PETITIONER:
PRABHAT KUMAR SHARMA & ORS.
Vs.
RESPONDENT:
STATE OF U.P. & ORS.
DATE OF JUDGMENT: 10/07/1996
BENCH:
K. RAMASWAMY, G.B.PATTANAIK
ACT
HEADNOTE
JUDGMENT
ORDER
This special leave petition arises from the judgment and order dated March 27, 1996 made by Allahabad High Court in Special Appeal No.258 of 1996. The petitioners came to join as L.T. Grade teachers in S.S.V. Inter College, Ghaziabad. It is claimed that 16 substantive vacancies had arisen in the said college and the intimation thereof was claimed to have been issued to the U.P. Secondary Education Services Commission at Allahabad [for short, the "Commission"]. But before recommendation came to be made by the Commission for appointment of the teachers, advertisement notifying the said 16 vacancies appears to have been issued in two newspapers on June 28 and July 3, 1991 and interviews are claimed to have been conducted by the Management of the said college on July 12, 1991 and the petitioners were allowed as stated above, to join as teachers on July 15 and 16, 1991 When papers were sent on November 2, 1931 to District Inspector of Schools, Ghaziabad for according financial sanction to make payment of their salaries, he made certain queries regarding vacancies and the procedure adopted in making their appointments by proceedings dated December 19, 1991. Thereon the writ petition bearing No.20128 of 1992 was filed and is stated to have been allowed by the High Court. Thereon, since salaries were not paid, they filed another writ petition bearing No.26646 of 1992. In the meanwhile, an appeal same to be filed against the order in the first writ petition. The Division Bench dismissed the appeal but on appeal arising out of the special Leave Petition No.12338 of 1994, this Court on August 8, 1994 set aside the High Court’s order and remitted the matter to ascertain whether appointments had beer made properly and in accordance with law. The learned single Judge in an elaborate judgment dated February 27, 1996 held that the Management claimed to have selected the petitioners and made them to join duty without issuing any letters of appointment before expiry of two months’ period required under Section 16 and the appointments were not made in accordance with Section 18 of the U.P. Secondary Services Commission and Selection Board Act, 1982 [5 of 1982] [for short, the "Act" read with First Uttar Pradesh Secondary Education Services Commission and Selection Board Removal of Difficulties Order, 1381 [for short, the "First 1981 Order"]. The learned single Judge held that the selection and appointment of the petitioners, therefore, were not in accordance with law. On appeal the Division Bench upheld the same. Thus this special leave petition.
Shri P.P. Rao, learned senior counsel, contended that the U.P. Secondary Education Services Commission and Selection Board Ordinance, 1981 [Ordinance No.8 of 1981] was enacted to constitute Selection Committees and Board to male available teacher recruited by the Commission or the Board for appointment in Government aided private educational institutions. prior to the Act, appointment to the posts of teachers and principals in those institutions used to be made by the Management such institution in the manner envisaged under the U.P, Intermediate Education Act, 1921. Since the Commission could not start functioning prior to November 1, 1983 the Government had issued First 1981 Order which into force w.e.f. July 31, 1981 for making ad hoc appointments to substantive vacancies and Second Removal of Difficulties Order, 1981 which came into force w.e.f. September 11, 1981 to fill up short-term vacancies as per the procedure prescribed thereunder. After the Commission started functioning from November 1, 1983, the First 1981 Order outlived its purpose. The U.P. Secondary Education Service Commission and Selection Board Act, 1981 was further amended by the Act which came into force with retrospective effect from July 14, 1981. Section 16 of Act provides procedure for recruitment of the teachers by the Commission and allotment of the selected teachers to the institutions/colleges as per the requisition. On its failure to allot the teachers, Section 18 cames into play and gives power appointment of ad hoc teachers in accordance with the procedure prescribed thereunder. The removal of difficulties is only transient and is effective during its operational efficacy since the Commission did not function prior to from November 1, 1983. The first 1981 Order and the procedure prescribed thereunder for selection and appointment of ad hoc teachers would no longer be available. The Full Bench of the Allahabad High Court in Radha Raizada & Ors. Vs. Committee of Management, Vidyawati Darbari Girls College & Ors [1994 (3) U.P.L.B.E.C. 1551] had not properly considered the effect of the First 1981 Order. The appointments of the petitioners, therefore, were not validly made in accordance with the procedure prescribed under Section 18 of the 1981 Act. The learned single Judge and the Division Bench, therefore, were not right in their conclusion that the appointments of the petitioners were not valid in law. We find no force in the contention.
It is true that Section 16 of the Act prescribes procedure for appointment of teachers by the Commission. The said section reads as under:
"16. Appointments to be made only
on recommendations of the
Commission or the Board.(1)
Notwithstanding anything to the
contrary contained in the
Intermediate Education Act, 1521 or
the Regulations made thereunder but
subject to the provision of
Sections 18 and 33
(a) every appointment of a teacher
specified in the Schedule
shall, on or after July 10,
1981, be made by the
management only on the
recommendation of the
Commission;
(b) every appointment of a teacher
(other than a teacher
specified in the Schedule)
shall, on or after July 10,
1981 be made by the management
only on the recommendation of
the Board:
Provided that in respect of
retrenched employees, the
provisions of Section 16-EE of the
Intermediate Education Act, 1921,
shall apply with the modification
that in sub-section (2) of the
aforesaid section, for the word
’six months’ the words ’two years
shall be deemed to have been
substituted.
(2) Every appointment of a teacher,
in contravention of the provisions
of sub section (1), shall be void.
Section 18 of the Act speaks of the procedure for appointment of ad hoc teachers and reads as under:
"18.Ad hoc Teachers.-(i) Where the
management has notified a vacancy
to the Commission in accordance
with the provisions of the Act,
and-
(a) the Commission has failed to
recommend the name of any
suitable candidate for being
appointed as a teacher
specified in the Schedule
within one year from the date
of such notification; or
(b) the post of such teacher has
actually remained vacant for
more than two months, then
the management may appoint, by
direct recruitment or
promotion, a teacher on purely
ad hoc basis from amongst the
persons possessing
qualifications prescribed
under the Intermediate
Education Act, 1921 or the
regulations made thereunder.
(2) The provisions of sub-section
(1) shall also apply to the
appointment of a teacher (other
than a teacher specified in the
Schedule) on ad hoc basis with the
substitution of the expression
’Board’ for the expression
"Commission". (3) Every appointment of an ad hoc
teacher under sub-section (1) or
subsection (2) shall cease to have
effect from the earliest of the
following dates, namely
(a) when the candidate recommended
by the Commission or the
Boards as the case may be,
joins the post;
(b) then the period of one month
referred to in sub-section (4)
of Section expires;
(c) thirtieth day of June following
the date of such ad hoc
appointment.
Section 33 of the Act empowers the State Government to issue by a notification order for removal of difficulties in implementation of, and to give effect to the Act by way of modifications addition or omission, as it may be deemed necessary or expedient In exercise of this power, the First 1981 Order came to be made. Para 5 of the First 1581 Order which is relevant for our purpose reads as under:
"5 - Ad hoc appointment by direct
recruitment.
(i) Where any vacancy cannot to
filled by promotion under
paragraph 4, the same may be
filled by direct recruitment
in accordance with clauses (2)
to 5
(ii) The Management shall as soon
as may be, inform the District
Inspector of Schools about the
details of the vacancy and
such Inspector shall invite
applications from the Local
Employment Exchange and also
through public advertisements
in at least two newspapers.
(iii)Every application referred to
in clause (2) shall be
addressed to the District
Inspector of Schools and shall
be accompanied-
(a) by a crossed postal order
worth ten rupees payable
to such Inspector.
(b) by a self addressed
envelop bearing postal
stamp for purposes of
registration.
(iv) The Distt. Inspector of
Schools shall cause the best
candidates selected on the
basis of quality points
specified in Appendix. The
complication of quality points
may be done on remunerative
basis by retired Gazetted
Government servants under the
personal supervision of such
Inspector.
(v) If more than one teacher or the
same subject or category is to
be recruited for more than one
institution, the names cf
selected teachers and names of
the institution shall be
arranged in Hindi alphabetical
order. The candidate whose
name appears on the top of the
list shall be allotted to the
institution the name whereof
appears on the top of the list
of institution, This process
shall be repeated till both
the lists are exhausted."
We are not concerned in this case with the Second Removal of Difficulties Order 1981 which deal with filling up of short-term vacancies of ad hoc teachers. It is, therefore, not necessary to deal with the procedure prescribed in that behalf. The Full Bench as elaborately considered the legislative history. In paragraphs 23 and 27 it had dealt with the amendments to the U.P. Intermediate Education Act, 1921 and various provisions of Ordinance 8 of 1981. The object was to provide teachers selected through the Commission or the Board with a view to raise the standard of education and in the event of there being delay in allotting the selected teachers, with view to allow the institution to appoint teachers on ad hoc basis so as to avoid hardship to the students. Procedure and Section 18 was provided for appointment of such teachers in the institutions purely on ad hoc basis in accordance with the procedure prescribed thereunder. The method of recruitment and appointment of such teachers is regulated in para 5 of the First 1981 Order The appointment, therefore, should be made in accordance with the said procedure. In paragraph 41 of the judgment, it has expressly dealt with a appointment as under:
"41 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 a teacher within one
year from the date of such
notification of 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
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 issue three Removal of
Difficulties Order dated 30.1.82
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, it available only
when pre-conditions mentioned in
Section 187 of the Act are
satisfied, secondly, the vacancy is
substantive vacancy and thirdly,
the vacancy could not be filled by
promotion. Neither the Act nor the
Removal of Difficulties order
defined vacancy. However, the
vacancy has been defined in Rule
2(11) of U.P. Secondary Education
Services Commission Rules 1983.
’Vacancy’ means ’a vacancy arising
out as a result of death,
retirement, resignation,
termination, dismissal, creation of
new post or appointment prevention
of the incumbent to any higher post
in substantive capacity. Thus,
both under Section 18 of the Act
and under the Removal of
Difficulties Order, the Management
of an institution is empowered to
make ad hoc appointment by direct
recruitment, in the manner laid
down in paragraph 5 of the First
Removal of Difficulties Order only
when such vacancy cannot be filled
promotion and for a period till a
candidate duly selected by the
Commission joins the post. As
noticed earlier both Section 18 of
the Act and the provisions of First
Removal of Difficulties Order
provide for ad hoc appointment of
teacher in the institution, later
further providing for method and
manner of such appointments are
part of the scheme. Scheme being
provision for ad hoc appointment of
teacher in the absence of duly
selected teachers by the
Commission. The provisions may be
two but the power to appoint is one
and the same and, therefore, the
provisions contained in Section 18
and Removal of Difficulties Order
are to harmonized. It is,
therefore, not correct to say that
appointment of a teacher on ad hoc
basis is either under Section 18 of
the Act or under the Removal of
Difficulties Order. 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 applications from the
local Employment Exchange and also
through public advertisement in at
least two newspapers having
adequate circulation in Uttar
Pradesh. Sub paragraph (3) of
paragraph 5 further provides that
every such application shall be
addressed to the District Inspector
of Schools. Sub paragraph (4) of
paragraph 5 of the Removal of
Difficulties Order provides that
the District Inspector of Schools
shall cause the best candidate
selected on the basis of quality
point specified in Appendix. The
complication of quality point may
be done by the Retired Government
Gazetted Officer, in the personal
supervision of the Inspector.
Paragraph 6 of the First Removal of
Difficulties Order further provides
for appointment of such teacher
under paragraph 5 who shall possess
such essential qualification as
laid down in Appendix A referred to
in the Regulation 1 of Chapter II
of the Regulations made in the
Intermediate Education Act.
42. 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 are present and only in the
manner provided in paragraph 5 of
the Removal of Difficulties Order."
".......Thus, both under Section 18
of the Act and under the Removal of
Difficulties Order the Management
of an institution is empowered to
make ad hoc appointment by direct
recruitment, in the manner laid
down in paragraph 5 of the First
Removal of Difficulties Order only
when such vacancy cannot be filled
by promotion and for a period till
a candidate duly selected by the
Commission, joins the post. Both
Section 18 of the Act and the
provisions of First Removal of
Difficulties Order provide for ad
hoc appointment of teacher in the
institution, later further
providing for method and manner of
such appointments are part of one
scheme. Scheme being provision for
ad hoc appointments of teacher in
the absence of duly selected
teachers by the Commission. The
provisions may be two but the power
to appoint is one and the same and,
therefore, the provisions contained
in Section 18 and Removal of
Difficulties Order are to
harmonised. It is therefore, not
correct to say that appointment of
a teacher on ad hoc basis is either
under Section 18 of the Act or
under the First Removal of
Difficulties Order. 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."
It would thus be clear that any ad hoc appointment of the teachers under Section 18 shall be only transient in nature. pending allotment of the teachers selected by the Commission and recommended for appointment, Such ad hoc appointments should also be made in accordance with the procedure prescribed in para 5 of the First 1981 Order which was later streamlined in the amended Section 18 of the Act with which we are not presently concerned. Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees. The removal of difficulties envisaged under Section 33 was effective not only during the period when the Commission was not constituted but also even thereafter as is evident from second paragraph or the preamble to the First 1981 Order which reads as under:
"And whereas the establishment of
the Commission and the Selection
Boards as likely to take some time
and even after the establishment
of the said Commission and Boards,
it is not possible to make
selection of the teachers for the
first few months."
In Re The Delhi Laws Act. 1912, The Ajmer- Merwara [Extension of Laws ] Act, 1947 and The Para C States [Laws] Act, 1950 [ 1951 SCR 747 at 846 ] this had dealt with the power of modification and held thus:
"I will now deal with the power of
modification which depends on the
meaning of the words "with such
modifications as it thinks fit".
These are not unfamiliar words and
they are often used by careful
draftsmen to enable laws which are
applicable to one place or object
to be so adapted as to apply to
another. The power of introducing
necessary restrictions and
modifications is incidental to the
power to apply or adapt the law,
and in the context in which the
provision as to modification occurs
it cannot bear the sinister sense
attributed to it. The modifications
are to be made within the framework
of the Act and they cannot be such
as to affect its identity or
structure or the essential purpose
to be served by it. The power to
modify certainly involves a
discretion to make suitable
changes, but it would be useless to
give an authority the power to
adapt a law without giving it the
power to make suitable changes". At page 849, this Court had further held thus:
"Similar instances may be
multiplied, but the will serve no
useful purpose. The main
justification for a provision
empowering modifications to be
made, is laid to be that, but for
it, the Bill would take longer to
be made ready, and wholesome
measures would be delayed, and that
once the Act become operative, any
defect in its provisions cannot be
removed until amending legislation
is passed. It is also pointed out
that the power to modify within
certain circumscribed limits does
not go as far as many other powers
which are vested by the legislature
in high officials and public bodies
through whom it decides to act in
certain matters." In Mahadeva Upendra Sinai etc. etc. v. Union of India & Ors. [(1975) 2 SCR 640 at 653 ] This Court had held thus:
"To keep pace with the rapidly
increasing responsibilities of a
Welfare turn out a plethora of
hurried legislation, the volume of
which is often matched. with its
complexity. Under conditions of
extreme pressure, with heavy
demands on the time of the
legislature and the endurance and
skill of the draftsman, if is well
high impossible to force all the
circumstances to deal with which a
statute is enacted or to anticipate
all the difficulties that might
arise in its working due to
peculiar local conditions or even a
local law. This is particularly
true when Parliament undertakes
legislation which gives a new
dimension to socioeconomic
activities of the State or extends
the existing Indian laws to new
territories or areas freshly merged
in the Union of India. In order to
adviate the necessity of
approaching the legislature for
removal or very difficult,
howsoever Trival, encountered in
the enforcement of a statute, by
going through the time-consuming
amendatory process, the legislature
sometimes thinks it expedient to
invest the Executive with a very
limited power to make minor
adaptations and peripheral
adjustments in the statute, for
making, without touching its
substance."
These principles are unexceptionable. However, the question is whether they get attracted to the facts of this case. It is seen that when intimation was given by the college to the Commission for allotment of the teachers, the Act envisaged that within one year the recommendation would be made by the Commission for appointment; but within two months from the date of the intimation if the allotment of the selected candidates is not made to obviate the difficulty of the Management in imparting education to the students, Section 18 gives power to the Management to make ad hoc appointments. Section 16 is mandatory. 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 in-built procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the Management to any posts in aided institution. It is obvious that when the salary is paid by the State to the Government aided private educational institutions, public interest demands that the teachers’ selection must be in accordance with the procedure prescribed under the Act read with the First 1981 Order. Therefore, the Order is a permanent one but not transient as contended for. The Full Bench of the High Court has elaborately considered the effect of the Order and for cogent and valid reasons it has held that the Order will supplement the power to select and appoint ad hoc teachers as per the procedure prescribed under Section 18 of the Act. The view taken by the Division Bench following the Full Bench decision, therefore, cannot be faulted with. Accordingly, we find no merit in special leave petition.
The special leave petition is accordingly dismissed.