# Dr. Smt. Satyawati Saxena v. Regional Dy. Director Of Education Moradabad & Ors

- **Citation:** (2016) 5 ILRA 1449
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-27
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-smt-satyawati-saxena-v-regional-dy-director-of-education-moradabad-ors-43773
- **Pages:** 8

## Text

5 All. Dr. Smt. Satyawati Saxena Vs Regional Dy. Director Of Education Moradabad & Ors.

1449
19. Learned counsel for the respondents has placed reliance upon a judgment of the Apex
Court in Union Bank of India v. Vishwa Mohan, 1998 4 SCC 310, in order to contend that in the
absence of prejudice shown, the mere failure to provide Defence Assistant would not be fatal, is not
liable to be accepted, as it has been found that petitioner's right to defend himself has been
breached on account of failure on the part of the respondents to provide services of the Defence
Assistant.

20 For the reasons and discussions, aforesaid, this Court is of the opinion that the order
impugned is in violation of the provisions contained under the applicable service regulations and is
otherwise in violation of principles of natural justice. It is further observed that the inquiry officer
as well as disciplinary authority have not specifically dealt with the defence set up by the petitioner
and there is failure on their part to consider the relevant issues raised, which renders the order bad
for non application of mind.

21. Consequently, the writ petition succeeds and is allowed. The order dated 5.8.1997,
contained in Annexure-18 to the writ petition, passed by the respondent No. 2, is set aside. It shall,
however, be open for the respondents to proceed, afresh, in accordance with law.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2016

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No.- 37085 Of 1997

Dr. Smt. Satyawati Saxena ...Petitioner
Versus
Regional Dy. Director Of Education Moradabad & Ors. ...Respondents

Counsel for Petitioner:
Shesh Kumar

Counsel for Respondents:
SC

Education Law - Ad hoc Appointment - Substantive Vacancy - Power of Committee of
Management after U.P. Act No.1 of 1993 - Non-compliance of First Removal of Difficulties Order,
1981 - No Right to Salary or Continuance - Interim Orders - Effect

The petitioner was appointed on ad hoc basis as Lecturer (Hindi) against a substantive vacancy arising due to
retirement in a recognized and aided Intermediate College governed by the U.P. Intermediate Education Act,
1921 and the Payment of Salaries Act, 1971. The appointment was made by the Committee of Management
without following the procedure prescribed under Para-5 of the First Removal of Difficulties Order, 1981.
1450 INDIAN LAW REPORTS ALLAHABAD SERIES
Held that after the amendment introduced by U.P. Act No.1 of 1993 w.e.f. 7.8.1993, it was no longer open to
the Committee of Management to make ad hoc appointments against substantive vacancies under Section 18
of the U.P. Secondary Education Services Commission and Selection Boards Act, 1982, except strictly in
accordance with the procedure prescribed in the First Removal of Difficulties Order.

Further held that any ad hoc appointment made against a substantive vacancy without following the statutory
procedure is illegal, void ab initio, and confers no right either to continuance in service or to payment of
salary. The alleged approval by the educational authorities, not shown to be in accordance with law and
unsupported by records, does not validate such an appointment.

Reliance placed on Radha Raizada v. Committee of Management (FB) and Prabhat Kumar Sharma v. State of
U.P., holding that ad hoc appointments are permissible only as a stop-gap arrangement and must strictly
comply with the prescribed procedure.

The mere continuance of the petitioner in service and payment of salary under interim orders of the Court
does not create any legal right or equity in favour of the petitioner.

Accordingly, the writ petition seeking mandamus for continuance and payment of salary was
dismissed and the interim order was discharged.

Case listed

Suresh Chandra Vs. District Inspector of Schools, Saharanpur and others, reported in 1991 (2)
UPLBEC 1097,
Radha Raizada and others Vs. Committee of Management, Vidyawati Darbari Girls Inter College
and others, reported in 1994 (3) UPLBEC 1551.
Prabhat Kumar Sharma and others Vs. State of U.P. and others, reported in 1996 (10) SCC 62,
Anant Kumar Gupta Vs. DIOS, Allahabad and others

(Delivered by Hon'ble Ashwani Kumar Mishra, J.)

1. This writ petition has been filed, praying for issuance of a writ of mandamus, directing
and commanding the respondents to take work from petitioner and to pay salary, to which
petitioner is entitled as per law.

2. From the materials brought on record, it transpires that Arya Kanya Inter College,
Moradabad, is a recognized institution under provisions of U.P. Intermediate Education Act, 1921,
upon which provisions of Payment of Salaries Act, 1971 are applicable. A vacancy is said to have
been caused on the post of Lecturer in Hindi, on account of retirement of one Smt. Mithlesh
Kumari Saxena on 30th June, 1993. It seems that vacancy was notified to the Commission, but no
recommendation for appointment was made. Committee of Management, consequently, proceeded
to advertise the post, and ad hoc appointment was granted to the petitioner, pursuant to selection
proceedings undertaken for ad hoc appointment. Petitioner claims that though she was allowed to
work, but she was not given salary. It is claimed that District Inspector of Schools had called for
certain comments from the Committee of Management, but petitioner was neither allowed to work,
nor paid salary. It is further claimed that Regional Deputy Director of Education, Moradabad, by an
order passed on 15.7.1996, approved ad hoc appointment of petitioner, but despite such order,
5 All. Dr. Smt. Satyawati Saxena Vs Regional Dy. Director Of Education Moradabad & Ors.

1451
petitioner was neither permitted to work, nor was paid salary, as a result whereof, petitioner was
compelled to approach this Court by filing the present writ petition. An interim order was issued in
favour of the petitioner on 17.11.1997 directing the petitioner to continue and to be paid salary.

3. A counter affidavit has been filed, in which it is stated that appointment of petitioner has
been made against a substantive vacancy by the Committee of Management. It is submitted that
Committee of Management had no right to make ad hoc appointment against a substantive vacancy
under Section 18 of the U.P. Secondary Education Services Commission and Selection Boards Act,
1982, inasmuch as procedure for making of such appointment had been prescribed in the First
Removal of Difficulties Order, 1981, but such procedure has not been followed.

4. The matter was heard on 8th March, 2016, and following observations were made:-

"Learned Standing Counsel points out that as the vacancy against which petitioner
was appointed was a substantive vacancy the Committee of Management had no jurisdiction to
appoint the petitioner on adhoc basis.

Learned counsel for the petitioner seeks an opportunity to respond.

List in the next cause list.

It is made clear that no request for adjournment would be entertained on the next
date."

5. Learned counsel for the petitioner contends that in view of the law laid down by this
Court in Suresh Chandra Vs. District Inspector of Schools, Saharanpur and others, reported in 1991
(2) UPLBEC 1097, an ad hoc appointment could be made by the Committee of Management
against a substantive vacancy on ad hoc basis. Relinace has also been placed upon the Full Bench
judgment of this Court in Radha Raizada and others Vs. Committee of Management, Vidyawati
Darbari Girls Inter College and others, reported in 1994 (3) UPLBEC 1551.

6. I have heard Sri A.K. Gupta, learned counsel for the petitioner, and learned Standing
Counsel for the respondents, and have perused the records.

7. The question as to whether Committee of Management could resort to exercise of
jurisdiction under Section 18 of the U.P. Act No.4 of 1982, after amendment introduced vide U.P.
Act No.1 of 1993 w.e.f. 7.8.1993, has been specifically dealt with in Full Bench judgment of this
Court in Radha Raizada (supra). After Section 16 of the Act stood amended by Section 11 of the
U.P. Act No.1 of 1993, it was no longer open for the Committee of Management to make any ad
hoc appointment under Section 18 of the Act. An ad hoc appointment could thus be made only in
accordance with the First Removal of Difficulties Order. Para-5 of the First Removal of Difficulties
Order provides for the procedure to be followed for making ad hoc appointment against a
substantive vacancy. The procedure contemplated in Para-5 admittedly has not been followed
1452 INDIAN LAW REPORTS ALLAHABAD SERIES
before appointing the petitioner. The alleged order of approval by the Deputy Director of Education
is not shown to have been passed in accordance with the provisions of law applicable. In para-5 of
the counter affidavit, it has been stated that no records relating to the alleged approval order dated
15.7.1996 are available on record, and the same appears to be doubtful

8. This Court finds that considering the settled position of law, no ad hoc appointment
against a substantive vacancy could otherwise have been made by the Committee of Management.
In Prabhat Kumar Sharma and others Vs. State of U.P. and others, reported in 1996 (10) SCC 62,
the provisions relating to ad hoc appointment against substantive vacancy has been examined by
the Apex Court, in the context of judgment delivered by Full Bench of this Court in Radha Raizada
(supra). Paragraphs 5, 6, 7 and 10 of the judgment are reproduced:-

"5. Section 33 of the Act empowers the State Government to issue by a notification
order for removal of difficulties in implementation of, and to give effect to the Act by way of
modifications addition or omission, as it may be deemed necessary or expedient In exercise of this
power, the First 1981 Order came to be made. Para 5 of the First 1581 Order which is relevant for
our purpose reads as under:

"5 - Ad hoc appointment by direct recruitment.- (i) Where any vacancy cannot to
filled by promotion under paragraph 4, the same may be filled by direct recruitment in accordance
with clauses (2) to (5).

(ii) The Management shall as soon as may be, inform the District Inspector of
Schools about the details of the vacancy and such Inspector shall invite applications from the Local
Employment Exchange and also through public advertisements in at least two newspapers.

(iii) Every application referred to in clause (2) shall be addressed to the District
Inspector of Schools and shall be accompanied-

(a) by a crossed postal order worth ten rupees payable to such Inspector.

(b) by a self addressed envelop bearing postal stamp for purposes of registration.

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

(v) If more than one teacher or the same subject or category is to be recruited for
more than one institution, the names cf selected teachers and names of the institution shall be
arranged in Hindi alphabetical order. The candidate whose name appears on the top of the list
shall be allotted to the institution the name whereof appears on the top of the list of institution, This
process shall be repeated till both the lists are exhausted."
5 All. Dr. Smt. Satyawati Saxena Vs Regional Dy. Director Of Education Moradabad & Ors.

1453

6. We are not concerned in this case with the Second Removal of Difficulties Order
1981 which deal with filling up of short-term vacancies of ad hoc teachers. It is, therefore, not
necessary to deal with the procedure prescribed in that behalf. The Full Bench as elaborately
considered the legislative history. In paragraphs 23 and 27 it had dealt with the amendments to the
U.P. Intermediate Education Act, 1921 and various provisions of Ordinance 8 of 1981. The object
was to provide teachers selected through the Commission or the Board with a view to raise the
standard of education and in the event of there being delay in allotting the selected teachers, with
view to allow the institution to appoint teachers on ad hoc basis so as to avoid hardship to the
students. Procedure and Section 18 was provided for appointment of such teachers in the
institutions purely on ad hoc basis in accordance with the procedure prescribed thereunder. The
method of recruitment and appointment of such teachers is regulated in para 5 of the First 1981
Order The appointment, therefore, should be made in accordance with the said procedure. In
paragraph 41 of the judgment, it has expressly dealt with a appointment as under:

"41 It has already been noticed that Section 18 of the Principal Act provides for
power to appoint a teacher purely on ad hoc basis either by promotion or by direct recruitment
against the substantive vacancy in the institution when the condition precedent for exercise of
powers exist namely that the Management has notified the said vacancy to the Commission in
accordance with the provisions of the Act and the Commission has failed to recommend the name
of any suitable candidate for being appointed as a teacher within one year from the date of such
notification of the post of such teacher has actually remained vacant for more than two months.
However, since the State Government was alive to the situation that the establishment of the
Commission may take long time and even after it is established, it may take long time to make
available the required teacher in the institution and as such issue three Removal of Difficulties
Order dated 30.1.82 and Removal of Difficulties Order dated 14.4.1982. In fact these Removal of
Difficulties Orders were issued to remove the difficulties coming in the way of a Management in
running the institution in absence of teachers. This power to appoint ad hoc teachers by direct
recruitment thus, it available only when pre-conditions mentioned in Section 187 of the Act are
satisfied, secondly, the vacancy is substantive vacancy and thirdly, the vacancy could not be filled
by promotion. Neither the Act nor the Removal of Difficulties order defined vacancy. However, the
vacancy has been defined in Rule 2(11) of U.P. Secondary Education Services Commission Rules
1983. 'Vacancy' means 'a vacancy arising out as a result of death, retirement, resignation,
termination, dismissal, creation of new post or appointment prevention of the incumbent to any
higher post in substantive capacity. Thus, both under Section 18 of the Act and under the Removal
of Difficulties Order, the Management of an institution is empowered to make ad hoc appointment
by direct recruitment, in the manner laid down in paragraph 5 of the First Removal of Difficulties
Order only when such vacancy cannot be filled promotion and for a period till a candidate duly
selected by the Commission joins the post. As noticed earlier both Section 18 of the Act and the
provisions of First Removal of Difficulties Order provide for ad hoc appointment of teacher in the
institution, later further providing for method and manner of such appointments are part of the
scheme. Scheme being provision for ad hoc appointment of teacher in the absence of duly selected
teachers by the Commission. The provisions may be two but the power to appoint is one and the
same and, therefore, the provisions contained in Section 18 and Removal of Difficulties Order are
1454 INDIAN LAW REPORTS ALLAHABAD SERIES
to harmonized. It is, therefore, not correct to say that appointment of a teacher on ad hoc basis is
either under Section 18 of the Act or under the Removal of Difficulties Order. Thus, if contingency
arises for ad hoc appointment of teacher by direct recruitment the procedure provided under the
first Removal of Difficulties Order has to be followed. Paragraph 5 of the First Removal of
Difficulties Order provides that the management shall, as soon as may be, inform the District
Inspector of Schools about the details of vacancy and the District Inspector of Schools shall invite
applications from the local Employment Exchange and also through public advertisement in at
least two newspapers having adequate circulation in Uttar Pradesh. Sub paragraph (3) of
paragraph 5 further provides that every such application shall be addressed to the District
Inspector of Schools. Sub paragraph (4) of paragraph 5 of the Removal of Difficulties Order
provides that the District Inspector of Schools shall cause the best candidate selected on the basis
of quality point specified in Appendix. The complication of quality point may be done by the Retired
Government Gazetted Officer, in the personal supervision of the Inspector. Paragraph 6 of the
First Removal of Difficulties Order further provides for appointment of such teacher under
paragraph 5 who shall possess such essential qualification as laid down in Appendix A referred to
in the Regulation 1 of Chapter II of the Regulations made in the Intermediate Education Act.

42. In view of these provisions the ad hoc appointment of a teacher by direct
recruitment can be resorted to only when the-condition precedent for exercise of such powers as
stated in paragraph 18 of the Act are present and only in the manner provided in paragraph 5 of
the Removal of Difficulties Order.

.......Thus, both under Section 18 of the Act and under the Removal of Difficulties
Order the Management of an institution is empowered to make ad hoc appointment by direct
recruitment, in the manner laid down in paragraph 5 of the First Removal of Difficulties Order
only when such vacancy cannot be filled by promotion and for a period till a candidate duly
selected by the Commission, joins the post. Both Section 18 of the Act and the provisions of First
Removal of Difficulties Order provide for ad hoc appointment of teacher in the institution, later
further providing for method and manner of such appointments are part of one scheme. Scheme
being provision for ad hoc appointments of teacher in the absence of duly selected teachers by the
Commission. The provisions may be two but the power to appoint is one and the same and,
therefore, the provisions contained in Section 18 and Removal of Difficulties Order are to
harmonised. It is therefore, not correct to say that appointment of a teacher on ad hoc basis is
either under Section 18 of the Act or under the First Removal of Difficulties Order. Thus if
contingency arises for ad hoc appointment of teacher by direct recruitment the procedure provided
under the First Removal of Difficulties Order has to be followed."

(emphasis supplied)

7. It would thus be clear that any ad hoc appointment of the teachers under Section
18 shall be only transient in nature. pending allotment of the teachers selected by the Commission
and recommended for appointment, Such ad hoc appointments should also be made in accordance
with the procedure prescribed in para 5 of the First 1981 Order which was later streamlined in the
5 All. Dr. Smt. Satyawati Saxena Vs Regional Dy. Director Of Education Moradabad & Ors.

1455
amended Section 18 of the Act with which we are not presently concerned. Any appointment made in
transgression thereof is illegal appointment and is void and confers no right on the appointees. The
removal of difficulties envisaged under Section 33 was effective not only during the period when the
Commission was not constituted but also even thereafter as is evident from second paragraph or the
preamble to the First 1981 Order which reads as under:

"And whereas the establishment of the Commission and the Selection Boards as likely to
take some time and even after the establishment of the said Commission and Boards, it is not possible to
make selection of the teachers for the first few months."

10. These principles are unexceptionable. However, the question is whether they get
attracted to the facts of this case. It is seen that when intimation was given by the college to the
Commission for allotment of the teachers, the Act envisaged that within one year the recommendation
would be made by the Commission for appointment; but within two months from the date of the
intimation if the allotment of the selected candidates is not made to obviate the difficulty of the
Management in imparting education to the students, Section 18 gives power to the Management to
make ad hoc appointments. Section 16 is mandatory. Any appointment in violation thereof is void. As
seen prior to the Amendment Act of 1982 the First 1981 Order envisages recruitment as per the
procedure prescribed in para 5 thereof. It is an in-built procedure to avoid manipulation and nepotism
in selection and appointment of the teachers by the Management to any posts in aided institution. It is
obvious that when the salary is paid by the State to the Government aided private educational
institutions, public interest demands that the teachers' selection must be in accordance with the
procedure prescribed under the Act read with the First 1981 Order. Therefore, the Order is a
permanent one but not transient as contended for. The Full Bench of the High Court has elaborately
considered the effect of the Order and for cogent and valid reasons it has held that the Order will
supplement the power to select and appoint ad hoc teachers as per the procedure prescribed under
Section 18 of the Act. The view taken by the Division Bench following the Full Bench decision,
therefore, cannot be faulted with. Accordingly, we find no merit in special leave petition."

9. A supplementary affidavit has been filed, in which reliance has been placed upon a Division
Bench judgment of this Court in Shambhoo Saran Singh and another Vs. DIOS and others, passed in
Special Appeal No.345 of 2012, dated 21.2.2012. Perusal of the said order goes to show that none of the
contentions raised by the parties had been adjudicated, in view of the fact that a Regional Level
Committee has been constituted in different regions to consider the question of regularization. Paras-7
and 10 of the judgment is reproduced:-

"7. It is not necessary for us to decide the contentions raised by the parties. It is not
disputed that a Regional Level Committee has been constituted in different regions under the
chairmanship of Joint Director of Education to consider the question of regularization. The College of
the appellant is under the jurisdiction of the Regional Level Committee, Gorakhpur which is under the
chairmanship of Joint Director of Education (Secondary), Gorakhpur.
1456 INDIAN LAW REPORTS ALLAHABAD SERIES

8. In the circumstances of the case, the appellants may file a representation before
Regional Level Committee, Gorakhpur within one month. In case the representation is filed, it may be
decided by Regional Level Committee, Gorakhpur by a speaking order, if possible, within three month
from the date of receipt of the representation. The appellant will file a certified copy of this order, other
necessary documents and a duly stamped self addressed envelope along with his representation. The
Regional Level Committee, Gorakhpur after taking decision will communicate the same to the
appellants.

9. The position as exists today shall continue till the Regional Level Committee,
Gorakhpur passes an order on the regularization of the appellants.

10. With the aforesaid observations, the appeal is disposed of. "

10. Reliance has also been placed upon an order of this Court in Anant Kumar Gupta Vs.
DIOS, Allahabad and others, in Writ Petition No.8095 of 1992, dated 11.12.1998, which also does not
lay any proposition of law in support of petitioner's claim. A notification dated 22nd March, 2016
adding Section 33(g) in U.P. Act No.4 of 1982 has also been brought on record, in order to contend that
appointments made under Para-2 of Second Removal of Difficulties Order could be regularized, in case
the short term vacancy has been converted into a substantive vacancy. Admittedly, in the facts of the
present case, petitioner's appointment has not been made against any short term vacancy, but her
appointment is against a substantive vacancy, and therefore, the amendment made in U.P. Act No.4 of
1982 has no applicability, in the facts and circumstances of the present case.

11. In view of the settled position of law, this Court finds that petitioner is not entitled to any
benefit, in view of the judgment delivered in Suresh Chandra (supra), particularly after amendment
made vide U.P. Act No.1 of 1993. The mere fact that petitioner has continued to work and receive
salary under the interim orders of this Court, would not entitle the petitioner to any relief, as the same is
impermissible in law.

12. The writ petition, accordingly, fails and is dismissed. Interim order stands discharged.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE MOHD. TAHIR, J.

Writ A No.- 44873 Of 2001

Sri Krishna ...Petitioner
Versus
Union Of India & Ors. ...Respondents