JUDGMENT Hon’ble Vikram Nath, J.—Learned Single Judge of this Court vide order dated 7.7.2006 required that a reference be made to a Larger Bench for authentic pronouncement on the following two questions: (i) Whether after rescission of U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 with effect from 25.1.1999, the Committee of Management can make temporary / Ad hoc appointment on short-term vacancies resorting to its power given under Chapter-II, Regulation 9 and Section 16-E(11) of the U.P. Intermediate Education Act, 1921 despite the provisions of Section 16(1) of the U.P. Secondary Education (Services Selection Boards) Act, 1982? (ii) Whether the judgment of learned Single Judge in Rakesh Chandra Misra v. State of U.P. and others, (2004) 3 UPLBEC 2671 , lays down correct law? Pursuant thereto Hon’ble the Chief Justice vide order dated 14.11.2006 passed the following orders: “Let the matter be heard by Hon.R.K. Agarwal and Vikram Nath, JJ.” It is thus that the matter has been placed before us for answering the questions referred to in the order dated 7.7.2006. 2. We have heard Sri P.N. Saxena, learned Senior Advocate assisted by Sri H.N. Pandey, Advocate on behalf of the petitioner and the learned standing counsel for the respondent No. 1 and have also perused the material on record. Before going into the questions and considering the relevant statutes and the case law relied upon by the learned counsel for the parties, the facts in brief are being stated herein under. 3. One Mohd. Arif who was working as L.T. Grade Teacher in Indira Gandhi Intermediate College, Jamha, Mau-Aima, District Allahabad (hereinafter referred to as the Institution) was selected and appointed as Principal in another Institution namely Vijay Laxmi Pandit Intermediate College, Phulpur, District Allahabad. He applied for leave w.e.f. 23.11.1998 from the Institution, which was duly granted. As a result of grant of such leave to Mohd. Arif a short-term vacancy arose in the Institution. This leave vacancy was advertised, against which the petitioner applied alongwith other candidates. The petitioner was selected and appointed by the Committee of Management of the Institution on 25.2.1999. The selection and appointment of the petitioner was not being approved by the District Inspector of Schools whereupon he filed a writ petition before this Court which was registered as Civil Misc. Writ Petition No. 1377 of 2001. The petitioner was selected and appointed by the Committee of Management of the Institution on 25.2.1999. The selection and appointment of the petitioner was not being approved by the District Inspector of Schools whereupon he filed a writ petition before this Court which was registered as Civil Misc. Writ Petition No. 1377 of 2001. The said writ petition was disposed of vide order dated 15.1.2001 with a direction to the District Inspector of Schools, Allahabad to take a decision in accordance with law by a speaking order. Pursuant to the said direction the District Inspector of Schools, Allahabad vide order dated 5.10.2001 declined to grant approval to the selection and appointment of the petitioner on the ground that in view of the insertion of Section 33-E in The Uttar Pradesh Secondary Education (Services Selection Board) Act, 1982 (hereinafter referred as the 1982 Act), whereby various Removal of Difficulties Orders were rescinded, the Committee of Management had no authority to make selection and appointment against short-term vacancy on Ad hoc basis. The said order of the District Inspector of Schools, Allahabad dated 5.10.2001 has been assailed in the present writ petition. 4. During the course of arguments before the learned Single Judge reliance was placed on behalf of the petitioner on a decision of a learned Single Judge of this Court in the case of Rakesh Chandra Misra v. State of U.P. and others, (2004) 3 UPLBEC 2671 , wherein this Court had held that even after rescission of the various Removal of Difficulties Orders, the Committee of Management would still have the power to make ad hoc appointments against short-term vacancies, by drawing the power vested in it under the provisions of the Uttar Pradesh Intermediate Education Act, 1921 (hereinafter referred as the 1921 Act) and the Rules and Regulations framed thereunder. The learned Single Judge disagreed with the ratio laid down in aforementioned judgment in the case of Rakesh Chandra Misra (supra) and accordingly requested Hon’ble the Chief Justice for reference to a Larger Bench, for deciding the controversy by an authentic pronouncement. 5. Prior to 1981, the power to make appointment vested with the Committee of Management under various provisions of the 1921 Act. The Government promulgated an Ordinance in the year 1981 by constituting a Selection Commission for making appointments in the secondary institutions which were duly recognized by the Intermediate Board and aided by the Government. 5. Prior to 1981, the power to make appointment vested with the Committee of Management under various provisions of the 1921 Act. The Government promulgated an Ordinance in the year 1981 by constituting a Selection Commission for making appointments in the secondary institutions which were duly recognized by the Intermediate Board and aided by the Government. The said ordinance could not be replaced by an enactment and lapsed after expiry of six months, as such in order to continue the smooth functioning of the institutions and also maintaining the standard of education, the Government issued the Removal of Difficulties Orders in the years 1981-1982 permitting the Committee of Management to continue to make appointments both on substantive basis and also on ad hoc basis. The power to make appointments on substantive basis was conferred by the First Removal of Difficulties Order, 1981 and the power to make appointments on short-term basis was conferred by the Second Removal of Difficulties Order, 1981. Both these orders prescribed the procedure to be followed by the Committee of Management in making the selections and appointments. 6. In the year 1982, The Uttar Pradesh Secondary Education (Services Selection Board) Act was passed by the Legislature and it came into force w.e.f. 14.7.1981. The 1982 Act provided for constitution of a Board, which would make the selections against the vacancies notified to it by the District Inspector of Schools of each district, which would be based upon requisition being sent by each of the institutions for filling up the vacancies, i.e. to say, each of the secondary institutions would inform the District Inspector of Schools with regard to the vacancies which had occurred or were likely to occur in that academic year and thereafter the District Inspector of Schools would intimate the Selection Board about such vacancies in the schools of his district. 7. Further Section 16 of the 1982 Act provided that notwithstanding anything to the contrary contained in the 1921 Act or the Regulations made thereunder but subject to the provisions of Sections 12, 18, 21-B, 21-C, 21-D, 33, 33-A, 33-B, 33-C and 33-D, every appointment of a teacher, shall on or after the date of the commencement of the 1982 Act be made by the Committee of Management only on the recommendation of the Board. Further Section 18 of the 1982 Act provided for Ad hoc appointment of Teacher or Principal or Headmaster in an institution, by way of direct appointment or promotion subject to the condition that despite the vacancy having been notified to the Board, the position of the teacher has remained vacant for more than one year and the position of Principal or Headmaster had remained vacant for more than two months. 8. The provisions of the 1921 Act and the Regulations framed thereunder with regard to the selection, appointment, promotion, dismissal, removal, termination or the reduction in rank of a teacher, in so far as they were not inconsistent with the provisions of the 1982 Act or the Rules or Regulations framed thereunder, were to continue in force, in view of Section 32 of the 1982 Act. 9. The State Government was given the power to remove any difficulty by a notified order, under Section 33 of the 1982 Act. 10. Coming to the provisions contained in the 1921 Act with regard to the appointment, it may be noted that Section 16-E of the 1921 Act, provided the procedure for selection of teachers and head of the institutions. Further Chapter-II of the Regulations framed under the 1921 Act dealt with in detail the procedure with regard to the appointments of the head of the institutions and the teachers. Regulations 2 and 9 of Chapter-II of the Regulations provided the procedure for filling up a short-term vacancy. 11. Thus, we notice that on coming of the 1982 Act, the appointment could be made by the Committee of Management pursuant to the selections being made by the Board constituted under the 1982 Act. There is no issue with regard to the appointments being made on substantive vacancies and the power to make such selection was only vested in the Selection Board constituted under the 1982 Act and the appointments were to be made by the Committee of Management on such recommendations of the Selection Board. However, the issue is as to whether the Committee of Management could make the selection and appointments of teachers on Ad hoc basis against short-term vacancies without seeking recommendation / approval from the Selection Board constituted under the 1982 Act. 12. However, the issue is as to whether the Committee of Management could make the selection and appointments of teachers on Ad hoc basis against short-term vacancies without seeking recommendation / approval from the Selection Board constituted under the 1982 Act. 12. Up to year 1999 there was no controversy that the selection and appointments of teachers on Ad hoc basis against short-term vacancies could be made by the Committee of Management without approval of the Selection Board, in view of the various Removal of Difficulties Orders (in particular the Second Order) but after the insertion of Section 33-E in the 1982 Act, which was made effective from 25.1.1999, a controversy arose as to whether the Committee of Management could still continue to make selection and appointment of a teacher against short-term vacancy without approval of the Selection Board constituted under the 1982 Act and, if they could, then under what provisions of law. It is precisely this controversy, which has been referred to us for being answered. 13. Before proceeding any further we would like to quote the various provisions of law relevant for the discussion: 1.The Uttar Pradesh Intermediate Education Act, 1921 16-E. Procedure for selection of teachers and head of institutions.—Subject to the provisions of this Act, the Head of Institution and teachers of an institution shall be appointed by the Committee of Management in the manner hereinafter provided. (2) Every post of Head of Institution or teacher of an institution shall except to the extent prescribed for being filled by promotion, be filled by direct requirement after intimation of the vacancy to the Inspector and advertisement of the vacancy containing such particulars as may be prescribed, in at least two newspapers having adequate circulation in the State. (3) No person shall be appointed as Head of Institution or teacher in an institution unless he possess the minimum qualifications prescribed by the Regulations: Provided that a person who does not possess such qualification may also be appointed if he has been granted exemption by the Board having regard to his education, experience and other attainments. (3) No person shall be appointed as Head of Institution or teacher in an institution unless he possess the minimum qualifications prescribed by the Regulations: Provided that a person who does not possess such qualification may also be appointed if he has been granted exemption by the Board having regard to his education, experience and other attainments. (4) Every application for appointment as Head of Institution or teacher of an institution in pursuance of an advertisement published under sub-section (2) shall be made to the Inspector and shall be accompanied by such fee which shall be paid in such manner as may be prescribed, (5) (i) After the receipt of applications under sub-section (4), the Inspector shall cause to be awarded, in respect of each such applications, quality-point marks in accordance with the procedure and principles prescribed, and shall thereafter, forward the applications to the Committee of Management. (ii) The applications shall be dealt with, the candidates shall be called for interview, and the meeting of the Selection Committee shall be held, in accordance with the Regulations. (6) The Selection Committee shall prepare a list containing in order of preference the names as far as practicable of three candidates for each post found by it to be suitable for appointment and shall communicate its recommendations together with such list to the Committee of Management. (7) Subject to the provisions of sub-section (8) the Committee of Management shall, on receipt of the recommendations of the Selection Committee under sub-section (6), first offer appointment to the candidate given the first preference by the Selection Committee, and on his failure to join the post, the candidate next to him in the list prepared by the Selection Committee under this section, and on the failure of such candidate also, to the last candidate specified in such list. (8) The Committee of Management shall, where it does not agree with the recommendations of the Selection Committee, refer the matter together with the reasons of such disagreement to the Regional Deputy Director of Education in the case of appointment to the post of Head of Institution and to the Inspector in the case of appointment to the post of teacher of an institution, and his decision shall be final. (9) Where no candidate approved by the Selection Committee for appointment is available, a fresh selection shall be held in the manner laid down in the section. (9) Where no candidate approved by the Selection Committee for appointment is available, a fresh selection shall be held in the manner laid down in the section. (10) Where the State Government, in cases of the appointment of Head of Institution, and the Director in the case of appointment of teacher of an institution, is satisfied that any person has been appointed as Head of Institution or teacher, as the case may be, in contravention of the provisions of this Act, the State Government or, as the case may be, the Director may, after affording an opportunity of being heard to such person, cancel such appointment and pass such consequential order as may be necessary. (11) Notwithstanding anything contained in the foregoing sub-sections, appointments in the case of a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or [by death, termination or otherwise] of an incumbent occurring during an educational sessions, may be made by direct recruitment or promotion without reference to the Selection Committee in such manner and subject to such conditions as may be prescribed; Provided that no appointment made under this sub-section shall, in any case, continue beyond the end of the educational session during which such appointment was made. 2. Regulations framed under The Uttar Pradesh Intermediate Education Act 1921. Chapter-II APPOINTMENT OF HEADS OF INSTITUTIONS AND TEACHERS (Sections 16-E, 16-F and 16-FF) 1.The minimum qualifications for appointment as Head of the Institution and Teachers in any recognised Institution whether by direct recruitment or otherwise, shall be as given in Appendix A. ....................... 9. (1) Where a vacancy in the post of teacher is caused by grant of leave to him for a period exceeding six months or where a teacher is placed under suspension which has been approved in writing by the Inspector under sub-section (7) of Section 16-G and the period of such suspension is likely to exceed six months from the date of such approval the vacancy may subject to the provisions of these Regulations be filled temporarily by direct recruitment or promotion as the case may be. (2) Where any vacancy is of the nature referred to in Clause (1) or is caused as a result of promotion under Regulation 2 and the period of such vacancy exceeds thirty days but does not exceed six months, it may be filled by the Committee of Management by promotion of a duly qualified permanent teacher of the institution in the next lower grade on the basis of seniority. (3) If any vacancy under Clause (2) cannot be filled due to the non availability of any teacher of the institution in the next lower grade, possessing the prescribed minimum qualifications for the post, it may be filled on Ad hoc basis by the Committee of Management by the direct appointment for a period of not exceeding six months in aggregate. (4) All vacancies filled under Clause (2) or Clause (3) shall be reported to the Inspector in the proforma prescribed in Appendix ‘B’ within a week of being filled up. 9-A. A teacher appointed to a post to fill a vacancy caused by the promotion of a permanent teacher from a lower grade to higher grade shall be deemed to have been appointed in substantive capacity on the post from the date of confirmation of such permanent teacher in the higher grade. 10. 9-A. A teacher appointed to a post to fill a vacancy caused by the promotion of a permanent teacher from a lower grade to higher grade shall be deemed to have been appointed in substantive capacity on the post from the date of confirmation of such permanent teacher in the higher grade. 10. The procedure for filling up the vacancy of the head of institution and teachers by direct recruitment in any recognised institution shall be as follows : ¼d½ izcU/k lfefr }kjk lh/kh HkrhZ ls Hkjh tkus okyh jfDfr;ksa dks la[;k voèkkfjr dj fy;s tkus ds i’pkr~ laLFkk ds izcU/kd }kjk de ls de nks ,sls lekpkj i=ksa esa ftuesa ,d O;kid izpyu dk LFkkuh; vFkok laLFkk ds fudVre LFkku ls izdkf’kr gksus okyk dksbZ lekpkj i= gks vkSj nwljk jkT; esa O;kid ifjpkyu okyk lekpkj i= gks in foKkfir fd;s tk;saxs] izfrcUèk ;g gS fd lekpkj i=ksa dh lwph ftls fo|ky; fujh{kd vius lEHkkx ds lEHkkxh; mi f’k{kk funs’kd dh LohÑfr ds mijkUr fu/kkZfjr djsaxs vkSj muls ls gh nks lekpkj i=ksa esa tuin ds leLr izcUèk lfefr;ksa }kjk foKkiu nsuk vfuok;Z gksxk foKkiu esa fjfDr;ksa ds izdkj ¼vFkkZr LFkk;h gSa ;k vLFkk;h ½ rFkk fjfDr;ksa dh la[;k] in dk fooj.k ¼vFkkZr fiazfliy ;k iz/kkuk/;kid] izoDrk ;k ,y0Vh0] lh0Vh0 ;k ts0Vh0lh0] ch0Vh0lh0 Js.kh ds v/;kid rFkk ,slk ;k ,sls fo"k; ftlesa ;k ftuesa izoDrk ;k v/;kid dh vko’;drk gks½] orZeku vkSj vU; HkRrs] visf{kr vuqHko] in ds fy, fofgr U;wUre vgZrk vkSj U;wUre vk; ;fn dksbZ gks] ds lEcU/k esa fooj.k fn;s x, gksa vkSj vfUre fnukad ¼tks lk/kkj.kr;k foKkiu ds fnukad ls nks lIrkg ls de u gks gksuk pkfg;s½ fofgr fd;k tk;sxk ftl rd vH;fFkZ;ksa }kjk fofgr izi= esa lE;d~ :i ls iw.kZr;k Hkjs x;s vkosnu&i= fuEufyf[kr ds dk;kZ esa izkIr fd;s tk;saxsA (i) the District Inspector of Schools, or (ii) the Regional Inspectors of Girls’ Schools, in case of institutions for girls. The advertisement shall also state that the prescribed application forms can be had from the office of any Inspector on payment of Rs.9 per form by a crossed postal order or bank draft or through Treasury challan by depositing the amount in the State Bank of India under the head indicated by the Inspector. In no case the payment shall be accepted in cash in the Office of the Inspector. In no case the payment shall be accepted in cash in the Office of the Inspector. A copy of each advertisement shall be simultaneously sent by the Manager to the District Inspector of Schools or the Regional Inspectress of Girls’ Schools concerned and in case the post of the head of institution is advertised a copy of the Advertisement shall also be sent to the Regional Deputy Director of Education. 3. Whether recognised/and on the grant-in-aid list......................... ...................................................................................................................... 4. Purpose for which grant is required............................................. .............................................................................................................. (With details of expenditure) ..................................................................................................................... 5. Particulars of grants (recurring and non-recurring), if any received during the year of application and the year preceding it ........................ .................................................................................................................. 3. The Uttar Pradesh Secondary Education Services Commission and Selection Board Act, 1982 10. Procedure of selection of teachers specified in the Schedule. (1) For the purposes of making appointment of a teacher specified in the Schedule, the management shall notify the vacancy to the Commission in such manner and through such officer or authority as may be prescribed. (2) The procedure of selection of candidates for appointment to the posts of such teachers shall be such as may be prescribed: Provided that the Commissioner shall, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under sub-section (1). 11. Panel of candidates selected by Commissioner. (1) The Commission shall, as soon as possible, after the notification of vacancy under Section 10, hold interviews (with or without examination) of the candidates and prepare a panel of those found most suitable for appointment. (2) The panel referred to in sub-section (1) shall be forwarded by the Commission to the officer or authority referred to in sub-section (1) of Section 10 in such manner as may be prescribed. (3) After the receipt of the panel under sub-section (2), the officer or authority concerned shall intimate the management of an institution in respect of which the vacancy was notified under sub-section (1) of Section 10, the names of candidates selected for appointment as teachers, and for this purpose, the officer or authority shall follow such procedure as may be prescribed. (4) The management shall within a period of one month from the date of receipt of such intimation, issue appointment letter to the candidate whose name has been intimated under sub-section (3). (4) The management shall within a period of one month from the date of receipt of such intimation, issue appointment letter to the candidate whose name has been intimated under sub-section (3). (5) Where the candidate referred to in sub-section (3) fails to join the post of a teacher in such institution within the time allowed in the appointment letter or within such extended time as the management may allow in this behalf, or where such candidate is otherwise not available for appointment as such teacher, the officer or authority concerned may, on the request of the management, intimate fresh name or names from the panel forwarded by the Commission under sub-section (2) in the manner prescribed. The procedure laid down in Sections 10 and 11 qualifies the power of the Commission mentioned in Section 16 to make recommendations for appointment. The procedure as laid down in Sections 10 and 11 is obviously inapplicable to a case of transfer. It cannot thus be said that the Commission is to be consulted or that the Commission has to make recommendations with regard to transfer. The Commission can make recommendations only on the basis of regular selection as mentioned in Sections 10 and 11. These provisions do not fit in with the concept of a transfer of the nature contemplated in regulations Nos. 55 to 60. Every transfer, though it does involve an appointment in the sense indicated above, is not a fresh appointment or a recruitment for a fresh appointment. It is only fresh appointments, and recruitments therefore which are sought to be regulated by the new Act. 16. Appointments to be made only on recommendations of the Commission or the Board.— (1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the Regulations made thereunder but subject to the provisions of Sections 18 and 33— (a) every appointment of a teacher specified in the Schedule shall, on or after July 10, 1981; be made by the management only on the recommendation of the Commission. (b) every appointment of a teacher (other than a teacher specified in the Schedule) shall, on or after July 10, 1981, be made by the management only on the recommendation of the Board; Provided that in respect of retrenched employees, the provisions of Section 16-EE of the Intermediate Education Act, 1921, shall apply with the modification that in sub-section (2) of the aforesaid section, for the words ‘six months’ the words ‘two months’ shall be deemed to have been substituted. (2) Every appointment of a teacher, in contravention of the provisions of sub-section (1), shall be void. 18. Ad hoc Teachers (as originally enacted).— (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. The word “appointment” appearing in Section 16 has to be construed in harmony with the provisions of the two Acts, particularly Sections 10 and 11 of the new Act and Section 16-G of the Intermediate Education Act,. Words take their colour from the context in which they appear. The word “appointment” appearing in Section 16 has to be construed in harmony with the provisions of the two Acts, particularly Sections 10 and 11 of the new Act and Section 16-G of the Intermediate Education Act,. Words take their colour from the context in which they appear. The expression “appointment” in its widest sense would, no doubt, include a transfer also but considering the context and the object of the new Act the word “appointment” as it appears in Section 16 cannot comprise an appointment through transfer or an appointment of say, a Government Official on deputation to a recognised institution. Section 16 does not depend for its operation on fulfilment of any condition precedent or making of a provision, the language of sub-section (2) of Section 1 is clear and leaves no room for doubt that the appointment to be made against the provisions of the Ordinance would be void. The expression ‘void’ used in sub-section (2) of Section 16 is very material. In the strict sense the word ‘void’ means nullity. 18. Ad hoc Principals or Headmasters (as it stands after amendment in 2001).— (1) Where the Management has notified a vacancy to the Board in accordance with sub-section (1) of Section 10 and the post of the Principal or the Headmaster actually remained vacant for more than two months, the Management shall fill such vacancy on purely Ad hoc basis by promoting the senior-most teacher, - (a) in the lecturer’s grade in respect of a vacancy in the post of the Principal; (b) in the trained graduate’s grade in respect of a vacancy in the post of the Headmaster. (2) Where the Management fails to promote the senior-most teacher under sub-section (1) the Inspector shall himself issue the order of promotion of such teacher and the teacher concerned shall be entitled to get his salary as the principal or the Headmaster, as the case may be, from the date he joins such post in pursuance of such order of promotion. (3) Where the teacher to whom the order of promotion is issued under sub-section (2) is unable to join the post of the Principal or the Headmaster, as the case may be, due to any act or omission on the part of the Management, such teacher may submit his joining report to the Inspector, and shall thereupon be entitled to get his salary as the Principal or the Headmaster, as the case may be, from the date he submits the said report. (4) Every appointment of an Ad hoc Principal or Headmaster under sub-section (1) or sub-section (2) shall cease to have effect from the date when the candidate recommended by the Board joins the post. 32. Applicability of U.P. Act II of 1921.—The provisions of the Intermediate Education Act, 1921 and the Regulations made thereunder in so far as they are not inconsistent with the provisions of this Act or the rules or regulations made thereunder shall continue to be in force for the purpose of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher. 33-E Rescission of orders.—The Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties( (Second) Order, 1981, the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties ) (Third) Order, 1982 and the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Fourth) Order, 1982, are hereby rescinded. 4. The Uttar Pradesh Secondary Education Services Selection Board Rules, 1998 Rule 2(e). -”Vacancy” means a vacancy arising out as a result of death, retirement, resignation, termination, dismissal or removal of a teacher or creation of new post or appointment or promotion of the incumbent to any higher post in a substantive capacity. 5.The Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties ) Order, 1981. 1. Short title and commencement.— (1) This Order may be called the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981. (2) It shall come into force at once. 2. 5.The Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties ) Order, 1981. 1. Short title and commencement.— (1) This Order may be called the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981. (2) It shall come into force at once. 2. Vacancies in which Ad hoc appointment can be made.—The management of an institution may appoint by promotion or by direct recruitment a teacher on purely Ad hoc basis in accordance with the provisions of this Order in the following cases, namely: (a) in the case of a substantive vacancy existing on the date of commencement of this Order caused by death, retirement, resignation or otherwise; (b) in the case of a leave vacancy, where the whole or unexpired portion of the leave is for a period exceeding two months on the date of such commencement; (c) where a vacancy of the nature specified in clause (a) or clause (b) comes into existence within a period of two months subsequent to the date of such commencement. 3. Duration of Ad hoc appointment. —Every appointment of an Ad hoc teacher under paragraph 2 shall cease to have effect from the earliest of the following dates, namely: (a) when the candidate recommended by the Commission or the Boards joins the post; or (b) when the period of six months from the date of such Ad hoc appointment expires. 4. Ad hoc appointment by promotion.— (1) Every vacancy in the post of an 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 a 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 Lecturer’s grade may be filled by promotion by the senior most teacher of the institution in the trained-gradate (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 undergraduate (C.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 undergraduate (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 institution in the Lecturer’s grade or the trained graduate (L.T.) grade, or trained undergraduate 9C.T.) grade or J.T.C. Or B.T.C. Grade, as the case may be. 5. Ad hoc appointment by direct recruitment.— (1) Where any vacancy can not be filled by promotion under paragraph 4, the same may be filled by direct recruitment in accordance with clauses (2) to (5). (2) The management shall as soon as may be, informed the District Inspector of Schools about the details of the vacancy and such Inspector shall invite applications from the local Employment Exchange and also through public advertisement in at least two news papers having adequate circulation in Uttar Pradesh. (3) Every application referred to in clause (2) shall, be addressed to the District Inspector of School and shall be accompanied: (a) by a crossed postal order worth ten rupees payable to such Inspector; (b) by a self-addressed envelop bearing postal stamp for purposes of registration. (4) The District Inspector of Schools shall cause the best candidates selection on the basis of quality points specified in Appendix. The compilation of quality points may be done on remunerative basis by the retired Gazetted Government servants under the personal supervision of such Inspector. (5) If more than one teacher of the same subject or category is to be recruited for more than one institution, the names of the selected teacher and the names of the institutions shall be arranged in Hindi alphabetical order. The candidate whose name appears on the top of the list shall be allotted to the institution the name whereof appears on the top of the list of the institutions. This processes shall be repeated till both the lists are exhausted. Explanation.—In relation to an institution imparting instruction to women the expression “District Inspector of Schools” shall mean the “Regional Inspectress of Girls Schools”. 6. This processes shall be repeated till both the lists are exhausted. Explanation.—In relation to an institution imparting instruction to women the expression “District Inspector of Schools” shall mean the “Regional Inspectress of Girls Schools”. 6. Eligibility for appointment.—Every appointment of a teacher under paragraph 4 to 5 shall be subject to the following conditions, namely: (a) The candidate sough to be appointed by promotion or by direct recruitment must fulfil the essential qualifications laid down in Appendix A referred to in the Regulation (1) of Chapter II of the Regulations made under the Intermediate Education Act, 1921. (b) The candidate sough to be appointed by direct recruitment under paragraph 5 shall not be related to any member of the Committee of Management in the manner indicated in Schedule II to the Intermediate Education Act, 1921. (c) The candidate sought to be appointed by promotion under paragraph 4 must have been serving the institution in substantive capacity from before the date of commencement of this Order. 7. Disputes to be referred to Director.— (1) Every dispute connected with the promotion or direct recruitment under this Order shall be referred to the Director and his decision thereon shall be final. (2) Without prejudice to the generality of clause (1), the Director shall have the power to look into the complaint, if any, regarding the award of the quality points mentioned in Appendix or the validity or any promotion or direct recruitment in accordance with this order and to cancel any promotion, recruitment or appointment made in continuation of such order. ........ 6.The Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 1. Short title and commencement.— (1) This Order may be called the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981. (2) It shall come into force at once. 2. Procedure for filling up short-term vacancies.— (1) If 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 District Inspector of Schools or otherwise, shall be filled by the Management of the institution, by promotion of the permanent senior most teacher of the institution, in the next lower grade. The management shall immediately inform the District Inspector of Schools of such promotion along with the particulars of the teacher so promoted. The management shall immediately inform the District Inspector of Schools of such promotion along with the particulars of the teacher so promoted. (2) Where any vacancy ,referred to in clause (1) cannot be filled by promotion, due to non-availability of a teacher in the next lower grade in the institution, possession the prescribed minimum qualifications, it shall be filled by direct recruitment in the manner laid down in clause (3). (3) (i)The Management shall intimate the vacancies to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution, requiring the candidates to apply to the Manager of the institution along with the particulars given in Appendix ‘B’ to this order. The selection shall be made on the basis of quality point marks specified in the Appendix to the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, issued with notification No. Ma-1993/SV-7-1(79)-1981, dated July 31., 1981, hereinafter to be referred to as the First Removal of Difficulties Order, 1981. The compilation of quality point marks shall be done under the personal supervision of the Head of institution. (ii) The names and particulars of the candidate selected and also other candidates and the quality point marks allotted to them shall be forwarded by the Manager to the District Inspector of Schools for his prior approval. (iii) The District Inspector of Schools shall communicate his decision within seven days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval. (iv) On receipt of the approval of the District Inspector of Schools or, as the case may be, on his failure to communicate his decision within seven days of the receipt of papers by him from the Manager, the Management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager. Explanation.—For the purpose of this paragraph - (i) the expression ‘senior-most teacher’ means the teacher having longest continuous service in the institution in the Lecturer’s grade or the trained graduate (L.T.) grade, or trained under-graduate (C.T.) grade or J.T.C. Or B.T.C. Grade, as the case may be ; (ii) in relation to institution imparting instructions to women, the expression ‘District Inspector of Schools’ shall mean the ‘Regional Inspectress of Girls Schools’; (iii) ‘short-term vacancy’ otherwise ceases to exist. 4. 4. Every appointment of a teacher under paragraph 2 shall mutatis mutandis be subject to the conditions laid down in para 6 of the First Removal of Difficulties Order, 1981. 5. Substitution of paragraphs 2 of the First Removal of Difficulties Order 1981.—In the First Removal of Difficulties Order, 1981, for paragraph 2, the following paragraph shall be substituted, namely : “2.The management of an institution may appoint by promotion or by direct recruitment, a teacher on purely Ad hoc basis in accordance with the provisions of this Order in the case of a substantive vacancy caused by death, retirement, resignation, or otherwise.” 6. Amendment of the Appendix appended to the First Removal of Difficulties Order, 1981.—In the Appendix to the First Removal of Difficulties Order, 1981, for the entry against item 5 in each of the two tables pertaining to trained under-graduates grade and trained graduates grade, the following entry shall be substituted, namely : Examination First Division Second Division Third Division 5. Training (a) Theory 12 6 3 (b) Practical 12 6 3 APPENDIX (i) Name : (ii) Date of birth (ii) Qualifications.—Examinations with date of passing them subject(s) and Divisions; (iv) Whether trained ? If so division in theory and practice. 14. The learned Single Judge while deciding the case of Rakesh Chandra Mishra (supra) was of the view that upon rescission of the Removal of Difficulties Order vide insertion of Section 33-E in the 1982 Act, read with Section 32, there was no inconsistency in the powers of the Committee of Management to make selection and appointments of teachers on short-term vacancies under the provisions of the 1921 Act as the 1982 Act did not provide any procedure for appointment on short-term vacancies. 15. Whereas the learned Single Judge in the present case of Daya Shankar Misra while disagreeing was of the view that the words used “every appointment of a teacher” in Section 16 of the 1982 Act created a complete embargo on the Committee of Management to make any selection and appointment without approval of the Selection Board constituted under the 1982 Act. According to the learned Single Judge the words “every appointment of a teacher” included not only substantive appointment but also short-term appointment. 16. According to the learned Single Judge the words “every appointment of a teacher” included not only substantive appointment but also short-term appointment. 16. Sri Saxena, learned Senior Counsel for the petitioner has submitted that the learned Single Judge in this case while referring the matter, failed to consider the provisions of Rule 2(e) of the 1998 Rules, which define the vacancy. According to him the word “vacancy” defined only covers the substantive vacancy and not short-term vacancy. According to him as the 1982 Act does not define the word “vacancy”, the definition given in Rule 2(e) of the 1998 Rules has to be brought in aid to the powers of the Selection Board to make selection. 17. Further Section 10 (1) of the 1982 Act requires every management to notify the vacancy to the Commission in such manner and through such officer or authority as may be prescribed. Section 10(2) of 1982 Act further provides that the procedure for selection of candidates for appointment shall be such as may be prescribed, and the proviso thereof provides that the Commission shall give wide publicity to the vacancies. Section 11 of the 1982 Act provides that the Commission shall prepare a panel of selected candidates. Further the procedure for notifying the vacancy and the procedure for making selections have been laid down in Chapter III of the 1998 Rules in particular rules 10 to 12 thereof. 18. According to Sri Saxena, learned Senior Counsel for the petitioner the Selection Board has the powers only to make selections against the substantive vacancies. The Selection Board, according to Sri Saxena, has no power to make selections with regard to short-term vacancies. It was further argued that the Legislature while enacting, was conscious of the fact that short-term vacancies need to be filled up at the earliest and must not wait for the lengthy procedure of the process for selection to be followed by the Selection Board which would be at the State level. It is for this reason that no procedure was prescribed in the 1982 Act for making selection on short-term vacancies. According to him it will be easier and faster for the Committee of Management to make the selection for short-term vacancies which was very necessary and essential for smooth running of the institutions and for imparting proper and timely education. 19. According to him it will be easier and faster for the Committee of Management to make the selection for short-term vacancies which was very necessary and essential for smooth running of the institutions and for imparting proper and timely education. 19. It was next argued on behalf of the petitioner that the emphasis laid down by the learned Single Judge in the present case of Daya Shankar Misra was misplaced as the words “every appointment of a teacher” could at the best be referable to the appointments against the vacancies as defined under the Act or the Rules. According to him the word “vacancy” having been clearly defined under the Rules, the selection for appointments against such vacancies only could be made by the Selection Board constituted under the 1982 Act. He further submitted that as the nature of appointment against short-term vacancies would be under special circumstances and urgently required, the power for such appointment should remain with the Committee of Management and it should exercise such powers deriving it from the provisions under the 1921 Act, after rescission of the Removal of Difficulties Order, on 25.1.1999. 20. Further reliance has been placed by Sri Saxena on a recent decision of this Court in the case of Smt. Nirza Sharma v. State of U.P., 2007(I) ESC 562 (All), wherein it has been held that the Committee of Management was not required under law to notify such short-term vacancy to the Selection Board for making the selection and, therefore, the selection and appointment made by the Committee of Management against a short-term vacancy was fully justified. 21. Further reliance has also been placed by Sri Saxena on the Full Bench Decision of this Court in the case of Radha Raizada and others v. Committee of Management, Vidawati Darbari Girls Inter College and others, (1994) 3 UPLBEC 1551 , in particular referring to paragraphs 41 to 43 of the said case wherein the Full Bench held that the Ad hoc appointments against substantive vacancies and against short-term vacancies can be made only when pre-conditions mentioned in Section 18 of the Act are satisfied, the vacancy is a substantive vacancy and such vacancy could not be filled up by promotion. 22. 22. On the other hand the learned standing counsel has submitted that the Selection Board constituted under the 1982 Act alone was competent for making selections both against the substantive vacancies as also the short-term vacancies. According to him the order of District Inspector of Schools refusing to grant approval was correct in law as the Committee of Management after 25.1.1999 upon the insertion of Section 33-E in the 1982 Act whereby the Removal of Difficulties Orders had been rescinded, had no authority under law to make selection and appointments against short-term vacancies also. 23. Having considered the submissions advanced and having perused the judgment in the case of Rakesh Chandra Misra (supra) as also the reference order, we now proceed to deal with the two questions. 24. Right to education is subject of prime importance of the State. Article 21-A has been inserted in Part III of the Constitution vide Constitution (86th Amendment) Act, 2002, (relevant date is yet to be notified). By this Article, the education up to the age of 14 years (corresponding to secondary level education) has been declared to be a fundamental right, under the Constitution. While dealing with any issue relating to secondary education, the motto “EDUCATION TO ALL” and quality education have to be kept in mind. The Government from time to time has been taking necessary steps and has been making an effort to provide good quality education not only at the higher levels but also at the roots. Secondary education is the basis on which the quality of higher education rests. 25. Today it is a matter of common knowledge and this Court takes judicial notice of the fact that on account of various obstructions coming in the way of the State, in filling up the vacancies in all departments and in particular in the field of education both at the secondary level and at the higher levels, a large number of vacancies are not filled up for years together and the number of vacancies keeps piling up. If an institution at the intermediate level requires a teacher in subjects like mathematics and science, which cannot be imparted by any other teacher, who is not qualified to teach such subjects, then such a teacher should be made available at the first instance. If an institution at the intermediate level requires a teacher in subjects like mathematics and science, which cannot be imparted by any other teacher, who is not qualified to teach such subjects, then such a teacher should be made available at the first instance. If a student at intermediate level is not taught such subjects by a qualified teacher and the entire academic year passes, less said the better with regard to the learning of such student of such subjects. The entire batch in that institution, without any teacher of subjects such as mathematics and science would effectively be wasting its time and the only out come would be failure. 26. The 1982 Act puts a complete embargo on any appointments being made unless selected by the Board. According to Section 16(2) of the 1982 Act, any appointment of the teacher made in contravention of the provisions of Sub-section (1) would be void. Further Section 18 of the 1982 Act provides for making Ad hoc appointments, according to which where a vacancy has been notified under Section 10 (1) of the 1982 Act by the management to the Commission and the Commission has failed to recommend the name of any suitable candidate within the specified time, then the management may appoint a teacher or principal or headmaster by direct recruitment or promotion on purely Ad hoc basis subject to other terms and conditions as provided in Sub-section (3) thereof. This was the position when the 1982 Act was promulgated. Subsequently by amendment, Section 18 has been confined to Ad hoc appointments of headmasters and principals only on the basis of promotion. In any case for dealing with the issue in hand, Section 18 as it originally stood, referred to vacancy being notified by the institution. Thus when the 1982 Act came into force, it gave the power to the management to make Ad hoc appointments against notified vacancies i.e. substantive vacancies on Ad hoc basis, upon failure of the Board to make the recommendations, within the stipulated time. Subsequently after amendment in Section 18 of the 1982 Act in the year 2001 the only power left with the management to make Ad hoc appointment against substantive vacancy of Principal and Headmaster Now the question is what exactly is meant by the word vacancy as used in the Act. The word vacancy has not been defined in the 1982 Act. The word vacancy has not been defined in the 1982 Act. It has, however, been defined in Rule 2(e) of the 1998 Rules. It is very clear that the word vacancy has been defined to mean a substantive vacancy only arising out of death, retirement, resignation, termination, dismissal or removal or creation of a new post or appointment or promotion of an incumbent to any higher post in a substantive capacity. Further Sections 10 and 11 of the 1982 Act and the rules 10 to 12 of the 1998 Rules dealing with the procedure for recruitment, clearly provide the manner in which the vacancies are to be calculated and are to be notified. Such determination of vacancies is only referable to substantive vacancies. 27. In the light of the aforementioned statutory provisions, we have to examine as to whether the words “every appointment of a teacher” used in Section 16 of the 1982 Act would include within its ambit appointments made against short-terms vacancies also or only the substantive vacancies. The language used in Sections 10, 11 and 18 of the 1982 Act,the definition of the vacancy as given in rule 2(e) of the 1998 Rules as also the rules 10 to 12 of the 1998 Rules lead to an inevitable conclusion that the vacancy means only the substantive vacancies, which are to be notified by the management and it is against such vacancies only that the Board shall have the power to make the selections. 28. The word appointment has to be correlated with the vacancy. Appointment is to be made against a vacancy. The question is of the nature of vacancy. The embargo created by section 16 of the 1982 Act has to be read and interpreted in reference to vacancy. In the present case as discussed above the vacancy refers only to substantive vacancy. Thus the power of the Board to make appointment is only against the substantive vacancy. The learned Single Judge while recording his disagreement with the ratio of law laid down in the case of Rakesh Chandra Misra (supra) has not taken into consideration this aspect of the matter. Although the learned Single Judge deciding the case of Rakesh Chandra Misra (supra) also did not deal with this aspect of the matter. 29. The learned Single Judge while recording his disagreement with the ratio of law laid down in the case of Rakesh Chandra Misra (supra) has not taken into consideration this aspect of the matter. Although the learned Single Judge deciding the case of Rakesh Chandra Misra (supra) also did not deal with this aspect of the matter. 29. The next question to be considered which is interrelated is as to whether there is any power with the management surviving to make Ad hoc appointments on short-term vacancies after insertion of Section 33-E in the 1982 Act which rescinded the various Removal of Difficulties Orders issued. With regard to this question two aspects have to be considered. Firstly the effect of Section 32 of the 1982 Act, which provides that the provisions of 1921 Act, the Rules and Regulations made thereunder shall continue to be in force for the purposes of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher, so far as they are not inconsistent with the provisions of the 1982 Act or Rules or Regulations made thereunder. Secondly whether there is any power under the 1921 Act or the Regulations framed thereunder to fill up short-term vacancies. 30. We may note here with emphasis that Section 32 of the 1982 Act uses the words selection, appointment and promotion of a teacher. The words selection, appointment and promotion will include substantive as well as short-term vacancies. Further we have to see whether there is any inconsistency or not in the provisions of the two Acts and the Rules and Regulations framed thereunder. We have already held above that the power of the Board to make selections is only with regard to appointments against substantive vacancies. There is no provision under the 1982 Act for making selection for appointments against short-term vacancies. 31. Under the 1921 Act, the procedure for selection of teachers and head of the institutions is laid down in Section 16-E thereof. Power of the management to fill up short-term vacancy having occurred on account of leave extending for more than six months or on suspension is specifically provided in sub-section 11 of Section 16-E of the 1921 Act. Further Chapter-II of the Regulations framed under the 1921 Act deals with the appointments of heads of the institutions and teachers. It refers to Sections 16-E, 16-F and 16-FF of the 1921 Act. Further Chapter-II of the Regulations framed under the 1921 Act deals with the appointments of heads of the institutions and teachers. It refers to Sections 16-E, 16-F and 16-FF of the 1921 Act. Regulation 9 of the said Chapter confers the power on the management to fill up the short-term vacancies arising out of leave exceeding period of six months and suspension of a teacher having been approved. The management thus was vested with the power under the 1921 Act and the Regulations framed thereunder to fill up short-term vacancy. Further as there is no provision under the 1982 Act or the Rules and Regulations framed thereunder with regard to filling up of short-term vacancies, it can be safely concluded that there is no question of any inconsistency in the two Acts or the Rules and Regulations framed thereunder for filling up short-term vacancies. Thus taking aid of Section 32 of the 1982 Act the definition of vacancy given in 1998 Rules and the provisions contained in Section 16-E(11) of the 1921 Act and Chapter-II of the Regulations framed under the 1921 Act, the management of an institution is vested with the power to fill up short-term vacancies. 32. A Full Bench of this Court in the year 1994 in the case of Radha Raizada (supra) while dealing with the various provisions contained in the 1982 Act and the 1921 Act, had laid down that no Ad hoc appointment could be made by the management against the substantive vacancy in view of the provisions contained in Sections 16 and 18 of the 1982 Act. It, however, further held that only short-term vacancies could be filled up by the management after following the due procedure prescribed in the Second Removal of Difficulties Order, which had not been rescinded till then. After its rescission in 1999 the power to fill up short-term vacancy of a teacher can be derived by the management from Section 16-E(11) of the 1921 Act and regulation 9 of the Chapter II of the Regulations framed under the 1921 Act. 33. We have also dealt with the practical aspect of the matter that in order to maintain not only the discipline but also the standard of education and commitment enforced under the Constitution, regular teaching is essential. For enforcing the same, in the given circumstances and under emerging situations, the short-term vacancies need to be given urgent attention. 33. We have also dealt with the practical aspect of the matter that in order to maintain not only the discipline but also the standard of education and commitment enforced under the Constitution, regular teaching is essential. For enforcing the same, in the given circumstances and under emerging situations, the short-term vacancies need to be given urgent attention. If short-term vacancies are not filled up in time, the teaching would intensely suffer. Apparently for this reason the Legislature knowing fully well that selections will be made by the Board, not for individual cases, but at State level would result into long durations, left the selection for short-term vacancies outside the purview of the Board. 34. The learned Single Judge in the case of Rakesh Chandra Misra (supra) while concluding had also dealt with the issue that the State Government must take urgent steps for meeting the exigencies of filling up all the vacancies which are unforeseen and also for the vacancies which are likely to occur in near future including regular substantive vacancies by providing a mechanism for making Ad hoc appointments against such vacancies either by direct recruitment or by promotion till the duly selected candidate is made available by the Board. The learned Single Judge was referring to substantive vacancies lying vacant for long durations and the management having been denuded of its powers for making the Ad hoc appointments on substantive vacancies after the amendment of Section 18 of the 1982 Act, practical difficulties were arising in carrying out the primary goal of imparting quality education. These observations of the learned Single Judge in the case of Rakesh Chandra Misra (supra) were approved and reiterated by the learned Single Judge while making the reference order. Thus both the learned Single Judges have felt that there should be some provision for filling up the substantive vacancies by making Ad hoc appointments. We are also of the considered view that vacancies whether substantive or short-term, should be filled up at the earliest to maintain our Constitutional goal of imparting quality secondary education. However, as long as the statutes create a bar, the management cannot be conferred with any power to make Ad hoc appointment against substantive vacancy. 35. We have although taken the same view as in the case of Rakesh Chandra Misra (supra) but for different reasons. However, as long as the statutes create a bar, the management cannot be conferred with any power to make Ad hoc appointment against substantive vacancy. 35. We have although taken the same view as in the case of Rakesh Chandra Misra (supra) but for different reasons. Therefore, the judgment in the case of Rakesh Chandra Misra (supra) cannot be said to have laid down any incorrect law. 36. In view of the discussions made above, in our considered opinion the management has the power to make Ad hoc appointments on short-term vacancies under the provisions of 1921 Act and the Regulations framed thereunder and the judgment in the case of Rakesh Chandra Misra (supra) lays down the correct law. Both the questions are thus answered in the affirmative. Let the records of the writ petition be placed before the appropriate Court. —————