Act, I will notice only those provisions which are relevant for the purpose of my answer to questions referred. This amendment Act brought several amendments in the Principal Act. Since I am not concerned with all the provisions of this amendment Act, I will notice only those provisions which are relevant for the purpose of my answer to questions referred. By Section 11 of U. P. Act No 1 of 1993 the reference of Sec tion 18 occuring in Section 16 of the Act was omitted and Section 13 of the amending Act further provides that Section 18 of the Principal Act shall be omitted The Slate Government by a notification dated 7-8-93 in exercise of its power under sub-section (2) of Section 1 of U P, Act No. 1 of 1993 appointed 7-8-93 as the date on which the said Act except Sec tion 13 shall come into force. The result of this notification is that although Section 18 is still continuing, Section 16 is not subject to the provisions of Section 18 of the Principal Act. Thus any appointment made under Section 18 is void under subjection (2) of Section 16 of the Act. Thus no ad hoc appointment can not be made under Section 18 of the Act which although omitted by U. P. Act No. 1 of 1993 but still continuing. 28. In view of these different legislative changes brought in the Act, it is necessary to examine the power of ad hoc appointment either by direct recruitment or by promotion and the method and manner of such appoint ment at different poi it of legislative changes in the Act. This period can be split in three stages; (1) period beginning from 31st July, 1981 to 13-7-1992 after which late U. P. Act No. 24 of 1992 came into force; (2) period beginning from 14-7-1992 to 6th of August, 1993 and (3) period beginning from 7th of August, 1993 when U. P. Act No. 1 of 1993 was enforced uptill date (hereinafter referred to as first, second and third stage respectively ). FIRST STAGE : 29. First, I will take up and consider the power and procedure of ad hoc appointment of teacher or Principal either by promotion or by direct recruitment during the period beginning from 31st July, 1981 till 13th July, 1992 after which date U. P. Act No. 24 of 1992 came into force. 30. FIRST STAGE : 29. First, I will take up and consider the power and procedure of ad hoc appointment of teacher or Principal either by promotion or by direct recruitment during the period beginning from 31st July, 1981 till 13th July, 1992 after which date U. P. Act No. 24 of 1992 came into force. 30. As stated earlier the purpose of the Act is to appoint teachers in the institutions to be selected by the Commission of the Board as the case maybe. Section 16 of the Act provides that notwithstanding anything to the contrary contained in the Intermediate Education Act but subject to the provisions of Sections 18, 21-B, 21-C, 21-D, 33 and 33-A of the Act, every appointment of teacher shall on or after 10th July, 1991 be made by the management only on the recommendation of the Commission. Its sub section (2) further provider that every appointment of a teacher in contraven tion of the provisions of sub-section (1) shall be void. However, this Section 18 of the Act. Original Section 18 provided that where manage-meat has notified a vacancy to the Commission and (a) the Commission has failed to recommended the name of any suitable candidate or (b) the post of 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 person possessing qualifications pres cribed under the Intermediate Education Act or the regulation made there under. However, this Section 18 did not provide the procedure to be followed for appointment of ad hoc teacher either by promotion or by direct recruitment. Since the Commission or the Board was not constituted, therefore, the difficulty arose in making available teachers in the institutions and as such the Government by notification dated 31-7-1991, 11th September, 1991 and 30th January, 1992 issued separately Removal of Difficulties Orders three Removal of Difficulties orders known as First, Second rand Third Removal of Difficulties Orders. 31. Paragraph 2 of the First Removal of Difficulties Order provides as follows : "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 case of substantive vacancy caused by death, retirement, resignation or otherwise. " 32. 31. Paragraph 2 of the First Removal of Difficulties Order provides as follows : "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 case of substantive vacancy caused by death, retirement, resignation or otherwise. " 32. Paragraph 3 of the First Removal of Difficulties Order provide as follows : "every promotion of an ad hoc teacher under Para 2 shall cease to have effect when a candidate recommended by the Commission or the Board as the case may be joint the post. " 33. Paragraph 4 of the First Removal of Difficulties Order provides : "every vacancy In the post of head of institution may be filled by promotion (a) in the case of an Intermediate College by the senior most teacher of the institution in the lecturers grade, (b) in the case of High Schools raised to the level of Intermediate College by the Head Master of such High School and (c) in the case of Junior High School raised to the level of High School by the Head Master of such Junior High School. " 34. Sub-paragraph (2) of Paragraph 4 of the order further provides that every vacancy in the post of teacher in the lecturers grade may be tilled by promotion by the senior most teacher of the institution in the trained graduate (grade ). 35. Sub-paragraphs (3) and (4) of paragraph 4 of the order are not relevant as we are informed that C. T. Grade has now been abolished. 36. 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. 37. Second Removal of Difficulties Order provides for ad hoc appoint ment against the short term vacancy in the posts of teachers 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 empowers the Management of institutions to make ad hoc appointment of teachers in the institutions. Thus these provisions show that Section 18 and First Removal of Difficulties Order, both independently empowers 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 Orders 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, win fact Section 18 as well as First Removal of Difficulties Order operate in one field and are part of one integrated scheme, namely for providing ad hoc teachers who are urgently required in the institutions. Thus, ad hoc appointment of teacher either under Section 18 of the Act or under the provisions of First Removal of Difficulties Orders has to be done in the manner laid down in paragraphs 4 and 5 of the First Removal of Difficulties Order, 1981. Ad hoc appointment by promotion 38. 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 reqired 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. 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 up 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 absolished. 39. 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. Thus, it is manda tory 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 a fleet the career of students. 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 In Charu Chandra Tiwari v. District Inspector of Schools, 1990 UPLBEC Page 160, it was held that the Management has to fill the vacancy by ad hoc promotion of a senior most teacher of the same institution qualified for such appointment and ad hoc appointment through direct recruitment is permissible only in case no such teacher in the institution is available. This according to me lays down the correct view of law. I am, therefore, of the view that the existing substantive vacancy which has been notified to the commission and the condition provided under Section 18 of the Act is present the vacancy has to be filled up firstly by promotion from amongst senior most teacher in next lower grade. 40. There is another aspect of the matter as to whether any approval or prior approval of the District Inspector of Schools is required for ad hoc appointment by promotion or not. Neither the Act nor the provisions of Removal of Difficulties Order provide for such prior approval or approval by the District Inspector of Schools in case of such ad hoc appointment by promotion. There is another reason for not taking approval of the District Inspector of Schools of such appointment because teacher working in the institution is already approved and thus no further or subsequent approval is needed for it and only intimation to the District Inspector of Schools is required to be given regarding such appointment. See Ram Kripal Pandey and another v. District Inspector of Schools, Faizabad and others, 1989 (2) UPLBEC Page 98. However, if it is found that senior most teacher has not been promoted, adequate power is given to the District Inspector of Schools under the U. P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other employees) Act, 1971 (hereinafter referred to as Payment of Salary Act) to make enquiry in this respect. If found illegal, it goes without saying that he can stop payment of salary to such promotee. Ad hoc appointment of teachers by Direct Recruitment. 41. 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 a teacher within one year from the date of such notification of 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 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 issue three Removal of Difficulties Orders namely Removal of Difficulties Order dated 11-9-81, Removal of Difficulties Order dated 30-1-82 and Removal of Difficulties Order dried 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, it available only when pre-conditions mentioned in Section IX of the Act are satisfied secondly, the vacancy is substantive vacancy and thirdly, the vacancy could not be filled by promotion. Neither the Act nor the Removal of Difficulties Order defines vacancy However, the vacancy has been defined in Rule 2 (11) of U. P Secondary Education Services Commis sion Rules 1983, vacancy means a vacancy arising out as a result of death, retirement, resignation, termination, dismissal, creation of new post or appointment/promotion of the incumbent to any higher post in substan tive capacity Thus, both under Section 18 of the Act and under the Remo val of Difficulties Order the Management of an institution is empowered to make ad hoc appointment by direct recruitment, in the manner laid down in paragraph 5 of the First Removal of Difficulties Order only when such vacancy cannot be filled by promotion and for a period till a candidate duly selected by the Commission joins the post. As noticed earlier both Sec tion 18 of the Act and the provisions of First Removal of Difficulties Order provide for ad hoc appointment of teacher in the institution, later further providing for method and manner of such appointments are part of one scheme. Scheme being provision for ad hoc appointment of teacher in the absence of duly selected teachers by the Commission. The provisions may be two but the power to appoint is one and the same and therefore, the provisions contained in Section 18 and Removal of Difficulties Order are to harmonized. Scheme being provision for ad hoc appointment of teacher in the absence of duly selected teachers by the Commission. The provisions may be two but the power to appoint is one and the same and therefore, the provisions contained in Section 18 and Removal of Difficulties Order are to harmonized. It is, therefore, not correct to say that appointment of a teacher on ad hoc basis is either under Section 18 of the Act or under the Removal of Difficulties Order 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 atleast two news papers having adequate circulation in U. P. Sup paragraph (3) of paragraph 5 further provides that every such application shall be addressed to the District Inspector of Schools Sub-paragraph (4) of paragraph 5 of the Removal of Difficulties Order provides that the District Inspector of Schools shall cause the best candidate selected on the basis of quality point specified in Appendix. The complication of quality point may be done by the Retired Government Gazetted Officer, in the personal supervision of the Inspector. Paragraph 6 of the First Removal of Difficulties Order further provides for appointment of such teacher under paragraph 5 who shall possess such essential qualification as laid down in Appendix A referred to in the Regulation 1 of Chapter II of the Regulations made in the Intermediate Education Act. 42. 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 is stated in paragraph 18 of the Act are present and only in the manner provided for in paragraph 5 of the Removal of Difficulties Order. This view of mine finds support in a number of decisions namely, Rang Bahadur Singh and others v. District Inspector of Schools Saharanpur. 1991 (2) UPLBEC page 1079 and Lalta Prasad Yadav and others v State of U. P. 1988 UPLBEC page 345. This view of mine finds support in a number of decisions namely, Rang Bahadur Singh and others v. District Inspector of Schools Saharanpur. 1991 (2) UPLBEC page 1079 and Lalta Prasad Yadav and others v State of U. P. 1988 UPLBEC page 345. When a teacher is appointed on ad hoc basis is in accordance with the paragraph 5 of the First Removal of Difficulties Order there is further no requirement of approval or prior approval of the District Inspector of Schools for such appointment. However it goes without saying that if a management without following the procedure indicated above mikes an ad hoc appointment the District Inspec tor of Schools possess general power under the Payment of Salaries Act to stop payment of salary to such teacher. Ad hoe Appointment of Teacher against short term vacancies: 43. Neither Section 18 of the Principal Act nor the First Removal of Difficulties Order envisaged for ad hoc appointment against the short term vacancy As earlier noticed, Section 18 and the First Removal of Difficulties Order provided for ad hoc appointment either by promotion or by direct recruitment only against substantive vacancy which has been notified to the Commission. Since short term vacancy is not a substantive vacancy, the State Government by notification dated 7-9-1981 came out with a Second Removal of Difficulties Order providing for procedure for filling the short term vacancies. The short term vacancy as envisaged in the Second Removal of Difficulties Order is which arises on account of teachers going on leave granted to him or on account of suspension of a teacher pending disciplinary proceedings which is duly approved by the District Inspector of Schools, The power to appoint teachers either by promotion or by direct recruitment under the Second Removal of Difficulties Order is open only against short term vacancies and not against substantive vacancy. Para graph 2 of the Second Removal of Difficulties Order provides that if short term vacancy in the post of teacher caused by grant of leave to him or on account of his suspension duty approved by the District Inspector of Schools or otherwise arises the same is required to be filled by the manage ment of the institution by promotion of permanent senior most teacher of the institution from lower grade. The Management is further required to immediately inform the District Inspector of Schools of such promotion alongwith particulars of the teachers who is promoted, Thus, if the short term vacancy arises the said vacancy has to be filled in by the promotion from amongst the permanent senior most teacher of the institution in the next lower grade and such promotion has to be intimated to the District Inspector of Schools. Paragraph 2 of the Order further provides that the short term vacancy, if cannot be filled by promotion due to non- availability of a teacher in the lower grade possessing the prescribed minimum quali fication, the same may be filled by the direct recruitment in the manner laid down in sub-paragraph (3) of Paragraph 2 of the order which provides that the management shall intimate the vacancy to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution requiring the candidate to apply to the Manager of the institution alongwith particulars. The advertisement of short term vacancy on the notice board of the institution according to me in fact no notice to the prospective eligible candidates as no prospective candidate is expected to visit each institution to see the notice board for finding out whether any short term vacancy has been advertised. Since the payment of salary to the teachers appointed against the short term vacancy is the liability of the State Government, the advertisement of short term vacancy must conform to the requirement of Article 16 (1) or the Constitution which prohibit the State from doing anything whether by making rule or by executive order which would deny equal opportunity to all the citizens. The provision contained in sub-paragraph (3) of Paragraph 2 of the Second Removal of Difficulties Order which provides that the short term vacancy shall be notified on the notice board of the institution, does not give equal opportunity to all the eligible candidates of the District, Region or the State to apply for consi deration for the appointment against the said short term vacancy. Such kind of notice is an eye wash for the requirement of Article 16 of the Cons titution. This aspect can be examined from another angle. If the notice of short term vacancy, through the notice board of the institution is accepted, it will throw open the doors for manipulation and nepotism. Such kind of notice is an eye wash for the requirement of Article 16 of the Cons titution. This aspect can be examined from another angle. If the notice of short term vacancy, through the notice board of the institution is accepted, it will throw open the doors for manipulation and nepotism. A management of an institution may or may not notify the short term vacancy on the notice board of the institution and yet may show to the authority that such vacancy has been notified on the notice board of the institution and may process the application of its own candidate for the appointment against the short term vacancy. I am, therefore, of the view that the procedure for notifying the short term vacancy should be the same as it is for ad hoc appointment by direct recruitment under the First Removal of Difficulties Order. The management after intimating such vacancy to the District Inspector of Schools advertise such short term vacancy at least in two News Papers having adequate circulation in Uttar Pradesh in addition to notifying the said vacancy on the notice board of the institution and further the application may also be invited from the local employment exchange. Thus, the procedure provided for notifying the short term vacancy should be the same as contained in sub-paragraph (2) of Paragraph 5 of the First Removal of Difficulties Order. Thereafter, the procedure provided in sub-paragraph (3) (i, ii, iii, iv) of Paragraph 2 of the Second Removal of Difficulties Order has to be followed for making such appoint ment. As seen the procedure provided under sub-paragraph (3) of Para graph 2 of the Second Removal of Difficulties Order, the selection is required to be made on the basis of quality point marks specified in the Appendix to the First Removal of Difficulties Order. The name and particulars of the candidates of selected and other candidates alongwith quality point marks allotted to them as required to be forwarded by the Manager to the District Inspector of Schools for the prior approval. The District Inspector of Schools is under obligation to communicate his decision within seven days of submission of such particulars falling which the District Inspector of Schools is deemed to have given his approval. The District Inspector of Schools is under obligation to communicate his decision within seven days of submission of such particulars falling which the District Inspector of Schools is deemed to have given his approval. The duration of such ad hoc appointment is till the teacher who was on leave or under suspension joins the post or when the short term vacancy otherwise ceases to exist. This ad hoc appointment by direct recruitment against short term vacancy can only be resorted to only after it is found that the said vacancy cannot be filled in by promotion. This ad hoc appointment against the short term vacancy is not an appointment either under Section 18 of the Act or under the, First Removal of Difficulties Order as the power and procedure provided for the ad hoc appointment against the short term vacancy is under the Second Removal of Difficulties Order and further is not against the substantive vacancy. After the procedure provided in Para graph 2 of the Second Order has gone through no further approval of the District Inspector of Schools is required for such appointment. However, it has come to notice that sometimes the Management resort to unfair practice in case of such appointments. For that contingency there is adequate safe-guard provided in the U. P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. Ad hoc appointment of Principal/head Master against the vacancy in the Post of Head of Institution 44. There has been a controversy in respect of as to what is the method and criteria for ad hoc appointment against the substantive vacancy in the post of head of institution. One line of the decisions of this court is that the ad hoc appointment against the substantive vacancy in the posts of Principal or the Head Master has to be made by promotion on the basis of seniority. One line of the decisions of this court is that the ad hoc appointment against the substantive vacancy in the posts of Principal or the Head Master has to be made by promotion on the basis of seniority. Second line of cases are that the ad hoc appointment to the post of Principal or the Head Master as the case may be made on the basis of seniority subject to rejection of the unfit The third line of cases are that the ad hoc appointment in the post of head of institution has to be done on the basis of direct recruitment Section 18 does not provide the method and criteria for ad hoc appointment to the post of Principal or the Head Master as the case may be However, the First Removal of Difficulties Order provides that every vacancy in the post of head of institu tion may be filled by promotion in case of Intermediate College by the senior most teacher of the institution in the lecturers grade and in the case of High School by the senior most teacher of the institution in the trained graduate L. T. Grade Sarvasri R. Dwivedi and Shyam Narain, learned counsel for the petitioner in the writ petition No 18734 of 1991 contend that vacancy in the post of Principal in an Intermediate College has to be filled by senior most teacher in the lecturers grade. According to Para graph 4 of the First Removal of Difficulties Order the vacancy in the post of Head of Institution is required to be filled up by promotion In Charu Chandra Singh v. District Inspector of Schools, 1990 Vol. 1 UPLBEC Page 160 Honble Mr. Justice R. M. Sahai as he then was summed up the law thus : "from what has been stated above, it is clear that any vacancy whe ther substantive GT temporary which, is to be filled by ad hoc selection has to be filled by promotion and in absence of avail ability of a candidate, by direct recruitment There appears no rational basis to exclude this method from Section 18 of the Act empowering the Committee of Management to make direct appointment even though senior most teacher in the institution was available. " In the case of Km. Bandana Benerji v. Arya Kanya Pathshala Inter College. 1986 Vol. " In the case of Km. Bandana Benerji v. Arya Kanya Pathshala Inter College. 1986 Vol. 1 UPLBEC Page 1160, it was held that the ad hoc appointment against the substantive vacancy in the post of Principal of the institution has to be made by promotion amongst senior most teacher In Maya Sarmena v. Committee of Management and others, 1989 UPLBEC Page 666, it is again held that the senior most teacher is entitled to be appointed on ad hoc basis on the post of Principal in case a substan tive vacancy arises. In the case of Gauri Shankar Dubey v. District Inspec tor of Schools, Deorla, 1992 Vol 1 UPLBEC Page 158, it was held that a senior most teacher is required to be appointed as ad hoc Principal of the institution. This has been the consistant view of this Court in respect of ad hoc appointment of Principal in the institution. In the case of Mohd. Naim v. District Inspector of Schools, 1992 AWC Page 528 a learned Single Judge of this Court while agreeing with the view expressed in all these cases mentioned above, held that the ad hoc appointment in the post of head of institution should be made by promotion on the basis of seniority subject to rejection of the unfit. In the case of Tribhuwan Mishra v. District Inspector of Schools, 1992 Vol. 1 UPLBEC Page 716, another learned Single Judge of this Court held that the criteria tot ad hoc appointment to the post of Principal is by promotion on the basis of seniority subject to rejection of the unfit However, the learned Single Judge in this case laid down the guidance as to when the senior most person can be overlooked for ad hoc appointment to the post of Principal. The third line of the view is that the Management is not bound to make ad hoc appointment by promo tion from amongst the senior most teacher but it can make ad hoc appoint ment by direct recruitment. This view has been expressed in the case of Yogendra Prasad Chaturvedi v. Addl. Civil Judge, 1985 UPLBEC 1531. The third line of the view is that the Management is not bound to make ad hoc appointment by promo tion from amongst the senior most teacher but it can make ad hoc appoint ment by direct recruitment. This view has been expressed in the case of Yogendra Prasad Chaturvedi v. Addl. Civil Judge, 1985 UPLBEC 1531. According to learned Judge in the said case Removal of Difficulties order merely deals with how an ad hoc appointment is to be made in certain contingency and the same cannot curtail the ambit of width of power available under Section 18 (1) (b) of the Act. As noticed earlier Section 18 does not provide in what manner the ad hoc appointment of the principal is to be made, while answering question No. (b), I have already dealt with in detail that the State Government under Section 33 of the Act can provide for ad hoc appointment of a teacher or Principal in the institution as the case may be, for removing the difficulties in implementing the Act. Since the ad hoc appointment is for a period till the appointment of duly selected candidate by the Commission such provision in the Removal of Difficulties Order does not go against the object and essential features of the Act. Paragraph 4 of the First Removal of Difficulties Order clearly provides that the ad hoc appointment to the post of Principal of institution may be made by promotion from amongst the senior most teachers in the lecturers grade. This provision is not repugnant to the scheme or essential feature of the Act. Since the appointment is for a limited period of time, it would be futile exercise if the procedure for direct recruitment has to be resorted and further the ad hoc appointment by promotion from amongst the senior most teacher is a healthy criteria for such appointment as it excludes the possibility of nepotism and arbitrariness. Since the appointment is for a limited period of time, it would be futile exercise if the procedure for direct recruitment has to be resorted and further the ad hoc appointment by promotion from amongst the senior most teacher is a healthy criteria for such appointment as it excludes the possibility of nepotism and arbitrariness. If for such temporary appointment any other view is taken, it will open the gate of arbitrariness and choosing and picking by the Management which would not be condusive to the interest of the institution, the appointment by promotion from amongst the senior most teacher is a healthy criteria and the same is also provided for in Paragraph 4 of the First Removal of Difficulties Order It was then urged by Sri G. P. Singh, Advocate that Paragraph 4 (1) uses the word may and not shall and, therefore, it is discretionary on the part of the management either to fill the vacancy in the post of head of institution either by promotion or by direct recruitment as it desires. It is true the word used is may and not shall. However in order to find out whether use of word may is permissive and enabling or obligatory. If such a situation arises, one has to look at the object which vests this particular discretion in the management. If the object is to confer a right to a particular person, then there would be a duty cast upon the person to whom the power is given to exercise it for the benefit of party to whom the right is given when required on this behalf. In Paragraph 5 a senior most teacher has been conferred a right to be promoted to the post of head of institution till the availability of duly selected candidate by the Commission. Thus, the management is ordinarily under obligation to exercise the power for benefit of such teacher. 45. Thus the seniority plays a dominent role in the matter of ad hoc appointment to the post of Principal/head Master in the institution and ordinarily a senior most teacher in the lecturer grade is to be appointed by promotion to the post of Principal. However, there is another aspect of the matter that a Principal is not only required to teach the students hut infact he has to run the institution. He is captain of the team. However, there is another aspect of the matter that a Principal is not only required to teach the students hut infact he has to run the institution. He is captain of the team. A Principal is entrusted to enormous administrative responsibilities and for that, only a person who is fit to discharge such function, deserves to be appointed In the case of Mohd Naim (supra) and in the case of Tribhuwan Mishra v. District Inspector of Schools, Azamgarh (supra), two learned Single Judges of this Court took the view that the criteria for ad hoc appointment to the post of Principal is by promotion on the basis of seniority subject to ejection of the unfit. In view of the extra responsibilities entrusted to Principal, I am, therefore, of the view that the criteria for ad hoc appoint ment to the post of Principal is by promotion keeping in view the seniority subject to rejection of the unfit. 46. The learned Single Judge in the case of Tribhuwan Mishra (supra) has lead down several guidelines as to when a senior most teacher in lecturers grade or L. T. , grade as the case may be, can be superseded. The guidelines laid down are given in the case of Tribhuwan Mishra (supra) are being reproduced below : "14. However, in order to minimise the possibility of arbitrariness I am of the opinion that if the management wishes to supersede the senior most teacher (who is qualified to be appointed Princi pal) it can only do so if (1) there are grave charges against him which are so serious that it will be wholly detrimental to the interests of the institution to appoint him ad hoc Principal or (2) he suffers from such a serious physical disability that he cannot properly perform the function of Principal. In either case the senior most teacher must be given a show cause notice by the management stating the charges against him (or the physical disability) and stating that it is proposed to supersede him. In either case the senior most teacher must be given a show cause notice by the management stating the charges against him (or the physical disability) and stating that it is proposed to supersede him. The hearing to be given by the management need not be a personal hearing, but copies of any material sought to be relied upon (whether contained in the service book or elsewhere) must be supplied in advance so as to enable teacher to give his reply explanation After considering the teachers reply the Manage ment can supersede him but only by a reasoned order, and such reasons can be scrutinized by the High Court under Article 226 of the Constitution If the second seniormost teacher is also sought to be superseded, then the same procedure must followed in respect of him also, and so on. 15. If the vacancy occurs due to retirement, or a resignation to take effect after two months, then this entire process should begin by giving a show cause notice atleast two months prior to the occurrence of the vacancy and it should be completed within two months. In other circumstances the show-cause notice must be given as soon as the vacancy occurs, or its future occurrence becomes known, and the process must be completed within two months for which period the second seniormost teacher can be allowed to officiate. " These guide-lines, according to me, is a correct guide-line in order to keep check on the management while superseding a seniormost teacher on the ground that he is unfit. Besides these guide-lines, one thing may be kept in mind that the rejection of unfit should not be utilized by the management supersede a senior most teacher. The charge against such teacher must be valid and real one and has to be objectively demonstrated by the management. An unwilling management of an institution is not entitled to Supersede a senior most teacher merely by awarding an adverce entry in his charter roll. A senior most teacher can be found unfit only when persistent defaults are reflected in his character roll in span of five to ten year. An unwilling management of an institution is not entitled to Supersede a senior most teacher merely by awarding an adverce entry in his charter roll. A senior most teacher can be found unfit only when persistent defaults are reflected in his character roll in span of five to ten year. In view of the foregoing discussion, I am of the view that the vacancy in the post of Principal of an Intermediate College is required to be filled in by the senior most teacher of the institution in lecturers grade and in the case of High School by seniormost teacher of the institution in the trained graduate grade on the basis of seniority subject to rejection of the unfit. In case or such promotion no approval of the District Inspector of Schools is required and only intimation to the District Inspector of Schools of such appointment is sufficient. The Method of Ad hoc Appointment during period between 14-7-1992 to 6-8-1993 of Teacher or Principal of an Institution Second Stage: By U. P. Act No 24 of 1992, new Section 18 was substituted in place of Section 18 of the Principal Act which is reproduced below:- "18. Ad hoc teacher.- (1) Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and the post of such teacher has actually remained vacant for more than two months, the management may appoint by direct recruitment or promotion a teacher, on purely ad hoc basis, in the manner hereinafter provided in this section. (2) A teacher, other than a Principal or Headmaster, who is to be appointed by direct recruitment, may be appointed on the recommendation of the Selection Committee referred to in sub section (9 ). (3) A teacher, other than a Principal or Headmaster who is to be appointed by promotion, may in the manner prescribed be appointed by prompting the seniormost teacher possessing prescribed qualifications- (a) in the trained graduates grade, as lecturer, in the case of a vacancy in lecturers grade; (b) in the Certificate of Teaching grade, as a teacher in the trained graduates grade, in the case of vacancy; (4) A vacancy in the post of a Principal may be filled by promoting the seniormost teacher in the lecturers grade. (5) A vacancy in the post of a Headmaster may be filled by promoting the seniormost teacher in the trained graduates grade. (6) For the purpose of making appointments under sub-sections (2) and (3), the Management shall determine the number of vacancies, as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories in accordance with the rules or orders issued by the State Government in this behalf. If in determining the vacancies it is found that persons belonging to such categories are not holding such number of posts as should have been held by them in accordance with such rules or orders, then the vacancies shall be determined that first and every alternative vacancy shall be reserved for the persons of such categories until the required percentage of posts is held by them. (7) After determining the number of vacancies as provided in sub section (6) the Management shall within fifteen days from the date of the commencement of the Uttar Pradesh Secondary Education Service Commission and Selection Board (Second Amendment) Act 1992 intimate the vacancies to be filled by direct recruitment to the District Inspector of Schools. If the Management fails to intimate such vacancies within the said period of fifteen days, the District Inspector of Schools may, after verification from such institution or from his own records determine such vacancies himself. (8) The District Inspector of Schools shall, on receipt of intimation of vacancies or as the case may be after determining the vacancies under sub-section (7), invite applications, from the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder for ad hoc appointment to the post of teachers, other than Principal or Headmasters in such manner as may be prescribed. (9) (a) For each district, there shall be a Selection Committee for selection of candidates for ad hoc appointment by direct recruit ment comprising: (i) District Inspector of Schools, who shall be the Chairman; (ii) Basis Shiksha Adhikari; (iii) District Inspectress of Girls Schools and where there it no such Inspectress, the Principal of the Government Girls Intermediate College and where there are more than one such College, the seniormost Principal of such Colleges and where there is no such College, the Principal of the Govern ment Girls Intermediate College as nominated by the State Government, (b) The Selection Committee constituted under Clause (a) shall make selection of the candidates, prepare a list of the selected can didates, allocate them to the institutions and recommend their names to the Management for appointment under sub-section (2 ). (c) The criteria and procedure for selection of candidates and the manner of preparation of list of selected candidates and their allocation to the institutions shall be such as may be prescribed. (10) Every appointment of an ad hoc teacher under sub-section (1) shall cease to have effect from the date when the candidate recommended by the Commission or the Board joins the post, (11) The provisions of Section 21-D shall, mutatis mutandis, apply to the teachers who are to be appointed under the provisions of this section. " A perusal of this new section would show that it is substantially the same provisions excepting the provision for constitution of Selection Committee for selection of candidate for ad hoc appointment in place of giving quality point marks as contained in the First Removal of Difficulties Order. In fact what was contained in the First Removal of difficulties Order has not been brought in the Act, by this amending Act. Thus, the method of ad hoc appointment by promotion of teacher remained the same as it was during the period 14-7-1981 to 13-7-1992. The method of ad hoc appointment of Principal and Head Master in the institution also remains the same as it was in the period 14-7-1981 to 13-7-1992 (first period ). Similarly, the provision in respect of appointment against the short term vacancy also remains the as it was in 14-7-1981 to 13-7-1992. The only change that has been brought by the new Section 18 is in respect of method of ad hoc appointment by direct recruitment. Similarly, the provision in respect of appointment against the short term vacancy also remains the as it was in 14-7-1981 to 13-7-1992. The only change that has been brought by the new Section 18 is in respect of method of ad hoc appointment by direct recruitment. Under subjection (8) of Section 18 the District Inspector of Schools on receipt of intimation of vacancy or as the case may be after determining the vacancy in sub-section (7) is required to invite application from the person possessing qualification prescribed in the Intermediate Education Act or the regulations framed thereunder ad hoc appointment to the post of teacher. Under sub-section of Section 18 a Selection Committee is to be constituted for selection of candidate for ad, toe appointment by direct recruitment comprising of District Inspector of Schools as Chairman, Basic Shiksha Adhikari and District Inspectress of Girls Schools. The Selection Committee so consti tuted is further required to make selection of the candidate and prepare a list of selected candidate and allocate them to the institution and recommend their name to the management for appointment. This is in brief the procedure which is required to be undergone where the ad hoc appointment is to be made by the direct recruitment. If the ad hoc appoint-meet by direct recruitment is made under sub-section (9) of Section 18 no further approval of the District Inspector of Schools for such appointment is required. The method of ad hoc appointment daring period beginning from 7-8-1993 uptill date : of teacher or Principal in the institution. Third stage : 48. The U. P. Legislature passed the Act known as U. P. Secondary Education Service Commission and Selection Board Amendment Act 1992 being U. P Act No. 1 of 1993. Sub-section (2) or sub-section (1) of this Amendment Act provides that Act shall come into force on such date as the State Government may by notification appoint in this behalf or different dates may be appointed for different provisions. This amendment to brought severa amendments in the Principal Act, I am not concerned with all the amendments, but shall notice only those provisions which are very material for my answer to the questions. This amendment to brought severa amendments in the Principal Act, I am not concerned with all the amendments, but shall notice only those provisions which are very material for my answer to the questions. Section 16 of the Principal Art provided that subject to the provisions of Sections 18, 21-B, 21- C, 21-D, 33, 33-A and 33-B every appointment of a teacher on or after commencement of the Act shall be made by the management only on the recommendation of the Board. Sub- section (2) thereof further provided that any appointment made in contravention of the provisions of sub-section (1) shall be void Since Section 16 was subject to Section 18 of the Act and such appointment would not be void within the meaning of sub-section (2) of Section 16 of the Act. By Section 11 of U. P. Act No. 1 of 1993 new Section 16 has been substituted for Section 16 of the Principal Act. The substituted Section 16 runs as under : - "16. Appointment to be made only on the recommendation of the Board : (1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 of the regulations made therunder but subject to the provisions of Sections 21-B, 21-C, 21-D, 33, 33-A and 33-B, every appointment of a teacher, shall, on or after the date of commencement of the U. P. Secondary Education Services Commission and Selection Boards (Amendment) Act, 1992, 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 mutatis mutandis apply: Provided further that the appointment of the teacher by transfer from the Institution of another, may be made in accordance with the regulations made under Clause (O) of sub-section (2) of Section 16-G of the Information Education Act, 1921. (2) Any appointment made in contravention of the provisions of sub-section (1) shall be void. It is interesting to note that reference of Section 18 in sub-section (1) of Section 16 has been omitted with the result that Section 16 is no longer subject to Section 18 of the Act, By Section 13 of U. P. Act No. 1 of 1993, Section 18 of the principal Act has been omitted. It is interesting to note that reference of Section 18 in sub-section (1) of Section 16 has been omitted with the result that Section 16 is no longer subject to Section 18 of the Act, By Section 13 of U. P. Act No. 1 of 1993, Section 18 of the principal Act has been omitted. In exercise of powers under sub-section (2) of Section 1 of U. P. Secondary Education Service Commission and Selection Board (Amendment) Act 1992 being U. P. Act No. 1 of 1993, the Governor of Uttar Pradesh pleased to appoint 7th August, 1993 as the date on which the said Act except Section 13 thereof shall come into force. The notification dated 7-8-1993 is reproduced below : "in exercise of the powers under sub-section (2) of Section 1 of the Uttar Pradesh Secondary Education Service Commission and Selection Boards (Amendment) Act. 1992 (U. P. Act No. 1 of 1993) the Governor is pleased to appoint 7 August, 1993 as the date on which the said Act, except Section 13 thereof, shall come into force. " After enforcement of U. P. Act No. 1 of 1993 except Section 13 thereof the situation that emerges is that by new Section 11 of Amendment Act which has substituted Section 16 of the Principal Act, has come into force whereas the omission of Section 18 from the principal Act by Section 13 of this amending Act has not been enforced which means Section 18 still continues in the Principal Act. In view of this legislative development a peculiar situation has arisen that new Section 16 which has come into force is no longer subject to Section 18 of the Act which means that no appointment on ad hoc basis can be made under Section 18 of tine Act. New Section 16 begins with a non-obstante clause which means in spite of other provision, no appointment shall be made except on the recommendation of the Board. Where a section begins with a non-obstante clause, it indicates that the provision should prevail despite anything to the contrary in the provisions in the Act Thus after omission of Section 18 from Section 16 no ad hoc appointment is permissible under Section 18 and if made, would be void under sub-section (2) of Section 16 of the Act. Where a section begins with a non-obstante clause, it indicates that the provision should prevail despite anything to the contrary in the provisions in the Act Thus after omission of Section 18 from Section 16 no ad hoc appointment is permissible under Section 18 and if made, would be void under sub-section (2) of Section 16 of the Act. It has not been brought to my notice that First Removal of Difficulties Order 1981 issued by the State Government has either been revoked or rescinded. On the contrary, it was asserted that the said Removal of Difficulties Order is continuing. 49. Now the question for consideration is that if no ad hoc appoint ment of teacher or Principal can be made under Section 18 of the Act, whether it is permissible to appoint a teacher or Principal on ad hoc basis under the First Removal of Difficulties Order? A perusal of Section 16 would show that Section 16 is still subject to Section 33 of the Act which empowers the State Government to issue Removal of Difficulties Order. Since Removal of Difficulties Orders have been issued under Section 33 of the Act, an ad hoc appointment either by direct recruitment or by promotion under the Removal of Difficulties Order would be a valid appointment. While answering question No. (b) I have already held that it is open to State Government to issue Removal of Difficulties Order providing for ad hoc appointment either by promotion or by direct recruitment as this ad hoc appointment is not a permanent appointment but a short term which does not confer any right on a teacher or the Principal so appointed. I have further held that the Removal of Difficulties Order which empower for ad hoc appointment either by promotion by direct recruitment does not violate the essential feature of the Act as it only thinkers or smoothen the edges of the Act. In view of this ad hoc appoint ment of teacher or Principal can be made either by promotion or by direct recruitment under the Removal of Difficulties Orders issued under Section 33 of the Act. In view of this ad hoc appoint ment of teacher or Principal can be made either by promotion or by direct recruitment under the Removal of Difficulties Orders issued under Section 33 of the Act. Omission of Section 18 has not yet been enforced with a result the conditions precedent namely notification of substantive vacancy to the Commission and further the post has remained vacant for more than two months are still there and if these two conditions are fulfilled, it is only then the management can appoint ad hoc teacher either by promo tion or by direct recruitment in accordance with the procedure laid down in the First Removal of Difficulties Order. 50. To sum up the method and procedure of ad hoc appointment of teacher either by promotion or by direct recruitment, the ad hoc appoint ment or Principal in the institution and the short term appointment against the short term vacancy remains the same as it was during the period begin ning from commencement of the Act till 13th July, 1922. 51. My answer to the questions framed by us we these :- Answer to Question No (a): Answer to Question No. (a) so far as it relates to sub-sections (1) and (2) of the Act is in the negative. So far as sub-section (3) to Section 33 of the Act is concerned, it is in affirmative but not struck down for the reasons given above. Answer to Question No. (b) : Answer to Question No. (b) is in the negative. Answer to Question No. (c) and (d) : First Stage : The substantive vacancy in the post of teacher is firstly required to be filled by promotion. If not available, then by direct recruitment in the manner laid down in paragraph 5 of the First Removal of Difficulties Order. Short term appointments are to be made in accordance with the provisions of Second Removal of Difficulties Order only after advertising the vacancy on the manner laid down under sub - paragraph (2) of paragraph 5 of the First Removal of Difficulties Order in addition to notifying the short term vacancy on the notice board of the institution. Ad hoc appointment of head of institution is to be made by promotion on the basis of seniority subject to rejection of the unfit. Second Stage : The method of ad hoc appointment of teacher. Ad hoc appointment of head of institution is to be made by promotion on the basis of seniority subject to rejection of the unfit. Second Stage : The method of ad hoc appointment of teacher. Principal against the short term vacancy remains the same as it was in the first stage. The direct recruitment of ad hoc teacher is required to be done in accordance with the procedure laid down in Section 18 of the Act. Third Stage : Ad hoc appointment of teacher/principal either by promotion or by direct recruitment is permissible under the First Removal of Difficulties Order and the procedure of such appointment remains the same as it was during the first, stage. Ad hoc appointment against the short term vacancy, remains the same as it was in the first stage. The ad hoc appointment of Principal is required to be done under paragraph 4 of the First Removal of Difficulties Order on the basis of seniority subject to rejection of the unfit. 52. Let the papers of these cases be la d before the learned single Judge or the appropriate Division Bench dealing with the special as the case may be, which this opinion and answer. ___________ G. P. Mathur, J - I have had the advantage of perusing the opinion of my esteemed brother Honble V. N. Khare, J. I agree with him on question Nos. (a) and (b) but would like to say few words on question Nos. (c) and (d ). 54. U. P. Intermediate Education Act was enacted in 1921 to establish a Board to take the place of Allahabad University in regulating and super vising the system of the High School and Intermediate Education in the State and prescribe courses, therefore. It is a comprehensive Act which provides for almost everything associated with the field of education upto Intermediate level including the matters relating to selection and appoint ment of teachers, their qualifications and service conditions. The endeavour to spread education to masses, specially in the rural area, led to tumultuous growth of institutions and consequent demand of teachers. It is a comprehensive Act which provides for almost everything associated with the field of education upto Intermediate level including the matters relating to selection and appoint ment of teachers, their qualifications and service conditions. The endeavour to spread education to masses, specially in the rural area, led to tumultuous growth of institutions and consequent demand of teachers. Over years it was felt that the field of selection of teachers under the provisions of the aforesaid Act was not only very much restricted but the selection itself was often not free and fair leading to appointment of sub-standard teachers which adversely affected the quality of education being imparted to the students. With this end inview the Legislature enacted U. P. Secondary Education Services Commission and Selection Boards Act (U. P. Act No. 5 of 1982) (hereinafter referred to as the Act) which came into force on July 14, 1981. 55. The Act lays down an elaborate procedure for making appointment on the post of a teacher Section 10 provides that the Management of the institution has to notify the vacancy to the Commission and Section 11 provides that the Commission after holding interview shall prepare a panel. After receipt of panel, name of the candidate selected shall be intimited to the Management which shall issue an appointment letter to him. Under Section 2 (k) teacher means a person employed for imparting instruction in an institution and includes a Principal or a Head-master and under Rule 2 (hh) of U. P. Secondary Education Services Commission Rules (hereinafter referred to as the Rules) vacancy means a vacancy arising out as a result of death, retirement, resignation, termination, dismissal, creation of new post or appointment/promotion of the incumbent to any higher post in a substantive capacity Since under Section 10 a vacancy has to be notified to the Commission, it follows as a corollary that the Commission has to make selection of teacher, Headmaster or Principal, as the case may be, only for a substantive vacancy as defined in Rule 2 (hh) and not for a short term vacancy. Sub section (1) of Section 16 lays down that subject to provisions of Sections 18, 21-B, 21-C, 21-D and 33 and 33-A every appointment of a teacher specified in the Schedule shall be made by the Management only on the recommendation of the Commission. Sub section (1) of Section 16 lays down that subject to provisions of Sections 18, 21-B, 21-C, 21-D and 33 and 33-A every appointment of a teacher specified in the Schedule shall be made by the Management only on the recommendation of the Commission. Sub-section (2) of Section 16 lays down that every appointment of a teacher, in contra ventions of the provisions of sub-section (1), shall be void. So the appoint ment is to be made only on the recommendation of the Commission other wise it would be void. The only exception is Section 18, where the Mana gement has been given the right to make ad hoc appointment of a teacher, if the conditions enumerated therein are satisfied. Therefore, Section 18 is the repository of power pf the Management to make ad hoc appointment of a teacher on a substantive vacancy. In absence of such a provision the Management will have no authority to make even an ad hoc appointment on a substantive vacancy. 56. Though Section 18 empowers the Management to make ad hoc appointment on a substantive vacancy, the procedure to make such appoint ment has, however, not been given therein. A short term vacancy may arise on account of grant of leave or suspension of a teacher and such a vacancy can not be filled through the Commission nor the procedure for filling up such a vacancy has been given in the Act or Rules As the pro cedure for making ad hoc appointment on substantive or short term vacancy had not been given there was difficulty and necessary condition for exercise of power under Section 33 came into existence. 57. The Governor of U. P. has issued three Removal of Difficulties Orders on July 31, 1981, September 11, 1981; and January 30, 1982 (here inafter referred to as the First Order, Second and Third Order respectively) under sub-section (1) of Section 33 of the Act The First Order governs the case of a substantive vacancy as will be evident from Para 2 thereof. Para 4 of this Order gives the procedure for filling in the vacancy by pro motion and Para 5 gives the procedure for filling in the vacancy by direct recruitment. During the course of argument much emphasis has been laid on the word may occurring in Para 4. Para 4 of this Order gives the procedure for filling in the vacancy by pro motion and Para 5 gives the procedure for filling in the vacancy by direct recruitment. During the course of argument much emphasis has been laid on the word may occurring in Para 4. It has been urged that use of word may shows that the provision is directory and not mandatory. But reading it together with Para 5 would show that first the vacancy has to be filled in by promotion and only where it is not possible to do so that the Management can take recourse to direct recruitment. It is a well known principle of interpretation that every clause of a statute is to be construed with reference to context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute construction is to be made of all the parts together and not of one part only by itself. Individual words are not considered in isolation but may have their meaning determined by other words in the section in which they occur (see Maxwell on Interpretation of Statutes 12th Edn. Page 47 and 58 ). In Soclete De Traction v. Kamani Engineering, AIR 1964 SC 558 , it has been held as under: "the use of the expression may is not decisive. Having regard to the context the expression may used in a Statute has varying significance. In some context it is purely permissive, in other, it may confer a power and make it obligatory upon the person invested with the power to exercise it as laid down. " 58. The word may has been used in the sense of shall or must in Para 4 and should be construed to mean command. If the word may is given its ordinary meaning, it would mean that the Management has a discretion in the matter either to make appointment by promotion or by direct recruitment Such an interpretation would make the provision arbit rary and unconstitutional as there is no guideline as to when the Management may make appointment by promotion and when by direct recruitment Therefore, the correct interpretation would be that the vacancy be filled in by direct recruitment only where it is not possible to do so by promotion und not otherwise. 59. 59. It may be mentioned here that seniority has been given a special importance under the scheme of the Act, itself. It will be evident from Rules (1) (ii) of the Commission Rules which provides that with regard to the post of the Head of an Institution, the Management shall also forward the names of two senior most teachers. Rule 6 provides that in respect of the post of the Head of an Institution the Commission shall also call for interview two seniormost teachers whose names are forwarded by the Mana gement under sub rule (1) of Rule 4. This shows that even while making direct selection for the post of Principal or Head Master, the Commission has to consider two senior most teachers without their making any applica tion in that behalf. 60. This view is in line with the decisions rendered by some illustrious Judges of this Court in Smt. Maya Saxena v. Committee of Management 1989 (1) UPLBEC 66; Km. Bandana Banerji v. Administrator. 1990 (1) UPLBEC 116 : Charu Chandra Tiwari v. D. I. O. S. , 1990 (1) UPLBEC 160; Mohd. Naim v. D. I. O. S. 1992 AWC 528 and Gauri Shanker Dubey v. Zila Vidyalay Nirikshak, 1992 (1) UPLBEC 158 with which I respectfully agree. The contrary view expressed in Yogendra Pd Chaturvedi v. Addl. Civil Judge, 1985 UPLBEC 1531 which was followed in some other cases, in my opinion, does not lay down the correct law. 61. It has been contended at the bar that in a given case the senior-most teacher may be suffering from a disability, physical or otherwise, and it may not be in the interest of the Institution to have such a person as its Principal or Head Master. The legislature itself has provided sufficient guidelines for this purpose. Rule 9 lays down the procedure for appoint ment by promotion, sub-rule (2) thereof provides that criterion for promo tion shall be seniority subject to rejection of unfit Therefore, if the senior most person is unfit, he may be rejected and in such a situation the post can be offered to the next senior most person, I entirely agree with the view expressed by Honble M. Katju, J. in Tribhuwan Misra v. D. I. O. S. , 1993 UPLBEC 716 and the procedure to be followed in such a situation. 62. 62. Para 3, after its amendment by Third Order, provides that every appointment of ad hoc teacher under Para 2 shall cease to have effect when a candidate recommended by the Commission joins the past. This is para materia with sub-clause (a) of sub-section (3) of Section 18 of the Act. Sub-clause (c) of sub-section (3) of Section 18 however provides that every appointment of an ad hoc teacher under sub- section (1) or sub-section (2) shall cease to have effect on 30th day of June following the day of such ad hoc appointment. The enforcement of this provision will lead to unneces sary hardship and waste of public time and. Money in doing the whole exercise all over again. Once an appointment has been made in accordance with the provisions of the Order, the teacher so appointed is entitled to the benefit of Para 3 and should continue till a candidate recommended by the commission joins the post. 63. As already stated, Section 18 of the Act as well as First Order apply only in the case of substantive vacancy So far as appointments on short term vacancies by grant of leave or on account of suspension of a teacher or otherwise is concerned, provision in this regard is made in the Second Order as will be evident from its preamble Para 2 of the Order provides that such a short-term vacancy shall be filled by the Management by promotion of the Senior most teacher of the Institution in the next lower grade. The word "otherwise" has to be read ejusdem generis with the pre ceding words namely short term vacancy in the post of a teacher caused by grant of leave or on account of his suspension duly approved by the D. I. O. S. It is well settled principle that when particular words pertaining to a class, category or genus are followed by general words, the general words are construed as limited to things of the same kind as those specified sec Thakur Amar Singhji v. State of Rajasthan, AIR 1955 SC 504 and M/s. Sidheshwari Cotton Mill v. Union of India, AIR 1989 SC 1019 . This will also be clear from Explanation (iii) to Para 2 which lays down that for the purpose of this para, short term vacancy means which is not substantive and is of limited duration. 64. This will also be clear from Explanation (iii) to Para 2 which lays down that for the purpose of this para, short term vacancy means which is not substantive and is of limited duration. 64. Para 2 of this Order provides in no uncertain terms that the vacancy shall be filled in by promotion of senior most teacher of the Institu tion in a next lower grade. Here the word used shall and not may. Therefore, the Management has no option in the matter and short term vacancy, as aforesaid, has to be filled in by promotion and not by any other means. If a senior most teacher of the institution is suffering from any disability, physical or otherwise, the vacancy may be filled in by the next senior most teacher after following the same procedure which has been indicated earlier while considering the case of a substantive vacancy in accordance with the First Order. The Management can make direct recruit ment only when vacancy cannot be filled in by promotion due to non-avail ability of a teacher possessing the prescribed minimum qualification in the next lower grade in the institution and not otherwise, as laid down by sub-para (2) of Para 2 of this Order. 65. The salary to teachers in aided and recognised institutions is paid in accordance with U. P. High School and Intermediate Colleges (Payment of Salary to Teachers and other Employees) Act, 1971 (hereinafter referred to as the Payment of Salary Act ). It is common knowledge that except for a small fraction, the entire salary is paid by the State out of its own exchequer. Since practically the entire salary to a teacher is paid by the State, there has to be equality of opportunity for all citizens" in matters relating to appointment on the post of teachers in an institution which is covered under the purview of Payment of Salary Act. Since practically the entire salary to a teacher is paid by the State, there has to be equality of opportunity for all citizens" in matters relating to appointment on the post of teachers in an institution which is covered under the purview of Payment of Salary Act. The method of notification of the vacancy on the notice board of the Institution as provided in sub-para (3) of Para 2 of the order violated the guarantee regarding equal opportunity in the matter of employment as persons desirous of getting employment as teachers are kept in dark by an advertisement of the vacancy on the notice board of the Institution The proper course would, therefore, be that in addition to intimation of the vacancy to the D. I. O. S. the same should also be advertised in one news paper having circulation in the State or at least in the region. 66. In accordance with Para 3, appointment of a teacher under Para 2 shall cease when the teacher who was on leave or under suspension joins the post or when the short term vacancy otherwise ceases to exist. 67. Section 18 of the Commission Act has undergone a major amend ment by U P. Secondary Education Service Commission and Selection Boards (Second Amendment) Act, 1992 (U. P. Act No 24 of 1992) which has come into force on July 14, 1992 by virtue of sub-section (2) of Section 1 of the Act. It provides that where the management has notified a vacancy to the Commission in accordance with the provisions of the Act and the post of the teacher his actually remained vacant for more than two mouths, the management may appoint by direct recruitment or promotion a teacher on purely ad hoc basis, sub-section (4) provides that vacancy on the post of Principal may be filled by promoting senior most teacher in the Lecturers grade and subsection (5) provides that vacancy on the post of Head Master may be filled by promoting senior most teacher in the Trained Graduate Grade. Therefore, appointment on the post of Principal and Head Master has to be made by promoting the senior most teacher in the Lecturers or Trained Graduate Grade as the case may be The management cannot make appointment on the aforesaid posts through direct recruit ment as there is no provision to that affect. Therefore, appointment on the post of Principal and Head Master has to be made by promoting the senior most teacher in the Lecturers or Trained Graduate Grade as the case may be The management cannot make appointment on the aforesaid posts through direct recruit ment as there is no provision to that affect. The procedure for making appointment on the post of teachers has been given in sub-sections (8) and (9) Since the procedure for making direct selection has been given in the amended Section 18 itself, there is no difficulty in the working of the Act and the necessary conditions for exercise of powers under Section 3 of the Act does not exist and as such the procedure prescribed for direct recruitment in the First Order would not be applicable. The management has to follow the procedure prescribed by sub sections (6) and (7) and the selection has to be made in accordance with sub-sections (8) and (9 ). Regarding short term vacancy the procedure given in Second Order would be applicable. 68. The Act has again been amended by U. P. Secondary Education Services Commission and Selection Boards (Amendment) Act, 1992 (U. P, Act No. 1 of 1993) and this amending Act has come into force on August 7, 1993 by virtue of a notification issued under sub-section (2) of Section 1. However Section 13, by which Section 18 of the Principal Act (U. P. Act No. 5 of 1982) has been omitted, has not been enforced. The result, there fore, is that Section 18 still remains in the Statute book. The substituted sub- section (1) of Section 16 now does not save appointment made under Section 18 on account of its omission from its language as it did not prior to amendment. Sub-section (2) of Section 16 still provides that any appointment made in contravention of the provisions of sub-section (1) shall be void. This has created an anomalous situation as any appointment made under Section 18 would be void. Sub-section (2) of Section 16 still provides that any appointment made in contravention of the provisions of sub-section (1) shall be void. This has created an anomalous situation as any appointment made under Section 18 would be void. Therefore, in my opinion, the management has-no power left to make an ad hoc appointment on a substan tive vacancy after enforcement of U. P. Act No. 1 of 1993 However, it can make appointment on a short term vacancy in the post of a teacher caused by grant of leave to him or on account of his suspension duly approved by the D. I. O. S. or otherwise, in accordance with the Second Order. 69. Under the Scheme of the Act the Management has no power of selection and it is bound to appoint a person as a teacher whose name has been forwarded in the panel prepared by the Selection Commission after holding a process of Selection. Since under Section 18 a power to make ad hoc appointment is conferred on the Management its provisions must be strictly followed It was held in Taylor v. Taylor, (1875) 1 Ch. D 246 that where a power is given to do a certain thing in a certain way, the thing must he done in that way or not at all and that other methods of performance are necessarily forbidden. This was reiterated by Privy Council in Nazir Ahmad v. Emperor. AIR 1936 PC 253 and by Supreme Court in Ram Chandra v. Govind. AIR 1975 SC 915 , Hukam Chand v. Union of India, AIR 1976 SC 789 and in several other cases. 70. The opening part of Section 18 of the Principal Act uses the expression where the Management has notified a vacancy to the Commission in accordance with the provision of the Act Sub-section (1) of Section 10 says that management shall notify the vacancy to the Commission in such manner and through out officer or authority as may be prescribed. Rule 4 provides that management shill determine and intimate to the Commission the vacan cies existing or likely to fall vacant in proforma given in Appendix a, which is a Requisition Form The Management has to furnish all the details like number of student, number of teachers, subjects and sections etc. Rule 4 provides that management shill determine and intimate to the Commission the vacan cies existing or likely to fall vacant in proforma given in Appendix a, which is a Requisition Form The Management has to furnish all the details like number of student, number of teachers, subjects and sections etc. as mentioned in Appendix a. Only after the notification had been done by sending the Requisition Form (Appendix A) and the period mentioned in sub-clause (a) or (b) of sub section (1) of Section 18 had elapsed that the management became entitled to proceed in accordance with the First Order in the period prior to July 14, 1992. The notification of the vacancy has to be done in the same manner even after enforcement of U. P. Act No. 24 of 1992 provisions of Removal of Difficulties Orders, whichever and wherever applicable should be strictly followed, failing which the ad hoc appointment so made would be invalid. This view finds support from the observation made by a Division Bench in Santosh Kumar Singh v. State of U. P. 1993 (2) E. S. C 158, which while considering the provisions of Section 16 of U. P. Higher Education Services Commission Act which is some what similar to Section 18 of the Act, held that ad hoc appointment made without notifying the vacancy would be illegal. 71. Sri G. K. Singh has vehemently contended that if the management is required to observe the conditions of Section 18 of the Commission Act, it necessarily means that recourse to the procedure prescribed by the First order can not be initiated until expiry of two months from the date of the Notification of the vacancy to the Commission and in the case of direct recruitment, the process of inviting applications after advertisement in two news papers is bound to take some further time. Similarly in case of a short term vacancy, the process of making direct recruitment will take considerable time and during this period, there will be no teacher in the institution which will seriously after the students studying that subject. He has submitted that a teacher may resign or fail seriously ill or die just a few months before the examination, which is the peak period of students. He has submitted that a teacher may resign or fail seriously ill or die just a few months before the examination, which is the peak period of students. The Management would then be left in a precarious situation as following the procedure would mean that the students will have to appear in the exa mination without having been taught the subject for several months. It has been submitted that in order get over this difficulty, the management should have the right to make ad hoc appointment in the quickest possible time which can only be done by following the procedure prescribed in sub-para (3) of Para 2 of the Second Order, namely, by notifying the vacancy on the notice board of the institution and requiring the DIOS to communicate his decision within seven days failing which the Inspector would be demeed to have given his approval. I have given my deepest consideration to the difficulty pointed out by the learned counsel on account of happending of a substantive or a short time vacancy in mid session but I am unable to accept the solution suggested by him A huge bulk litigation has come to this Court over years and experience shows that there has been a tremen dous misuse of power by the Management in making ad hoc appointments where wholly sub-standard teachers have been appointed on extraneous con sideration. Unscrupulous Managements have not hesitated in making ad hoc appointments at the slightest pretext to the detriment of the large body of students who are studying in the institution or would be studying in future Services of such ad hoc teachers have subsequently been regularised by the legislature and they have acquired the status of a permanent employee. If the management is given a free hand the very purpose for which the legis lative intervened and enacted the Act, would be frustrated. The whole scheme of the Act is to ensure a free and fair selection after giving wide publicity through out the State so that the best person is appointed as a teacher. 72. The management of an institution can not totally shirk its respon sibility and pass on the entire burden to the State. The whole scheme of the Act is to ensure a free and fair selection after giving wide publicity through out the State so that the best person is appointed as a teacher. 72. The management of an institution can not totally shirk its respon sibility and pass on the entire burden to the State. Under the present system where salary is paid under the Payment of Salary Act, except for a small fraction which is met out of the tution free paid by the students, the entire salary is paid by the State out of public exchequer. Those who establish an institution must also share some responsibility and burden. During the period of waiting, which is occasioned on account of the provi sions of Section 18 of the Commission Act or the Removal of Difficulties Older, the Management can appoint teachers and pay them salary out of its own resources. Such teachers, however, would not be recognized for the purpose of Payment of Salary Act (U. P. Act No. 24 of 1971) or the U. P. Secondary Education Services Commission and Selection Boards Act (U. P. Act No. 5 of 1982 ). This may sound little strange as over the years an impression has been created or gathered, though wrongly, that the job and responsibility of the Management is over once in institution has been recognised and has come within the purview of the Payment of Salary Act. The view which I am taking that the Management should make arrange ment during the interregnum by appointing suitable persons and paying them salary out of its own resources is not repugnant to any statutory provi sion or scheme, of the Act. On the contrary U. P. Intermediate Education Act which is the principal enactment dealing with the field of education upto Intermediate level in the State of U. P. and which lays down qualification etc, of the teachers and formerly provided the procedure for appoint ment, has some what a kin provisions. By the Intermediate Education (Amendment) Act 1987 (U. P. Act No 18 of 1987), Sections 7-A, 7-AA and 7-AB were inserted. By the Intermediate Education (Amendment) Act 1987 (U. P. Act No 18 of 1987), Sections 7-A, 7-AA and 7-AB were inserted. Sub-section (1) of Section 7-AA provides the notwith standing anything contained in this Act, the Management of an institution may from its own resources, employ as an interim measure part time teachers for imparting instructions in any subject or group of subjects or for a higher class for which recognition is given or in any section of an existing class for which permission is granted under Section 7- A. Section 7-AB provides that nothing in the U. P. High School and Intermediate Colleges Payment of Salaries of Teachers and other Employees Act (U. P. Act No 24 of 1971) or the U. P. Secondary Education Service Commission and Selection Boards Act (U. P. Act No. 5 of 1982) shall apply in relation to part time teachers and part time instructors employed in an institution under Section 7-AA. The aforesaid provisions show that the legislature itself contemplates appointment of such teachers as an interim measure who may be paid salary by the management from its own resources and the Acts referred to in Section 7-AB, shall not apply to them, therefore, the difficulty posed by Sri Singh is not insurmountable and the management can always employ qualified persons who may be even retired teachers for the period of inter regnum till a proper selection is made in accordance with the provisions of the Act. 73. It has also been contended that the life of various Removal of Difficulties Orders has come to an end after two years and therefore they have ceased to be operative. The limitation on the power of the State Government to issue a Removal of Difficulties Order has be on laid down in the proviso to sub- section (1) of Section 33 of the Act which is two years from the date of the commencement of the Act, Since the Act has come into force on July 14, 1981, by virtue of the date so fixed in sub-section (2) of Section 1 of the Act, the State Government had the power to issue such orders only upto July 14, 1983. It will be seen that all the Removal of Difficulties Orders have been issued much before July 14, 1983 and there fore, there can be no doubt regarding the power of the State Government to issue the Orders. Under sub-section (1) of Sec. 33 of the State Government is empowered to limit the life of the Removal of Difficulties Order by making a provision to that effect in the Orders itself. However, there is no provision limiting their life in all the Removal of Difficulties Orders issued so far. Therefore, all the Orders are still in force and shall continue to be operative till the State Government, or the legislature directs otherwise. It may be pointed out that the Commission Act has been amended by U. P. Secondary Education Service Commission and Selection Boards (Amend ment) Act 1992 (U. P. No. 1 of 1993) which has come into force on August 7, 1993, Section 23 of this Act has amended Section 33 of the Commission Act and has substituted a new proviso which lays down that no such order shall be made after two years from the date of commencement of the U. P. Secondary Education Service Commission and Selection Boards (Amend ment) Act 1992. The result of this amendment is that the State Government is now empowered to issue a Removal of Difficulties Order upto August 7th 1995, This amendment shows that the legislative intent that not only the Removal of Difficulties Orders issued in the year 1981-82, are still conti nuing to be in operation, but the State Government has been given further power to issue fresh Orders for removing any difficulties which may be experienced in the working of the Act in future as well. Question (d) 74. It may now be considered whether ad hoc appointment made in accordance with the procedure prescribed by First Order or Second Order or Section 18 as substituted by U P. Act No, 24 of 1992, would require any prior or subsequent approval of the DIOS So far as First Order is con cerned if the appointment is made by promotion, it is obvious that such a teacher would have been working in the institution for a fairly long time after a regular Selection by a competent body and therefore there is no necessity of a further approval. If the appointment is made by direct recruitment under Para 5, the actual process of selection is done by the DIOS himself. So far as Second Order is concerned if the ad hoc appoint ment is made by promotion the position would be the same as indicated above. If direct appointment is made, then under sub-clause (ii) and (iii) of sub-para (3) of Para 2, the D. I. O. S. would either give his approval or there would be deemed approval So far as the period from July 14, 1992 to August 6, 1993 is concerned, if the ad hoc appointment is made by promotion, the position as explained earlier would apply and if direct recruit ment is made, the whole process of selection having been done by the D. I. O. S. himself, there is no occasion for grant of a further approval. Therefore, if the procedure prescribed by First Order or Second Order or substituted Section 18 is strictly followed, there is no occasion or require ment for obtaining any further approval from the D. I. O. S. 75. In so far as the institutions coming under the purview of Payment of Salary Act are concerned the D. I. O. S. Hassan implied power under the aforesaid Act to examine whether the appointment of the teacher, whose salary he is called upon to pay, has been made in accordance with law and in bonafide manner if the appointment is not valid he can take appropriate action to withheld or stop payment of his salary. This view has been taken by a Division Bench in Radhey Shyam Dubey v. D. I. O. S. 1987 UPLBEC 553 with which I am in respectful agreement. 76. By answer to questions (c) and (d) is as follows : Question No. (c) First Stage.- (July 31, 1981 to July 13, 1992 ). Both substantive and short term vacancies have to be filled in by promotion. If it is possible to do so on account of non-availability of a teacher possessing requisite qualification the same can be filled by direct recruitment in accordance with the First Order in the case of substantive vacancy and in accordance with Second Order in the case of short term vacancy. Second Stage.- (July 14, 1992 to August 6, 1993 ). Post of Principal and Head Master has to be filled in by promotion only. Second Stage.- (July 14, 1992 to August 6, 1993 ). Post of Principal and Head Master has to be filled in by promotion only. Substantive vacancy on the post of teacher has to be filled in accordance with amended Section 18 and short term vacancy in the same as in first Stage. Third Stage.- (August 7, 1993 onwards ). No ad hoc appointment on substantive vacancy can be made. Only short term vacancy can filled in the same manner as in First Stage. Question (d) If appointment is made strictly in the manner indicated in answer to question No. (c) no prior or subsequent approval of Education Authorities is required. .