# D.I.O.S., Kanpur Nagar & another v. Diwakar Lal and others

- **Citation:** (2000) 3 ILRA 37
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999-04-16
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/d-i-o-s-kanpur-nagar-another-v-diwakar-lal-and-others-39531
- **Pages:** 5

## Text

3All] D.I.O.S., Kanpur Nagar & another V. Diwakar Lal and others
37
such type of collusive and malafide
practice.

The petition is dismissed.
Petition Dismissed.

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By the Court

1. This Special Appeal by the District
Inspector of Schools, Kanpur Nagar and
another
has
been
filed
against
the
judgment and order dated April 16, 1999
passed by learned single Judge in Writ
Petition No. 9767 of 1994 (Diwakar Lal
and 3others versus District Inspector of
Schools, Kanpur Nagar and others).

2. P.N.N. Inter College, Kanpur
(called
'College')
is,
admittedly,
a
recognised Intermediate College governed
by the provisions of the U.P. Intermediate
Education Act, 1921 Payment of Salaries
Act, 1971 and U.P. Secondary Education
Services Commission Act, 1981. Four
posts of Lecturers in the College fell
vacant. Requisition was sent to the
Commission. Still the posts remained
vacant for more than two months as the
Commission
failed
to
select
and
recommend
candidates.
Hence
four
Assistant Teachers in L.T. grade were
promoted on the posts of Lecturer in the
College- purely on ad hoc basis as
follows:-

1.
S.K. Srivastava, L.T. Grade Teacher-
given ad hoc promotion- on post of
Lecturer Chemistry.
2.
S.K. Tiwari, L.T. Grade Teacher-
given ad hoc promotion- on post of
Lecturer Economics.
3.
Ram Surat Misra, L.T. Grade Teacher
promoted ad hoc on - post of Lecturer
Sanskrit.
4.
Mohan
Lal
Yadav, L.T. Grade
Teacher, promoted ad hoc- on the post of
Lectuer Geography.

3.
Consequently,
'short
term
vacancies' occurred on four posts of
Assistant Teachers in L.T. Grade under
INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
38
Removal of Difficulties Second 1981
Order. The Management sought to fill up
the resultant short term vacancies by
making short term ad hoc appointments of
the Petitioners- Diwakar Lal, Deepak
Kumar
Shukla,
Surendra
Mohan
Srivastava
and
Lal
Bahadur
and
appointment letters (Annexures-1,2,3 and
4 to the Writ Petition) were issued. Papers
were sent to the District Inspector of
Schools and they were allowed to join the
posts. In paragraph 10 of the Writ Petition,
it is stated that these Petitioners actually
joined the College and started discharging
their duties to the full satisfaction of the
Management. The District Inspector of
Schools
refused
to
approve
these
appointments
and
withheld
financial
sanction.
The
Petitioners
made
representations until the District Inspector
of Schools officially passed order dated
09th February 1994 (Annexure-10 to the
Writ Petition) informing the Manager of
the College that resultant vacancies could
not be filled up under Removal of
Difficulties Order, 1981.

4. Feeling aggrieved Petitioners filed
above mentioned Writ Petition No. 9767
of 1994 and an interim order dated 09th
March 1994 was passed, relevant extract is
reproduced below:-

"........meanwhile
respondents
are
directed to pay salary to the petitioner
with effect from 2.7.93 in accordance
with law or show cause ....."
Parties exchanged Counter and Rejoinder
Affidavits.

This Writ Petition has been finally
disposed by the Learned Single Judge vide
judgement and order dated 16th April 1999,
which has given rise to the present Second
Appeal..
5. The learned single Judge observed
that Respondents, apart from the ground
mentioned in the impugned order of the
District Inspector of Schools dated 09th
February1994 (Annexure-10 to the Writ
Petition), made an attempt to support their
defence by offering an additional ground
in the Counter Affidavit to the effect that
the posts were not properly advertised.

The learned single Judge held that by
adding a ground in the Counter affidavit,
which did not find mention in the
impugned order passed by the District
Inspector of Schools, the Respondents
cannot be permitted to support the
impugned order by carving out a new case
or raise a new ground for the first time
before the Appellate/higher authority or
Court to make the order valid. In support,
reference was made to the case of
Mohinder Singh Gill versus Chief Election
Commissioner-AIR1978 SC 851.

6. The learned single Judge in the
alternative considered that assuming the
post was not advertised, the appointment
in question shall not be rendered invalid
relying upon the judgement in the case of
Ashika Prasad Shukla versus District
Inspector of Schools, Allahabad- 1998 (3)
UPLBEC 1722 (DB)- Pr. 14- wherein this
Court observed that if an appointment of
Assistant Teacher for short term vacancy is
made prior to the judgement dated 13th
January 1994 in the case of K.N. Dwivedi
versus District Inspector of Schools, 1994
(1) UPLBEC 461 and that of Radha
Raizada without advertisement in two
newspapers
of
wide
circulation,
the
appointment will not be invalid. This
observation was made by the Division
Bench in the case of Ashika Prasad Shukla
(supra) after the decision in the case of
Radha Raizada versus Committee of
3All] D.I.O.S., Kanpur Nagar & another V. Diwakar Lal and others
39
Management-1994 (3) UPLBEC 1551
(FB). The learned single Judge, in the
present case, found that the Petitioners in
the instant case were appointed as ad hoc
teachers in terms of short term vacancies
on 01st July 1993, i.e. prior to the Full
Bench decision of Radha Raizada (supra)
and also the judgment in the case of K.N.
Diwvedi
(supra)
and
held
that
the
appointments in question on ad hoc
vacancies
could
not
be
faulted
if
advertisement was not made in two
newspapers
since
the
then
existing
requirement of law to notify the vacancy
on the notice board was duly fulfilled.

7. The judgment of the learned single
Judge cannot be faulted on any ground and
the learned counsel for the Appellant has
failed to show otherwise.

8. The view taken by the learned
single Judge on the question of absence of
advertisement
is
otherwise
not
bad.
Appointments
in
question
also
not
rendered void ab initio as held in AIR
1998 SC 331 (Pr.7,19 and 20). Arun
Tiwari versus Zila Mansan Shikshak
Sangh, Supreme Court held that it is now
well
settled
that
statutory
provision
requiring advertisement in procedural in
nature. Rules may, in order to meet at
emergent situation and when appointment
is not substantive but by way of stop gap
temporary arrangement, dispense with
public notice/advertisement in newspaper.
Also See 1996 (7) SCC 577 (Pr.66 and
67), 1982 UPLBEC 695 Pr 7 (DB)
Education Cases, 1983 Education Cases 51
(DB) and 1984 UPLBEC 484. If the
condition of giving advertisement, akin to
the requirement of advertisement in the
case
of
regular
selection/substantive
appointment is to be followed then it will
frustrate the whole purpose to ect. an
unexpected or emergent situation to avoid
larger harm. Even otherwise this Court
takes notice of the fact that candidates
from outside places or other remote corner
of the States of the Country are not likely
to come forward for short term/temporary
or stop gap appointments and normally the
local candidates or the candidate in the
adjoining areas alone will be willing to
take up such appointments.

9. Therefore, apart from endorsing
the view taken by learned single Judge,
rejecting additional ground taken in the
Counter Affidavit by the Respondents in
the Writ Petition for countenancing the
claim of the Petitioners does not help the
case
of
the
Respondents
(present
appellants). With respect to the validity of
the ground disclosed by the District
Inspector of Schools in the impugned
order, the learned single Judge observed
that the objection raised by the District
Inspector of Schools was not sustainable in
law. It is held that under Removal of
Difficulties Orders, 1981 and second
Removal of Difficulties Order power was
conferred on management of a recognised
college under law with the object that
educational institutions do not suffer
irreparably by resorting to the procedure
prescribed for regular selection., teaching
in
the
college
will
be
completely
paralyzed. In the result, the learned single
Judge, allowed the Writ Petition, issued a
writ in the nature of certiorari quashing the
order dated 19th February 1994 passed by
District Inspector of Schools (Annexure-10
to the Writ Petition) and also issued a writ
of mandamus directing that in case the
Petitioners have been working in the
institution as ad hoc teachers and no
regular appointment were made against
these posts, the Petitioners will be allowed
to work and shall be paid salary till
INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
40
regularly selected candidate sent by the
Commission joins the post in question.

10. In Appeal the learned Standing
Counsel has submitted that in view of the
decision in the case of Smt. Pramila Misra-
1997 (2) UPLBEC 1329 (Pr 4) the
appointment of ad hoc teachers made
against resultant short term vacancies
(Phalit Riktiyan) will come to an an end
automatically when such a resultant short
term vacancy became substantive.

11. We find that learned Standing
Counsel has not laid foundation for his
argument sought to be developed in
Special Appeal as the relevant details
regarding vacancies and the specific period
of working of the respective incumbents
(who were promoted as Lecturers) has not
come on record with precision and clarity.
In
absence
of
relevant
details,
the
submission of the Appellants could not be
properly appreciated. A Supplementary
Affidavit has been filed on behalf of the
Respondents (Petitioners in the Writ
Petition) to overcome the shortcoming.
Perusal of the Supplementary Affidavit
and Supplementary Counter Affidavit go
to show that the facts mentioned therein
will require this Court to adjudicate on
questions of fact. This Court is neither
competent nor willing to enter into
disputed questions of fact or adjudicate the
same at this stage, particularly on the basis
of the facts brought before this Court for
the first time through Supplementary
Affidavit at appellate stage.

12. On merit, it may be noted that the
order passed by the District Inspector of
Schools
dated
10th
February1994
(Annexure-10 to the writ petition) clearly
mentions that appointments were made
against the resultant short-term vacancies
(Phalit Riktiyan). However, on the other
hand, Appellants have filed a Photostat
copy of this very order as Annexure to the
affidavit sworn by Dr.K.L. Verma, District
Inspector of Schools, Kanpur Nagar (PP
16). In the said Annexure word "Phalit"
has been changed by making addition so as
to read it as "Phaltoo", i.e. surplus.
Learned
Standing
Counsel
being
confronted with the same failed to explain
the interpolation. We have perused the
record as well as original copy of the order
received by the Manger ( produced before
us by Sri Ashok Khare, Advocate) and it is
found that the correct word used is 'Phalit'
in the original order dated 10th February
1994 passed by District Inspector of
Schools. In view of this discrepancy, we
are of the opinion that the documents filed
by the authority cannot be safely relied
upon.

Consequently, this Court refuses to go
into factual dispute.

13. The learned counsel for the Appellant
states that Deepak Kumar Shukla has
already left the College and joined another
college elsewhere as such he is not
interested
in
the
relief's
in present
proceedings. In view of the judgement,
reported in 1992 (2) UPLBEC 1420, we
are of the opinion that the incumbents
working on adhoc basis against short term
vacancies should not be automatically
thrown out of service- in view of ;the
decision in; the case of Pramila Misra (
supra ) when 'short term' vacancy became
'substantive vacancy'. In such a situation
an ad hoc appointee should normally be
allowed to continue (if there is no
complaint about his working), till a regular
ad hoc appointment is made against
substantive vacancy as contemplated under
Removal
of
Difficulties
Orders.
3All] Narendra Nath Sinha V. The State of U.P.
41

14. In the instant case we find that
Petitioners- Respondents were appointed
in the year 1993. There is no complaint
about their working as teachers in the
college. Nothing has been brought on
record to otherwise disqualify and/or
discontinue them in service. Management
and
authorities
appear
to
have
no
complaint about their performance as
teacher and seems satisfied with their
functioning,
From
the
Supplementary
Affidavit, it transpires that some of the
vacancies became substantively vacant in
August 1993 itself. There is nothing on
record to show that District Inspector of
Schools took any step to make regular ad
hoc
appointment
when
'short
term
vacancy' became 'substantive vacancy' in
accordance with Removal of Difficulties
Order even though several years have
passed.

15. Taking a pragmatic view as well
as interest of the educational institution,
we have no doubt that the direction given
by the learned single Judge requires no
interference.

The Appeal lacks merit and it is
accordingly, dismissed.

No costs.
 Special Appeal Dismissed.

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