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2011 DIGILAW 2607 (ALL)

RAM GANESH SINGH v. STATE OF U. P.

2011-11-17

DILIP GUPTA

body2011
JUDGMENT Hon’ble Dilip Gupta, J.—The petitioner, who claims to have been appointed as an Assistant Teacher in L.T. Grade in Gantantra Intermediate College, Deshee, Deoria (hereinafter referred to as the “Institution’), filed this petition in July 1992 for a direction upon the respondents to pay arrears of salary to the petitioner from 1st July, 1991 and to continue to pay the same. 2. It is stated in the writ petition that two posts of Assistant Teachers in the L.T. Grade were created in the Institution on 31st March, 1991 and the District Inspector of Schools was requested to make appointments on these two posts but as such appointments were not made, the Committee of Management of the Institution proceeded to make appointments under Section 18 of the U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the ‘Act’) and issued the letter dated 20th June, 1991 for appointment of the petitioner as Assistant Teacher in the L.T. Grade. The petitioner joined on 1st July, 1991 and thereafter information was sent by the Management to the District Inspector of Schools for granting approval but the District Inspector of Schools informed that a ban had been imposed by the State Government and, therefore, the Committee of Management of the Institution could make appointments only after the ban was lifted. It is further stated that the Committee of Management, therefore, sent the requisition to the District Inspector of Schools on 16th August, 1991 for making appointment and when no appointment was made, the Selection Committee met on 20th October, 1991 and made recommendation for appointment of the petitioner as Assistant Teacher as the petitioner was found to be most suitable. On 21st October, 1991 the Committee of Management resolved to appoint the petitioner and the appointment order dated 21st October, 1991 was issued. Subsequently, information was sent to the District Inspector of Schools on 22nd October, 1991 but as the District Inspector of Schools did not pass any order within two weeks, the appointment of the petitioner as Assistant Teacher stood approved. This petition has, accordingly, been filed for a direction upon the respondents to pay salary to the petitioner from 1st July, 1991. 3. This petition has, accordingly, been filed for a direction upon the respondents to pay salary to the petitioner from 1st July, 1991. 3. On 4th August, 1992 when the petition was taken up, an order was passed by the Court that the respondents shall pay salary to the petitioner in the L.T. Grade or show cause by filing a counter-affidavit within one month from the date of production of a certified copy of this order before the District Inspector of Schools, Deoria. Office has reported that the counter-affidavit has not filed in the petition. The petitioner has not filed any affidavit to bring to the notice of the Court whether the petitioner was permitted to work and whether any salary was paid to the petitioner. 4. Learned counsel for the petitioner submitted that the petitioner was appointed in accordance with law and, therefore, the District Inspector of Schools was required to grant approval to the appointment of the petitioner within two weeks but as he did not grant such approval within the aforesaid period, the appointment of the petitioner stood approved automatically and the petitioner became entitled to payment of salary. In this connection, learned counsel for the petitioner has placed reliance upon the provisions of Section 18 of the Act. 5. Learned Standing Counsel appearing for the respondents, on the other hand, submitted that the appointment of the petitioner was made by the Management without following the procedure prescribed under the U.P. Secondary Services Commission (Removal of Difficulty) Order, 1981 (hereinafter referred to as the ‘First Removal of Difficulty Order’) as the appointment was not made in accordance with the procedure prescribed in paragraph 5 of the said Order. It is, therefore, his submission that the appointment of the petitioner is void ab initio. 6. I have considered the submissions advanced by learned counsel for the parties. 7. The procedure for making ad hoc appointment by direct recruitment against the substantive vacancy has been provided for in the First Removal of Difficulty Order. In the present case, ad hoc appointment has been made by direct recruitment and, therefore, paragraph 5 of the First Removal of Difficulty Order, which provides the procedure, is quoted below : “5. Ad hoc appointment by direct recruitment.—(1) Where any vacancy cannot be filed by promotion under Paragraph 4, the same may be filled by direct recruitment in accordance with clauses (2) to (5). Ad hoc appointment by direct recruitment.—(1) Where any vacancy cannot be filed 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, inform the District Inspector of Schools about the details of the vacancy and such Inspector shall invite applications from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh. (3) Every application referred to in clause (2) shall be addressed to the District Inspector of Schools and shall be accompanied— (a) by a crossed postal order worth ten rupees payable to such Inspector; (b) by a self addressed envelope bearing postal stamp for purposes of registration. (4) The District Inspector of Schools shall cause the best candidates selected 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 teachers 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 institution. This process 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”. 8. Perusal of the averments made in the writ petition indicates that the Management, on its own, made the appointment and the procedure as prescribed in paragraph 5 of the First Removal of Difficulty Order has not been followed at all. 9. It is, therefore, apparent that the appointment of the petitioner was not made in accordance with the provisions of the First Removal of Difficulties Order. The effect of an appointment which has not made in accordance with the First Removal of Difficulties Order has to be considered. This matter was considered by a Full Bench of this Court in the case of Radha Raizada and others v. Committee of Management, Vidyawati Darbari Girls Inter College and others, (1994) 3 UPLBEC 1551 . The effect of an appointment which has not made in accordance with the First Removal of Difficulties Order has to be considered. This matter was considered by a Full Bench of this Court in the case of Radha Raizada and others v. Committee of Management, Vidyawati Darbari Girls Inter College and others, (1994) 3 UPLBEC 1551 . The Full Bench held that if the contingency arises for ad hoc appointment by direct recruitment, the procedure provided for under the First Removal of Difficulties Order has to be followed and if the management makes an ad hoc appointment without following the procedure laid down in paragraph 5, the District Inspector of Schools would be justified in stopping the payment of salary of such a teacher. It has further been held that if the procedure is not followed in making the appointment, the appointment is void and cannot confer any right on the person so appointed. 10. The Supreme Court also had an occasion to examine the validity of the ad hoc appointments which were not made in accordance with the procedure provided for under paragraph 5 of the First Removal of Difficulties Order in the case of Prabhat Kumar Sharma and others v. State of U.P. and others, (1996) 10 SCC 62 and it was clearly held that any ad hoc appointment not made in accordance with paragraph 5 of the First Removal of Difficulties Order is an illegal appointment and is void and confers no right on the appointee. It may be useful to reproduce a passage from the judgment made in the context of paragraph 5 of the First Removal of Difficulties Order and it is as follows : “It is an inbuilt procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the management to any post in an aided institution. It is obvious that when the salary is paid by the State to the Government aided private educational institutions, public interest demands that the teachers’ selection must be in accordance with the procedure prescribed under the Act read with the First 1981, Order”. 11. It is obvious that when the salary is paid by the State to the Government aided private educational institutions, public interest demands that the teachers’ selection must be in accordance with the procedure prescribed under the Act read with the First 1981, Order”. 11. The Supreme Court in Shesh Mani Shukla v. District Inspector of Schools, Deoria and others, (2009) 15 SCC 436 , has also examined the validity of the appointment not made in accordance with the procedure prescribed in paragraph 5 of the First Removal of Difficulty Order and observed that any appointments made de hors the provisions of paragraph 5 of the First Removal of Difficulty Order are void ab initio and no exception can be taken even if such person has worked for a long time. 12. In view of the law laid down in the aforesaid decisions, it has to be held that the appointment of the petitioner having been made in utter violation of the provisions of the First Removal of Difficulties Order is void and does not confer any right upon the petitioner and is liable to be ignored. Thus, the petitioner is not entitled to any relief. 13. Learned counsel for the petitioner then submitted that a conditional interim order was passed on 4th August 1992. There is nothing on the record to indicate that the petitioner was permitted to work under the interim order passed by the Court. Even if it is assumed that the petitioner had worked, then too it cannot be made a ground by the petitioner for issuance of writ as has been observed by the Supreme Court in Shesh Mani Shukla (supra) : “18. Both the learned Single Judge as also the Division Bench have found that the institution has not complied with the provisions of the 1981 Act as amended as also para 5 of the 1981 Order. If the appointment of the appellant was not valid, the question of granting any approval thereto did not arise. Action, on the part of the Committee of the Management to hold selection, being not consistent with Para 5 of the Order has rightly been held to be wholly unsustainable. 19. It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. Action, on the part of the Committee of the Management to hold selection, being not consistent with Para 5 of the Order has rightly been held to be wholly unsustainable. 19. It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State. {See Food Corporation of India and others v. Ashis Kumar Ganguly and others, (2009) 7 SCC 734 }. Sympathy or sentiments alone, it is well settled, cannot form the basis for issuing a writ of or in the nature of mandamus. {See State of M.P. and others v. Sanjay Kumar Pathak and others, (2008) 1 SCC 456 }” 14. The Supreme Court in State of Rajasthan v. Hitendra Kumar Bhatt, (1997) 6 SCC 574 , also examined the effect of an interim order on the dismissal of the petition. In the said case the respondent was not called for an interview since he did not possess the technical qualification. However, pursuant to the interim order passed by the High Court requiring the appellant to call him for interview he was interviewed and his name was included in the list of selected candidates. He was also appointed on a provisional basis and was also subsequently confirmed. The writ petition was ultimately dismissed by the High Court holding that on the cut of date, he did not possess the requisite qualification. It was submitted by the respondent before the Supreme Court that since he had been continued in service and had also been confirmed, the Court should not disturb his appointment and his case should be considered sympathetically. The Supreme Court observed that the appellants had taken the correct stand right from the beginning and the respondent’s application was not considered and he was not called for interview. The Supreme Court observed that the appellants had taken the correct stand right from the beginning and the respondent’s application was not considered and he was not called for interview. It was only on account of the interim orders, which were obtained by the respondent that he was given an appointment and continued. He was aware that his appointment was subject to the out come of the petition. As such a sympathetic view could not be taken. 15. Thus, for all the reasons stated above, no relief can be granted to the petitioner. 16. The writ petition is, accordingly, dismissed. ——————