JUDGMENT Hon’ble Sudhir Agarwal, J.—Both these writ petitions involve common questions of law and facts and therefore, as requested and agreed by learned counsel for the parties, I proceed to decide the same under the rules of the Court at this stage by this common judgment. 2. It may also be placed on record that in writ petition No. 41420 of 2011, respondents have not filed counter-affidavit separately but have stated that since counter-affidavit, supplementary counter-affidavit and rejoinder-affidavit are already on record in connected writ petition No. 18198 of 2011, the same may be perused for the purpose of writ petition No. 41420 of 2011 and matter may be decided accordingly. With the consent of learned counsel for the parties I proceed accordingly. 3. The writ petition No. 18198 of 2011 (hereinafter referred to as “first writ petition”) has been filed assailing order dated 05/16th March, 2011 passed by respondent No. 2, Regional Level Committee, Saharanpur Mandal, Saharanpur (hereinafter referred to as “RLC”) whereby it has held respondent No. 7 senior to petitioner and has also directed for review/scrutiny of ad hoc appointment and regularization on the post of Lecturer (Mathematics) in Baba Sidh Inter College, Sona Arjunpur, District Saharanpur (hereinafter referred to as “College”). 4. The writ petition No. 41420 of 2011 (hereinafter referred to as “second writ petition”) assail the orders dated 15.7.2011 and 18.7.2011 of respondents 2 and 3. The former is order issued by Joint Director of Education, Saharanpur Mandal, Saharanpur (hereinafter referred to as “JDE”) addressed to District Inspector of Schools, Saharanpur (hereinafter referred to as “DIOS”) stating that in view of this Court’s order in Contempt Application, further action be taken treating letter dated 15.4.2011 as inoperative; and, the later order dated 18.7.2011 is consequential, issued by DIOS to Manager of the College directing him to ensure handing over of charge of Officiating Principal to Sri Rajendra Singh. 5. The factual matrix for proper appreciation of the dispute in question may be narrated in brief as under: 6. The College is recognized by Board of High School and Intermediate under the provisions of U.P. Intermediate Education Act, 1921 (in short ‘Act 1921’) and salary of staff of the college is paid/ regulated by the provisions of “Uttar Pradesh High Schools and Intermediate College (Payment of Salaries of Teachers and Other Employees) Act, 1971” (hereinafter referred to as “Act 1971”). The recruitment of teaching staff including Principal of the College is admittedly governed by the provisions of “U.P. Secondary Education Service Selection Board Act, 1982” (hereinafter referred to as “Act 1982”). 7. The post of Principal fell vacant due to retirement of Sri Jadoram Sharma on 30th June, 1989. One Mohd. Hasan Ansari working as Lecturer (Mathematics) in the College, being the senior most teacher, was given charge as officiating Principal till regular selection is made by U.P. Service Selection Board (hereinafter referred to as “Board”). The financial approval was granted by DIOS vide letter dated 4th August, 1989. The said approval was initially granted upto 30th June, 1990 which was subsequently extended by letter dated 23rd July, 1990 till regularly selected candidate from the Board joins the post of Principal. 8. It appears that petitioner Sri Hari Pal Singh applied for ad hoc appointment on the post of Lecturer (Mathematics) on 21st July, 1989. The Manager of the College issued an order dated 22nd August, 1989 appointing Sri Hari Pal Singh, (the petitioner in both the writ petitions) as Lecturer (Mathematics) on purely ad hoc basis. The said ad hoc appointment was conveyed to DIOS by letter dated 17th January, 1989/8.12.1989 and DIOS granted financial approval vide order dated 18.12.1989. 9. Sub-sections 1-A, 1-B and 1-C to Section 33(A) of Act 1982 were inserted vide U.P. Act No. 26 of 1991 w.e.f. 6th April, 1991. Section 33-B was inserted by U.P. Act No. 1 of 1993 w.e.f. 6th August, 1993 making provision for regularization of ad hoc appointments made against short-term vacancy, which stood converted into substantive vacancy prior to 6th August, 1993. 10. The petitioner Hari Pal Singh claims regularization under Section 33-B of Act, 1982. The Deputy Director of Education, Meerut recommended regularization by letter dated 10.10.1994 and 27.1.1995 pursuant whereto DIOS issued an order dated 13.2.1995 conveying his approval for regularization. A consequential letter was issued by Manager of the College on 18.2.1995. 11. In the meantime, it appears that substantive vacancy on the post of Principal of College having already been requisitioned to the Board was advertised vide advertisement No. 1/1995-96. One Sri Satya Pal Singh was selected and recommended by Board’s letter dated 15th April, 1997 for appointment to the post of Principal in the College. 12. 11. In the meantime, it appears that substantive vacancy on the post of Principal of College having already been requisitioned to the Board was advertised vide advertisement No. 1/1995-96. One Sri Satya Pal Singh was selected and recommended by Board’s letter dated 15th April, 1997 for appointment to the post of Principal in the College. 12. Consequent to selection of Sri Satya Pal Singh, Management of the College by order dated 10.2.1999 directed Sri Mohd. Hasan Ansari, Officiating Principal to hand over charge to Sri Satya Pal Singh and consequently service of petitioner Sri Hari Pal Singh was terminated by order dated 8th March, 1999 due to reversion of Mohd. Hasan Ansari to the post of Lecturer (Mathematics). 13. Challenging aforesaid selection of Sri Satya Prakash Singh, Writ Petition No. 10821 of 1999 was filed by Sri Mohd. Hasan Anasari and Hari Pal Singh, (the present petitioner) seeking following relief: (a) a writ, order or direction in the nature of certiorari quashing the orders dated 10.2.99 and 8.3.99 passed by Prabandh Sanchalak, Baba Siddh Inter College, Sona Arjunpur, Saharanpur (Annexures 13 and 14); (b) a writ, order or direction in the nature of certiorari quashing the notification dated 15.4.1997 in so far as it pertains to Baba Siddh Inter College, Sona Arjunpur, Saharanpur (Annexure 9); (c) a writ, order or direction of a suitable nature commanding the respondents to treat the petitioner No. 1 as the permanent Principal and peritioner No. 2 as the permanent Lecturer in Mathematics in Baba Siddh Inter College, Sona Arjunpur, Saharanpur, with all consequential benefits thereof; (d) a writ, order or direction of a suitable nature restraining the respondents from interfering in the functioning of the petitioner No. 1 and petitioner No. 2 as Principal and Lecturer in Mathematics respectively in the aforesaid institution, i.e. Baba Siddh Inter College, Sona Arjunpur, Saharanpur, and to pay the petitioners their regular monthly salary on their respective posts regularly every month;” 14. The writ petition was entertained on 19th March, 1999 and this Court passed following interim order: “Notice on behalf of the respondent Nos. 1, 2, 3 and 4 have been accepted by the learned standing counsel and on behalf of respondent No. 6 by Sri A.K. Pandey. They pray for and are granted three weeks time to file the counter-affidavit, petitioner will have two weeks time, thereafter file rejoinder-affidavit. 1, 2, 3 and 4 have been accepted by the learned standing counsel and on behalf of respondent No. 6 by Sri A.K. Pandey. They pray for and are granted three weeks time to file the counter-affidavit, petitioner will have two weeks time, thereafter file rejoinder-affidavit. Issue notice to the respondent No. 5 returnable at an early date. In the meantime operation of the impugned order dated 10.2.1999 and 8.3.1999 shall remain stayed until further orders of this Court.” 15. The writ petition was contested by the State stating that Sri Mohd. Hasan Ansari was never regularized on the post of Principal and therefore selection made by Board was valid. It also pleaded that vacancy on the post of Lecturer (Mathematics) never became substantive, hence question of regularization of petitioner Hari Pal Singh also would not arise as Section 33-B of Act, 1982 would not cover the case of Hari Pal Singh and hence writ petition was liable to be dismissed. 16. The writ petition was finally decided on 17.8.2000 by Hon’ble P.C. Verma J rendering following order: “This petition has been filed by the petitioners for seeking a writ of certiorari quashing the orders dated 10.2.1999 and 8.3.1999 contained in Annexures 13 and 14 to the writ petition and to command that the petitioners services be regularised under Section 33-A (1-A) of the U.P. Act No. 5 of 1982 on the post of initial appointment as Lecturers. At present the petitioner No. 1 is officiating ad hoc Principal and petitioner No. 2 is working as Lecturer in the Institution. Since the petitioners’ cases are liable to be considered for regularisation under the aforesaid Act. Learned counsel for the petitioners submits that the petitioners are working from before the cut of date i.e. 6.4.1993 as ad hoc Principal as well as ad hoc Lecturer. The petitioners are duly approved and are entitled to be regularised in view of the definition given under the Act as the teacher includes the Principal also. Since the petitioners were appointed on ad hoc basis prior to cut off date, therefore, the petitioners are entitled to be considered for regularisation under the aforesaid definition which includes Principal also. Let the petitioners be considered for regularisation within one month from the date of production of a certified copy of this order. Since the petitioners were appointed on ad hoc basis prior to cut off date, therefore, the petitioners are entitled to be considered for regularisation under the aforesaid definition which includes Principal also. Let the petitioners be considered for regularisation within one month from the date of production of a certified copy of this order. So far respondent No. 6 is concerned, since this Court has directed to the Commission to recommend the respondent No. 6 to adjust him where the vacancy is available let the case of the respondent No. 6 be recommended within one month preferably Saharanpur or Haridwar. With the above observation, the petition is disposed of finally.” (emphasis added) 17. It is the common ground that no order has been passed by educational authorities considering petitioner and Sri Mohd. Hasan Ansari for regularisation, as directed above by this Court vide judgment dated 17.8.2000. It may also be of relevance to mention at this stage that Sri Mohd. Hasan Ansari retired on attaining the age of superannuation on 30.6.2001 as a result whereof w.e.f. 1.7.2001 post of Lecturer (Mathematics) in the College has fallen vacant substantively. 18. It may further be added at this stage that during pendency of the above writ petition, Sri Rajendra Singh respondent No. 7 in the first writ petition came to be appointed as Lecturer (Physics) on 29th January, 1998. 19. The Management of the College, it appears published a seniority list of lecturers on 22.6.2001 in which petitioner was shown at serial No. 2 while respondent No. 7 in first writ petition i.e. Sri Rajendra Singh was shown at serial No. 5. The date of appointment of petitioner was shown as 26.8.1989 while that of respondent No. 7 was shown as 29.1.1998. 20. The respondent No. 7 filed a representation dated 4.7.2001 (Annexure CA.7 to the counter-affidavit in first writ petition) stating that he was appointed substantively after selection by the Board while petitioner Hari Pal Singh is still an ad hoc appointee hence cannot be treated senior to him. Respondent No. 7 also refers to reminders dated 1st August, 2001, 9th October, 2004 and 16th April, 2007 in regard to his representation against seniority list. 21. Respondent No. 7 also refers to reminders dated 1st August, 2001, 9th October, 2004 and 16th April, 2007 in regard to his representation against seniority list. 21. The petitioner, however, claims that for the first time respondent No. 7 submitted representation on 6th August, 2010 raising dispute of seniority (a copy whereof has been filed as Annexure 11 to the first writ petition) which is addressed to Addl. Director of Eduction, Secretary and JDE and thus such delayed objection cannot be entertained. 22. The question of seniority was examined by respondent No. 2. vide order dated 16th March, 2011 it held respondent No. 7 senior in the cadre of Lecturers. He also directed DIOS to review and examine the matter of ad hoc appointment and regularization of petitioner, Hari Pal Singh, in the light of 1921 Act and 1982 Act and the Rules and Regulations issued thereunder. It is this order which has been assailed in the first writ petition. 23. This Court while entertaining the first writ petition, passed an interim order on 31st March, 2011 to the following effect: “Considering the facts and circumstances, the direction contained in the impugned order to the District Inspector of Schools, Saharanpur to examine the ad hoc appointment and regularization of the petitioner afresh shall remain stayed.” 24. This Court only stayed impugned order in respect of review of petitioner’s appointment. The declaration with regard to seniority of respondent 7 over petitioner was not touched. 25. The JDE however issued a letter dated 15.4.2011 directing DIOS, the Management of the College and others to comply with Court’s interim order dated 31.3.2011 granting stay. Consequent thereto a resolution was passed by Committee of Management of College to handover charge of Principal to the senior most Teacher and they treated Sri Haripal Singh, i.e., the petitioner senior most. The said resolution was approved by DIOS vide letter dated 1.7.2011. Sri Rajendra Singh treating the said decision of Committee of Management and DIOS in violation of Court’s interim order dated 31.3.2011 initiated contempt proceedings in Contempt Application (Civil) No. 3121 of 2011. This Court required learned Standing Counsel to seek instructions from JDE in the matter, pursuant whereto JDE issued letter dated 15.7.2011 making his earlier letter dated 15.4.2011 inoperative, as a result whereof the DIOS issued consequential letter dated 18.7.2011 directing Management to handover charge of officiating Principal to Sri Rajendra Singh. This Court required learned Standing Counsel to seek instructions from JDE in the matter, pursuant whereto JDE issued letter dated 15.7.2011 making his earlier letter dated 15.4.2011 inoperative, as a result whereof the DIOS issued consequential letter dated 18.7.2011 directing Management to handover charge of officiating Principal to Sri Rajendra Singh. These are the two later orders dated 15.7.2011 and 18.7.2011, impugned and assailed in the second writ petition. 26. I have heard Sri S.P. Singh, Advocate for petitioner in both the writ petitions, learned Standing Counsel for respondent Nos. 1 to 5 in first writ petition, and, 1to 4 in second writ petition and Sri K.P. Shukla, Advocate for the contesting respondent-Teacher, Sri Rajendra Singh, who is impleaded as respondent No. 7 in first writ petition and respondent No. 6 in second writ petition (hereinafter referred to as the “contesting Teacher”). None appeared on behalf of Committee of Management, impleaded as respondent No. 6 in the first writ petition and respondent No. 5 in second writ petition. 27. The first submission advanced on behalf of petitioner is that in the garb of raising a dispute regarding seniority, validity of appointment cannot be challenged. If an appointment has been made long back and has continued, the same cannot be disturbed on some technical or procedural irregularities. In support thereof reliance is placed on decisions of this Court in Vijay Narain Sharma v. District Inspector of Schools, Etawah and others, 1986 UPLBEC 44; Smt. Rani Srivastava v. State Of U. P. and others, 1990 (1) UPLBEC 425; Dr. Asha Saxena v. Smt. S. K. Chaudhary and others, 1991 (2) UPLBEC 1202; Smt. Manju Keshi Dixit v. State of U.P. and others, 2004(5) ESC 234 (All); and Prem Prakash v. State of U.P. and others, 2011(2) ESC 1248. It is further contended that once petitioner was regularised by DIOS vide order dated 13.2.1995 and consequential letter was issued by Manager of the College on 18.2.1995, the said two orders having not been challenged or set aside in any subsequent proceedings, cannot be held inconsequential for the purpose of treating petitioner’s appointment as substantive entitling him to count seniority from the date of initial appointment and/or in any case from the date of regularisation and, therefore, the petitioner in any case is senior to the Contesting Teacher. 28. 28. Per contra, learned counsel appearing for respondent-contesting Teacher argued that appointment of petitioner itself was illegal and void ab initio having not been made after following the procedure prescribed in statute, hence would not confer any right upon him either to hold the post or to claim any benefit consequential to such illegal appointment, including seniority. Further that the initial appointment of petitioner was against a short-term vacancy and on the date when alleged order of regularisation was passed the vacancy had continued as a short-term, hence the alleged order of regularisation is non-est. Thirdly, it is contended that in case the short-term vacancy subsequently became substantive, petitioner’s ad hoc appointment against short-term vacancy would seize immediately and thereafter it was incumbent upon the Management to make fresh appointment in accordance with procedure prescribed in the statute for filling in a substantive vacancy on ad hoc basis which has not been made in this case. The continued appointment of petitioner, therefore, subsequent to vacancy becoming substantive is patently illegal and void ab initio, hence petitioner cannot claim any benefit on the basis of such illegally continued appointment. It is said that a mere technicality or procedural irregularity may not be allowed to be raised after a long time but a patent illegality going to root of the matter shall not validate an appointment made wholly illegally and the appointment being void and non-est since inception would not stand validated by mere efflux of time. The cases relied on by learned counsel for the petitioner would have no application to the present case. On behalf of respondents reliance is placed on Smt. Pramila Mishra v. Deputy Director of Education, Jhansi Division, Jhansi and others, 1997(2) ESC 1284 (All)(FB); Surendra Kumar Srivastava v. State of U.P. and others, 2007(1) ESC 118; Ghanshyam v. State of U.P. and others, 2011(1) ADJ 692 (DB); and Sajjan Singh Yadav v. District Inspector of Schools, Firozabad and others, 2011(7) ADJ 43 . He lastly contended that when anything on the strength of an interim order of this Court, i.e., a judicial order, no benefit can be drawn therefrom if finally the writ petition is not allowed and the relief sought finally is not granted. He lastly contended that when anything on the strength of an interim order of this Court, i.e., a judicial order, no benefit can be drawn therefrom if finally the writ petition is not allowed and the relief sought finally is not granted. No one shall prejudice for an act of Court and none can retain a benefit founded and derived not on account of any act of parties but pursuant to a judicial order. Reliance is placed on Apex Court’s decision in Dr. M.S. Patil v. Gulbarga University, AIR 2010 SC 3783 . 29. Before entering into rival submissions and issues, in order to put the record straight, it would be appropriate to examine (i) whether the procedure laid down in statute was followed when petitioner was appointed initially; and, (ii) whether there was a substantive vacancy available when he was regularised. 30. In case the answer of first question comes in negative, i.e., against petitioner, this Court will also consider whether non-compliance or non-observance of procedure construe a mere technicality, i.e., procedural irregularity capable of condonation, i.e., rendering the appointment untouched, i.e., neither illegal nor void but voidable or condonable. 31. It is admitted by both the parties that Jadoram Sharma, the then Principal, regularly appointed in the College, retired on 30.6.1989 causing a substantive vacancy on the post of Principal w.e.f. 1.7.1989. There is nothing on record to show when Management requisitioned the vacancy of Principal to the Board through proper channel, i.e., by forwarding requisition in the prescribed proforma to DIOS. The record shows that Management on the contrary immediately, i.e., on occurrence of vacancy handed over charge of Principal on officiating basis till regular selection is made to Sri Mohd. Hasan Ansari, Lecturer (Mathematics) working in the College and was senior most Teacher. The said ad hoc appointment was also granted financial approve by DIOS initially for one year but later on extended till regularly selected candidate from the Board joins the post of Principal. 32. It is suggested on behalf of petitioner that this financial approval granted by DIOS shall be deemed to validate officiating appointment of Sri Mohd. Hasan Ansari as Principal valid and thereafter no controversy can either be raised or be looked into the validity of the said appointment. In my view this submission cannot be accepted. The DIOS only granted financial approval. Hasan Ansari as Principal valid and thereafter no controversy can either be raised or be looked into the validity of the said appointment. In my view this submission cannot be accepted. The DIOS only granted financial approval. He did not examine whether officiating appointment was made by observing mandatory procedure prescribed in statute or not. If an executive order is passed without adhering to statutory obligations of making requisite inquiry into the matter, such mischief or failure on the part of an executive authority, i.e., DIOS shall not cloth an otherwise illegal appointment validity or immunity from judicial review. A patent illegality or flagrant violation of statute cannot be condoned unless the Court comes to a conclusion that non observance or violation of statutory procedure is a mere technical irregularity and not something constituting an illegality. For this purpose this Court has to examine in what manner and circumstances such officiating appointment could have been made by Committee of Management, the appointing authority. 33. Act, 1982 came into force w.e.f. 14.7.1981. It was enacted to constitute an independent body for making recruitment of Teachers in secondary education institutions keeping intact the power of Management to make appointment. This power of appointment, however, was circumscribed only to the extent that the management would appoint a person recommended by Board and not otherwise. Section 16(1) clearly mandates that appointment shall be made by Management only on the recommendation of Board and sub-section (2) thereof declares that any appointment made in contravention of Section 16(1) shall be void. 34. The Lagislature also contemplated a situation where there may be a time gap in receiving recommendation from the Board and vacancy may have to continue unfilled for some long time which may prejudice the interest of students and to avoid such an eventuality and possible prejudice to the students, it confer power of ad hoc appointment of teachers upon the Management vide Section 18 of Act, 1982. 35. Section 18 of Act, 1982 as was in the statute took on 1.7.1989 reads as under: “18. 35. Section 18 of Act, 1982 as was in the statute took on 1.7.1989 reads as under: “18. Ad hoc Teachers.—(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 recommended 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 teacher has actually remained vacant for more than two months, then, the management may appoint, by direct recruitment or promotion, a teacher on purely ad hoc basis from amongst the person possession 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 a candidate recommended by the Commission of 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.” 36. The term “teacher” in Act, 1982 is defined in Section 2(k). It includes a “Principal” or “Headmaster”. It is also specified as such in the schedule. Therefore, the power to make ad hoc appointment of a teacher could have been available to Management only when it had notified vacancy to the Commission/Board in accordance with the provisions of Act, 1982 and the Commission/Board has failed to recommend name of a suitable candidate within one year from the date of such notification or the post of Teacher has actually remain vacant for more than two months. 37. There are two contingencies evident from the above which would confer power upon Management to make ad hoc appointment. The power of ad hoc appointment is available to Management only when vacancy of teacher has been notified to Commission in accordance with provisions of the Act and not otherwise. 37. There are two contingencies evident from the above which would confer power upon Management to make ad hoc appointment. The power of ad hoc appointment is available to Management only when vacancy of teacher has been notified to Commission in accordance with provisions of the Act and not otherwise. If the vacancy is not notified no matter what it comes, but the power of ad hoc appointment under Section 18 could not have been exercised. However, if the vacancy is notified to Commission and it has actually remained vacant for more than two months, the Management acquire power to make ad hoc appointment under Section 18. The another is where no recommendation is received for one year. 38. In the present case, it is true that the date on which vacancy was notified to the Board is not available on record but what is not disputed is that Sri Mohd. Hasan Ansari was allowed to officiate as Principal in July, 1989 itself and was granted financial approval by DIOS on 4.8.1989. Even if it is assumed that vacancy of Principal would have been notified by Management to the Board on 1.7.1989, i.e., the first day on which vacancy became available admittedly, till 4.8.1989, two months had not expired and, therefore, Management did not acquire power to make ad hoc appointment even on the post of Principal. It leaves no manner of doubt and by no stretch of imagination it can be said that an ad hoc appointment could have been made by Management of the College before 1.9.1989. It is one thing that for looking after day-to-day work the charge of office of Principal may have been handed over by outgoing Principal to the senior most Teacher in the College in absence of any successor available but mere handing over charge does not result in making appointment ad hoc, officiating or regular whatsoever. The earliest point when the appointment even if ad hoc, could have been made only if the vacancy could have remained actually unfilled, for more than two months. The distinction between appointment and handing over charge of an office has been considered in Smt. Vijay Rani v. Regional Inspectress of Girls Schools Region-I Meerut and others, 2007(2) ESC 987 , wherein a Division Bench of this Court said: “16. . . . . . The distinction between appointment and handing over charge of an office has been considered in Smt. Vijay Rani v. Regional Inspectress of Girls Schools Region-I Meerut and others, 2007(2) ESC 987 , wherein a Division Bench of this Court said: “16. . . . . . Whenever a person leaves office either on account of retirement, superannuation, leave, transfer etc, he proceeds after giving charge to his successor. Normally a person appointed to succeed in the office or one having a co-ordinate position and status is available to hand over charge, or in the absence of such person, the charge is handed over to the senior most person working in the office. When the Principal of the College was retiring on 30th June 1988, in the absence of any appointment or promotion to the post of Principal, she was required to hand over charge to the senior most teacher, who would have looked after day to day function of the office of Principal. But such a course of mere handing over charge would not result in promotion of such senior most teacher as officiating Principal unless and until an order to this effect is passed. Taking charge of a higher office and discharge its function; and to discharge function of a higher office after promotion pursuant to an order of promotion, whether on regular or ad hoc or officiating basis, are two different things. In the former, the incumbent continue to possess the status and position of the office in which he/she is appointed substantively but look after the duties of the higher office of which charge has been handed over in addition to her substantive duties, but it does not result in a vacancy of any kind to the post/office, the incumbent is substantively holding, but, in the later case, the incumbent vacates his substantive office and discharge function of higher office by occupying the higher post. If the promotion is officiating or ad hoc such occupancy may be temporary, but the fact remain that it result in a vacancy in the lower post, may be short-term and temporary. 17. . . . . . The aforesaid documents cemented the conclusion that the Petitioner-Appellant was only required to look after and discharge the duties of the officiating Principal but was never promoted/appointed on the said post. 17. . . . . . The aforesaid documents cemented the conclusion that the Petitioner-Appellant was only required to look after and discharge the duties of the officiating Principal but was never promoted/appointed on the said post. In other words, it can be said that the Petitioner-Appellant was given only current duty charge in addition to her substantive post and this arrangement did not result in promotion to the post of which, the current duty charge was handed over. In State of Haryana v. S.M. Sharma, AIR 1993 SC 2273 , the Chief Administrator of the Board entrusted Sri S.M. Sharma, with the current duty charge of the post of Executive Engineer, which was subsequently withdrawn as a result of his transfer to other post. He challenged the said order stating that it amounts to reversion. The Apex Court held that Sri Sharma was only having current duty charge of the Executive Engineer and was never promoted or appointed to the aforesaid post and therefore, on transfer to some other post, it did not result in reversion from the post of Executive Engineer. 18. A somewhat similar situation occurred in Ramakant Shripad Sinai Advalpalkar v. Union of India and others, 1991 Supple (2) SCC 733 and the Apex Court observed as under : “The distinction between a situation where a Government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion.” 19. It was further held that such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it sometimes. However the person continues to hold substantive lower post and only discharges duties of the higher post essentially as a spot-gap arrangement. A further contention was raised that if such an arrangement continued for a very long period it would give some kind of right to continue on the post but negativing such contention, it was held that an in-charge arrangement is neither recognition nor is necessarily based on seniority and therefore, no rights, equities and expectations can be built upon it.” 39. The aforesaid decision has been followed in Civil Misc. The aforesaid decision has been followed in Civil Misc. Writ Petition No. 41975 of 2011, Shyama Singh v. Director (Madhyamik) and others, decided on 26.8.2011. 40. In the present case, no letter of appointment of Sri Mohd. Hasan Ansari appointing him on officiating/ad hoc basis as Principal has been placed on record. Having gone through the record of Writ Petition No. 10821 of 1999, decided on 17.8.2000 filed by petitioner alongwith Sri Mohd. Hasan Ansari, this Court find that the letter proposing ad hoc appointment of Sri Mohd. Hasan Ansari send to DIOS on 25.7.1989, whereupon approval was granted by DIOS vide letter dated 4.8.1989 but as a matter of fact whether any order of officiating or ad hoc appointment was issued to Sri Mohd. Hasan Ansari is not clear. 41. Be that as it may, this Court proceeds on the assumption that such letter was issued by Management to Sri Mohd. Hasan Ansari in July or August, 1989 but the fact remains that at that time Management itself did not and could not have possessed power of ad hoc appointment since Section 18 contemplates power of ad hoc appointment if the vacancy of Teacher has actually remain unfilled for more than two months and not earlier thereto. In assuming that Sri Mohd. Hasan Ansari was appointed in July or August, 1989 is fortified from the fact that petitioner himself submitted application seeking ad hoc appointment on the post of Lecturer (Mathematics) presuming vacancy on 21.7.1989 and the Manager of College issued order dated 22.8.1989 appointing petitioner as Lecturer (Mathematics) on purely ad hoc basis. Obviously, Sri Mohd. Hasan Ansari must have been appointed before 21.8.1989 as officiating Principal otherwise there could not have been even a short-term vacancy on the said post whereagainst the petitioner could have been appointed. 42. Now comes the case of petitioner. He was also appointed by Manager of College on 22.8.1989, i.e., within two months from the date when vacancy remain unfilled. Whether mandate of Section 18 read with Removal of Difficulties Orders regarding period for which the vacancy remain unfilled is mandatory and violation thereof makes appointment void and non-est or only irregular has also been considered by this Court as well as Apex Court in various decisions. 43. Whether mandate of Section 18 read with Removal of Difficulties Orders regarding period for which the vacancy remain unfilled is mandatory and violation thereof makes appointment void and non-est or only irregular has also been considered by this Court as well as Apex Court in various decisions. 43. Apex Court in Prabhat Kumar Sharma and others v. State of U.P. and others, (1996) 10 SCC 62 , held that procedure laid down in Removal of Difficulties Order is mandatory and has to be observed in words and spirit. An appointment made inconsistent with the said procedure is void ab initio and will not confer either any right upon the incumbent to hold the post or to continue in service or to claim salary from State exchequer. The relevant observations made by the Apex Court in Prabhat Kumar Sharma (supra) is as under: “Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees.” 44. Again in para 11 of the judgment the Court held: “Any appointment in violation thereof is void. As seen prior to the Amendment Act of 1982 the First 1981 Order envisages recruitment as per the procedure prescribed in para 5 thereof. It is an inbuilt procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the Management to any posts in aided institution.” (emphasis added) 45. This decision has been followed and reiterated in Shesh Mani Shukla v. District Inspector of Schools Deoria and others, JT 2009 (10) SC 309, wherein the Apex Court said: “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.” 46. 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.” 46. Following Prabhat Kumar Sharma (supra), a Division Bench of this Court in Lalta Prasad Goswami v. State of U.P. and others (Special Appeal No. 32 of 2006) (decided on 12.1.2006) took the same view. The Division Bench upheld the judgment of Single Judge and dismissed intra Court Appeal. The appellate judgment dated 12.1.2006 was confirmed in Special Leave Petition No. 6948 of 2006 by Apex Court vide order dated 28.4.2006 in the following terms: “The petitioner having not been appointed as a Principal in terms of the provisions under section 18 of the Act, we are of the opinion that the question of his being regularized in the said post does not arise. The Special leave petition is dismissed accordingly.” 47. The Division Bench, besides holding that appointment of Lalta Prasad Goswami was illegal and void, being in violation of Section 18 of 1982 Act, further observed that neither he was entitled to be considered for regularization under Section 33-C of 1982 Act nor his mere continuance on the basis of interim order passed by this Court would confer any right upon him for such purpose. The Apex Court dismissing appeal on merits observed that question of regularization would not arise since petitioner, i.e., Lalta Prasad Goswami was not appointed as a Principal in terms of Section 18 of the Act. This verdict applies squarely in this matter also. 48. A Division Bench of this Court in Joint Director of Education, Azamgarh Mandal and District Inspector of Schools v. Udai Raj Vishwakarma, 2007(3) ADJ 121 , held: “Moreover under Section 18 read with First Order it is clear that an ad hoc appointment could be resorted to only if the vacancy has continued to be actually vacant for a period of more than two months from the date of sending requisition to the commission and prior to that the management has no power to make any appointment even on ad hoc basis under the First Order. This aspect has also been considered in detail by this Court in Smt. Vijay Rani (Supra) and it has been held that if a substantive vacancy occur and cannot be filled in on regular basis on the recommendations of the commission, ad hoc appointment in the circumstances mentioned in para 2 of the First Order read with Section 18 may be made but in no way in such a case any provision of Second Order would be attracted and if the procedure and the contingencies contemplated under Section 18(1) are not satisfied the appointment is illegal and would not confer any right upon the incumbent for the reason when the law requires something to be done in a particular manner any other mode is prohibited and anything done otherwise is illegal.” 49. The above authorities leave no doubt in concluding that non-compliance of Section 18 or any appointment made in breach of Section 18 is illegal and void and shall not confer any right upon the incumbent in any manner. 50. If that being so, ex facie this Court shall have no hesitation in holding initial appointment of petitioner illegal and void ab initio. 51. The matter does not rest here since there is something more. 52. Section 18 contemplates situation and circumstances when an ad hoc appointment can be made by Management of College but the manner in which such ad hoc appointment can be made and what shall be the procedure for recruitment/ selection is not laid down therein. This gap was filled in by State Government by issuing Removal of Difficulties Orders under Section 33 of Act, 1982. Two removal of difficulties orders in this regard would be relevant. 53. The first one is “U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981” (hereinafter referred to as the “First Order”), published in U.P. Gazette, Extraordinary, dated 31.7.1981; and, second is “U.P. Secondary Education Services Commission Removal of Difficulties (Second) Order, 1981” (hereinafter referred to as the “Second Order”), published in U.P. Gazette, Extraordinary, dated 11.9.1981. 54. The First Order lays down procedure for making ad hoc appointment if the vacancy of Teacher is substantive. However, if the vacancy of Teacher is short-term, it is the Second Order which lays down procedure. 54. The First Order lays down procedure for making ad hoc appointment if the vacancy of Teacher is substantive. However, if the vacancy of Teacher is short-term, it is the Second Order which lays down procedure. In other words when ad hoc appointment on the post of Principal was to be made in the present case, the Management of College was obliged to follow the procedure lays down in Para 4 or 5, as the case may be, of First Order but in the resultant vacancy on the post of Lecturer (Mathematics) due to alleged ad hoc promotion of Sri Mohd. Hasan Ansari, as Officiating Principal, which was a short-term vacancy, the Committee of Management was obliged to follow and observe the procedure laid down in para 2 of Second Order. For the present case, since the dispute of appointment of Sri Mohd. Hasan Ansari as such is not before this Court, I straightway come to the procedure ought to have been observed before making alleged ad hoc appointment of petitioner on the short-term vacancy caused due to ad hoc promotion of Sri Mohd. Hasan Ansari as Principal. Para 2 of Second Order reads as under: “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 alongwith 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, possessing 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 alongwith the particulars given in Appendix “B” to this Order. (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 alongwith 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/XV-7(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 of 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 which is not substantive and is of a limited duration.” 55. Admittedly, petitioner was not already working in the College, the question of promotion on ad hoc basis to the short-term vacancy as contemplated by Para 2(1) of Second Order does not arise. The petitioner being an outsider, his appointment was obviously a direct recruitment. Hence the procedure laid down in para 2(3) was to be observed. Admittedly, petitioner was not already working in the College, the question of promotion on ad hoc basis to the short-term vacancy as contemplated by Para 2(1) of Second Order does not arise. The petitioner being an outsider, his appointment was obviously a direct recruitment. Hence the procedure laid down in para 2(3) was to be observed. There is not even a whisper in both the writ petitions that Management notified short-term vacancy of Lecturer (Mathematics) at any point of time. The petitioner made an application and the Manager issued letter appointing petitioner on ad hoc basis as Lecturer (Mathematics) vide letter of appointment dated 22.8.1989. The appointment letter of petitioner does not refer to any process of selection except petitioner’s own application dated 21.7.1989. It does not appear that after making an initial selection, the selection record ever sent to DIOS seeking his prior approval and after receiving letter of approval or non-communication of anything by DIOS within seven days of receipt of particulars, the letter of appointment was issued. On the contrary, it appears that DIOS’s approval sought by furnishing him the letter of appointment of petitioner. Hence there was no attempt on the part of Management to seek prior approval as contemplated in Para 2(3) of Second Order as it stood in 1989 at the time when petitioner was appointed. 56. The effect of non-compliance of Para 2(3) of Second Order has been considered by this Court in several authorities. In Joint Director of Education, Azamgarh Mandal and District Inspector of Schools v. Udai Raj Vishwakarma (supra) a Division Bench of this Court after referring to various authorities on the subject has held that an appointment made without following procedure under Para 2(3) of Second Order is illegal and void. The aforesaid decision has been followed by this Court in Civil Misc. Writ Petition No. 20610 of 2006 Sushil Kumar Upadhyay v. State of U.P. and others, decided on 23.3.2010 and Civil Misc. Writ Petition No. 65470 of 2008, Suresh Chandra Belwal v. State of U.P. and others, decided on 18.1.2011. The Apex Court also said so in Prabhat Kumar Sharma (supra) and Shesh Mani Shukla (supra). This reason also add to vitiate the initial appointment of petitioner on the post of Lecturer (Mathematics). 57. There is third aspect of the matter. Writ Petition No. 65470 of 2008, Suresh Chandra Belwal v. State of U.P. and others, decided on 18.1.2011. The Apex Court also said so in Prabhat Kumar Sharma (supra) and Shesh Mani Shukla (supra). This reason also add to vitiate the initial appointment of petitioner on the post of Lecturer (Mathematics). 57. There is third aspect of the matter. Even if initial appointment of petitioner is left untouched, the question is whether he could have been regularised on the post of Lecturer (Mathematics) at any point of time, or whether was rightly regularised in 1995 or was entitled to continue on the said post of Lecturer (Mathematics) after retirement of Sri Mohd. Hasan Ansari. 58. Before looking to third aspect, an incidental issue would be necessary to be considered at this stage. The effect of regularisation order dated 18.2.1995 issued by Committee of Management pursuant to approval conveyed by DIOS vide letter dated 13.2.1995. It is said that aforesaid order for regularisation was issued under Section 33-B of the Act. The relevant Section 33-B(1) and (4) reads as under: “33-B. Regularisation of certain other appointments.—(1) Any teacher, other than the Principal or Headmaster, who,— (a) (i) was appointed by promotion or by direct recruitment in the Lecturer grade or Trained graduate grade on or before May 14, 1991 or in the Certificate of teaching grade on or before May 13. The relevant Section 33-B(1) and (4) reads as under: “33-B. Regularisation of certain other appointments.—(1) Any teacher, other than the Principal or Headmaster, who,— (a) (i) was appointed by promotion or by direct recruitment in the Lecturer grade or Trained graduate grade on or before May 14, 1991 or in the Certificate of teaching grade on or before May 13. 1989, against a short-term vacancy in accordance with Paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 and such vacancy was subsequently converted into a substantive vacancy ; or (ii) was appointed by direct recruitment on or after July 14, 1981, but not later than July 12, 1985 on ad hoc basis against a substantive vacancy in the Certificate of Teaching grade through advertisement and such appointment was approved by the Inspector ; or (iii) was appointed by promotion or by direct recruitment on or after July 31, 1988, but not later than May 14, 1991 on ad hoc basis against a substantive vacancy in accordance with Section 18, (as it stood before its substitution by the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Second Amendment) Act, 1992); (b) possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of the Intermediate Education Act, 1921: (c) has been continuously serving the Institution from the date of such appointment upto the date of the commencement of the Act referred to in Sub-clause (iii) of Clause (a); (d) is not related to any member of the management or the Principal or Head Master of the Institution concerned in the manner specified in the Explanation to Sub-section (3) of Section 33-A; (e) has been found suitable for appointment in a substantive capacity by a Selection Committee constituted under Sub-section (2), shall be given substantive appointment by the management. . . . . . . . . (4) Every teacher appointed in a substantive capacity under subsection (1) shall be deemed to be on probation from the date of such substantive appointment.” 59. The conditions precedent to consider a person appointed on ad hoc basis as teacher for regularisation under Section 33-B are: (a) He was appointed in a short-term vacancy in accordance with Para 2 of Second Order. (b) The vacancy subsequently converted into a substantive vacancy. The conditions precedent to consider a person appointed on ad hoc basis as teacher for regularisation under Section 33-B are: (a) He was appointed in a short-term vacancy in accordance with Para 2 of Second Order. (b) The vacancy subsequently converted into a substantive vacancy. (c) He possesses the qualifications prescribed or is exempted from such qualification in accordance with Act, 1921. (d) Selection for such vacancy has not already been made according to Act, 1982. 60. As already observed and held, petitioner was not appointed as Lecturer (Mathematics) in accordance with Para 2 of Second Order. The said procedure was not followed. Atleast the petitioner has miserably failed to establish that procedure in Para 2 of Second Order was observed. Hence for this reason alone petitioner could not have been regularised under Section 33-B since it was inapplicable to him. 61. A faint suggestion is made that this Court may not look into this aspect of the matter since the earlier Writ Petition No. 10821 of 1999 of petitioner decided on 17.8.2000 has already looked into this aspect. 62. A perusal of aforesaid judgment shows that there the reliance was made to Section 33-A (1-A) of Act, 1982. Learned counsel for the petitioner has fairly stated that said Section would have no application in the case in hand so far as present petitioner is concerned. Moreover, the aforesaid judgment nowhere shows that issue regarding observance of procedure of Para 2 of Second Order was ever raised, argued and decided by this Court. This aspect was not considered by the Court and, therefore, the aforesaid judgment would not stand in the way of this Court to look into this aspect of the matter. A passing reference or non consideration of a matter would not constitute a binding precedent. On the contrary if something has been observed in a judgment without discussing statutory provision, such a judgment in judicial precedence has been terms as “per incurium”. What constitute “per incurium” need not detain our attention since time and again it has been explained by the Apex Court. On the contrary if something has been observed in a judgment without discussing statutory provision, such a judgment in judicial precedence has been terms as “per incurium”. What constitute “per incurium” need not detain our attention since time and again it has been explained by the Apex Court. Recently a Full Bench of this Court in Farhat Hussain Azad v. State of U.P. and others, 2005 ALJ 647, after referring to the law with respect to “per incurium” laid down by the Apex Court in catena of decisions, has observed as under : “The concept of “per in curium” has been considered by the Apex Court time and again explaining that the expression means through inadvertence or a point of law is not consciously determined. If an issue is neither raised, nor argued, a decision by the Court after pondering over the issue in depth would not be precedent binding on the Courts. Per incurium are decisions given in ignorance or forgetfulness of some statutory provisions or where the Court omits to consider a binding precedent of the same Court or the superior Court rendered on the same issue or where Court presumes something contrary to the facts of the case. (Vide Mamleshwar Prasad and another v. Kanahaiya Lal (Dead), (1975) 2 SCC 232 ; Rajpur Ruda Meha and others v. State of Gujrat, AIR 1980 SC 1707 ; A.R. Antule v. R.S. Nayak, AIR 1988 SC 1531 ; Municipal Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38 ; Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh and others, (1990) 3 SCC 682 ; State of West Bengal v. Synthetics and Chemicals Ltd., (1991) 1 SCC 139; Maharashtra State Cooperative Cotton Growers Marketing Federation Ltd and another v. Employees’ Union and another, 1994 Supp (3) SCC 385; Pawan Alloys & Casting Pvt Ltd, Meerut v. U.P. State Electricity Board and others, (1997) 7 SCC 251 ; Ram Gopal Baheti v. Girdharilal Soni and others, (1999) 3 SCC 112 ; Sarnam Singh v. Dy. Director of Consolidation and others, (1999) 5 SCC 638 ; Govt. Director of Consolidation and others, (1999) 5 SCC 638 ; Govt. of Andhra Pradesh v. B. Satyanarayana Rao, AIR 2000 SC 1729 ; Arnit Das v. State of Bihar, (2000) 5 SCC 488 ; M/s. Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., AIR 2001 SC 2293 ; A-One Granites v. State of U.P. and others, (2001) 3 SCC 537 ; Suganthi Suresh Kumar v. Jagdeeshan, AIR 2002 SC 681 ; Director of Settlements A.P. and others v. M.R. Apparao and another, (2002) 4 SCC 638; S. Shanmugavel Nadar v. State of T.N and another, (2002) 8 SCC 361 ; State of Bihar v. Kalika Kuer Kalika Singh and others, AIR 2003 SC 2443 ; and Manda Jaganath v. K.S. Rathnam and others, (2004) 7 SCC 492 ). In B. Shyama Rao v. Union Territory of Pondichery and others, AIR 1967 SC 1480 , the Constitution Bench of the Supreme Court observed as under : “It is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein.” In State of U.P. and another v. Synthetics & Chemicals Ltd. and another, (1991) 4 SCC 139 , the Apex Court followed the aforesaid judgment in B. Shyama Rao and held as under : “Any declaration or conclusion arrived without application of mind or proceeded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent......A conclusion without reference to relevant provision of law is weaker than even casual observation.” Similar view has been reiterated in Divisional Controller, KSRTC v. Mahadeva Shetty and another, (2003) 7 SCC 197 , observing that casual expressions in a judgment carry no weight at all, nor every passing remark, however eminent, can be treated as an ex-cathedra statement having the weight of authority.” 63. In N. Bhargavan Pillai v. State of Kerala, AIR 2004 SC 2317 (para 14) the Apex Court said that if a view has been expressed without analysing the statutory provision, it cannot be treated as a binding precedent and at the most is to be considered as having been rendered per incuriam. The same law has been reiterated in Faujdar v. Deputy Director of Education and others, 2006(1) ADJ 705 . 64. The same law has been reiterated in Faujdar v. Deputy Director of Education and others, 2006(1) ADJ 705 . 64. In M/s J.K. Construction Engineers and others v. Union of India and others, 2006(3) ADJ 471 (DB) the Court held : “The doctrine of per incuriam is applicable where by inadvertence a binding precedent or relevant provisions of the Statute have not been noticed by the Court.”...(Para 106) 65. Similar view has been taken by another Division Bench in Brahma Prakash v. State of U.P. and others, 2006 (2) ESC 1017. In para 40 of the judgment this Court held as under— “Thus in view of aforesaid discussion, it is clear that while rendering the decision in Radha Krishna Gupta’s case earlier Division Bench of this Court with all respect did neither ascertain the ratio of decisions referred in the judgment, nor discussed, as to how the factual situation fits in with the fact and situation of the decision on which reliance was placed. Contrary to it the decision of Hon’ble Apex Court which requires consideration of various factors in this regard, referred herein before in our judgment has been completely ignored by the Division Bench, therefore, being a decision given per incuriam, cannot be held to be binding authority under law.” 66. In the judgments referred to above, the aforesaid doctrine of per incuriam has been discussed in detail and it has been held that a judgment per incuriam does not lay down a binding precedent. 67. Now coming to the second facet. Regularisation under Section 33-B is contemplated only when a substantive vacancy is available to the incumbent claiming regularisation. It is nobody’s case that Mohd. Hasan Ansari was ever regularised on the post of Principal. He throughout continued to officiate as Principal till his retirement. In the circumstances, the very genesis to attract Section 33-B being absent, the question of regularisation of petitioner could not have arisen at all. 68. The petitioner’s eagerness and manner it has got judgment dated 17.8.2000 itself shows unequivocally that petitioner did not find any valid right flowing from letters dated 13.2.1995 and 18.2.1995 and could not treat him as validly regularised or legally regularised or ever regularised at all otherwise there was no occasion for petitioner to get such a direction from this Court after almost five years, i.e., 17.8.2000. 69. 69. It is really unfortunate that educational authorities in this case have proceeded with closed mind and eyes at every stage whether the initial stage of ad hoc appointment, or subsequent stage in 1995. They have proceeded as if were playing in the hands of petitioner and whatever he desired has been allowed by educational authorities (except the one who has passed impugned order) completely overlooking their statutory and otherwise obligation to examine legally sustainable claim and right of petitioner. Admittedly it has resulted in siphoning off huge public revenue in the shape of salary to petitioner though appointed illegally and that is how the educational authorities have deceived and committed breach of trust to the public at large in failing to keep public interest protected to save public revenue from defalcation, misappropriation or siphoning off to scrupulous, unwarranted and disentitled persons. My judicial experience dealing with a number of such cases in the last a few months sitting in this jurisdiction has shown an extraordinary frequency of such illegality on the part of educational authorities which has gone unpunished in the hands of Government. This attitude justify an inference that all have worked in collusion and hand in gloves. This is a matter of inquiry separately and for recovery of amount already paid to such illegal appointees from responsible educational authorities/officials who are the persons really responsible in allowing this kind of loot by persons having advantage of illegal appointment. 70. Learned counsel for the petitioner faintly suggested that the order of regularisation already issued in favour of petitioner may not be judged by this Court at this stage since it was never challenged. 71. The submission overlooks a series of subsequent events already noticed and may be reminded here at also. Satya Pal Singh was recommended by Board for appointment to the post of Principal vide letter dated 15.4.1997. Consequently, the Management issued letter of appointment to Sri Satya Pal Singh appointing him on the post of Principal. Simultaneously Sri Mohd. Hasan Ansari was reverted to the post of Lecturer (Mathematics) with further direction to handover charge of the office of Principal to Sri Satya Pal Singh. As a further and necessary corollary, petitioner was terminated vide order dated 8.3.1999. These two orders, namely, reversion order of Sri Mohd. Simultaneously Sri Mohd. Hasan Ansari was reverted to the post of Lecturer (Mathematics) with further direction to handover charge of the office of Principal to Sri Satya Pal Singh. As a further and necessary corollary, petitioner was terminated vide order dated 8.3.1999. These two orders, namely, reversion order of Sri Mohd. Hasan Ansari and termination order dated 8.3.1999 of petitioner resulted in a consorted and joint writ petition by both of them, i.e., Writ Petition No. 10821 of 1999 challenging reversion order as well as termination order. Both petitioners, namely, Sri Mohd. Hasan Ansari and Hari Pal Singh, the present petitioner also sought a mandamus from this Court in Writ Petition No. 10821 of 1999 that they should be treated permanent on their respective posts. The orders impugned in the aforesaid writ petition were stayed by this Court on 19.3.1999. This writ petition remained pending with the result that interim order also continued to run. Consequence of continued interim order was that Mohd. Hasan Ansari continued to function as Officiating Principal and ultimately though after a few months from judgment attained retirement on 30.6.2001. The substantive vacancy on the post of Principal thus after 1.7.1989 again occurred on 1.7.2001. Due to interim order, Sri Satya Pal Singh could not join on the post of Principal of College. The petitioner, however, remain unaffected and enjoyed the real benefit of interim order. He continued to function as Lecturer (Mathematics). 72. Moreover the writ petition came up for final disposal before this Court on 17.8.2000. At the time of final argument, counsel for petitioner namely, the present petitioner, Haripal Singh also did not stress upon the earlier order of regularisation dated 18.2.1995 and instead claim that petitioner is entitled to be considered for regularisation. This Court in the circumstances, directed respondents to consider petitioner for regularisation within one month from the date of production of a certified copy of order. If the earlier order of regularisation of petitioner would have been treated valid by this Court, no question would have arisen for issuing such direction again. It is also worthy to mention that order of termination of petitioner was not set aside and nothing was said regarding it though there was a specific relief sought in the writ petition. The writ petition was not allowed but disposed of. It is also worthy to mention that order of termination of petitioner was not set aside and nothing was said regarding it though there was a specific relief sought in the writ petition. The writ petition was not allowed but disposed of. To my mind the effect of order dated 17.8.2000 would be that petitioner may be considered for regularisation under the statute and if the authorities find anything in his favour to pass appropriate order which may include review of termination order but so far as this Court is concerned admittedly it did not set aside termination order dated 8.3.1999 which was specifically challenged and was prayed to be set aside. 73. Further it is not the case of petitioner that pursuant to aforesaid judgment he has been considered for regularisation under Act, 1982 at any point of time thereafter, i.e., after 17.8.2000. In fact subsequent thereto Sri Mohd. Hasan Ansari retired on 30.6.2001 and at the best if any, the petitioner could have been considered for regularisation after 30.6.2001 and not otherwise. That having not been done so far the question of considering the petitioner to be a regularised Lecturer does not arise. The petitioner having not been considered for regularisation after the judgment dated 17.8.2000, cannot claim to be a substantively appointed teacher in the College. If the petitioner was of the view that a mandamus having not been complied and educational authorities are guilty of contempt, it was always open to initiate such proceedings but nothing has been brought to notice of this Court that any such proceedings were initiated. It is not the case of petitioner that he ever took any steps for getting order dated 17.8.2000 implemented or executed. No reason could be assigned or explained. The substantive vacancy on the post of Lecturer (Mathematics) occurred for the first time on 1.7.2001 and at no point of time earlier from 1.7.1989 to 30.6.2001. Even learned counsel for the petitioner could not dispute this fact that on the post of Lecturer (Mathematics) no substantive vacancy at any point of time actually occurred between 1.7.1989 to 30.6.2001. The substantive vacancy on the post of Lecturer (Mathematics) occurred for the first time on 1.7.2001 and at no point of time earlier from 1.7.1989 to 30.6.2001. Even learned counsel for the petitioner could not dispute this fact that on the post of Lecturer (Mathematics) no substantive vacancy at any point of time actually occurred between 1.7.1989 to 30.6.2001. Moreover, it is not the question of considering or reviewing the alleged regularisation letters dated 13.2.1995 and 18.2.1995 but the fact is that petitioner having been terminated subsequent to 18.2.1995, i.e., on 8.3.1999 and order of termination having not been set aside by this Court, it also has its own consequences and cannot be overlooked at all. 74. The next corollary of the above aspect is whether after retirement of Sri Mohd. Hasan Ansari, petitioner could have continued to function as Lecturer (Mathematics) having been appointed against a short-term vacancy. 75. As already observed the method and procedure for selection for ad hoc appointment is different for two kinds of vacancy, namely, substantive vacancy and short-term vacancy. In the case of former it is the First Order which is to be observed and in case of later it is the Second Order which is to be observed. This Court has held that a person appointed on ad hoc basis against a short-term vacancy cannot continue after the short-term vacancy become substantive and his continuance on the post thereafter is illegal. This has been so held by Division Bench in Surendra Kumar Srivastava (supra); Shashi pal Rao v. Committee of Management and others, 2010(7) ADJ 392 (DB); Ghanshyam (supra); and by this Court (Myself) in Civil Misc. Writ Petition No. 71277 of 2009, Rajesh Kumar Sharma v. State of U.P. and others, decided on 5.1.2010. 76. The continuance of petitioner even otherwise after the alleged vacancy on the post of Lecturer (Mathematics) became substantive on 1.7.2001 is clearly illegal, unauthorised and in the teeth of statute as well as law laid down by this Court. 77. Now the question would be whether all these defects and statutory violation can be construed as a mere procedural or technical irregularities so as to ignore for any purpose whatsoever to cloth a semblance of legality and valid status upon petitioner. 77. Now the question would be whether all these defects and statutory violation can be construed as a mere procedural or technical irregularities so as to ignore for any purpose whatsoever to cloth a semblance of legality and valid status upon petitioner. To my mind the answer is clearly No. The appointment of petitioner, therefore, cannot be said to suffer a mere irregularity, technical or procedural, but being in breach of mandatory and statutory provisions, it is illegal and bad since its inception, hence the various decisions cited at the bar on behalf of petitioner, in my view, would lend no help to him. 78. At this stage, now the question I may also consider regarding application of various authorities cited at the Bar on behalf of petitioner that in the garb of seniority validity of appointment cannot be challenged. 79. In fact almost in a similar controversy in Vidya Kant Tiwari v. State of U.P. and others, 2011(6) ADJ 97 , this Court besides other has also considered the question whether an issue relating to validity of appointment can be raised after a long time and that too at the stage of disputing seniority and these authorities cited at the Bar by learned counsel for the petitioner have been dealt with in detail in the judgment from paras 72 to 81 and 83 to 86 as under: “72. In order to suggest that, disputing seniority, validity of appointment cannot be challenged, learned counsel for respondent No. 5 referred a Division Bench decision in Vijay Narain Sharma v. District Inspector of Schools, Etawah and others, 1986 UPLBEC 44. This Court in paragraphs 25 and 26 of the judgment held: “25. On a reading of Regulation 3 of Chapter II, it is clear that it nowhere contemplated that the teacher who challenges the seniority list can again challenge the validity of the appointment or promotion of a teacher in the college. He can only be aggrieved by the factors, if wrongly decided, as mentioned in Regulation 3. The dispute can be taken in appeal under Clause (1) of Regulation 3 quoted above. In my opinion, it is clear that while disputing the validity of the seniority list, it is not open to a teacher to challenge the appointment and promotion which had already been done. The challenge to the appointment and promotion has been specifically provided. The dispute can be taken in appeal under Clause (1) of Regulation 3 quoted above. In my opinion, it is clear that while disputing the validity of the seniority list, it is not open to a teacher to challenge the appointment and promotion which had already been done. The challenge to the appointment and promotion has been specifically provided. If no challenge is made at that stage then the appointment and promotion becomes final. If the Legislature intended that the appointment and promotion can be challenged at the time of determining seniority, the Legislature would have specifically provided in the Regulations. This has not been done. 26. There is another aspect of the matter that once the appointment or promotion becomes final, a vested right is created in favour of a teacher. A colleague of his in the institution having acquiesced to the appointment and promotion cannot be, subsequently, permitted to raise the dispute.” (emphasis added) 73. In the case of Smt. Rani Srivastava v. State of U.P. and others, 1990(1) UPLBEC 425, this Court has held as under: “5. Principle infirmity in appointment of petitioner, that could be pointed out, was that it was made without issuing any advertisement and recommendation by Selection Committee. May be but could the management which appointed petitioner in 1984 and the Basic Shiksha Adhikari who did not raise any objection to payment of salary for five years raise this objection in 1989. The appointing authority under rules is the committee of Management. And the approving authority is the Basic Shiksha Adhikari, who under U.P. Act No. 6 of 1979 is also to supervise the payment of salary and is empowered to inspect and check. For five years no objection was raised by him. And then suddenly when one of the members desired that a male principal, should be appointed, he also raised an objection. The petitioner had raised objection as far back as 1985 against her being treated as temporary employee. No action was taken on it. Nor any decision was given. For procedural irregularity the petitioner should not be made to suffer. And then suddenly when one of the members desired that a male principal, should be appointed, he also raised an objection. The petitioner had raised objection as far back as 1985 against her being treated as temporary employee. No action was taken on it. Nor any decision was given. For procedural irregularity the petitioner should not be made to suffer. Normally it is to be presumed that Management must have sent papers for appointment of petitioner to Basic Shiksha Adhikari who must have granted approval unless it is rebutted either by placing any communication by Management from record of Basic Shiksha Adhikari to show that things did not proceed as they are provided in the Act. In absence of any material there is no reason to doubt that Committee of Management would have appointed without intimating Basic Shiksha Adhikari and would have even issued letter appointing petitioner permanently and Basic Shiksha Adhikari would not have raised any objection in respect of payment of salary etc. from 1984 to 1989. Change of Secretary or Basic Shiksha Adhikari should not be permitted to create any difference otherwise it shall result in creating arbitrariness and expose teachers of being thrown out of employment on one or the other pretext and shall never have security which is necessary for efficient discharge of duty. Equity stands in her favour and prevents both the appointing and approving authority from taking recourse to their own mistakes, for causing prejudice to petitioner. Estoppel, the principle of equity, is the shield for such unjust and unfair actions.” (emphasis added) 74. In Dr. Asha Saxena v. Smt. S.K. Chaudhary and others, 1991(2) UPLBEC 1202, a Full Bench of this Court has held: “16. .....In any view of the matter, the appointments which were existing for the last 17 years could not be set aside after a lapse of such a long period. Even the earlier Full Bench had quashed the order of the Regional Inspectress of Girls Schools referring the matter under Section 16-E (10) of the Act and we are also of the opinion that the aforesaid order is liable to be quashed. It is true that there is power under Section 16-E (10) of the Act to cancel the appointments but the power has to be exercised within a reasonable time. It is true that there is power under Section 16-E (10) of the Act to cancel the appointments but the power has to be exercised within a reasonable time. The appointment had been made in the year 1973 and by no stretch of imagination it can be said that the exercise of that power after the lapse of 17 years by the Director of Education under Section 16-E(10), on the facts and circumstances of the case can be said to be exercise of a power within a reasonable time.” 75. This Court Smt. Manju Keshi Dixit v. State of U.P. and others, 2004(5) ESC 234 (All)(DB), reiterated the aforesaid view making following observations: “13. Thus, the consistent view of this Court is that the appointment cannot be challenged while determining the seniority and if the appointment has been made and is continued for long period, it should not be disturbed or set aside on some technicalities or procedural irregularities.” 76. Both the above judgments have been followed recently in Smt. Bharti Roy v. Deputy Director of Education, II, Kanpur and others, 2008(2) ESC 911 and Sughar Singh v. State of U.P., 2010(2) ADJ 214 . 77. The above decisions in different context, no doubt, have observed that in the garb of challenging seniority list, one cannot be allowed to assail the very appointment of the incumbent and that too after a long time and should be non suited on this aspect. However, can it be said that this proposition is so wide so as to be applied as a rule of thumb that whenever a issue regarding seniority is raised, one cannot challenge simultaneously validity of appointment of the incumbent concerned on the ground that it is wholly illegal and void ab initio. 78. From a careful reading of all the judgment referred above, I find that to put this proposition at such a high pedestal would amount to do violence with legal proposition laid down in the above cases. This has to be read in the light of the context and the relevant provisions. 79. In Vijay Narain Sharma (supra), the Court considered, whether the statutory remedy challenging seniority list under Regulation 3 Chapter II would cover a grievance with respect to challenging appointment of a Teacher. The Court clearly observed that there is a different provision made for challenging appointment and promotion. 79. In Vijay Narain Sharma (supra), the Court considered, whether the statutory remedy challenging seniority list under Regulation 3 Chapter II would cover a grievance with respect to challenging appointment of a Teacher. The Court clearly observed that there is a different provision made for challenging appointment and promotion. If nobody avail the remedy, his right to challenge appointment cannot be included within the ambit of Regulation 3 Chapter II which provides a procedure for challenging only a seniority list and not the appointment or promotion. The Court also observed that once the appointment and promotion becomes final, a vested right is accrued and a colleague cannot be permitted to raise dispute with regard to appointment and promotion at a belated stage disputing seniority. Meaning thereby, the Court has not laid down a wide proposition that appointment cannot be challenged at all while disputing seniority, but this would depend on various factors either way and would have to be considered on case to case basis. Thereafter Court confined to which could be raised under Regulation 3 Chapter II and held that its scope cannot be widened. 80. Similar is the position in Smt. Rani Srivastava (supra). There the appointment was made by Committee of Management and the educational authorities. Later on they themselves attempted to challenge the appointment. The Court found that in absence of anything contrary, it cannot be presumed that procedure has not been followed. The authorities who had to observe procedure were the complainants. The Court did not allow them to raise this plea after a long time. It is in these circumstances, the principle of estoppel was also invoked by the Court. 81. However, if the authorities responsible for observing a mandatory provision acting illegally have helped an individual to get certain benefits, can it be said that a person who has no occasion of possessing all such information and has never acquiesced to the situation cannot challenge such illegal appointment whenever he is sought to be affected adversely by the authorities and by such illegal appointee. The answer would be No. “ “83. In Dr. Asha Saxena (supra), this Court found that the power of cancellation of appointment cannot be allowed to be exercised after 17 years since the person, who attempted to exercise that power, ought to have exercised within a reasonable time. The answer would be No. “ “83. In Dr. Asha Saxena (supra), this Court found that the power of cancellation of appointment cannot be allowed to be exercised after 17 years since the person, who attempted to exercise that power, ought to have exercised within a reasonable time. But here that would not apply as here there was no occasion on the part of the petitioner to rack up his claim vis-a-vis respondent No. 5 till he was sought to be prejudiced or adversely affected by respondent No. 5, which exercise had been taken only in 2010 and not earlier thereto. 84. In Smt. Manju Keshi Dixit (supra), the Court clearly observed that mere some technical or procedural irregularity ought not to result in setting aside an appointment continued for a long time when seniority issue arises. This also leads to the conclusion that these are only such irregularities or technicalities which are rectifiable or condemnable but where the omission or violation goes to the very root of the matter making appointment illegal and void ab initio, the Court would be failing in its duty if it declines to set the things right else that would amount to perpetuate an illegality causing a permanent loss to an incumbent who has no role to play on his part and is not guilty of either waiver or acquiescence or estoppel or any other similar principle of law. 85. Just to repeat therefore I have no hesitation to say that consistent view of this Court is that normally/ordinarily an appointment cannot be challenged while determining seniority, if the appointment has been made and continued for long period, it should not be disturbed or set aside on some technicalities or procedural irregularities but where it is wholly illegal and non-est, the situation would be different. The proposition of law is not so wide to be attracted in every case like this one. 86. Here the very appointment of respondent No. 5 in view of law laid down by the Apex Court in Prabhat Kumar Sharma (supra), Shesh Mani Shukla (supra) and Lalta Prasad Goswami (supra) is void ab initio. Therefore, it is not a mere challenge to appointment but the state of affairs as existed in law in the light of law laid down by Apex Court. Therefore, it is not a mere challenge to appointment but the state of affairs as existed in law in the light of law laid down by Apex Court. Petitioner has not challenged the appointment of respondent No. 5 in the garb of challenging only seniority but he has said that a person whose appointment is illegal since inception cannot be treated a Lecturer having been appointed from a date earlier to the petitioner so as to affect his interest otherwise.” 80. Even otherwise this Court is satisfied that the Committee of Management by including name of petitioner in the seniority list has committed a patent error inasmuch as petitioner belong to a different stream than contesting teacher and there is no question of their inter se seniority since both belong to different stream. As already observed the petitioner is still an ad hoc teacher. On the contrary, contesting teacher is a substantively appointed teacher. 81. For the purpose of seniority Chapter III, Regulation 3(1)(b) of Act, 1921 contemplates that seniority of teachers appointed on substantive basis shall be determined from the date of substantive appointment. It reads as under: “3.(1)(b) Seniority of teachers in a grade shall be determined on the basis of their substantive appointment in that grade. If two or more teachers were so appointed on the same date, seniority shall be determined on the basis of age.” 82. The petitioner, therefore, never became a member of service, having never been appointed on substantive basis, question of determination of his seniority vis-a-vis other substantively appointed teachers of College would not arise. The Management’s illegality and non-application of mind on this aspect is writ large. Without looking into this aspect of the matter they included name of petitioner in the seniority list which is impermissible, hence it is not the question of challenge to seniority list but only the inclusion of petitioner in seniority list. When two persons belong to different stream, they cannot claim seniority unless come to the same stream. In Shitala Prasad Shukla v. State of U.P., AIR 1986 SC 1859 , the Apex Court said: “An employee must belong to the same stream before he can claim seniority vis-a-vis others. One who belongs to the stream of lawfully and regularly appointed employees does not have to contend with those who never belonged to that stream, they having been appointed in an irregular manner. One who belongs to the stream of lawfully and regularly appointed employees does not have to contend with those who never belonged to that stream, they having been appointed in an irregular manner. Those who have. been irregularly appointed belong to a different stream, and cannot claim seniority vis-a-vis those who have been regularly and properly appointed, till their appointments became regular or are regularized by the appointing authority as a result of which their stream joins the regular stream. At that point of confluence with the regular stream, from the point of time they join the stream by virtue of the regularization, they can claim seniority vis-a-vis those who join the same stream later. The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue.” (emphasis added) 83. This is what has also been followed and observed by this Court in Vidya Kant Tiwari (supra). 84. Now the only submission advanced on behalf of petitioner left to be touched is the so called sympathetic view in the matter since petitioner in one or the other way has been successful in continuing to work in the College for last more than two decades. 85. It is true that in some of the precedents without laying down any principle of law the Courts have shown a lenient view and have allowed the incumbent concerned to continue but in recent decade a strict approach has been shown by Apex Court which is more apt to adhere to rule of law. The kind of sympathy sought in this case has been termed as “misplaced sympathy”. The view of the Court is that anything acquired illegally if allowed to remain with the person so acquired it would amount to confer a premium upon him of such illegality. This would encourage the people to go ahead with such kind of illegalities with expectations in the context of similar precedence that if they are successful in continuing long time, the judicial forums may not interfere and allow them to continue with their illegally obtained benefits. This has been seriously castigated and held to benefit more the violators and cause a permanent deprivation to law abiders. 86. In State of Orissa and another v. Mamata Mohanty, 2011(3) SCC 436 , the Apex Court says that an order bad from inception would not get sanctify at a later stage. This has been seriously castigated and held to benefit more the violators and cause a permanent deprivation to law abiders. 86. In State of Orissa and another v. Mamata Mohanty, 2011(3) SCC 436 , the Apex Court says that an order bad from inception would not get sanctify at a later stage. No subsequent action or development can validate an action which was not lawful at its inception for the reason that illegality strikes at the root of order. It goes on to say that it would be beyond the competence of any authority to validate such an order. Relying and referring to its earlier decisions in Upen Chandra Gogoi v. State of Assam and others, AIR 1998 SC 1289 ; Mangal Prasad Tamoli (Dead) by L.Rs. v. Narvadeshwar Mishra (Dead) by L.Rs. and others, AIR 2005 SC 1964 ; and Ritesh Tiwari and another v. State of U.P. and others, AIR 2010 SC 3823 , the Court in para 20 of the judgment said: “It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non-est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin.” 87. It is next contended that since petitioner has continued to work for the last 20 years, some kind of right must be read to have germinated in him and this Court may refrain from making such order or observation which may result in depriving the very employment of petitioner and that would be violative of his fundamental right under Article 21 of the Constitution. 88. In fact even this aspect stands answered by the Apex Court in State of Orissa v. Mamata Mohanty (supra) by observing: “The concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence. 88. In fact even this aspect stands answered by the Apex Court in State of Orissa v. Mamata Mohanty (supra) by observing: “The concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence. Therefore, continuation of a person wrongly appointed on post does not create any right in his favour.” 89. In an earlier decision also in Dr. M.S. Patil v. Gulbarga University (supra) which has been followed by Apex Court in State of Orissa v. Mamata Mohanty (supra) the Apex Court considered a similar argument in paras 11 and 12 of the judgment and rejecting the same said: “11. But at this stage once again a strong appeal is made to let the appellant continue on the post where he has already worked for over 17 years. Mr. Patil, learned senior counsel, appearing for the appellant, submitted that throwing him out after more than 17 years would be very hard and unfair to him since now he cannot even go back to the college where he worked as lecturer and from where he had resigned to join to this post. 12. We are unimpressed. In service law there is no place for the concepts of adverse possession or holding over. Helped by some University authorities and the gratuitous circumstances of the interim orders passed by the Court and the delay in final disposal of the mater, the appellant has been occupying the post, for all these years that lawfully belonged to someone else. The equitable considerations are, thus, actually against him rather than in his favour. The matter can also be looked at from a slightly different angle. It is noted above how the appellant was able to secure the appointment and how he managed to continue on the post. By notification dated August 13, 2004, the appellant was discharged from the service of the University on the post of Reader in Kannada but was asked to continue on ad hoc basis until the appointment of the new incumbent to the post. His position is, thus, only ad hoc till the appointment of the new incumbent and in that position he is continuing on the basis of the direction of this Court to maintain status quo. His position is, thus, only ad hoc till the appointment of the new incumbent and in that position he is continuing on the basis of the direction of this Court to maintain status quo. We see no reason to continue this ad hoc arrangement any further and we do not wish to stand any longer in the way of the post being filled up on a regular basis.” 90. These observations very aptly apply in this case also where this Court has no hesitation in observing that flagrant illegality committed by College Management as well as the educational authorities in committing breach of statute has resulted in conferring an undue illegal advantage in favour of petitioner and someone in public at large who otherwise may have been more suitable and eligible but under carpet approach has denied the right of consideration and consequently the right to earn livelihood by seeking employment on the post in question even on ad hoc basis though actually it has continued for decades together. The situation is really not only highly dissatisfactory but unfortunate and justify a serious disapproval and strictures of this Court. 91. I have looked into this matter in full detail so as to curtail more than two decades litigation and also to save the educational institutions from the bounds of management of scrupulous persons who somehow get over the things managed by keeping the matter pending or undecided or unadjudicated in one or the other manner. 92. In the result, both these writ petitions lacking merit, deserved to be dismissed and are dismissed with costs, which I quantify to Rs. 10,000/- for each set of writ petition. ——————