Ravindra Singh vs District Inspector Of Schools

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.9228 OF 2016

RAVINDRA SINGH APPELLANT(S)

VERSUS

DISTRICT INSPECTOR OF SCHOOLS AND ORS. RESPONDENT(S)

J U D G M E N T

Hrishikesh Roy, J.

This appeal is directed against the Judgment and Order

dated 20.05.2016 in the Special Appeal No. 345 of 2016, of

the High Court of Judicature of Allahabad. Under the

impugned order, the Division Bench rejected the Appeal of

the Writ Petitioner and upheld the judgment dated 12.04.2016

whereby, the learned Single Judge dismissed the Writ - A

No.38790 of 2000, filed by the present appellant.

2. Before the High Court, the appellant challenged the Signature Not Verified

decision Digitally signed by MADHU BALA dated 16.02.2000 of the District Inspector of Date: 2019.11.06 14:21:13 IST Reason:

Schools, Kanpur Nagar whereunder, the appellant’s

Page 1/14 representation for financial consent and approval for his

service was negated. While rejecting the representation,

the authority observed in the speaking order that Government

has placed a ban on all types of recruitment by the

Management and that the concerned Bilhaur Inter College,

(hereinafter, “the Institution”), was not empowered to make

any appointment. Moreover, the appellant was found to be

appointed without any financial implication. The District

Inspector of Schools passed the impugned speaking order in

pursuance to the High Court’s earlier direction dated

10.07.1998 in the Writ Petition (C) No.21713 of 1998 and

hearing was afforded to the appellant and the Manager of the

Institution.

3. Adverting to the speaking order (16.02.2000) of the

Inspector of Schools, which was challenged in the Writ - A

No.38790 of 2000, the Learned Judge noted that the appellant

was appointed in a substantive vacancy which has occurred

after transfer of one Ramesh Chandra Pandey who was serving

in the Institution as a LT Grade Teacher. While appointing

against a substantive vacancy, the Management according to

the High Court, failed to adhere to the procedure

contemplated in paragraph 5 of the First Removal of the

Page 2/14 Difficulties Order, 1981. The Learned Judge in his Judgment

dated 12.04.2016 accordingly found no infirmity in the

authority’s decision, to refuse financial approval for

appellant’s appointment.

4. The above decision was challenged in the Special Appeal

where the appellant reiterated his argument that Management

is competent to appoint even against a substantive vacancy.

The full Bench Judgment in Radha Raizada vs. Committee of

Management Vidyawati Darbari Girls Inter College and Ors.1,

was cited to argue that the Managing Committee is not

denuded of its power during the ban period, to make ad hoc

appointment under Section 18 of the U.P. Act No.5 of 1982.

5. However those contentions did not impress the Division

Bench and the High Court observed in the impugned order

dated 20.05.2016 that the procedure prescribed under

paragraph 5 of the First Removal of Difficulties Order, was

disregarded by the Management, in appointing the appellant.

Accordingly, the appeal was found devoid of merit and same

was dismissed resulting in the present challenge.

11994 All.L.J. 1077

Page 3/14

6. We have heard Mr Manoj Prasad, the learned Senior

Advocate representing the appellant. The State of Uttar

Pradesh and their officers (Respondent Nos.1, 2 & 4) are

represented by Mr. Harish Pandey, the learned Counsel. We

have perused the impugned judgment and considered other the

materials on record.

7. Assailing the legality of the impugned judgment of the

Allahabad High Court, Mr Manoj Prasad, the learned Senior

Counsel projects that the appellant has served without

remuneration since 1997 and, therefore, approval for paying

his salary should have been accorded by the authorities.

According to the learned Counsel, the High Court

misconstrued the ratio in Radha Raizada. The counsel argues

that the Management of the Institution is competent to make

short term ad hoc appointment in available vacancies and

since the appellant was appointed after selection and

advertisement, his salary should have been approved by the

authorities.

8. Per contra, Mr Harish Pandey, the learned Counsel

representing the authorities of the State of Uttar Pradesh

firstly argues that during the Government imposed ban

period, the Management of the Institution had no authority

Page 4/14 to make appointment against substantive vacancy. The

Government Counsel then refers to the Uttar Pradesh

Secondary Education Services Commission Procedure (Removal

of Difficulties) Order, 1981 notified under Section 18 of

the Uttar Pradesh Act No.5 of 1982 and submits that at first

instance, the Management should attempt to fill up the

substantive vacancy by promotion and should not take

recourse to direct recruitment. Mr Pandey then refers to

the decision/ratio in Prabhat Kumar Sharma and Others vs.

State of U.P. and Ors.2, to point out that the High Court’s

Judgment in Radha Raizada(supra) was approved by this Court

and it is too late in the day for the appellant to argue

that he is entitled to financial approval for his service,

although he was unauthorizedly appointed against a

substantive vacancy, by the Managing Committee of the

Institution.

9. The UP Secondary Education Services Commission and

Selection Boards Act, 1982 hereinafter “the Act, 1982”, was

enacted to constitute Selection Committees and Selection

Boards to select teachers for appointment in Government

Aided Private Educational Institutions. Since the Commission

2(1996) 10 SCC 62

Page 5/14 failed to commence functioning before 01.11.1983, in order

to address the difficulties in the interregnum, the

Government had issued the First Uttar Pradesh Secondary

Education Service Commission (Removal of Difficulties)

Order dated 1981 followed by the 2nd Removal of the

Difficulties Order, 1981, to fill up short term vacancies.

The Section 16 of the Act of 1982, provides for recruitment

of teachers by the Commission on the requisition made by the

Management and then the selected teachers are allotted to

the Intuitions/Colleges as per their requirement. When the

Commission is unable to allot teachers, Section 18 comes

into operation and permits appointment of ad hoc teachers,

as a transient measure.

10.1 Analyzing the above prescription of the 1982 Act

and also the provisions of the Removal of the Difficulties

Order, the Allahabad High Court in Radha Raizada(supra) had

formulated for itself the following two questions to be

answered by the Full Bench:

“. . . . . . . . . . . . . . . . . . . . .

QUESTION NO. (c)

What would be the criteria and procedure for ad hoc appointment of a teacher or Principal either under Removal of

Page 6/14 Difficulties Order or under Section 18 of the U.P. Act, No. 5 of 1982?

QUESTION NO. (d)

Whether any approval or prior approval of the District Inspector of Schools or Regional Inspectors of Girls Schools, as the case may be, is necessary for making ad hoc appointment of a teacher or Principal either under Removal of Difficulties Order or under Section 18 of the Act?” . . . . . . . . . . . . . . . . . . . . .

10.2 The Court then observed the following:

“......................................

AD HOC APPOINTMENT BY PROMOTION

35. Paragraph 5 of the First Removal of Difficulties Order provides that where any vacancy cannot be filled by promotion under Paragraph 4 of the order, same may be filled by direct recruitment in accordance with the procedure laid down in Clauses 2 to 5 of Paragraph 5 of the order.

36. Second Removal of Difficulties Order provides for ad hoc appointment against the short-term vacancy in the posts of teacher caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise. Thus, these provisions show that section 18 and First Removal of Difficulties Order, both independently empower the Management of Institutions to make ad hoc appointment of teachers in the institutions.

But section 18 does not provide the method and manner of such appointment. Whereas Removal of Difficulties Order while empowering the Management of the Institutions to appoint teachers on ad hoc basis further lay down the procedure of such ad hoc appointment of teachers.

Page 7/14

37. When a substantive vacancy has been notified to the Commission and duly selected teacher is not available for appointment, controversy has arisen as to whether the management is required to appoint teacher either by direct recruitment or by promotion. The power of ad hoc appointment either by direct recruitment or by promotion can be exercised only when the management has notified the substantive vacancy to the Commission and the Commission has failed to recommend the name of suitable candidate within one year from the date of such notification or the posts of teacher has actually remained vacant for more than two months. Thus one of the two conditions is sine qua non for enabling the management to exercise the power to appoint a teacher on ad hoc basis, either by promotion or by direct recruitment in the institution. If the condition is absent, such a power to appoint on ad hoc basis either by promotion or direct recruitment is not available to the management of the institution. In case the pre-condition is found to be present, the management is first required to fill up the substantive vacancy by promotion on ad hoc basis from amongst the senior most teachers of the institution. Paragraph 4 of the First Removal of Difficulties Order provides that every vacancy in the posts of teacher in lecturer grade shall be filled by promotion of the senior most teachers in the institution in the trained graduate. Similarly, every vacancy in the post of teacher in the trained graduate (grade) is to be filled by promotion by the senior most teacher of the institution from the trained undergraduate grade C.T. (grade (now we are not concerned with it since it is reported abolished).

38. Paragraph 5 of the First Removal of Difficulties Order provides that where any

Page 8/14 vacancy cannot be filled by promotion under paragraph 4 of the Order, same may be filled by direct recruitment. Thus, it is mandatory on the part of the Management to first fill up the vacancy by promotion on the basis of seniority alone. This method has to be resorted to as the teachers are available in the institution and any other method of recruitment may cause disturbance in teaching of the institution which may affect the career of student. Another reason why the vacancy has to be filled by ad hoc appointment by promotion is that it is a short term appointment in the sense that shortly a duly selected teacher would be available for appointment against the said vacancy. So long the posts can be filled under paragraph 4 of the Order by promotion, it is not open to the Management to take resort to the power to appoint ad hoc teacher by direct recruitment under paragraph 5 of the First Removal of Difficulties Order.

AD HOC APPOINTMENT OF TEACHERS BY DIRECT RECRUITMENT:

40. It has already been noticed that Section 18 of the Principal Act provides for power to appoint a teacher purely on ad hoc basis either by promotion or by direct recruitment against the substantive vacancy in the institution when the condition precedent for exercise of powers exist namely that the Management has notified the said vacancy to the Commission in accordance with the provisions of the Act and the Commission has failed to recommend the name of any suitable candidate for being appointed as teacher within one year from the date of such notification or the post of such teacher has actually remained vacant for more than two months. However, since the State Government was alive to the situation that the

Page 9/14 establishment of the Commission may take long time and even after it is established, it may take long time to make available the required teacher in the institution and as such issued three Removal of Difficulties Orders namely Removal of Difficulties Order dated 11-9-1981, Removal of Difficulties Order dated 30-1-1982 and Removal of Difficulties Order dated 14-4-1982. In fact these Removal of Difficulties Orders were issued to remove the difficulties coming in the way of a Management in running the institution in absence of teachers. This power to appoint ad hoc teachers by direct recruitment thus, is available only when pre-conditions mentioned in Section 18 of the Act are satisfied, secondly the vacancy is substantive vacancy and thirdly, the vacancy could not be filled by promotion.

. . . . . . . . . . . . . . . . . . . . . .

Thus, if contingency arises for ad hoc appointment of teacher by direct recruitment the procedure provided under the First Removal of Difficulties Order has to be followed. Paragraph 5 of the First Removal of Difficulties Order provides that the management shall, as soon as may be, inform the District Inspector of Schools about the details of vacancy and the District Inspector of Schools shall invite application from the local employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh.

. . . . . . . . . . . . . . . . . . . . . .

41. In view of these provisions the ad hoc appointment of a teacher by direct recruitment can be resorted to only when the condition precedent for exercise of such powers as stated in paragraph 18 of the Act

Page 10/14 are present and only in the manner provided for in paragraph 5 of the Removal of Difficulties Order. However, it goes without saying that if a management without following the procedure indicated above makes an ad hoc appointment the District Inspector of Schools possess general power under the Payment of Salaries Act to stop payment of salary to such teachers.

. . . . . . . . . . . . . . . . . . . . . .”

11. The above analysis would suggest that the Management has

very limited scope to make appointment to the substantive

vacancy in their Institution. Adverting to the ratio in

Radha Raizada, the Division Bench observed in the present

impugned order that the Management of the Institution failed

to adhere to the procedure under paragraph 5 of the First

Removal of Difficulties Order, in appointing the appellant,

against a substantive vacancy. On this basis, the High

Court declined to interfere with the salary disapproval

decision of the District Inspector of Schools, Kanpur Nagar.

12. Section 18 of the Act of 1982, lays down the process

for direct appointment of ad hoc teachers but before the

Management takes any step to fill up vacancy, the conditions

laid therein must be peremptorily satisfied. The Management

is required to firstly notify the vacancy to the Commission

and in turn, the Selection Commission is expected to Page 11/14 recommend a suitable candidate within one year of such

notification. Secondly, the post should have remained vacant

for more than 2 months. Only if these two conditions are

satisfied, the Management can take short term measures.

Further stipulations to this process are provided in

paragraphs 4 and 5 of the First Removal of Difficulties

Order. As can be seen, only when the vacancy cannot be

filled by promotion under paragraph 4, the paragraph 5

permits ad hoc appointment by direct recruitment. Besides,

recourse to direct appointment is visualized only in

accordance under sub-clauses 2 to 5 of paragraph 5. It is

also important to bear in mind that when ad hoc appointments

are made under paragraph 2 of the First Removal of

Difficulties Order, the duration of such ad hoc appointment

automatically expires after six months, under paragraph

3(b) of the Order.

13. Proceeding with the above understanding of the norms the

question to be decided now is whether the High Court was

correct in its view that the Management of the Institution,

did not adhere to the procedure prescribed under the First

Removal of Difficulties Order to make appointment against a

substantive vacancy. The paragraph 2 of the Removal of

Page 12/14 Difficulties Order, was substituted by the 2nd Removal of

the Difficulties Order, which enabled the Management to make

appointment against substantive vacancy either by promotion

or by direct recruitment. In the present matter, it was not

the District Inspector of Schools but the Management, which

resolved to appoint the appellant. But as earlier

discussed, this is contrary to the prescribed process in

paragraph 5(4) of the First Removal of Difficulties Order.

The learned Single Judge in the High Court specifically

noted that there was no adherence to the procedure

prescribed under paragraph 5 of the First Removal of

Difficulties Order. There was concurrence of views of the

learned Single Judge and the Division Bench to the effect

that the State authorities rightly denied financial approval

to the illegal appointment of the appellant.

14. When the impugned judgment is analysed in light of the

applicable norms, there is no escape from the conclusion

that the appellant’s appointment by the Management, was not

in accordance with paragraph 5 of the Removal of

Difficulties Order. We are also of the view that the ratio

in Radha Raizada (supra) of the Allahabad High Court

(approved by the Supreme Court in Prabhat Kumar Sharma Page 13/14 (supra)) was correctly applied to the present facts. The

State coffer should not according to us, be burdened with

salary obligation for an appointment, not made by them. The

decision repudiating the salary claim for the appellant is

also found to be in order since the Management failed to

adhere to the due process in filling up the substantive

vacancy. Moreover, the State had imposed a ban on

appointment during the relevant period. Therefore, the

appellant cannot enforce a claim for salary against the

State. The Appeal accordingly is found devoid of merit and

is dismissed. The parties to bear their respective cost.

………………………………………………J. [R.BANUMATHI]

………………………………………………J. [A.S.BOPANNA]

………………………………………………J. [HRISHIKESH ROY]

NEW DELHI NOVEMBER 6, 2019

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