# Anil Kumar Sharma v. State of U.P. and others

- **Citation:** (2002) 2 ILRA 618
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-08-21
- **Case number:** Special Appeal No. 547 of 1997
- **Bench:** S.K. Sen, C.J. Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-sharma-v-state-of-u-p-and-others-39887
- **Pages:** 11

## Headnote

(A) U.P. Act No. 5 of 1982- Para 2
explaination III, readwith Section 18-
short terms vacancy- what is?- arises out
consequent
to
suspension,
adhoc
promotion or grant of leave-vacancy
caused due to retirement of permanent
lecturer- can not be termed as short
terms vacancy.

Held- Para 7

The submission of counsel for the
appellant that the vacancy in question is
short term vacancy and the management
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is
empowered
to
make
adhoc
appointment is not acceptable.
Case law discussed:
1998 UPLBEC 276, 1999 UPLBEC-196, 1988
UPLBEC-223, 1988 UPLBEC-640, 1997 (2)
UPLBEC 1284, 2000 (3) ESC 1990

(B) U.P. Act No. 24 of 1992- Section 18
(a) Adhoc appointment after 14.7.92-
management has no power either to
advertise the vacancy or make any
appointment.

Held- Para 10

Thus the adhoc appointment of teachers
after 14.7.1992 has to be made in
accordance
with
the
provisions
prescribed under Section 18 and the
Management is neither empowered to
issue any advertisement or to constitute
selection committee or to recommended
any candidate.

(C) U.P. Act No. I of 1993- Section 33-
Regularisation- advertisement issued on
5.12.92-
selection
committee
send
recommendation on 5.2.93- joined on
10.2.93- Section 18 amended w.e.f.
14.7.92 petitioner appointed much prior
to this date- can not be regularised.

Held- Para 14

In the present case the advertisement
after which the selection process began
was issued on 5.12.1992. The petitioner
applied on 21.12.1992 in pursuance of
the
said
advertisement
and
School
selection Committee recommended the
petitioner on 5.2.1993 and appointment
letter was issued to the petitioner on
5.2.1993 and the petitioner claimed to
have joined on 10.2.1993.
Case law discussed:
1994 ALJ-1077 (FB)
1988 UPLBEC-644
distinguished

## Text

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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
618
now been omitted by Army Act, 1992,
hence successive trial cannot be made.
The submission is without substance.
Section 127 covered a contingency
regarding successive trial by court-martial
or criminal courts. In the present case the
question of trial by criminal court has not
arisen nor Section 127 is attracted.
Further omission of Section 127 has also
no effect. Thus, in our opinion, neither
Section 121 nor Section 127 creates any
fetter in the rights of the appellants to
proceed again against the respondent.

24. One more relevant fact is to be
noted in the present case. Learned Single
Judge in the writ petition granted interim
order for one month on 24th June, 1997.
The charge-sheet was given to the
respondent only on 6th June,1997. The
court granted two weeks time to the
appellants to file counter affidavit. A
counter affidavit was filed by the
appellants only on 24th July, 1997 along
with the application for vacation of the
interim order. The respondent, in the
meantime,
had
already
filed
an
application for extension of interim order
on 17th July, 1997. All these facts were
brought in the notice of commanding
officer who was holding the court. The
appellants having themselves not filed
counter affidavit within the time allowed
by the Court, it was not appropriate to
proceed hastily in concluding the courtmartial proceedings. The respondent has
further informed the Commanding Officer
that matter is to be taken on 1st August,
1997 and adjournment was sought only up
to 2nd August, 2002. The fact that
Commanding Officer was retiring on 31st
July, 1997 was not relevant nor was a
valid
reason
for
completing
the
proceedings by 31st July,1997. We are in
full agreement with the finding of learned
Single Judge that proceedings were
concluded with haste which shows that
fair opportunity was not given to the
respondent.

25. In view of the foregoing
discussions, we do not find any good
ground to interfere with judgment of
learned Single Judge.

This special appeal is dismissed
subject to observations as made above.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.8.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No. 547 of 1997

Anil Kumar Sharma

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri B.B. Paul

Counsel for the Respondents:
Sri M. Sarwar Khan
S.C.

(A) U.P. Act No. 5 of 1982- Para 2
explaination III, readwith Section 18-
short terms vacancy- what is?- arises out
consequent
to
suspension,
adhoc
promotion or grant of leave-vacancy
caused due to retirement of permanent
lecturer- can not be termed as short
terms vacancy.

Held- Para 7

The submission of counsel for the
appellant that the vacancy in question is
short term vacancy and the management
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2 All] Anil Kumar Sharma V. State of U.P. and others
619
is
empowered
to
make
adhoc
appointment is not acceptable.
Case law discussed:
1998 UPLBEC 276, 1999 UPLBEC-196, 1988
UPLBEC-223, 1988 UPLBEC-640, 1997 (2)
UPLBEC 1284, 2000 (3) ESC 1990

(B) U.P. Act No. 24 of 1992- Section 18
(a) Adhoc appointment after 14.7.92-
management has no power either to
advertise the vacancy or make any
appointment.

Held- Para 10

Thus the adhoc appointment of teachers
after 14.7.1992 has to be made in
accordance
with
the
provisions
prescribed under Section 18 and the
Management is neither empowered to
issue any advertisement or to constitute
selection committee or to recommended
any candidate.

(C) U.P. Act No. I of 1993- Section 33-
Regularisation- advertisement issued on
5.12.92-
selection
committee
send
recommendation on 5.2.93- joined on
10.2.93- Section 18 amended w.e.f.
14.7.92 petitioner appointed much prior
to this date- can not be regularised.

Held- Para 14

In the present case the advertisement
after which the selection process began
was issued on 5.12.1992. The petitioner
applied on 21.12.1992 in pursuance of
the
said
advertisement
and
School
selection Committee recommended the
petitioner on 5.2.1993 and appointment
letter was issued to the petitioner on
5.2.1993 and the petitioner claimed to
have joined on 10.2.1993.
Case law discussed:
1994 ALJ-1077 (FB)
1988 UPLBEC-644
distinguished

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri B.B. Paul, learned
counsel appearing for the appellant and
learned standing counsel appearing for the
State-respondents.

2. This Special Appeal has been
filed against the judgment dated 2nd July,
1997 of a learned Single Judge in writ
petition No. 21698 of 1995 Anil Kumar
Sharma vs. State of Uttar Pradesh and
others. The learned Single Judge by the
impugned judgment has dismissed the
writ petition filed by the petitioner
appellant.

Brief facts giving rise to this appeal
are;

3. Appellant hereinafter referred to
as
"the
petitioner"
claims
adhoc
appointment as Lecturer Geography in
Gopi Ram Paliwal Inter College, Aligarh.
One Sri S.P. Sharma who was working as
Lecturer Geography retired on 30th June,
1991 causing vacancy on the post of
Lecturer Geography. The Management
claims to have notified the aforesaid
vacancy to the U.P. Secondary Education
Service Commission and Selection Board.
The Management issued an advertisement
dated 31.8.1991 in the news paper 'Amar
Ujala' inviting applications for adhoc
appointment on the post of Lecturer
Geography and some other posts. 8th
September, 1991 was fixed for the date of
interview.
Again
on
5.12.1992
advertisement was issued in news paper
"Aaj" inviting applications for adhoc
appointment on the post of lecturer
Geography and some other posts. 17th
December, 1992 was fixed as the last date
for
submission
of
application.
A
resolution was by the School Selection
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Committee on 5.2.1993 selecting the
petitioner for adhoc appointment as
Lecturer Geography. On the same day
appointment letter was also issued to the
petitioner by the Manager and the
petitioner claims to have joined on 10th
February, 1993. On 12th February, 1993
the Manager sent papers to the District
Inspector of Schools for approval for
payment of salary on the post of Lecturer
Geography. Certain correspondence took
place between the Manager and the
District Inspector of Schools. Ultimately
the District Inspector of Schools vide his
order dated 29.4.1995 refused to approve
the adhoc appointment of the petitioner on
the ground that the appointment of the
petitioner has been made on permanent
vacancy to be filled by direct recruitment.
It was stated that the management has no
jurisdiction to make appointment on
permanent post, which is to be filled by
direct recruitment. The petitioner filed a
writ
petition
No.
21698
of
1995
challenging
the
said
order
dated
29.4.1995 passed by the District Inspector
of Schools. Before the learned Single
Judge the contention was raised on behalf
of the appellant that since the selection
process was initiated before 14.7.1992 on
which date Section 18 of the U.P.
Secondary
Education
Service
Commission and Selection Board Act,
1992
was
amended
hence
the
management was competent to make
adhoc appointment and the amended
Section 18 has no application. The
learned Single Judge vide his judgement
dated 2.7.1997 dismissed the writ petition.
The learned Single Judge took the view
that the selection process was not initiated
through
advertisement
issued
on
31.8.1991 since no steps were taken till
second
advertisement
which
was
published on 5.12.1992, the learned
Single Judge held that the selection
process
started
only
after
second
advertisement hence the contention raised
by the counsel for the petitioner-appellant
is not acceptable. It was held that in the
present case selection process had been
started after 14.7.1992 hence there is no
infirmity in the order of District Inspector
of Schools. The aforesaid judgment of the
learned Single Judge has been assailed in
this Special Appeal.

4. Sri B.B. Paul learned counsel for
the petitioner-appellant made following
submissions in support of this appeal:-

1.
The vacancy on which the petitioner
was given adhoc appointment as Lecturer
Geography was short term vacancy and
the Committee of Management was fully
empowered to make adhoc appointment
in accordance with the U.P. Secondary
Education Service Commission (Removal
of Difficulties) Order, 1981. Reliance has
also been placed on judgments of this
Court in 1998 UPLBEC 276 Sri Niwas
Singh Vs. District Inspector of Schools,
Ghazipur and others and 1999 UPLBEC
196 Meena Singh vs. State of Uttar
Pradesh and others.

2.
Committee of Management had full
jurisdiction to make adhoc appointment
since no candidate was recommended by
the U.P. Secondary Education Service
Commission. Reliance has been placed on
judgments of this Court in 1988 UPLBEC
223 Ravinder Singh Niranjan vs.
District Inspector of Schools and 1988
UPLBEC 640 Chhatra Pal vs. District
Inspector of Schools.

3. The petitioner who has been working
with effect from 10.2.1993 was entitled to
be regularised in accordance with Section
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33-C of the U.P. Act V of 1982. Reliance
has been placed on Full Bench judgment
of this Court in 1997 (2) UPLBEC 1284
Pramila Misra vs. Deputy Director of
Education, Jhansi Division Jhansi and
others and 2000 (3) Education Service
Cases, 1990 Smt. Sashi Saxena vs.
Deputy Director of Education and
others.

4. Provision of Section 18 as amended
by U.P. Act XXIV of 1992 has been
deleted by U.P. Act No. 1 of 1993 hence
after the said deletion the power of
Committee of Management to make
adhoc appointment has revived.

5. Learned standing counsel refuting
the submissions of the counsel for the
appellant supported the judgment of the
learned Single Judge and has submitted
that the writ petition of the petitioner has
rightly been dismissed by the learned
Single Judge. Learned standing counsel
contended
that
the
Committee
of
Management
had
no
authority
or
jurisdiction to make adhoc appointment
after 14th July, 1992 and the adhoc
appointment of the petitioner made on
5.2.1993 is void and the District Inspector
of Schools has rightly refused to approve
the said adhoc appointment. He has
further submitted that the vacancy on
which
the
petitioner
claims
adhoc
appointment is not a short term vacancy
but is substantive vacancy on which after
14.7.1992 the power to make adhoc
appointment is only with the Selection
Committee constituted under Section 18
(8) of the U.P. Act No.5 of 1982.

6. We have heard counsel for the
parties and perused the record. The first
submission of the counsel for the
appellant is that the vacancy on which the
petitioner-appellant was appointed was
short term vacancy and the Management
has power to make adhoc appointment on
short term vacancy. The first issue to be
determined in this appeal is as to what is
the nature of vacancy on which the
petitioner-appellant
claims
adhoc
appointment. This is not disputed that
Sonpal Singh who was functioning as
Lecturer Geography, retired on 30th June,
1991 causing vacancy on the post of
Lecturer Geography. The resolution of
Committee
of
Management
dated
11.8.1991 has been brought on record by
the appellant himself as Annexure-A1 to
the Supplementary affidavit which clearly
noticed that Sonpal Singh retired on 30th
June, 1991 due to which post of Lecturer
Geography is vacant since 1.7.1991. The
vacancy of post on which the petitioner
claims
appointment
is
substantive
vacancy and not short term vacancy. The
short term vacancy has been defined in
U.P.
Secondary
Education
Service
Commission (Removal of Difficulties)
(Second) Order, 1981. Paragraph 2
Explanation (iii) defines the short term
vacancy in following words:-

"(iii)
Short term vacancy which
is not substantive and is of a limited
duration."

7. Thus the short term vacancy is
only that vacancy which is of limited
duration and not substantive. Short term
vacancy may arise by suspension, adhoc
promotion, grant of leave, which may be
for a limited duration but a vacancy
caused by retirement of a teacher cannot
be said to be short term vacancy or of a
limited duration. The procedure for adhoc
appointment with regard to short term
vacancy and the substantive vacancy is
different. For filling of short term vacancy
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the procedure prescribed under U.P.
Secondary
Education
Service
Commission (Removal of Difficulties)
(Second) Order, 1981 was applicable,
whereas substantive vacancy has to be
filled upon Adhoc basis in according with
Section 18 of U.P. Act 5 of 1982. The
submission of counsel for the appellant
that the vacancy in question is short term
vacancy
and
the
management
is
empowered to make adhoc appointment,
is not acceptable. The judgment in Sri
Niwas Singh's case (supra) relied by the
counsel for the appellant was with regard
to short term vacancy. In that case Daya
Shanker Singh senior most lecturer was
promoted as adhoc Principal due to which
vacancy arose on the post of lecturer, L.T.
grade teacher was given promotion as
lecturer due to which vacancy in L.T.
Grade came into existence. Since the
promotion was not confirmed the said
vacancy was short term vacancy. In the
above facts adhoc appointment was made
on that short term vacancy, in view of
above facts this court held that the
management was empowered to make
adhoc appointment in short term vacancy
in accordance with the U.P. Secondary
Education Service Commission (Removal
of Difficulties) (Second), Order, 1981.
Another judgment relied by the counsel
for the appellant in Meena Singh's case
(supra) is also a case of short term
vacancy.
The
District
Inspector
of
Schools has rejected the claim in that case
on the ground that the Management has
no right to appoint teacher on a short term
vacancy. Thus the above decision cited by
the counsel for the appellant does not
support his case. Since the vacancy in the
present case is substantive vacancy
caused by retirement, the procedure
prescribed in U.P. Secondary Education
Service
Commission
(Removal
of
Difficulties) (Second) Order, 1981, cannot
be pressed into service.

8. The counsel for the appellant has
next contended that the Management was
fully
empowered
to
make
adhoc
appointment since the Commission did
not send any candidate even after
intimation of vacancy. The provisions
U.P.
Secondary
Education
Service
Commission and Selection Board Act,
1982 were substituted by U.P. Act 24 of
1992. Section 18 as substituted with effect
from 14.7.1992 is quoted below:-

"18. Adhoc teachers,____ (1) Where
the Management has notified a vacancy to
the Commission in accordance with the
Provisions of this Act, and the post of
such teacher has actually remained vacant
for
more
than
two
months,
the
Management may appoint by direct
recruitment or promotion a teacher, on
purely adhoc basis, in the manner
hereinafter provided in this section.

(2) A teacher, other than a Principal
or Headmaster, who is to be appointed by
direct recruitment, may be appointed on
the recommendation of the Selection
Committee referred to in sub-section (9).

(3) A teacher, other than a Principal
or Headmaster who is to be appointed by
promotion, may in the manner prescribed
be appointed by promoting the senior
most
teacher
possessing
prescribed
qualification_____

(a) in the trained graduate's grade,
as lecturer, in the case of vacancy in
lecturer's grade.

(b) in the Certificate of Teaching
grade, as a teacher in the trained
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graduat's grade, in the case of vacancy in
trained graduate's grade.

(4) A vacancy in the post of a
Principal may be filled by promoting the
senior most teacher in the lecturer's
grade.

(5) A vacancy in the post of a Head
Master may be filled by promoting the
senior most teacher in the trained
graduate's grade.

(6) For the purpose of making
appointments under sub-section (2) and
(3), the Management shall determine the
number of vacancies, as also the number
of vacancies to be reserved for the
candidate belonging to the Scheduled
Caste,
Scheduled
Tribes
and
other
categories in accordance with the rules or
orders issued by the State Government in
this
behalf.
If
in
determining
the
vacancies it is found that persons
belonging to such categories are not
holding such number of posts as should
have been held by them in accordance
with such rules or orders, then the
vacancies shall be determined that first
and every alternate vacancy shall be
reserved
for
the
persons
of
such
categories until the required percentage
of posts is held by them.

(7) After determining the number of
vacancies as provided in sub-section (6)
Management shall within fifteen days
from the date of the commencement of the
Uttar
Pradesh
Secondary
Education
Service Commission and Selection Board
(Second Amendment) Act, 1992 intimate
the vacancies to be filled by direct
recruitment to the District Inspector of
Schools. If the Management fails to
intimate such vacancies within the said
period of fifteen days, the District
Inspector
of
Schools
may,
after
verification from such institution or from
his
own
records,
determine
such
vacancies himself.

(8) The District Inspector of Schools
shall,
on
receipt
of
intimation
of
vacancies or, as the case may be, after
determining the vacancies under subsection (7), invite applications, from the
persons
possessing
qualification
prescribed
under
the
Intermediate
Education Act, 1921 or the regulations
made there under, for adhoc appointment
to the post of teachers, other than
Principal or Head Masters in such
manner as may be prescribed.

(9) (a) For each district, there shall
be a Selection Committee for selection of
candidates for adhoc appointment by
direct recruitment comprising:

(i) District Inspector of Schools, who
shall be the Chairman,
(ii) Basic Shiksha Adhikari;
(iii) District Inspectress of Girls Schools
and where there is no such Inspectress,
the Principal of the Government Girls'
Intermediate College and where there are
more than one such college, the senior
most Principal of such Colleges and
where there is no such college the
Principal of the Government Girls'
Intermediate College as nominated by the
State Government.
(b) The Selection Committee constituted
under clause (a) shall make selection of
the candidates, prepare a list of the
selected candidates, allocate them to the
institutions and recommend their names
to the Management for appointment under
sub-section (2).
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
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(c) The criteria and procedure for
selection of candidates and the manner of
preparation of list of selected candidates
and their allocation to the he institutions
shall be such as may be prescribed.

(10) Every appointment of an adhoc
teacher under sub-section (1) shall cease
to have effect from the date when the
candidate
recommended
by
the
Commission or the Board joins the post.

(11) The provisions of Section 21D shall
mutates mustandis, apply to the teacher
who are to be appointed under the
provisions of this section."

10. From Section 18 as amended
with effect from 14.7.1992 it is clear that
the Management may appoint adhoc
teacher
by
direct
recruitment
or
promotion in the manner provided in that
Section.
The
procedure
for
direct
recruitment on adhoc basis has been
provided in sub-section (6) to sub Section
(9) of Section 18. Sub-section (6) requires
management to intimate the vacancy to be
filled by direct recruitment to the District
Inspector of Schools. Sub section (8)
provides that the District Inspector of
Schools
after
scrutiny
shall
invite
applications from the persons possessing
qualification. Sub-section (9) provides
Selection Committee for each region
consisting
of
District
Inspector
of
Schools, who shall be the Chairman,
Basic Shiksha Adhikari and District
Inspectress of Girls Schools. Thus the
adhoc appointment of teachers after
14.7.1992 has to be made in accordance
with the provisions prescribed under
section 18 and the Management is neither
empowered to issue any advertisement or
to constitute Selection Committee or to
recommend any candidate. In the present
case the selection process began after
advertisement dated 15.12.1992 which
advertisement was issued by the Manager.
The Selection Committee appointed by
the
Committee
of
Management
on
5.2.1993 recommended the petitioner who
was appointed by the Manager on
5.2.1993. As noted above the Manager
has no power to issue advertisement on
5.12.1992
nor
School
Selection
Committee has any power to recommend
a candidate. The advertisement as well as
the process of selection Committee has
been filed as Annexure-CA2 and CA-3 to
the counter affidavit filed the Committee
of
Management.
The
Selection
Committee
which
recommended
the
petitioner
was
not
the
Selection
Committee as contemplated under Subsection (9) of Section 18. The Full Bench
of this Court in Kumari Radha Raizada
and
etc.
etc.
vs.
Committee
of
Management Vidyawati Darbari Girls
Inter College and others etc. etc.
reported in 1994 All.L.J. 1077 considered
the procedure of adhoc appointment
before
14.7.1982
as
well
as
after
14.7.1992. While considering the process
of selection by amended Section 18 with
effect from 14.7.1992 the Full Bench held
in paragraph 46 which is quoted below:-

"A perusal of this new Section would
show that it is substantially the same
provision excepting the provision for
constitution of Selection Committee for
selection
of
candidate
for
adhoc
appointment in place of giving quality
point marks as contained in the First
Removal of Difficulties Order. In fact
what was contained in the First Removal
of Difficulties Order has not been brought
in the Act, by this amending Act. Thus, the
method
of
adhoc
appointment
by
promotion of teacher remained the same
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as it was during the period 14.7.1981 to
13.7.1992.
The
method
of
adhoc
appointment of Principal and Head
Master in the institution also remains the
some as it was in the period 14.7.1981 to
13.7.1992 (first period). Similarly, the
provision in respect of appointment
against the short term vacancy also
remains the same as it was in 14.7.1981
to 13.7.1992. The only change that has
been brought by the new Section 18 is in
respect of method of adhoc appointment
by direct recruitment. Under sub-section
(8) of Section 18 the District Inspector of
Schools on receipt of intimation of
vacancy or as the case may be after
determining the vacancy in sub section (7)
is required to invite application from the
person
possessing
qualification
prescribed in the Intermediate Education
Act or the regulations framed there under
for adhoc appointment to the post of
teacher. Under sub section (9) of Section
18 a Selection Committee is to be
constituted for a selection of candidate for
adhoc appointment by direct recruitment
comprising
of District Inspector of
Schools as Chairman, Basic Shiksha
Adhikari and District Inspectress of Girls
Schools.
The
Selection
Committee
constituted is further required to make
selection of the candidate and prepare a
list of selected candidate and allocate
them to the institution and recommend
their name to the Management for
appointment.
This
is
in
brief
the
procedure which is required to be
undergone where the adhoc appointment
is to be made by the direct recruitment.If
the
adhoc
appointment
by
direct
recruitment is made under sub-section (9)
of Section 18, no further approval of the
District Inspector of Schools for such
appointment is required."

11. Counsel for the appellant has
placed reliance on the case of Ravindra
Singh Niranjan vs. District Inspector of
Schools and others reported in 1988
UPLBEC 223. In the aforesaid case the
Division Bench of this court considered
the provisions of Section 18 as it stood
before 1988. The aforesaid Division
Bench is not attracted in the facts of the
present case since the aforesaid Division
Bench had no occasion to consider the
provisions of Section 18 as amended with
effect from 14.7.1992. The Court took the
view in that case that till the Board is not
constituted Section 18 of the Act would
be applicable in the case of appointment
of a teacher in C.T. grade where the
District Inspector of Schools does not
make appointment under U.P. Secondary
Education Service Commission (Removal
of
Difficulties)
Order,
1981.
The
aforesaid case has no application in the
facts of the present case and does not help
the appellant in any manner. Another case
relied by the counsel for the appellant is
Chhatra Pal vs. District Inspector of
Schools reported in 1988 UP LBEC 640
in which this Court considered the adhoc
appointment which was made in the year
1985 i.e. under unamended Section 18.
The aforesaid case is also not applicable
in the facts of the present case since the
Court in that case had no occasion to
consider the amended Section 18 with
effect from 14.7.1992 and the power of
adhoc appointment thereafter.

12. The third submission of the
counsel for the appellant was with regard
to claim of regularization under section
33-C of the U.P. Act No. V of 1982.
Section 33-C contains provision for
regularization
of
certain
adhoc
appointment. Section 33-C(1) is quoted
below:-
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"33-C(1) Any teacher who________
(a)(I) was appointed by promotion or by
direct recruitment on or after May 14,
1991 but not later than August 6, 1993 on
adhoc basis against substantive vacancy
in accordance with Section 18, in the
Lecturer grade or Trained Graduate
grade;

(II) was appointed by promotion on or
after July 31, 1988 but not later than
August 6, 1993 on adhoc basis against a
substantive vacancy in the post of a
Principal or Headmaster in accordance
with Section 18;

(b)

possesses
the
qualifications
prescribed under, or is exempted from
such qualifications in accordance with the
provisions of the Intermediate Education
Act, 1921;

(c) has been continuously serving the
Institution
from
the
date
of
such
appointment
upto
the
date
of
the
commencement of the Uttar Pradesh
Secondary Education Service Commission
(Amendment) Act, 1998;

(d) has been found suitable for
appointment in a substantive capacity by
a Selection Committee constituted under
sub-Section (2);

shall be given substantive appointment by
the Management."

13. A look of above provision makes
it clear that the regularization of only that
teacher is to be considered who was
appointed
by
direct
recruitment
in
accordance with Section 18. The benefit
of Section 33-C can be available only
when his adhoc appointment was made in
accordance with Section 18. In the present
case when the appointment of the
appellant itself has not been accepted as
valid appointment made under section 18
of U.P. Act No. V of 1982 there is no
question of considering the case of the
appellant for regularization. The writ
petition was filed by the petitionerappellant challenging the order of the
District Inspector of Schools refusing to
accept the adhoc appointment of the
petitioner. When the adhoc appointment
of the petitioner itself was not valid and
not accepted the consideration of question
of regularization is out of question. In
view of the fact that petitioner's adhoc
appointment has not been accepted to be
in accordance with Section 18 of U.P. Act
No. V of 1982 the application of Section
33-C is out of question. The reliance
placed by the counsel for the petitioner on
Full Bench of this Court in the case of
Pramila Misra vs. Deputy Director of
Education
and
others
(supra)
is
misplaced. In the case of Pramila Misra
the question was regarding entitlement of
adhoc
appointment
to
continue
on
conversion
of
such
vacancy
to
a
permanent vacancy. The case of Pramila
Misra is not attracted to the facts of the
present case. Similarly reliance placed by
the appellant's counsel on the decision of
this Court in the case of Smt. Sashi
Saxena (supra) is also not attracted. In the
case of Smt. Sashi Saxena the court was
considering the consequence when a short
term
vacancy
is
converted
into
substantive vacancy. In Smt. Sashi
Saxena's case there was no dispute
regarding adhoc appointment. The case of
Smt. Sashi Saxena does not help the
appellant.

14. The last submission of the
counsel for the appellant is that the power
of Committee of Management to make
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627
adhoc appointment will revive after
deletion of Section 18 by U.P. Act No. 1
of 1993. The U.P. Act No. 1 of 1993
came in force with effect from 7.8.1993
by notification issued in accordance with
Section 1(2) of U.P. Act No. 1 of 1993. In
the present case the advertisement after
which the selection process began was
issued on 5.12.1992. The petitioner
applied on 21.12.1992 in pursuance of the
said advertisement and School Selection
Committee recommended the petitioner
on 5.2.1993 and appointment letter was
issued to the petitioner on 5.2.1993 and
the petitioner claimed to have joined on
10.2.1993.
Even
according
to
own
submission of counsel for the appellant
the deletion of Section 18 will be with
effect from 7.8.1993. Thus all process
including
the
appointment
of
the
petitioner
took
place
much
before
7.8.1993. Thus Section 18 as amended
with effect from 14.7.1992 was very
much in force at all relevant time and the
deletion of Section 18 by U.P. Act No. 1
of 1993, does not help the appellant in
any manner. The Full Bench of this Court
had in Kumari Radha Raizada's case
(supra) occasion to consider the above
aspect of the matter and has held that the
date for enforcement of U.P. Act No. 1 of
1993
is
7.8.1993.
Considering
all
procedure for adhoc appointment after
14.7.1992 and the effect of U.P. Act No. 1
of 1993 the Full Bench laid down in
paragraph 26 as under:-

"26. In short it was made open to the
management of the institutions to make
adhoc appointment of teachers against
substantive vacancies either by promotion
or by direct recruitment after following
the procedure laid down in the Removal
of Difficulties Order issued under Section
33 of the Act by the State Government.
Subsequently by U.P. Act No. 24 of 1992
Section 18 of the Act was amended and
was substituted by new Section 18. This
amendment came into force on 14.7.1992.
The substituted Section 18 provided the
manner and method of adhoc appointment
of a teacher in the institutions either by
promotion or by direct recruitment. A
Selection Committee for selection of
candidates for adhoc appointment was
required to be constituted considering
(consisting) of District Inspector of
Schools, Basic Shiksha Adhikari and the
District Inspectress of Girls of Schools. In
pith and substance the only departure
from earlier procedure was that the adhoc
appointment by direct recruitment was
required to be done by a Selection
Committee constituting three officials.
Thereafter U.P. Legislature passed an Act
known as U.P. Secondary Education
Service Commission and Selection Board
Amendment Act, 1992 being U.P. Act No.
1 of 1993. This Act was published in the
U.P. Gazette on 6th January 1993. Subsection (2) of Section 1 of this Act
provided that the Act shall come into
force
on
such
date
as
the
State
Government may by notification appoint
in this behalf and different dates may be
appointed for different provisions. This
amendment
Act
brought
several
amendments in the Principal Act. Since I
am not concerned with all the provisions
of this amendment Act, I will notice only
those provisions which are relevant for
the purpose of my answer to questions
referred. By Section 11 of U.P. Act No. 1
of 1993 the reference of Section 18
occurring in Section 16 of the Act was
omitted and Section 13 of the amending
Act further provides that Section 18 of the
Principal Act shall be omitted. The State
Government by a notification dated
7.8.1993 in exercise of its power under
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sub-section (2) of Section 1 of U.P. Act
No. 1 of 1993 appointed 7.8.1993 as the
date on which the said Act except Section
13 shall come into force. The result of this
notification is that although Section 18 is
still continuing. Section 16 is not subject
to the provisions of Section 18 of the
Principal Act. Thus any appointment
made under section 18 is void under Subsection (2) of Section 16 of the Act. Thus
no adhoc appointment can now be made
under Section 18 of the Act which
although omitted by U.P. Act No. 1 of
1993 but still continuing."

15. In view of the above facts it is
clear that the deletion of Section 18 as
amended with effect from 14.7.1992 is of
no avail to the petitioner. The amended
provision of Section 18 enforced with
effect from 14.7.1992 was fully operative
during which the petitioner claims adhoc
appointment.
Petitioner's
adhoc
appointment having not been made in
accordance
with
Section
18,
the
appointment is void and has rightly been
not approved by the District Inspector of
Schools.

16. In view of the foregoing
discussions we do not find any merit in
any of the submissions raised by the
counsel for the appellant. The learned
Single Judge has rightly held that the
Committee of Management had no
jurisdiction to make selection and appoint
petitioner as adhoc lecturer.

17. We do not find any merit in the
Special Appeal and the same is dismissed
accordingly. No order as to cost.
----------
ORIGINAL JURISDICTION
DATED: ALLAHABAD

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 1970 of 2002

Sarva Krishna Ajay Kumar Agrawal

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Arun Tandon

Counsel for the Respondents:
Chandra Shekhar Singh, S.C.

U.P. Sheera Niyantran Adhiniyam 1964-
Section 5 and 7-A-22 supply of molassesperson
applying
for
molasses-
not
requiring bonafidely- not entitled- dealer
can
not
be
termed
as
bonafiedly
requiring person for distilleries or use of
Industrial
establishment-
application
rightly rejected.

Held- Para 17

Rules clearly spells out that the allottee
of the molasses has to be a person using
the molasses for his distillery or for his
any other industrial development. Thus
the interpretation of Section 7-A as
submitted
by
the
counsel
for
the
petitioner cannot be accepted. It is held
that
the
Section
7-A
contemplates
application by a person who requires the
molasses for his distillery or for his
industrial development.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri Arun Tandon counsel
for the petitioner and Sri Chandra Shekhar
Singh learned standing counsel appearing
for the State respondents.