[REPORTABLE]

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

decision  dated  16.02.2000  of  the  District  Inspector  of

Schools,  Kanpur  Nagar  whereunder,  the  appellant’s

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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

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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

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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

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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

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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

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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.  

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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

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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

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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

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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

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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

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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

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(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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