# Abhishek Tripathi v. State of U.P. & Ors

- **Citation:** (2016) 1 ILRA 25
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-12-17
- **Case number:** Writ Petition No. 655 (S/S) of 2014
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Shri Narayan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhishek-tripathi-v-state-of-u-p-ors-43422
- **Pages:** 18

## Headnote

Uttar Pradesh Intermediate Education Act1921-Section 16-E-ii-Ad-hoc appointment
of teachers-except on recommendation of
board-no appointment can be made-after
enforcement of Act 1982-in case of
delay-management
can
appoint
for
period not exceeding six months or till
end of academic session-view taken in
Sanjay Singh case not be upheld as
laying down correct law-overruled-but
judgment in Pradeep Kumar upheld.
Held: Para-49
For these reasons, we have come to the
conclusion that the view of the learned
Single Judge in Sanjay Singh's case (supra)
cannot be upheld as laying down the correct
position in law. The view of the learned
Single
Judge
shall
stand,
accordingly,
overruled. The judgment in Pradeep Kumar
(supra) is upheld subject to the principles
which, we have enunciated in this judgment.
Case Law discussed:
(2013) 1 UPLBEC 758; Writ-A No. 22520 of
2013(decided on 1 May 2013); 2010 (28) LCD
1375; (1995) 6 SCC 749; 2015 (33) LCD 2402;
(1997) 2 UPLBEC 1329; 1994 (3) UPLBEC
1551; (1996) 10 SCC 62; (2008) 5 SCC 241;
(2010) 11 SCC 694; (2009) 15 SCC 436;
(2008) 7 SCC 153; (2008) 17 SCC 617; (2010)
4 SCC 393; (2011) 10 SCC 259.

## Text

_Characters 0–39,887 of 59,905. This is a partial read: ask again with offset=39887 for what follows._

1 All.
Abhishek Tripathi Vs. State of U.P. & Ors.
25
learned Single Judge, both on legal and
factual grounds. The aforesaid exercise of
filing of the appeal by the State, therefore, at
this belated stage has neither been validly
explained on delay nor is there any plausible
argument so as to find out a ray of hope on
the
merits
of
the
claim
as
well.
Consequently, for all the reasons aforesaid
this exercise of drafting and filing of the
appeal does not appear to be for protecting
the interest of the State or raising a valid
challenge to the learned Single Judge
judgement on any legal grounds. The entire
exercise of filing of the appeal appears to
have been raised on the asking of the legal
department without there being any cogent
ground available to raise a challenge and
without there being any plausible explanation
for the delay.
10. We cannot appreciate such
litigations being encouraged by the State
when the courts are already filled with a
heavy docket of pendency. Adding a
litigation which cannot bear any results
and that too even in a highly belated
manner therefore cannot be appreciated.
11. The appeal is dismissed with
Rs.10,000/- as costs.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.12.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE SHRI NARAYAN SHUKLA, J.
Writ Petition No. 655 (S/S) of 2014
Abhishek Tripathi
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Jay Krishna Shukla, Sri Rama Pati
Shukla, Sri HGS Parihar, Ms. Meenakshi
Singh, Sri Ramesh Pandey
Counsel for the Respondents:
C.S.C., Sri S.K. Yadav Warshi, Sri H.P.
Srivastava
Uttar Pradesh Intermediate Education Act1921-Section 16-E-ii-Ad-hoc appointment
of teachers-except on recommendation of
board-no appointment can be made-after
enforcement of Act 1982-in case of
delay-management
can
appoint
for
period not exceeding six months or till
end of academic session-view taken in
Sanjay Singh case not be upheld as
laying down correct law-overruled-but
judgment in Pradeep Kumar upheld.
Held: Para-49
For these reasons, we have come to the
conclusion that the view of the learned
Single Judge in Sanjay Singh's case (supra)
cannot be upheld as laying down the correct
position in law. The view of the learned
Single
Judge
shall
stand,
accordingly,
overruled. The judgment in Pradeep Kumar
(supra) is upheld subject to the principles
which, we have enunciated in this judgment.
Case Law discussed:
(2013) 1 UPLBEC 758; Writ-A No. 22520 of
2013(decided on 1 May 2013); 2010 (28) LCD
1375; (1995) 6 SCC 749; 2015 (33) LCD 2402;
(1997) 2 UPLBEC 1329; 1994 (3) UPLBEC
1551; (1996) 10 SCC 62; (2008) 5 SCC 241;
(2010) 11 SCC 694; (2009) 15 SCC 436;
(2008) 7 SCC 153; (2008) 17 SCC 617; (2010)
4 SCC 393; (2011) 10 SCC 259.
(Delivered by Hon'ble D. Y Chandrachud, C.J.)
The reference
1.
The present reference before the
Division Bench has arisen from a referring
order dated 3 February 2014 of a learned
Single Judge. Noticing a conflict between two
judgments of the learned Single Judges of this
26
 INDIAN LAW REPORTS ALLAHABAD SERIES
Court, while construing the provisions of the
Uttar Pradesh Intermediate Education Act,
19211 and the Uttar Pradesh Secondary
Education Services Selection Board Act,
19822, the learned Single Judge referred the
difference of opinion that has arisen for being
resolved by a Division Bench. The two
judgments of the learned Single Judges in
which the difference of opinion has arisen are:
(i) Sanjay Singh Vs State of Uttar
Pradesh & Ors.3; and
(ii) Pradeep Kumar Vs State of Uttar
Pradesh & Ors.4
Facts
2.
Briefly stated, the facts in the
referring judgment are that Lokmanya Tilak
Inter
College,
Pratapgarh
is
a
nongovernment recognized and aided institution
governed by the provisions of the Act of
1921 and the Act of 1982. The College is on
the grant-in-aid list of the State Government
and salaries are paid under the provisions of
the Uttar Pradesh High School and
Intermediate Colleges (Payment of Salaries
to the teachers and other staff of the College)
Act, 19715. A post of a Lecturer in Hindi fell
vacant on the retirement of a substantively
appointed teacher on 30 June 2013. On 1
July 2013, the institution sent a request to the
District Inspector of Schools to make an
appointment on the post. The Manager of the
College, finding that no teacher was made
available, decided to fill up the post on a
temporary or ad hoc basis invoking the
provisions of Section 16-E (11) of the Act of
1921. After the vacancy was advertised by
the
Committee
of
Management,
the
petitioner was selected by a selection
committee and was appointed as a Lecturer
in Hindi until a regularly selected candidate
was made available by the Uttar Pradesh
Secondary Education Services Selection
Board6. The petitioner, who is working since
then, sought a writ of mandamus requiring
the State to allow him to continue to work
and to pay his salary for the post of Lecturer
in Hindi from the State exchequer until a
regularly selected candidate provided by the
Board is made available.
Rival positions
3. In support of the case, the petitioner
has relied upon the judgment of a learned
Single Judge of this Court in Sanjay Singh
(supra). The issue which arose before the
learned Single Judge was in respect of
persons who are appointed as Assistant
Teachers or Lecturers against substantive
vacancies or against short term vacancies
which were subsequently converted into
substantive vacancies in the Inter Colleges
across the State of Uttar Pradesh.
4.
The contention of the State is that
after the enforcement of the Act of 1982 in
the State of Uttar Pradesh, the Committee of
Management had no right to select or appoint
candidates against substantive vacancies in
the posts of Assistant Teachers or Lecturers.
On the other hand, the case of the
Managements is that since the Board
constituted under the Act of 1982 has not
been able to send selected candidates, the
institutions were entitled to appoint persons
on an ad hoc basis until regularly selected
candidates become available and the State
would be liable to pay salaries to these
teachers out of the grant made available to
the institutions.
The decision in Sanjay Singh
5. The learned Single Judge in
Sanjay
Singh
(supra)
accepted
the
submission which was urged on behalf of
the Management. The learned Single
1 All.
Abhishek Tripathi Vs. State of U.P. & Ors.
27
Judge observed that there was no dispute
about the legal position that after the
enforcement of the Act of 1982, no
Committee of Management would have
the power to make an appointment against
a permanent vacancy. This position of law
which, as we shall notice is not in dispute,
has been set out in the following
observations of the learned Single Judge:
"Broadly speaking there is consensus
in all the judgments that after the
enactment of U.P. Secondary Education
Services Selection Board Act, 1982, the
committee of management does not have
any power to make appointment on a
permanent vacancy.
... ... ...
Petitioners
have
taken
various
contentions to prove that committee of
management
has
power
to
appoint
teachers but since this controversy has
been settled by Division Bench in Daya
Shankar
Mishra's
case7
which
is
authoritative
on
this
subject;
no
contention can be entertained by this
Court. Thus, committee of management
do not have any power to appoint as it is
law laid down by Division Bench
(supra)."
(The reference to the decision of the
Division Bench in the aforesaid extract is
to the judgment in Daya Shankar Mishra
Vs
District
Inspector
of
Schools,
Allahabad (supra) which arose upon a
reference by a learned Single Judge).
However, having held that the Committee
of Management would not have the power
to make an appointment against a
substantive vacancy, the learned Single
Judge was of the view that some
modalities had to be worked out to deal
with a situation where the Board was
unable over a long period to provide
selected
candidates
for
filling
up
substantive vacancies. In the view of the
learned Single Judge, no steps have been
taken by the State either to bring in
legislation or an executive direction. The
learned Single Judge formulated the issue
for consideration before the Court in that
regard in the following terms:
"(4) Lastly, should not the Court try
to device (sic) some methodology by
which the bleeding ignorance can be
arrested in time to help 'knowledge and
education' which are gasping for help at
the hands of careless caretakers."
6. The view which was formulated
by the learned Single Judge was as
follows:
"The question which is troubling the
conscience of the Court is reflected in
above preposition (sic). The State has
miserably failed in providing teachers to
the institutions to fill up a permanent
vacancy in less than three to four years.
The same State through its legislation
denies power to the committee of
management to appoint qualified teachers
to impart education in their institutions.
Petitions are filed before the Courts for
payment of salary to the teachers who in
exigency of the situation are appointed by
the committee of management as a last
resort to salvage the situation. To keep the
torch of knowledge burning lest it fades
out and merges in darkness of ignorance.
The moot question remains:- what is the
step to be taken by the Court? Should
This Court close its eyes to the situation
and once again leave the matter by
direction to the State Government to
provide remedy (this experiment of the
judiciary has failed in last ten years) or
some method should be formulated to
keep the work of education going and to
save the students from ignorance, non-
28
 INDIAN LAW REPORTS ALLAHABAD SERIES
education and illiteracy. The Court
chooses the second option."
7. Accordingly, the following
conclusion was arrived at:
"The Court comes to the conclusion
that in case the Board has failed to
provide selected candidates even after
three months of requisition and the
committee of management has appointed
a duly qualified teacher after due
advertisement
in
two
newspapers,
evaluated by a selection committee,
permanent post is available, laws of
reservation have been followed and
qualification is not in doubt then salary
should be paid to such teacher till the time
regularly selected candidate is sent by the
Board. The Court hastens to add that
appointment of such a teacher is not to be
validated in any manner. He does not
acquire any right of a regularly selected
candidate. This order also does not allow
the committee of management to think
that they have been given any power of
appointment by this order. The order of
the Court is being passed only as a
desperate measure to keep the education
of the students available to them as
guaranteed by the Constitution of India."
8. The District Inspector of Schools
was directed to make the payment of
salary to the petitioner whose ad hoc
appointment was to continue until a
regularly selected candidate was made
available by the Board.
The decision in Pradeep Kumar
9.
Subsequently, in a judgment
rendered on 1 May 2013 in Pradeep Kumar
(supra), a writ of mandamus was sought to
the State to ensure the payment of salary to
an assistant teacher in an Intermediate
College governed by the Act of 1921 and the
Act of 1982. In that case, upon retirement of
an assistant teacher, the Management made a
requisition to the Board. Since the Board did
not provide a candidate, the Management
proceeded to advertise the vacancy and made
a selection which was forwarded to the
District Inspector of Schools for approval.
Not having obtained an approval, the
Management filed a writ petition in which
reliance was placed on the decision in Sanjay
Singh (supra). The learned Single Judge took
notice of the provisions of Section 16 of the
Act 1982 under which, an appointment of a
teacher, after the enforcement of the
provisions, can be made only on the
recommendation of the Board failing which
the appointment made would be void. In the
view of the learned Single Judge, an
appointment
by
the
Committee
of
Management against a substantive vacancy
was without any authority and hence, a
direction for the payment of salary from the
public exchequer could not be issued. The
conclusion of the learned Single Judge was
in the following terms:
"Appointment on substantive vacancy
in a recognized intermediate college is
regulated by the provisions of Act,1982.
Section 16 of Act, 1982 declares that
appointment shall only be made on the
recommendation of the Selection Board and
any appointment otherwise would be void.
The Act as on date contains no provision for
any ad-hoc/temporary appointment being
made. Consequently, so far as the Act, 1982
is concerned, no selection for appointment
can be made by the Committee of
Management.
This Court may record that Section
16-E
(11)
of
Act,
1921
permits
appointment on temporary vacancy by the
Committee of Management only for a
1 All.
Abhishek Tripathi Vs. State of U.P. & Ors.
29
period not exceeding six months or till the
end of academic session, otherwise, Act,
1921 does not contemplate any adhoc/temporary appointment.
In view of the aforesaid, there being no
statutory
provision
permitting
such
appointment as has been made by the
Committee of Management of the institution,
against the substantive vacancy. There cannot
be a direction to the State Government to
make payment of salary through public
exchequer."
10. The learned Single Judge held that
if a delay occurs in making a selection by the
Board and there is a shortage of teachers in
the institution, the Management cannot adopt
its own procedure for appointment and the
proper remedy available to the Management
is to approach the High Court for a
mandamus against the Board to make an
appointment
at
the
earliest
possible.
However, if the Management makes an
appointment on its own accord, that would
be contrary to law and in the view of the
learned Single Judge, the liability for
payment of salary to such a teacher would
fall only upon the Management. In the
decision in Pradeep Kumar (supra), the
learned Single Judge took notice of the
earlier judgment in Sanjay Singh (supra), but
held that the decision does not provide what
procedure is to be followed and what method
is to be adopted for selection nor can the
High Court issue such a direction under
Article 226 of the Constitution. The
conclusion of the learned Single Judge was
in the following terms:
"In these circumstances, merely
because the management has made
appointment of a person, who is qualified
in terms of the Appendix-A, it will not
mean that the said appointment is in
accordance with law. In view of Section
16 of Act, 1982, it would be a nullity. No
appointment against substantive vacancy can
be made except on the recommendation of
the Selection Board in view of the law as it
stands today. Reference Smt. Prameela
Mishra vs. State of U.P. & others; 1997 (2)
UPLBEC 1329 and Surendra Kumar
Srivastava vs. State of U.P. & others; 2007
(1) ESC 118."
11. The petition was, accordingly,
dismissed.
The referring judgment
12. In the referring order of 3
February 2014, the learned Single Judge
has adverted to the provisions of Section
16 of the Act of 1982 under which,
notwithstanding
anything
contrary
contained in the Act of 1921, an
appointment of a teacher shall be made by
the
Management
only
on
the
recommendation of the Board. The
learned Single Judge held thus:
"The law as has been evolved over
the years clearly demonstrates that the
legislature as well as the executive has
gradually taken over the appointment of
teachers both temporary/ad-hoc as well as
permanent
from
the
Committee
of
Management and has placed it in the
hands of Selection Board by providing for
a detailed mechanism for selection which
meets the test under Articles 14 and 16 of
the Constitution of India. The burden of
salary is upon the State Exchequer.
Permitting the Committee of Management
to make appointments till the selection of
regularly
selected
candidates
or
recommended by the Selection Board
without
following
any
procedure
prescribed and without the education
officers having any control, the selections
30
 INDIAN LAW REPORTS ALLAHABAD SERIES
even if temporary would be violative of
Articles 14 and 16 of the Constitution of
India as well as reservation laws. Purpose
of Article 21-A of the Constitution can be
enforced only by a procedure established
by law and any appointment made in
violation of the provisions of the law
cannot be held to sub-serve the purpose of
Article 21-A."
13. In the view of the learned Single
Judge, the decision in Sanjay Singh
(supra) would virtually amount to rewriting
legislation,
which
is
impermissible. On this foundation, the
following questions have been referred
for adjudication by the Division Bench:
"1. Which of the two cases namely
Sanjai Singh Versus State of U.P. and
others in Writ Petition No. 3348 of (SS)
of 2012 or Pradeep Kumar Versus State
of U.P. and others in Writ Petition No.
22520 of 2013, lays down the correct law.
2. Scope of Section 16-E(11) of the
Intermediate Act, 1921 read with Sections
16, 22, 32 and 33-E of the U.P. Secondary
Education Service Selection Board Act,
1982."
14. The second issue is one of
interpretation.
15. Before we turn to the
submissions which were urged on behalf
of the petitioner by learned counsel, it
would be necessary to advert to the
provisions of the relevant legislation on
the subject. In the present case, the three
enactments of the State legislature, which
have a bearing on the subject matter, are:
(i) The Uttar Pradesh Intermediate
Education Act, 1921 ("The Intermediate
Education Act, 1921");
(ii) The Uttar Pradesh Secondary
Education Services Selection Board Act,
1982 ("Act of 1982"); and
(iii) The Uttar Pradesh High School
and Intermediate Colleges (Payment of
Salaries to the Teachers and Other Staff
of the Colleges) Act, 1971 ("Payment of
Salaries Act, 1971").
The Intermediate Education Act,
1921
16.
The Intermediate Education Act,
1921 is inter alia intended to govern
recognized Intermediate colleges, higher
secondary schools or high schools. The Act
constituted the Board of High School and
Intermediate
Education.
Section
16-E
provides for the procedure for selection of
teachers and heads of institutions. Under subsection (1) of Section 16-E, the head of an
institution and teachers are to be appointed
by the Committee of Management in the
manner thereafter provided. Sub-section (11)
provides for appointments to be made against
temporary vacancies caused by the grant of
leave to an incumbent for a period not
exceeding
six
months
or
by
death,
termination or otherwise. Sub-section (11) of
Section 16-E is in the following terms:
"(11)
Notwithstanding
anything
contained in the foregoing sub-sections,
appointments in the case of a temporary
vacancy caused by the grant of leave to an
incumbent for a period not exceeding six
months or by death, termination or
otherwise of an incumbent occurring
during an educational session, may be
made by direct recruitment or promotion
without
reference
to
the
Selection
Committee in such manner and subject to
such conditions as may be prescribed:
Provided that no appointment made
under this sub-section shall, in any case,
1 All.
Abhishek Tripathi Vs. State of U.P. & Ors.
31
continue
beyond
the
end
of
the
educational session during which such
appointment was made."
17.
Regulations have been framed
under the Act and insofar as is material,
Regulation 13 of Chapter I empowers the
Committee
of
Management
to
make
appointments, confirmations, promotions
and to decide disciplinary matters, including
removal and dismissal of the heads of
institutions and teachers therein. Chapter-II
of the Regulations provides for the
appointment of the heads of institutions and
teachers. Regulation 9 of Chapter-II provides
for filling up a vacancy in the post of a
teacher for a period exceeding six months
where a vacancy has arisen by grant of leave
or where a teacher is placed under
suspension duly approved in writing by the
Inspector and the period of suspension is
likely to exceed six months from the date of
approval. Regulation 19 of Chapter-II
provides that where any person is appointed
as, or any promotion is made on any post of
head of the institution or teacher in
contravention of the provisions of the
Chapter or against any post other than a
sanctioned post, the Inspector shall decline to
pay salary and other allowances, if any, to
such person where the institution is covered
by the provisions of the Act of 1971, and in
other cases shall decline to give any grant for
the salary and allowances in respect of such
person.
Secondary
Education
Services
Selection Board Act
18. In 1982, the State legislature
enacted the Uttar Pradesh Secondary
Education Services Selection Selection
Board Act. The Statement of Objects and
Reasons accompanying the introduction
of the Bill in the State legislature contains
the following rationale for the enactment
of the law:
"The appointment of teachers in
secondary institutions recognised by the
Board of High School and Intermediate
Education was governed by the Intermediate
Education Act, 1921 and regulations made
thereunder. It was felt that the selection of
teachers under the provisions of the said Act
and the regulations was some times not free
and fair. Besides, the field of selection was
also very much restricted. This adversely
affected the availability of suitable teachers
and the standard of education. It was
therefore, considered necessary to constitute
Secondary Education Service Commission at
the State level, to select Principals, Lecturers,
Head-masters and L.T. Grade teachers, and
Secondary Education Selection Boards at the
regional level, to select and make available
suitable candidates for comparatively lower
posts in C.T./J.T.C./B.T.C. Grade for such
institutions."
19. The Board came to be constituted
under Chapter II of the Act and its powers in
Section 9 include under clause (d), the power
to make recommendations regarding the
appointment of selected candidates. Section
16 of the Act of 1982 is in the following
terms:
"16. Appointment to be made only
on the recommendation of the Board.--
(1) Notwithstanding anything to the
contrary contained in the Intermediate
Education Act, 1921 or the regulations
made thereunder but subject to the
provisions of Sections 12, 18, 21-B, 21-C,
21-D, 21-E, 21-F, 33, 33-A, 33-B, 33-C,
33-D and 33-F, every appointment of a
teacher, shall on or after the date of the
commencement of the Uttar Pradesh
Secondary Education Services Selection
32
 INDIAN LAW REPORTS ALLAHABAD SERIES
Board (Amendment) Act, 2001 be made
by
the
management
only
on
the
recommendation of the Board.
Provided that in respect of retrenched
employees, the provisions of Section 16EE of the Intermediate Education Act,
1921, shall mutatis mutandis apply.
Provided further that the appointment
of a teacher by transfer from one
Institution to another, may be made in
accordance with the regulations made
under Clause (c) of sub-section (2) of
Section
16-D
of
the
Intermediate
Education Act, 1921.
Provided also that the dependent, of
a teacher or other employee of an
Institution
dying
in
harness,
who
possesses the qualification prescribed
under the Intermediate Education Act,
1921 may be appointed as teacher in
Trained Graduate's Grade in accordance
with the regulations made under subsection (4) of Section 9 of the said Act.
(2)
Any
appointment made
in
contravention of the provisions of subsection (1) shall be void."
(emphasis supplied)
20. Section 16 contains a non-obstante
provision which gives it overriding force and
effect notwithstanding anything to the
contrary contained in the Intermediate
Education Act, 1921 or the regulations made
under it. Under the provision, on and after
the commencement of the Amending Act
2001, every appointment of a teacher must
be made by the Management only on the
recommendation
of
the
Board.
Any
appointment, which is made in contravention
of the provisions of sub-section (1) is
declared to be void by sub-section (2).
21. In several decisions of this
Court, the law has been settled to the
effect that the power to make an
appointment against a substantive vacancy
does not vest with the Management by and
as a result of Section 16. In Daya Shankar
Mishra's case (supra), the Division Bench,
while considering the reference made by the
learned Single Judge, placed the position in
law beyond any doubt in the following
terms:
"We are also of the considered view
that vacancies whether substantive or short
term, should be filled up at the earliest to
maintain our Constitutional goal of imparting
quality secondary education. However, as
long as the statutes create a bar, the
management cannot be conferred with any
power to make ad hoc appointment against
substantive vacancy."
(emphasis supplied)
Payment of Salaries Act, 1971
22. It would now be necessary to turn
to the provisions of the Payment of Salaries
Act, 1971. Section 2 (b) of the Act defines
the expression 'institution' to mean a
recognised institution for the time being
receiving a maintenance grant from the State
Government. Section 2 (e) defines the
expression 'teacher' in the following terms:
"(e) 'teacher' of an institution means a
Principal, Headmaster or other teacher in
respect of whose employment maintenance
grant is paid by the State Government to the
institution and includes any other teacher
employed in fulfillment of the conditions of
recognition
of
the
institution
or
its
recognition in a new subject or for a higher
class or as a result of the opening with the
approval of the Inspector of a new section in
an existing class."
23. Section 3 requires the payment
of salary to a teacher or other employee to
1 All.
Abhishek Tripathi Vs. State of U.P. & Ors.
33
be made on or before the stipulated date
without any deduction of any kind except
a deduction which is authorized by the
regulations or rules made under the Act,
or by any other law for the time being in
force. Under Section 9, no institution shall
create a new post of a teacher or other
employee except with the previous
approval of the Director, or such other
officer as may be authorized. Section 10
(1) imposes a liability on the State
Government for the payment of salaries of
teachers and other employees of every
institution due in respect of any period
after March 31, 1971.
Submissions
24.
Now, it is in the background of
these provisions that it would be necessary to
consider the submissions, which have been
urged on behalf of the petitioner by the
learned counsel. Broadly, these submissions
can be summarized thus:
(i) The posts against which the
teachers have been appointed, albeit
against substantive vacancies on an ad
hoc basis, are sanctioned posts in respect
of which grant-in-aid has been extended;
(ii) Under Section 9 of the Payment of
Salaries Act, 1971, there is only an embargo
against the creation of a new post by an
institution except with the previous approval
of the Director, while under Section 10, the
State Government is under a mandatory duty
and obligation to pay the salary of teachers
and employees; the expression 'teacher' being
defined in Section 2 (e). Section 16-E of the
Intermediate
Education
Act,
1921
specifically confers a power to make
appointments against temporary vacancies
under sub-section (11).
(iii) Section 16 of the Act of 1982
falls in Chapter-IV where there is a
selected teacher, since the chapter heading
of
the
provision
deals
with
the
appointment of selected teachers. Hence,
Section 16 of the Act of 1982 is not an
embargo on the making of ad hoc
appointments
against
substantive
vacancies;
(iv) Alternatively, if Section 16 is to
be read as placing an embargo on the
management for making appointments of
an ad hoc nature against substantive
vacancies, this embargo should be 'tackled
and set aside' by the Court in a situation
where a recommendation of duly selected
candidates is not made by the Board;
(v) Ad hoc appointment against
substantive vacancies need to be protected
until a regularly selected candidate is
made available by the Board;
(vi) The interpretation which is
placed by the Court on the provisions of
Section 16 of the Act of 1982 must be
such as would foster the implementation
of the provisions of Articles 21 and 21-A
of the Constitution;
(vii) The decision in Sanjay Singh's
case (supra) is intended to deal with a
situation
where
the
legislation
has
remained silent. As a result of the
amendment which was made to Section
18 of the Act 1982, the provision which
existed earlier for making of ad hoc
appointments
of
teachers
has
been
substituted. As a result of this, Section 18,
in its present form, does not contain any
provision
in
relation
to
ad
hoc
appointments. Moreover, as a result of the
introduction of Section 33-E with effect
from 25 January 1999, the Removal of
Difficulties
Orders
were
rescinded.
Section 32 provides that the Intermediate
Education Act, 1921 and its regulations,
shall continue to be in force for the
purposes
inter
alia
of
selection,
appointment and promotion insofar as
34
 INDIAN LAW REPORTS ALLAHABAD SERIES
they are not inconsistent with the provisions
of the Act of 1982. Consequently, the power
to make ad hoc appointments which is
recognized by Section 16-E of the Act of
1921 would survive notwithstanding the
provisions of Section 16 of the Act of 1982
and in consequence, the State cannot deny its
liability to pay salaries out of the public
exchequer; and
(viii) The judgment of the learned
Single Judge in Sanjay Singh's case
(supra) has provided a practical modality
for the disbursal of the salary of teachers
who have been appointed on an ad hoc
basis albeit against substantive vacancies
so as to foster the attainment of the right
to education. In these circumstances, the
decision in Sanjay Singh's case (supra)
which has taken a practicable and realistic
view of the matter should be affirmed as
laying down the correct position in law.
25. On the other hand, it has been
urged on behalf of the State that:
(i) The decision in Sanjay Singh's
(supra) has re-written the legislation since the
consequence of the judgment is that
notwithstanding the embargo which is
imposed by Section 16 of the Act of 1982,
managements have been permitted to make
appointments on ad hoc basis even against
substantive vacancies and to require that the
salaries of the teachers who have been
appointed should be disbursed by the State
out of its grant-in-aid funds. This function, it
has been submitted, is clearly not open to the
Court in the exercise of the power of judicial
review since it is well settled that a writ of
mandamus cannot be issued contrary to a
specific provision contained in law;
(ii) The decision in Sanjay Singh's
case (supra) is erroneous insofar as it has
relied upon a concurring judgment of one
learned Judge of the Supreme Court in B
C Chaturvedi Vs Union of India & Ors.8
holding that though there is no provision
parallel to Article 142 of the Constitution
in relation to the High Court, that would
not be a ground to postulate that the High
Court would not have a power to issue
such directions as are necessary to do
complete justice. This observation of the
learned Judge in B C Chaturvedi (supra),
which has been relied upon by the learned
Single Judge, cannot be pressed in aid
having due regard to the subsequent
enunciation of law by the Supreme Court.
The Supreme Court has held that the
power even under Article 142 itself would
not ordinarily be exercised contrary to
statutory provisions;
(iii) In view of the specific embargo,
which is imposed upon the management
for making an appointment of a teacher
except on the recommendation of the
Board and overriding effect given in
Section 16 of the Act of 1982 over the
Intermediate Education Act, 1921 and its
regulations, the view of the learned Single
Judge in Sanjay Singh's case (supra)
cannot be sustained;
(iv) The provisions of Section 16-E
(11) of the Act of 1921 have been construed
in the judgment of a Full Bench of this Court
in Santosh Kumar Singh Vs State of Uttar
Pradesh and Ors.9 as conferring a power in
regard to the making of an appointment
against a temporary vacancy caused by the
grant of leave to an incumbent for a period
not exceeding six months or in the case of
death, or termination or otherwise and, even
this appointment is not continued beyond the
end of the educational session during which
the appointment was made;
(v) In view of the judgment of a Full
Bench of this Court in Smt. Pramila
Mishra Vs Deputy Director of Education
& Ors.10, it is a well settled position of
law that an ad hoc appointment, even on a
1 All.
Abhishek Tripathi Vs. State of U.P. & Ors.
35
short term vacancy, cannot continue after the
vacancy has ceased to exist and a substantive
vacancy has arisen in its place. In other
words, where the management has made an
ad hoc appointment against a substantive
vacancy of its own accord, such an
appointment, being contrary to the provisions
of Section 16 of the Act of 1982, would have
to be regarded as void having regard to the
provisions of sub-section (2) and the liability
to make payment of salary cannot be foisted
on the State exchequer.
26. These submissions fall for
consideration.
Analysis
27. Under the Intermediate Education
Act, 1921, as it was enacted, the power to
make appointments of teachers of institutions
was vested in the Committee of Management
under sub-section (1) of Section 16. Subsection (2) and the succeeding provisions of
Section 16-E regulated the procedure for
making of appointments by stipulating the
intimation of vacancies to the Inspector,
advertising of vacancies, the convening of a
Selection Committee, the award of quality
points by the inspector and the preparation of
the select list by the Selection Committee in
order of preference. Sub-section (11) of
Section
16-E
specifically
deals
with
appointments in the case of a temporary
vacancy caused by the grant of leave to an
incumbent not exceeding six months or in
the case of death, termination or otherwise,
of an incumbent occurring during an
educational session. Under sub-section (11),
it is stipulated that temporary vacancies of
that nature would be filled up by direct
recruitment or promotion without reference
to the Selection Committee in such manner
and subject to such conditions as may be
prescribed. Under the proviso to sub-section
(11), it has been stipulated that no
appointment which is made under this subsection shall, in any case, continue beyond
the end of the educational session during
which the appointment was made. In other
words, the end of the educational session is
marked under sub-section (11) as the
terminal date upon which an appointment
which is made either by direct recruitment or
by promotion against a temporary vacancy of
the nature prescribed in sub-section (11) will
cease to exist.
28. The object of enacting the Act of
1982 was to deal with a situation where it
was felt by the legislature that the selection
of teachers under the provisions of the
Intermediate Education Act, 1921 and its
regulations had not been free and fair. The
field of selection was restricted which, in the
view of the legislature, had adversely
affected the availability of suitable teachers
and the standards of education. Hence the
Secondary Education Services Selection
Board came to be constituted. Under the
provisions of Section 16, it came to be
stipulated that notwithstanding anything
contained in the Intermediate Education Act,
1921 or the regulations made thereunder,
every appointment of a teacher shall be made
only on the recommendation of the Board by
the management. The position that an
appointment made otherwise than on the
recommendation of the Board cannot be
permissible is elucidated in sub-section (2)
which provides that an appointment made in
contravention of the provisions of subsection (1) shall be void. Section 22 provides
specifically for punishment in respect of
appointment of teachers in contravention of
the provisions of the Act. Section 22
provides as follows:
"22. Punishment for appointment of
teachers in contravention of the provisions
36
 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Act. - Any person who fails to comply
with the recommendations of the Board or
fails to comply with the order or direction of
the Director under section 17, or appoints a
teacher in contravention of the provisions of
this Act shall on conviction, be punished
with imprisonment for a term which may
extend to three years or with fine which may
extend to five thousand rupees or with both."
29. Prior to 1999, the matter relating to
the selection and appointment of teachers on
an ad hoc basis was provided for in various
Removal of Difficulties Orders which were
issued by the State Government. At that
stage and particularly, in the absence of a
detailed procedure for making ad hoc
appointments under Section 18 of the Act of
1982, these Removal of Difficulties Orders
governed the procedure for making ad hoc
appointments against substantive vacancies
or short term vacancies, as the case may be,
respectively. In the decision of this Court in
Radha
Raizada
Vs
Committee
of
Management, Vidyawati Darbari Girls Inter
College and Ors.11, the Full Bench held that
appointments which were made de hors the
First and the Second Orders would be void
ab initio and would not confer any right on
the appointees to claim their salary.
30. In Prabhat Kumar Sharma Vs
State of Uttar Pradesh12, the Supreme
Court upheld the view taken by the Full
Bench of this Court in Radha Raizada
(supra). The Supreme Court held that any
ad hoc appointment of teachers under
Section 18 of the Act of 1982 pending the
allotment of a teacher selected by the
Commission
and
recommended
for
appointment, was required to be made in
accordance with the procedure prescribed
in Paragraph 5 of the First Order of 1981
and
any
appointment
made
in
transgression
thereof,
is
an
illegal
appointment and being void, would confer
no right on the appointees. The Supreme
Court held that:
"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 an aided
institution. It is obvious that when the salary
is paid by the State to the government-aided
private
educational
institutions,
public
interest demands that the teachers' selection
must be in accordance with the procedure
prescribed under the Act read with the First
1981 Order."
(emphasis supplied)
31. The principle which was laid
down by the Supreme Court was that an
appointment
which
was
made
in
contravention of the procedure prescribed,
would render the appointment void and
since salary is paid by the State to
government aided private educational
institutions, the public interest demands
that the selection of teachers must be
strictly in accordance with the procedure
prescribed under the Act of 1982.
32.
Since the decision of the Full
Bench of this Court in Smt Pramila Mishra
(supra), it has been a well settled principle of
law that a clear distinction has been
maintained between a substantive vacancy
and a short term vacancy on the post of a
teacher. After construing the provisions of
the relevant Acts, rules and regulations and
Removal of Difficulties Orders, the Full
Bench, while emphasizing this distinction,
held that the procedure to be followed in
making appointments and the considerations
to be borne in mind in making such
1 All.
Abhishek Tripathi Vs. State of U.P. & Ors.
37
appointments in the two cases are distinct
and different from each other.
33.