# Dharmendra Kumar Singh v. State of U.P. Thru Secy. Sec. Education & 4 others

- **Citation:** (2012) 2 ILRA 680
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-03
- **Case number:** Service Single No. 3053 of 2008
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmendra-kumar-singh-v-state-of-u-p-thru-secy-sec-education-4-others-42252
- **Pages:** 45

## Headnote

1982-Section 16 (c)-payment of salaryclaimed by those L.T. grade teachers and
lecturers-appointed against substantive
vacancy
on
short
term
basis-heldmanagement has no power to appoint
short term basis against substantive
vacancies-salary can not be paid from
sate fund.

Held: Para 108 and 110

For the foregoing reasons, it can be safely
held that in view of the provisions as
provided under Section 16(1) of U.P.
Secondary Services Selection Board Act,
1982, the Committee of Management has
got
no
power
whatsoever
to
make
selections
on
the
post
of
Assistant
Teacher/Lecturer in L.T. Grade against a
substantive vacancy or a vacancy which
has converted into substantive one and the
power to make selection against the said
vacancy is vested only with the Selected
Board
duly
constituted
for
the
said
purpose.

In the result, I do not find any infirmity or
illegality in the action on the part of the
State
authorities/District
Inspector
of
Schools either not to pay the salary or to
2 All] Dharmendra Kumar Singh V. State of U.P. and others
681
stop the payment of salary to the Assistant
Teachers/Lecturers who are appointed
against substantive vacancy or short term
vacancy which subsequently converted
into substantive vacancy on ad hoc basis
by the Committee of Management as the
said authority has got no power under law
to appoint them, accordingly, all the writ
petitions lack merit and are dismissed.
Case law discussed:
(1998) 4 SCC 231; (1992) 1 SCC 335; 2004 (22)
LCD 1604; 1996 (10) SCC 71; Writ Petition No.
20843 of 2002; 2010 (28) LCD 1375; 2011 (7)
SCC 639; 2007 (6) SCC 586; 2006 (3) UPLBEC
2159; 1991 (2) SCC 599; 1992 (2) SCC 66; 1993
(1) SCC 645; (1991) 3 SCC 67; (1989) 1 SCC
104; (1991) 4 SCC 312; (2011) 1 SCC 354;
(2011) 9 SCC 707; 2004 vol. 3 UPLBEC page
2671; 1986 UPLBEC 477; 1996 (3) UPLBEC
1959; 1955 Suppl. (27 SCC 73); 1973 (2) SCC
72; AIR 1976 SC 1031; 1989(1) SCC 272; (2009)
15 SCC 458; 2011 (4) SCC 602; (1989) 1 SCC
272; (2009) 15 SCC 458; 2011 (4) SCC 602;
(2003) 7 SCC 197; 1994 (2) E.S.C. 1284 (Alld);
2004 (22) LCD 1604; Civil Misc. Writ Petition No.
20813 of 2002 (Daya Shanker Mishra Vs. State of
U.P. And others); 2001 (1) UPLBEC 741; 2010
(4) ADJ 143; 2010 (6) ADJ 299 (DB); 2010 (7)
ADJ 392 (DB); 2011 (11) LBESR 505 (All);
(2012) 1 UPLBEC 260; 2007 (6) SCC 236; 1996
(3) SCC 709; 2008 (2) SCC 254; AIR 1964 SC
1135; AIR 1968 SC 1; (1978) 2 SCC 1; SEB
(1988) 3 SCC 382; 2002 (2) SCC 318; (2000) 8
SCC 633; AIR 1966 SC 942; (2002) 5 SCC 111;
AIR 1996 SC 1864; Commissioner of agricultural
Income Tax Vs. Keshav Chand, AIR 1950; AIR
1955 SC 661; AIR 1983 SC 420; AIR 1963 SC
1128; (1998) 3 SCC 218; AIR 1996 SC 1963; AIR
1996 SC 1153; AIR 1997 SC 2847; AIR 2003 SC
1115; (2004) 5 SCC 155; (2010) 7 SCC 643; U.P.
Secondary Education Service Selection Board
(Amendment) Act, 2011 (U.P. Act 5 of 1982);
A.I.R. 1976 page 137; 1956 (1) All England
Reports page 859; AIR 1977 Supreme Court
265; 62 (1986) STC 1121; (1987) 1 SCC 424:
(AIR 1987 SC 1023); 1956 SCR 603; (1990) 4
SCC 406; JT 2008 (9) SC 227; AIR SC 96; (2004)
5 SCC 518; (2003) 5 SCC 590; AIR 2003 SC 511;
(2003) 5 SCC 134; AIR 1964 Supreme Court
page 358; AIR 1936 Privy council page 253;
(2004) 3 UPLBEC 2671; 1989 (1) SCC 252; 2009
(15) SCC 458; 2011 (4) SCC 602; 2003 (7) SCC
197; 2010 (1) ADJ 357; 2010 (6) ADJ 299 (DB);
2010 (10) ADJ, 849 (DB); 2009 (9) ADJ 650;
2010 (7) ADJ 392 (DB); 2011 (29) LCD 826;
2012 (1) UPLBEC 260; 2012 (1) SCC 122

## Text

_Characters 0–39,926 of 145,910. This is a partial read: ask again with offset=39926 for what follows._

680 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

" 79. What needs to be emphasised is
hat no recognition/permission can be
granted to any institution desirous of
conducting teacher training course unless
the mandatory conditions enshrined in
Sections 14(3) or 15(3) read with the
relevant clauses of Regulations 7 and 8 are
fulfilled and that in view of the negative
mandate contained in Section 17-A read
with Regulation 8(10), no institution can
admit any student unless it has obtained
unconditional
recognition
from
the
regional committee and affiliation from the
examining body."

15. In the said case the students were
allowed to appear in the examination as
they were admitted. Since in the present
case, the students were not validly
admitted after affiliation, therefore, they
cannot be allowed to appear in the
examination. The petitioner, therefore, has
failed to make out a case for interference.
There has been no affiliation from the
examining body. In absence of affiliation,
the petitioner was not entitled to admit the
students and anyhow if any mistake was
committed by the Agra University, that
will not entitle the petitioner to claim any
parity or any illegal parity is supposed to
grant
indulgence
in
favour
of
the
petitioner. It appears that by mistake 48
students were admitted illegally by the
petitioner, whereas recognition was only in
respect of 200 seats. Therefore, I find no
illegality in the order passed by the
opposite party no.3.

16. Writ petition is devoid of merit. It
is accordingly dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.05.2012

BEFORE
THE HON'BLE ANIL KUMAR, J.

Service Single No. 3053 of 2008

Dharmendra Kumar Singh
 ...Petitioner
Versus
State of U.P. Thru Secy. Sec. Education &
4 others

 ...Respondents

Counsel for the Petitioner:
H.G.S. Parihar

Counsel for the Respondents:
C.S.C.

U.P. Secondary Services Selection Board
1982-Section 16 (c)-payment of salaryclaimed by those L.T. grade teachers and
lecturers-appointed against substantive
vacancy
on
short
term
basis-heldmanagement has no power to appoint
short term basis against substantive
vacancies-salary can not be paid from
sate fund.

Held: Para 108 and 110

For the foregoing reasons, it can be safely
held that in view of the provisions as
provided under Section 16(1) of U.P.
Secondary Services Selection Board Act,
1982, the Committee of Management has
got
no
power
whatsoever
to
make
selections
on
the
post
of
Assistant
Teacher/Lecturer in L.T. Grade against a
substantive vacancy or a vacancy which
has converted into substantive one and the
power to make selection against the said
vacancy is vested only with the Selected
Board
duly
constituted
for
the
said
purpose.

In the result, I do not find any infirmity or
illegality in the action on the part of the
State
authorities/District
Inspector
of
Schools either not to pay the salary or to
2 All] Dharmendra Kumar Singh V. State of U.P. and others
681
stop the payment of salary to the Assistant
Teachers/Lecturers who are appointed
against substantive vacancy or short term
vacancy which subsequently converted
into substantive vacancy on ad hoc basis
by the Committee of Management as the
said authority has got no power under law
to appoint them, accordingly, all the writ
petitions lack merit and are dismissed.
Case law discussed:
(1998) 4 SCC 231; (1992) 1 SCC 335; 2004 (22)
LCD 1604; 1996 (10) SCC 71; Writ Petition No.
20843 of 2002; 2010 (28) LCD 1375; 2011 (7)
SCC 639; 2007 (6) SCC 586; 2006 (3) UPLBEC
2159; 1991 (2) SCC 599; 1992 (2) SCC 66; 1993
(1) SCC 645; (1991) 3 SCC 67; (1989) 1 SCC
104; (1991) 4 SCC 312; (2011) 1 SCC 354;
(2011) 9 SCC 707; 2004 vol. 3 UPLBEC page
2671; 1986 UPLBEC 477; 1996 (3) UPLBEC
1959; 1955 Suppl. (27 SCC 73); 1973 (2) SCC
72; AIR 1976 SC 1031; 1989(1) SCC 272; (2009)
15 SCC 458; 2011 (4) SCC 602; (1989) 1 SCC
272; (2009) 15 SCC 458; 2011 (4) SCC 602;
(2003) 7 SCC 197; 1994 (2) E.S.C. 1284 (Alld);
2004 (22) LCD 1604; Civil Misc. Writ Petition No.
20813 of 2002 (Daya Shanker Mishra Vs. State of
U.P. And others); 2001 (1) UPLBEC 741; 2010
(4) ADJ 143; 2010 (6) ADJ 299 (DB); 2010 (7)
ADJ 392 (DB); 2011 (11) LBESR 505 (All);
(2012) 1 UPLBEC 260; 2007 (6) SCC 236; 1996
(3) SCC 709; 2008 (2) SCC 254; AIR 1964 SC
1135; AIR 1968 SC 1; (1978) 2 SCC 1; SEB
(1988) 3 SCC 382; 2002 (2) SCC 318; (2000) 8
SCC 633; AIR 1966 SC 942; (2002) 5 SCC 111;
AIR 1996 SC 1864; Commissioner of agricultural
Income Tax Vs. Keshav Chand, AIR 1950; AIR
1955 SC 661; AIR 1983 SC 420; AIR 1963 SC
1128; (1998) 3 SCC 218; AIR 1996 SC 1963; AIR
1996 SC 1153; AIR 1997 SC 2847; AIR 2003 SC
1115; (2004) 5 SCC 155; (2010) 7 SCC 643; U.P.
Secondary Education Service Selection Board
(Amendment) Act, 2011 (U.P. Act 5 of 1982);
A.I.R. 1976 page 137; 1956 (1) All England
Reports page 859; AIR 1977 Supreme Court
265; 62 (1986) STC 1121; (1987) 1 SCC 424:
(AIR 1987 SC 1023); 1956 SCR 603; (1990) 4
SCC 406; JT 2008 (9) SC 227; AIR SC 96; (2004)
5 SCC 518; (2003) 5 SCC 590; AIR 2003 SC 511;
(2003) 5 SCC 134; AIR 1964 Supreme Court
page 358; AIR 1936 Privy council page 253;
(2004) 3 UPLBEC 2671; 1989 (1) SCC 252; 2009
(15) SCC 458; 2011 (4) SCC 602; 2003 (7) SCC
197; 2010 (1) ADJ 357; 2010 (6) ADJ 299 (DB);
2010 (10) ADJ, 849 (DB); 2009 (9) ADJ 650;
2010 (7) ADJ 392 (DB); 2011 (29) LCD 826;
2012 (1) UPLBEC 260; 2012 (1) SCC 122

(Delivered by Hon'ble Anil Kumar, J.)

1. Heard Sri H.G.S. Parihar, Sri M.B.
Singh, Pt. S. Chandra, Sri M.S. Rathour, Sri
Ramesh Pandey, Sri Sanjay Mishra, Sri S.P.
Singh, Sri G.C. Verma, Sri D.P.S. Chauhan,
Sri R.P. Singh, Sri Ajay Kumar Singh Sri
Sharad
Pathak,
learned
counsel
for
petitioners and Sri V.S. Tripathi, learned
Additional Chief Standing Counsel on
behalf of respondents.

2. The role of teachers in society is
both significant and of widespread value.
They had influenced the society they lived
in and no other personalities had a greater
influence than the teachers. Students are
strongly influenced by teacher's love,
compassion, character, competence, and
moral commitment. A popular teacher is
one who becomes a role model for his
students. Often the students try to follow
their teachers in their behavior, dress,
etiquette, conversational style, and way of
living. He's their ideal.

3. The importance of teachers as
architects of our future generations demands
that only the best, most intelligent and
competent members of our intellectuals are
allowed to qualify for this noble profession.
But, it is unfortunate to find that in general
the worst and most incapable people find
their way into this profession. Anyone who
fails to find an open road in life, gets into
this profession and starts recklessly playing
with the fate of nation.

4. In the instant matters, the
controversy involved is in respect to the
petitioners who are Assistant Teachers or
682 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Lecturers
selected
in
Intermediate
colleges situated in different cities of the
State of U.P. as ad hoc teacher on
substantive vacancy or short term vacancy
which were subsequently converted into
substantive vacancy by the Committee of
Management. However, approval of their
appointments has been refused by District
Inspector of Schools concerned either
expressly or impliedly, thus they were not
paid the salary as matter regarding
payment of salary has been rejected by
the D.I.O.S. and for the said grievances
they approached this Court under article
226 of the Constitution of India for
redressal of their grievances i.e. for
payment of salary.

5. So far as the educational
qualification and other eligibility criteria
of the petitioners in respect of holding the
post of Assistant Teacher/Lecturer is
concerned, it is not an issue in the present
case, but the only question involved in the
present matter is whether the committee
of Management of the various institutions
situated throughout the State of U.P. have
got power to make ad hoc selection
against substantive vacancy or not.

6. Before dealing with the issue in
question, it would be appropriate to quote
the
relevant
provisions
of
U.P.
Intermediate
Education
Act,
1921,
Payment of Salaries Act, 1971 and U.P.
Secondary Education Services Selection
Board Act, 1982 and Regulations and
Rules framed under these Acts. Relevant
portion of the same are reporduced as
under:-

"1.
The
Uttar
Pradesh
Intermediate Education Act, 1921

16-E. Procedure for selection of
teachers and head of institutions. - (1)
Subject to the provisions of this Act, the
Head of Institution and teachers of an
institution shall be appointed by the
Committee of Management in the manner
hereinafter provided.

(2) Every post of Head of Institution
or teacher of an institution shall except to
the extent prescribed for being filled by
promotion, be filled by direct requirement
after intimation of the vacancy to the
Inspector and advertisement of the
vacancy containing such particulars as
may be prescribed, in at least two
newspapers having adequate circulation
in the State.

(3) No person shall be appointed as
Head of Institution or teacher in an
institution unless he possess the minimum
qualifications
prescribed
by
the
Regulations:

Provided that a person who does not
possess such qualification may also be
appointed if he has been granted
exemption by the Board having regard to
his education, experience and other
attainments.

(4)
Every
application
for
appointment as Head of Institution or
teacher of an institution in pursuance of
an advertisement published under subsection (2) shall be made to the Inspector
and shall be accompanied by such fee
which shall be paid in such manner as
may be prescribed,

(5)
(i)
After
the
receipt
of
applications under sub-section (4), the
Inspector shall cause to be awarded, in
respect of each such applications, quality-
2 All] Dharmendra Kumar Singh V. State of U.P. and others
683
point marks in accordance with the
procedure and principles prescribed, and
shall
thereafter,
forw2ard
the
applications
to
the
Committee
of
Management.

(ii) The applications shall be dealt
with, the candidates shall be called for
interview, and the meeting of the
Selection Committee shall be held, in
accordance with the Regulations.

(6) The Selection Committee shall
prepare a list containing in order of
preference
the
names
as
far
as
practicable of three candidates for each
post found by it to be suitable for
appointment and shall communicate its
recommendations together with such list
to the Committee of Management.

(7) Subject to the provisions of subsection
(8)
the
Committee
of
Management shall, on receipt of the
recommendations
of
the
Selection
Committee under sub-section (6), first
offer appointment to the candidate given
the first preference by the Selection
Committee, and on his failure to join the
post, the candidate next to him in the
list
prepared
by
the
Selection
Committee under this section, and on
the failure of such candidate also, to the
last candidate specified in such list.

(8) The Committee of Management
shall, where it does not agree with the
recommendations
of
the
Selection
Committee, refer the matter together
with the reasons of such disagreement
to the Regional Deputy Director of
Education in the case of appointment to
the post of Head of Institution and to the
Inspector in the case of appointment to
the post of teacher of an institution, and
his decision shall be final.

(9) Where no candidate approved
by
the
Selection
Committee
for
appointment
is
available,
a
fresh
selection shall be held in the manner
laid down in the section.

(10) Where the State Government,
in cases of the appointment of Head of
Institution, and the Director in the case
of appointment of teacher of an
institution, is satisfied that any person
has
been
appointed
as
Head
of
Institution or teacher, as the case may
be, in contravention of the provisions of
this Act, the State Government or, as the
case may be, the Director may, after
affording an opportunity of being heard
to such person, cancel such appointment
and pass such consequential order as
may be necessary.

(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 sessions, 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,
continue
beyond
the
end
of
the
educational session during which such
appointment was made."

"2. Regulations framed under The
Uttar Pradesh Intermediate Education
Act 1921.
684 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Chapter-II

APPOINTMENT OF HEADS OF
INSTITUTIONS AND TEACHERS

(Sections 16-E, 16-F and 16-FF)

1. The minimum qualifications for
appointment as Head of the Institution and
Teachers in any recognised Institution
whether by direct recruitment or otherwise,
shall be as given in Appendix A.

.......................

9. (1) Where a vacancy in the post of
teacher is caused by grant of leave to him
for a period exceeding six months or where
a teacher is placed under suspension which
has been approved in writing by the
Inspector under sub-section (7) of Section
16-G and the period of such suspension is
likely to exceed six months from the date of
such approval the vacancy may subject to
the provisions of these Regulations be filled
temporarily by direct recruitment or
promotion as the case may be.

(2) Where any vacancy is of the nature
referred to in Clause (1) or is caused as a
result of promotion under Regulation 2 and
the period of such vacancy exceeds thirty
days but does not exceed six months, it may
be filled by the Committee of Management
by promotion of a duly qualified permanent
teacher of the institution in the next lower
grade on the basis of seniority.

(3) If any vacancy under Clause (2)
cannot be filled due to the non availability
of any teacher of the institution in the next
lower grade, possessing the prescribed
minimum qualifications for the post, it may
be filled on ad hoc basis by the Committee
of Management by the direct appointment
for a period of not exceeding six months in
aggregate.

(4) All vacancies filled under Clause
(2) or Clause (3) shall be reported to the
Inspector in the proforma prescribed in
Appendix 'B' within a week of being filled
up.

9-A. A teacher appointed to a post to
fill a vacancy caused by the promotion of a
permanent teacher from a lower grade to
higher grade shall be deemed to have been
appointed in substantive capacity on the
post from the date of confirmation of such
permanent teacher in the higher grade.

10. The procedure for filling up the
vacancy of the head of institution and
teachers by direct recruitment in any
recognised institution shall be as follows:-

1⁄4d1⁄2 izcU/k lfefr }kjk lh/kh HkrhZ ls Hkjh tkus okyh
jfDfr;ksa dks la[;k vo/kkfjr dj fy;s tkus ds i'pkr~
laLFkk ds izcU/kd }kjk de ls de nks ,sls lekpkj
i=ksa esa ftuesa ,d O;kid izpyu dk LFkkuh; vFkok
laLFkk ds fudVe LFkku ls izdkf'kr gksus okyk dksbZ
lekpkj i= gks vkSj nwljk jkT; esa O;kid ifjpkyu
okyk lekpkj i= gks in foKkfir fd;s tk;saxs]
izfrcU/k ;g gS fd lekpkj i=ksa dh lwph ftls
fo|ky; fujh{kd vius lEHkkx ds lEHkkxh; mi f'k{kk
funs'kd dh Lohd`fr ds mijkUr fu/kkZfjr djsaxs vkSj
muls ls gh nks lekpkj i=ksa esa tuin ds leLr izcU/k
lfefr;ksa }kjk foKkiu nsuk vfuok;Z gksxk foKkiu esa
fjfDr;ksa ds izdkj 1⁄4vFkkZr LFkk;h gSa ;k vLFkk;h 1⁄2 rFkk
fjfDr;ksa dh la[;k] in dk fooj.k 1⁄4vFkkZr fiazfliy ;k
iz/kkuk/;kid] izoDrk ;k ,y0Vh0] lh0Vh0 ;k
ts0Vh0lh0] ch0Vh0lh0 Js.kh ds v/;kid rFkk ,slk ;k
,sls fo"k; ftlesa ;k ftuesa izoDrk ;k v/;kid dh
vko';drk gks1⁄2] orZeku vkSj vU; HkRrs] visf{kr vuqHko]
in ds fy, fofgr U;wUre vgZrk vkSj U;wUre vk; ;fn
dksbZ gks] ds lEcU/k esa fooj.k fn;s x, gksa vkSj vfUre
fnukad 1⁄4tks lk/kkj.kr;k foKkiu ds fnukad ls nks
lIrkg ls de u gks gksuk pkfg;s1⁄2 fofgr fd;k tk;sxk
ftl rd vH;fFkZ;ksa }kjk fofgr izi= esa lE;d~ :i ls
iw.kZr;k Hkjs x;s vkosnu&i= fuEufyf[kr ds dk;kZ esa
izkIr fd;s tk;saxsA
2 All] Dharmendra Kumar Singh V. State of U.P. and others
685

(i) the District Inspector of Schools, or

(ii) the Regional Inspectors of Girls'
Schools, in case of institutions for girls.

The advertisement shall also state that
the prescribed application forms can be had
from the office of any Inspector on payment
of Rs.9 per form by a crossed postal order
or bank draft or through Treasury challan
by depositing the amount in the State Bank
of India under the head indicated by the
Inspector. In no case the payment shall be
accepted in cash in the Office of the
Inspector. A copy of each advertisement
shall be simultaneously sent by the
Manager to the District Inspector of
Schools or the Regional Inspectress of
Girls' Schools concerned and in case the
post of the head of institution is advertised a
copy of the Advertisement shall also be sent
to the Regional Deputy Director of
Education.

3. Whether recognised/and on the
grant -in-aid list ........... 4.Purpose for
which
grant
is
required
.............
.........................................................................
..........................
(With
details
of
expenditure)

................................................................
....................................

5.Particulars of grants (recurring and
non-recurring), if any received during the
year of application and the year preceding
it ................

3. The Uttar Pradesh Secondary
Education
Services
Commission
and
Selection Board Act, 1982

10. Procedure of selection of teachers
specified in the Schedule.

(1) For the purposes of making
appointment of a teacher specified in the
Schedule, the management shall notify the
vacancy to the Commission in such manner
and through such officer or authority as
may be prescribed.

(2) The procedure of selection of
candidates for appointment to the posts of
such teachers shall be such as may be
prescribed:

Provided that the Commissioner shall,
with a view to inviting talented persons,
give wide publicity in the State to the
vacancies notified under sub-section (1).

11. Panel of candidates selected by
Commissioner.

(1) The Commission shall, as soon as
possible, after the notification of vacancy
under Section 10, hold interviews (with or
without examination) of the candidates and
prepare a panel of those found most suitable
for appointment.

(2) The panel referred to in sub-section
(1) shall be forwarded by the Commission
to the officer or authority referred to in subsection of Section 10 in such manner as
may be prescribed.

(3) After the receipt of the panel under
sub-section (2), the officer or authority
concerned shall intimate the management of
an institution in respect of which the
vacancy was notified under sub-section (1)
of Section 10, the names of candidates
selected for appointment as teachers, and
for this purpose, the officer or authority
686 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
shall follow such procedure as may be
prescribed.

(4) The management shall within a
period of one month from the date of receipt
of such intimation, issue appointment letter
to the candidate whose name has been
intimated under sub-section (3).

(5) Where the candidate referred to in
sub-section (3) fails to join the post of a
teacher in such institution within the time
allowed in the appointment letter or within
such extended time as the management may
allow in this behalf, or where such
candidate is otherwise not available for
appointment as such teacher, the officer or
authority concerned may, on the request of
the management, intimate fresh name or
names from the panel forwarded by the
Commission under sub-section (2) in the
manner prescribed.

The procedure laid down in Sections
10 and 11 qualifies the power of the
Commission mentioned in Section 16 to
make recommendations for appointment.
The procedure as laid down in Sections 10
and 11 is obviously inapplicable to a case of
transfer. It cannot thus be said that the
Commission is to be consulted or that the
Commission has to make recommendations
with regard to transfer. The Commission
can make recommendations only on the
basis of regular selection as mentioned in
Sections 10 and 11. These provisions do not
fit in with the concept of a transfer of the
nature contemplated in regulations Nos.55
to 60.

Every transfer, though it does involve
an appointment in the sense indicated
above, is not a fresh appointment or a
recruitment for a fresh appointment. It is
only fresh appointments, and recruitments
therefore which are sought to be regulated
by the new Act.

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, 1921 or the Regulations
made thereunder but subject to the
provisions 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 words 'six months' the words 'two
months' shall be deemed to have been
substituted.

(2) Every appointment of a teacher, in
contravention of the provisions of subsection (1), shall be void.

18. Ad hoc Teachers (as originally
enacted).-

(1) Where the management has
notified a vacancy to the Commission in
accordance with the provisions of this Act,
and - (a) the Commission has failed to
2 All] Dharmendra Kumar Singh V. State of U.P. and others
687
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 sub-section
(2) shall cease to have effect from the
earliest of the following dates namely

(a) when the candidate recommended
by the Commission or the Board, as the
case may be, joins the post ;

(b) when the period of one month
referred to in sub-section (4) of Section 11
expires ;

(c) thirtieth day of June following the
date of such ad hoc appointment.

The word "appointment" appearing in
Section 16 has to be construed in harmony
with the provisions of the two Acts,
particularly Sections 10 and 11 of the new
Act and Section 16-G of the Intermediate
Education Act,. Words take their colour
from the context in which they appear. The
expression "appointment" in its widest sense
would, no doubt, include a transfer also but
considering the context and the object of the
new Act the word "appointment" as it
appears in Section 16 cannot comprise an
appointment
through
transfer
or
an
appointment of say, a Government Official
on deputation to a recognised institution.

Section 16 does not depend for its
operation on fulfilment of any condition
precedent or making of a provision, the
language of sub-section (2) of Section 1 is
clear and leaves no room for doubt that the
appointment to be made against the
provisions of the Ordinance would be void.

The expression 'void' used in subsection (2) of Section 16 is very material. In
the strict sense the word 'void' means
nullity.

18. Ad hoc Principals or Headmasters
(as it stands after amendment in 2001).-

(1) Where the Management has
notified a vacancy to the Board in
accordance with sub-section (1) of Section
10 and the post of the Principal or the
Headmaster actually remained vacant for
more than two months, the Management
shall fill such vacancy on purely ad hoc
basis by promoting the senior-most teacher,

(a) in the lecturer's grade in respect of
a vacancy in the post of the Principal;

(b) in the trained graduate's grade in
respect of a vacancy in the post of the
Headmaster.

(2) Where the Management fails to
promote the senior-most teacher under subsection (1) the Inspector shall himself issue
the order of promotion of such teacher and
688 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the teacher concerned shall be entitled to
get his salary as the principal or the
Headmaster, as the case may be, from the
date he joins such post in pursuance of such
order of promotion.

(3) Where the teacher to whom the
order of promotion is issued under subsection (2) is unable to join the post of the
Principal or the Headmaster, as the case
may be, due to any act or omission on the
part of the Management, such teacher may
submit his joining report to the Inspector,
and shall thereupon be entitled to get his
salary as the Principal or the Headmaster,
as the case may be, from the date he
submits the said report.

(4) Every appointment of an ad hoc
Principal or Headmaster under sub-section
(1) or sub-section (2) shall cease to have
effect from the date when the candidate
recommended by the Board joins the post.

32. Applicability of U.P. Act II of
1921. - The provisions of the Intermediate
Education Act, 1921 and the Regulations
made thereunder in so far as they are not
inconsistent with the provisions of this Act
or the rules or regulations made thereunder
shall continue to be in force for the purpose
of
selection,
appointment,
promotion,
dismissal,
removal,
termination
or
reduction in rank of a teacher.

33-E Rescission of orders.- The Uttar
Pradesh Secondary Education Services
Commission
(Removal
of
Difficulties)
Order, 1981, the Uttar Pradesh Secondary
Education Services Commission (Removal
of Difficulties( (Second) Order, 1981, the
Uttar
Pradesh
Secondary
Education
Services
Commission
(Removal
of
Difficulties ) (Third) Order, 1982 and the
Uttar
Pradesh
Secondary
Education
Services
Commission
(Removal
of
Difficulties) (Fourth) Order, 1982, are
hereby rescinded.

4. The Uttar Pradesh Secondary
Education Services Selection Board Rules,
1998

Rule 2(e). -"Vacancy" means a
vacancy arising out as a result of death,
retirement,
resignation,
termination,
dismissal or removal of a teacher or
creation of new post or appointment or
promotion of the incumbent to any higher
post in a substantive capacity.

5. The Uttar Pradesh Secondary
Education Services Commission (Removal
of Difficulties ) Order, 1981.

1. Short title and commencement. -

(1) This Order may be called the Uttar
Pradesh Secondary Education Services
Commission
(Removal
of
Difficulties)
Order, 1981.

(2) It shall come into force at once.

2. Vacancies in which ad hoc
appointment
can
be
made.
-
The
management of an institution may appoint
by promotion or by direct recruitment a
teacher on purely ad hoc basis in
accordance with the provisions of this
Order in the following cases, namely:

(a) in the case of a substantive vacancy
existing on the date of commencement of
this Order caused by death, retirement,
resignation or otherwise;

(b) in the case of a leave vacancy,
where the whole or unexpired portion of the
2 All] Dharmendra Kumar Singh V. State of U.P. and others
689
leave is for a period exceeding two months
on the date of such commencement;

(c) where a vacancy of the nature
specified in clause (a) or clause (b) comes
into existence within a period of two months
subsequent
to
the
date
of
such
commencement.

3. Duration of ad hoc appointment. -
Every appointment of an ad hoc teacher
under paragraph 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 joins the
post; or

(b) when the period of six months from
the date of such ad hoc appointment
expires.

4. Ad hoc appointment by promotion.
-

(1) Every vacancy in the post of an
Head of an institution may be filled by
promotion:

(a) in the case of an Intermediate
College, by the senior most teacher of the
institution in the lecturer's grade;

(b) in the case of a High School raised
to the level of an Intermediate College, by
the Headmaster of such High School;

(c) in the case of a Junior High School
raised to the level of a High School, by the
Headmaster of such Junior High School.

(2) Every vacancy in the post of a
teacher in Lecturer's grade may be filled by
promotion by the senior most teacher of the
institution in the trained-gradate (L.T.)
grade.

(3) Every vacancy in the post of a
teacher in the trained graduate (L.T.) grade
shall be filled by promotion by the senior
most teacher of the institution in the trained
undergraduate (C.T.) grade.

(4) Every vacancy in the post of a
teacher in the trained undergraduate (C.T.)
grade shall be filled by promotion by the
senior most teacher of the institution in the
J.T.C. Grade or B.T.C. Grade.

Explanation. - For the purposes of
clauses (1) to (4) of this paragraph, the
expression "senior most teacher" means the
teacher having longest continuous service
in the institution in the Lecturer's grade or
the trained graduate (L.T.) grade, or
trained undergraduate 9C.T.) grade or
J.T.C. Or B.T.C. Grade, as the case may be.

5. Ad hoc appointment by direct
recruitment. -

(1) Where any vacancy can not be
filled by promotion under paragraph 4, the
same may be filled by direct recruitment in
accordance with clauses (2) to (5).

(2) The management shall as soon as
may be, informed 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 advertisement in at
least two news papers having adequate
circulation in Uttar Pradesh.

(3) Every application referred to in
clause (2) shall, be addressed to the District
Inspector
of
School
and
shall
be
accompanied:
690 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

(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.

(4) The District Inspector of Schools
shall cause the best candidates selection on
the basis of quality points specified in
Appendix. The compilation of quality points
may be done on remunerative basis by the
retired Gazetted Government servants
under the personal supervision of such
Inspector.

(5) If more than one teacher of the
same subject or category is to be recruited
for more than one institution, the names of
the selected teacher and the names of the
institutions 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 the
institutions.
This
processes
shall
be
repeated till both the lists are exhausted.

Explanation . - In relation to an
institution imparting instruction to women
the expression "District Inspector of
Schools"
shall
mean
the
"Regional
Inspectress of Girls Schools".

6. Eligibility for appointment. - Every
appointment of a teacher under paragraph
4 to 5 shall be subject to the following
conditions, namely:

(a) The candidate sough to be appointed by
promotion or by direct recruitment must
fulfil the essential qualifications laid down
in Appendix A referred to in the Regulation
(1) of Chapter II of the Regulations made
under the Intermediate Education Act,
1921.

(b) The candidate sough to be appointed by
direct recruitment under paragraph 5 shall
not be related to any member of the
Committee of Management in the manner
indicated in Schedule II to the Intermediate
Education Act, 1921.

(c) The candidate sought to be appointed by
promotion under paragraph 4 must have
been serving the institution in substantive
capacity
from
before
the
date
of
commencement of this Order.

7. Disputes to be referred to Director.
-

(1) Every dispute connected with the
promotion or direct recruitment under this
Order shall be referred to the Director and
his decision thereon shall be final.

(2) Without prejudice to the generality
of clause (1), the Director shall have the
power to look into the complaint, if any,
regarding the award of the quality points
mentioned in Appendix or the validity or
any promotion or direct recruitment in
accordance with this order and to cancel
any promotion, recruitment or appointment
made in continuation of such order.

6. The Uttar Pradesh Secondary
Education Services Commission (Removal
of Difficulties) (Second) Order, 1981

1. Short title and commencement. -

(1) This Order may be called the Uttar
Pradesh Secondary Education Services
Commission
(Removal
of
Difficulties)
(Second) Order, 1981.
2 All] Dharmendra Kumar Singh V. State of U.P. and others
691

(2) It shall come into force at once.

2. Procedure for filling up short-term
vacancies. -

(1) If short term vacancy in the post of
a teacher, caused by grant of leave to him
or on account of his suspension duly
approved by the District Inspector of
Schools or otherwise, shall be filled by the
Management
of
the
institution,
by
promotion of the permanent senior most
teacher of the institution, in the next lower
grade. The management shall immediately
inform the District Inspector of Schools of
such promotion along with the particulars
of the teacher so promoted.

(2) Where any vacancy ,referred to in
clause (1) cannot be filled by promotion,
due to non-availability of a teacher in the
next lower grade in the institution,
possession
the
prescribed
minimum
qualifications, it shall be filled by direct
recruitment in the manner laid down in
clause (3).

(3) (i) The Management shall intimate
the vacancies to the District Inspector of
Schools and shall also immediately notify
the same on the notice board of the
institution, requiring the candidates to
apply to the Manager of the institution
along with the particulars given in
Appendix 'B' to this order. The selection
shall be made on the basis of quality point
marks specified in the Appendix to the Uttar
Pradesh Secondary Education Services
Commission
(Removal
of
Difficulties)
Order, 1981, issued with notification
no.Ma-1993/SV-7-1(79)-1981, dated July
31., 1981, hereinafter to be referred to as
the First Removal of Difficulties Order,
1981. The compilation of quality point
marks shall be done under the personal
supervision of the Head of institution.

(ii) The names and particulars of the
candidate
selected
and
also
other
candidates and the quality point marks
allotted to them shall be forwarded by the
Manager to the District Inspector of
Schools for his prior approval.

(iii) The District Inspector of Schools
shall communicate his decision within seven
days of the date of receipt of particulars by
him failing which the Inspector will be
deemed to have given his approval.

(iv) On receipt of the approval of the
District Inspector of Schools or, as the case
may be, on his failure to communicate his
decision within seven days of the receipt of
papers by him from the Manager, the
Management shall appoint the selected
candidate and an order of appointment
shall be issued under the signature of the
Manager.

Explanation. - For the purpose of this
paragraph -

(i) the expression 'senior-most teacher'
means
the
teacher
having
longest
continuous service in the institution in the
Lecturer's grade or the trained graduate
(L.T.) grade, or trained under-graduate
(C.T.) grade or J.T.C. Or B.T.C. Grade, as
the case may be ;

(ii) in relation to institution imparting
instructions to women, the expression
'District Inspector of Schools' shall mean
the 'Regional Inspectress of Girls Schools';

(iii) 'short term vacancy' otherwise
ceases to exist.
692 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

4. Every appointment of a teacher
under paragraph 2 shall mutatis mutandis
be subject to the conditions laid down in
para 6 of the First Removal of Difficulties
Order, 1981.

5. Substitution of paragraphs 2 of the
First Removal of Difficulties Order 1981. -
In the First Removal of Difficulties Order,
1981, for paragraph 2, the following
paragraph shall be substituted, namely : -

"2. The management of an institution
may appoint by promotion or by direct
recruitment, a teacher on purely ad hoc
basis in accordance with the provisions of
this Order in the case of a substantive
vacancy caused by death, retirement,
resignation, or otherwise."

6. Amendment of the Appendix
appended to the First Removal of
Difficulties Order, 1981.- In the Appendix
to the First Removal of Difficulties Order,
1981, for the entry against item 5 in each of
the two tables pertaining to trained undergraduates grade and trained graduates
grade, the following entry shall be
substituted, namely

Examination First
Second
Third

 Division Division Division

5. (a) Training 12 6 3

(b) Practical 12 6 3

APPENDIX

(i)Name:
(ii)Date of birth
(iii)Qualifications - Examinations with date
of passing them subject(s) and Divisions;

(iv)Whether trained ? If so division in
theory and practice.

SUBMISSIONS MADE ON BEHALF
OF PARTIES

7. First argument which has been
advanced on behalf of petitioners in the
present case is to the effect that Section 33
E of U.P. Act No. 5 of 1982 is ultra vires to
the provisions of Article 14 of the
Constitution of India as well as Section 16 E
(11) of the U.P. Intermediate Education Act,
1921, as after insertion of the said section in
the statute, there is no provision which
enables the Committee of Management to
make ad hoc selection/appointment on the
post
of
Assistant
Teacher
against
substantive
vacancy.
Thus,
the
selection/appointment on the post of
Assistant
Teacher/Lecturer
by
the
Committee of Management as per the
Provisions of Section 16 E(11) of Chapter II
and Regulation 9 of the Regulation framed
under U.P. Intermediate Education Act,
1921, by the Committee of Management
competent
to
make
their
selection/appointment in no manner be
curtailed of the provision as provided under
Section 33 E of the U.P. Act No. 5 of 1982.

8. Further in view of Section 32 of the
U.P. Secondary Education Service Selection
Board, 1982 which provides that the
provisions
contained
under
the
U.P.
Intermediate Education Act, 1921 and the
Regulation framed thereunder which are not
in consistent with the provisions of U.P. Act
No. 5 of 1982 shall continue to applicable in
respect to the appointment and selection of
the teachers and since Regulation 9 is not in
consistent with any provisions of Act No. 5
of 1982, so the selections/appointments are
perfectly valid. Further, the provisions as
provided under U.P. Secondary Education
2 All] Dharmendra Kumar Singh V. State of U.P.