Ram Jeet Tiwari v. State of U. P. — 1996 DIGILAW 345 (ALL)

Judgment : A. N. Gupta, J. 1. IN this Special Appeal which is directed against the judgment dated 7.9.1992 passed by a Single Judge of this Court, adjudication is sought on the question as to whether Ram Jit Tewari appellant or M. D. Pandey respondent No. 4 is entitled to hold the post of Principal of Brajendra Mani Inter College, Kohindaur, District Pratapgarh. State of U. P. and the District Inspector of Schools, Pratapgarh are respondents No. 1 and 2 to this Special Appeal and the Committee of Management of the said Intermediate College is respondent No. 3. This controversy has arisen in the circumstances appearing hereinafter. 2. SRI Jagdeo Prasad Misra was regularly appointed Principal of the said SRI Brajendra Mani Inter College (hereinafter referred to as 'the College'). He retired from service on 30.6.1988 on attaining the age of superannuation. Immediately before his retirement, SRI J. P. Misra addressed a letter jointly to the Chairman/President of the Managing Committee and its Secretary enquiring from them as to whom he should hand over charge on his retirement. In that letter, he mentioned that respondent No. 4 was senior-most lecturer of the College having been appointed on 12.8:69 and the second senior-most lecturer was the appellant. On this letter of the retiring Principal, the Secretary of the Managing Committee made an endorsement to the President/Chairman of the Committee stating that SRI Jagdeo Prasad Misra was superannuating on 30.6.1988 and respondent No. 4 was the senior-most lecturer of the College and, therefore, he recommended that the charge of the post of Principal be given to respondent No. 4. This recommendation was accepted by President/Chairman on 1.7.1988. In pursuance of this order, a letter of appointment dated 30.6.1988 was issued under the signatures of Chairman/President of the Managing Committee appointing respondent No. 4 as the Principal of the College. However, no resolution of the Managing Committee appointing respondent No. 4 to the post of Principal was passed. It was mentioned in this letter of appointment that respondent No. 4 was being appointed purely on ad hoc basis and his appointment shall last till a suitable candidate was made available by the U. P. Secondary Education Services Selection Board (hereinafter referred to as 'the Board') or till any other decision was taken by the Management. In pursuance of this appointment letter, the respondent No. 4 started working as Principal of the said College. In pursuance of this appointment letter, the respondent No. 4 started working as Principal of the said College. On 29.10.1988, the Managing Committee of the College passed a resolution approving ad hoc appointment of respondent No. 4 on the post of Principal. This appointment was approved by the District Inspector of Schools vide his letter dated 19.5.1989 for payment of salary under the provisions of U. P. High Schools and Intermediate Colleges (Payment of Salaries to Teachers and other Employees) Act, 1971. In the said letter of approval, it was mentioned that the approval was given for appointment under Section 18 of the U. P. Secondary Education Service Commission and Selection Board Act, 1982 (hereinafter referred to as 'the Act') and the appointment was purely temporary and would last till a candidate selected by the Board was available. It is admitted to the parties that respondent No. 4 is senior to the appellant. The respondent No. 4 was appointed as a Lecturer in Sanskrit w.e.f. 12.8.69 whereas the appellant was appointed as a Lecturer in Geography on 14.8.1969. It is further admitted that the Management in July, 1988, sent requisition to the U. P. Secondary Education Services Selection Board for selection of a regular Principal of the College. As prescribed under the Rules framed under the Act, the Management forwarded names of respondent No. 4 and the appellant to the Board which called both the candidates and others for interview. The Board after interviews notified on 3.5.1991 that it had selected the appellant at SI. No. 1 and another person, namely, Sri Shiv Sagar Shukla at SI. No. 2, in order of merit for the post of Principal of the College. However, the respondent No. 4 was not selected. The Board communicated the said notification to the management vide its letter dated 6.5.1991. In pursuance of the said selection, the Committee of Management appointed the appellant to the post of Principal of the College vide its resolution dated 13.5.1991 and letter of appointment of the same date was issued in favour of the appellant who took over charge from respondent No. 4 on 14.5.1991. 3. THE respondent No. 4 filed W. P. No. 2848 (S/S) of 1991 claiming that his appointment as Principal of the College came to be regularised under sub- section (1A) of Section 33A of the Act. 3. THE respondent No. 4 filed W. P. No. 2848 (S/S) of 1991 claiming that his appointment as Principal of the College came to be regularised under sub- section (1A) of Section 33A of the Act. Another W. P. No. 6564 (S/S) of 1991 was also filed by him substantially for the same relief. On the other hand, the appellant filed W. P. No. 7076 (S/S) of 1991 contending that since he was selected by the Board under the Act and as he had taken over the charge, he was entitled to continue on the post. These three writ petitions were disposed of by one judgment dated 7.9.1992 by a Single Judge of this Court. He allowed the writ petitions of respondent No. 4 and dismissed the writ petition of the appellant. He held that the appointment of respondent No. 4 came to be regularised statutorily under the provisions of sub-section (1A) of Section 33A of the Act. Aggrieved by the said judgment. Ram Jeet Tewari has filed this Special Appeal. 4. BEFORE proceeding further, it may be mentioned that in the writ petitions this Court passed several interim orders directing that status quo be maintained regarding the post of Principal. The appellant had proceeded on earned leave and respondent No. 4 was again given charge by the management. Considering that the managements of aided institutions were indulging into malpractices in appointment of teachers and Heads of Institutions and as the Government had taken liability of payment of their salary under the U. P. High Schools and Intermediate Colleges (Payment of Salaries to Teachers and other Employees) Act, 1971, the U.P. Legislature enacted the Act which was preceded by Ordinances, namely, U.P. Ordinance No. 8 of 1981 and U. P. Ordinance No. 23 of 1981. The Ordinances commenced w.e.f. 14.7.1981. The Act was amended by U. P. Ordinance No. 28 of 1991 which came into effect on 6.5.1991. It was subsequently replaced by U. P. Act No. 26 of 1991. By this amending Act, sub-sections (1A), (1B) and (1C) were inserted in Section 33A and sub-section (2) was substituted. Section 16 of the Act provides that subject to the provisions of Section 33A, every appointment of a teacher shall be made by the management only on the recommendation of the Board. It further provides that any appointment made in contravention of the said provision, shall be void. Section 16 of the Act provides that subject to the provisions of Section 33A, every appointment of a teacher shall be made by the management only on the recommendation of the Board. It further provides that any appointment made in contravention of the said provision, shall be void. Section 18 of the Act as it stood at the relevant time prior to its deletion by U. P. Act No. 1 of 1983 reads as follows : "18. Ad hoc Teacher.-(1) Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and- (a) the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher specified in the schedule within one year from the date of such notification, or (b) the post of such teacher has actually remained vacant for more than two months, then, the management may appoint, by direct recruitment or promotion, a teacher on purely ad hoc basis from amongst the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder. (2) The provisions of sub-section (1) shall also apply to the appointment of a teacher (other than a teacher specified in the Schedule) on ad hoc basis with the substitution of the expression Board' for the expression "Commission". (3) Every appointment of an ad hoc teacher under sub-section (1) or sub-section (2) shall cease to have effect from the earliest of the following dates, namely- (a) when the candidate recommended by the Commission or the Board, as the case may be, joins the post; (b) when the period of one month referred to in sub-section (4) of Section 11 expires ; (c) thirtieth day of June following the date of such ad hoc appointment. 5. SECTION 33A of the Act which is material for our purposes after its amendment by U. P. Act No. 26 of 1991. w.e.f. 6.4.1991 reads as under :- "33A. 5. SECTION 33A of the Act which is material for our purposes after its amendment by U. P. Act No. 26 of 1991. w.e.f. 6.4.1991 reads as under :- "33A. Regularisation of certain appointments.-(1) Every teacher directly appointed before the commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Board (Amendment) Ordinance, 1985, on ad hoc basis against a substantive vacancy in accordance with Paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 as amended from time to time, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of, the Intermediate Education Act, 1921, shall with effect from the date of such commencement, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such appointment up to the date of such commencement. (1A) Every teacher appointed by promotion, on ad hoc basis against a substantive vacancy in accordance with Paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, as amended from time to time, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of, the Intermediate Education Act, 1921 shall, with effect from the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1991, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such ad hoc appointment to the date of such commencement. (1B) Every teacher directly appointed after June 12, 1985 and before May 13, 1989 on ad hoc basis against a substantive vacancy in the Certificate of Teaching Grade, in accordance with Paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, as amended from time to time, who possesses, the qualifications prescribed under or is exempted from such qualifications in accordance with the provisions of, the Intermediate Education Act, 1921 shall, with effect from the commencement of the Uttar Pradesh Secondary Education and Services Commission and Selection Board (Amendment) Act, 1991, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such ad hoc appointment to the date of such commencement. (1C) Every teacher appointed by promotion or by direct recruitment before July 31, 1988 on ad hoc basis against a substantive vacancy in accordance with SECTION 18, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of the Intermedidate Education Act, 1921 shall, with effect from the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1991 be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such ad hoc appointment to the date of such commencement. (2) Every teacher deemed to have been appointed in a substantive capacity under sub-section (1) or (1A) or (1B) or (1C), shall be deemed to be on probation from the date of commencement referred to in sub-section (1) or (1A) or (1B) or (1C), as the case may be. (3) Nothing in this section shall be construed to entitle any teacher to substantive appointment- (a) If on the date of commencement referred to in sub-section (1) or (1A) or (1B) or (1C) such post had already been filled or selection for such post had already been made in accordance with this Act, or (b) if such teacher was related to any member of the Committee of Management or the Principal, or Head Master of the Institution concerned. Explanation.-For the purposes of this sub-section, a person shall be deemed to be related to another if- (i) they are members of a Hindu Undivided Family ; or (ii) they are husband and wife ; or (iii) the one is related to the other in the manner indicated in the Second Schedule to the Intermediate Education Act, 1921." 6. THE Act was first enacted in 1981 by means of Ordinances which later on were converted into U. P. Act No. 5 of 1982 but since the establishment of the Board was likely to take some time and even after its establishment, it was not possible to make selection of the teachers for the first few months, the U. P. Govt. passed the Removal of Difficulties Order known as U. P. Secondary Education Services Commission (Removal, of Difficulties) Order, 1981, under Section 33 of the Act (hereinafter referred to as 'the Order'). passed the Removal of Difficulties Order known as U. P. Secondary Education Services Commission (Removal, of Difficulties) Order, 1981, under Section 33 of the Act (hereinafter referred to as 'the Order'). This was done in order to fill up large number of vacancies in the High Schools and Intermediate Colleges so that the teaching of the students may not suffer. This Removal of Difficulties Order makes provision for ad hoc appointments. Paragraph 2 of the order makes provision for ad hoc appointment of teachers whereas Paragraph 4 of the order provides for ad hoc appointment by promotion on the post of Head of an Institution and Paragraph 5 provides for ad hoc appointment by direct recruitment with which we are not concerned because the respondent No. 4 was promoted and was not directly recruited. THE said Paragraphs 2 and 4 of the Order read as under : "2. Vacancies in which ad hoc appointment can be made. -THE management of an institution may appoint by promotion or by direct recruitment a teacher on purely ad hoc basis in accordance with the provisions of this Order in the following cases, namely : (a) in the case of substantive vacancy existing on the date of commencement of this Order caused by death, retirement, resignation or otherwise ; (b) in the case of a leave vacancy, where the whole or unexpired portion of the leave is for a period exceeding two months on the date of such commencement; (c) where a vacancy of the nature specified in clause (a) or clause (b) comes into existence within a period of two months subsequent to the date of such commencement." "4. Ad hoc appointment by promotion.-(1) Every vacancy in the post of Head of an institution may be filled by promotion- (a) in the case of an Intermediate College, by the senior-most teacher of the institution in the lecturer's grade ; (b) in the case of a High School raised to the level of an Intermediate College, by the Headmaster of such High School; (c) In the case of Junior High School raised to the level of a High School, by the Headmaster of such Junior High School. (2) Every vacancy in the post of a teacher in Lecturers grade may be filled by promotion by the senior-most teacher of the institution in the trained-graduate (L.T.) grade. (2) Every vacancy in the post of a teacher in Lecturers grade may be filled by promotion by the senior-most teacher of the institution in the trained-graduate (L.T.) grade. (3) Every vacancy in the post of a teacher in the trained graduate (L.T.) grade shall be filled by promotion by the senior most teacher of the institution in the trained under-graduate (C.T.) grade. (4) Every vacancy in the post of a teacher in the trained undergraduate (C.T.) grade shall be filled by promotion by the senior-most teacher of the institution in the J.T.C. grade or B.T.C. grade. Explanation-For the purposes of clauses (1) to (4) of this paragraph, the expression "Senior-most teacher means the teacher having longest continuous service in the Lecturer's grade or the trained graduate (L.T.) grade, or trained under graduate (C.T.) grade J.T.C. or B.T.C. grade, as the case may be." Having noted the relevant provisions, we now first take up the question as to from which date, ad hoc appointment of respondent No. 4 commenced. The respondent No. 4 had been given charge of the post of Principal on 1.7.1988 on the retirement of Sri J. P. Misra under the orders of the Chairman/President of the Managing Committee on the recommendation of the Manager of the College. It was followed by a letter of appointment dated 1.7.1988. However, this was done without a resolution of the Managing Committee because no such resolution has been produced before us. The Managing Committee passed the resolution on 29.10.1988 appointing respondent No. 4 on the post of Principal. This appointment cannot be said to relate back w.e.f. 1.7.1988 because firstly that order was a working arrangement only for taking over charge from the retiring Principal. It was an Incharge arrangement and no rights, equities and expectations could be built upon it as has been held by Hon'ble Supreme Court in the case of Ramakant Shripad Sinai Advaipalkar v. Union of India and others, AIR 1991 SC 1145 . Secondly, admittedly, the Managing Committee is the appointing authority for the post of Principal and it had passed no resolution prior to 29.10.88 and mere issuance of letter of appointment under the signatures of the President/Chairman of the Managing Committee can be of no avail to respondent No. 4. Secondly, admittedly, the Managing Committee is the appointing authority for the post of Principal and it had passed no resolution prior to 29.10.88 and mere issuance of letter of appointment under the signatures of the President/Chairman of the Managing Committee can be of no avail to respondent No. 4. It has been held by this Court in the case of Committee of Management, Rani Laxmi Bai Girls Inter College, Unnao v. Director of Education, U. P., Allahabad and others, 1985 UPLBEC 552, that the promotion can be accepted only from the date of resolution of the Managing Committee. Thirdly, the tenor of resolution dated 29.10.88 passed by Managing Committee does not at all show that it appointed the respondent No. 4 to the post of Principal of the College w.e.f. 1.7.1988. On the other hand, it shows that appointment was from the date when the resolution of the Committee of Management was passed, i.e., 29.10.88. It is mentioned in the resolution that it had received the application of respondent No. 4 along with certificates of his qualifications and the comments of the Manager were also produced before it. It also took note of the fact that the post was vacant on account of retirement of Jagdeo Prasad Misra. It is further mentioned in the resolution that under the provisions of sub-section (1) of Section 16 (cha) of U. P. Intermediate Education Act, 1921, the post is to be filled by a senior-most lecturer of the college. The resolution ends by saying that the Managing Committee unanimously accepts the appointment of respondent No. 4, being the senior-most lecturer, on ad hoc basis as officiating Principal, Fourthly, appointment of respondent No. 4 on the post of Principal was given financial approval by District Inspector of Schools vide his letter dated 19.5.89 for payment of salary under the provisions of U. P. High Schools and Intermediate Colleges (Payment of Salaries to Teachers and other Employees) Act, 1971 after the resolution of Managing Committee was passed on 29.10.1988. In view of the above, ad hoc appointment of respondent No. 4 on the post of Principal is w.e.f. 29.10.1988. 7. NOW, it has to be seen as to whether ad hoc appointment of respondent No. 4 got regularised under the provisions of Section 33A of the Act. In view of the above, ad hoc appointment of respondent No. 4 on the post of Principal is w.e.f. 29.10.1988. 7. NOW, it has to be seen as to whether ad hoc appointment of respondent No. 4 got regularised under the provisions of Section 33A of the Act. While the contention of the appellant was that ad hoc appointment of respondent No. 4 could be regularised, if at all, only under the provisions of sub-section (1C) of Section 33A whereas according to respondent No. 4, his ad hoc appointment got regularised under the provisions of sub-section (1A) of Section 33A of the Act. Both the parties addressed lengthy arguments on the point whether the ad hoc appointment of respondent No. 4 was under Section 18 of the Act or under the Order. 8. IT is not necessary to go into the question whether ad hoc appointment of respondent No. 4 on the post of Principal was under Section 18 of the Act or under Order because the case of respondent "No. 4 does not fall under either of the provisions. Sub-section (1A) of Section 33A of the Act provides for regularisation of teachers appointed on ad hoc basis under Paragraph 2 of U. P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 whereas Paragraph 4 of the said Order provides for ad hoc appointment of Principal in Intermediate College by promotion. Two different provisions exist in the Order. One is for the ad hoc appointment of teachers under Paragraph 2 of the Order and the other is in Paragraph 4 of the Order which relates to ad hoc appointment of Head of an institution by promotion. No definition has been given in this Order which has been issued under Section 33 of the Act and, therefore, the definitions given in the Act will have to be used for interpreting the Order. IT is true that in Section 2 (k) of the Act 'teacher' has been defined as follows :- "2. Definitions.-In this Act- (a) ................................. (b) ................................. (c) ................................. (d) ................................. (e) ................................. (f) ................................. (g) ................................. (h) ................................. (i) ................................. (j) ................................. (k) ................................. IT is true that in Section 2 (k) of the Act 'teacher' has been defined as follows :- "2. Definitions.-In this Act- (a) ................................. (b) ................................. (c) ................................. (d) ................................. (e) ................................. (f) ................................. (g) ................................. (h) ................................. (i) ................................. (j) ................................. (k) ................................. Teacher' means a person employed for imparting instruction in an institution and includes a Principal or a Head Master:" Thus, from the definition of 'teacher' given in Section 2 (k) of the Act, it comes out that the teacher includes a Principal or Head Master also. However, in the Order, as mentioned above, separate provisions in Paragraphs 2 and 4 have been made for ad hoc appointment of teacher and Head of the institution respectively and, therefore, it will have to be held on the basis of the principle that the general provision gives way to the special provision that ad hoc appointment by promotion to the post of Head of institution can be made only under Paragraph 4 and not under Paragraph 2. That being the position, the appointment of respondent No. 4 to the post of Principal of the College, cannot be deemed to have been regularised under the provisions of sub-section (1A) of Section 33A of the Act because it speaks of appointment of teacher made under Paragraph 2 of the Order. In view of this, contention of learned counsel for Respondent No. 4 that ad hoc appointment of respondent No. 4 was regularised under the provisions of sub-section (1A) of Section 33A of the Act has no substance. 9. SO far as regularisation of ad hoc appointment of respondent No. 4 under the provisions of sub-section (1C) of Section 33A of the Act is concerned, he cannot get any benefit out of the said provisions which is restricted to appointments made before July 31, 1988 on ad hoc basis. It has already been held by us that the ad hoc appointment of respondent No. 4 was w.e.f. 29.10.88. 10. LEARNED counsel for respondent No. 4 placed his reliance on a Full Bench decision of this Court given in the case of Radha Raizada and others v. Committee of Management, Vidyawati Darbari Girls Inter College and others, (1994) 3 UPLBEC 1951. 10. LEARNED counsel for respondent No. 4 placed his reliance on a Full Bench decision of this Court given in the case of Radha Raizada and others v. Committee of Management, Vidyawati Darbari Girls Inter College and others, (1994) 3 UPLBEC 1951. In Paragraph 37 of this Judgment, it has been observed that Section 18 of the Act as well as the 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. It has further been observed that while Section 18 of the Act makes provision for ad hoc appointments whereas the Order provides for the procedure. Even according to the said decision of the Full Bench, the respondent No. 4 does not get any advantage because he cannot claim regularisation under the provisions of sub-section (1A) of Section 33A of the Act for the reasons mentioned above. In fact, the Full Bench in Paragraph 44 of its Judgment has observed that the ad hoc appointment on the post of Principal of Intermediate College can be made under paragraph 4 of the Order only by promoting the senior-most Lecturer. In view of this also, respondent No. 4 cannot claim regularisation under the provisions of sub-section (1A) of Section 33A of the Act as it is confined to the regularisation of ad hoc appointment of teachers made under Paragraph 2 of the Order and it does not embrace in itself the regularisation of ad hoc appointment of Principal of Intermediate College made under Paragraph 4 of the Order. In view of the above discussion, we find that ad hoc appointment of Sri Munishwar Dutt Pandey respondent No. 4 to the post of Principal of Sri Brajendra Mani Inter College, cannot be deemed to have been regularised. Since Sri Ram Jeet Tewari appellant was duly selected by the Board under the provisions of U. P. Secondary Education Services Selection Board Act, 1982, he is regularly appointed Principal w.e.f. 14.5.1991. He shall be entitled to get salary with all consequential benefits of the said post with effect from the said date. If he is not already holding the post of Principal, he shall be given the said charge forthwith. Sri Munishwar Dutt Pandey, respondent No. 4 has held the post of the Principal in spells under different interim orders passed by this Court. If he is not already holding the post of Principal, he shall be given the said charge forthwith. Sri Munishwar Dutt Pandey, respondent No. 4 has held the post of the Principal in spells under different interim orders passed by this Court. In view of this, we direct that if he has been paid salary of the post of Principal, he shall not be compelled to refund the same. However, if the salary of the said post has not been paid to him, he shall not be entitled to get it. 11. THE appeal is allowed accordingly and the judgment of learned Single Judge is hereby set aside. In the circumstances of the case, we leave the parties to bear their own costs.