# Kamla Kant Misra & Anr v. C/M D.A.V. Inter College

- **Citation:** (2026) 4 ILRA 711
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-04-13
- **Case number:** Writ A No. 2497 of 2006
- **Bench:** Amitabh Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamla-kant-misra-anr-v-c-m-d-a-v-inter-college-54470
- **Pages:** 22

## Text

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4 All. Kamla Kant Misra & Anr. Vs. C/M D.A.V. Inter College
711
Drawing inspiration from such authorities, it would be apt to observe that in relation to disciplinary
proceedings, subject to just exceptions, natural justice would envisage observance of procedural
fairness before holding a public servant guilty of misconduct and imposing a punishment on him
for such misconduct. While it is true that principles of natural justice supplement, and not supplant,
the law, such principles have been declared by this Court to be a constituent feature of Article 14.
Validity of any disciplinary action, whenever questioned, has to be tested on the touchstone of
Articles 14, 16 and 21 as well as Article 311(2), wherever applicable. To test whether interference
is warranted, this Court has laid down that the scrutiny ought to be confined to finding out whether
the disciplinary proceedings have been conducted fairly; if not, an inference can be drawn that this
has caused prejudice to the charged employee. Be that as it may, there can be no gainsaying that the
consequences of violation of a fair procedure,which principles of natural justice embody, in a given
situation has to be considered on a case-by-case basis bearing in mind that judicial review is not
intended to be an appeal in disguise."

32. Accordingly, it is interfered and impugned order whereby petitioner was awarded major
punishment is set aside and its legal consequence shall follow.

33. Writ petition is, accordingly, allowed.
----------
(2026) 4 ILRA 711
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.04.2026

BEFORE

THE HON'BLE AMITABH KUMAR RAI, J.

Writ A No. 2497 of 2006

Kamla Kant Misra & Anr. ...Petitioners
Versus
C/M D.A.V. Inter College ...Respondent

Issue for Consideration
(1) Effect of non-compliance of the provisions of S. 18(8) of the Act, 1982 during the process of selection held
for ad hoc appointment on the substantive vacancy.
(2) Permissibility to claim regularization under Section 33-G of the Act, 1982, when the initial appointment is
itself illegal, being void ab initio.

Headnotes
(A) Service law - Regularization - Post of Lecturer - Ad hoc appointment on substantive vacancy
- Claimed to be selected and appointed by the Committee of Management - Since no financial
approval was granted, the petitioner filed writ petition, in which an interim order was granted -
On the strength of interim order, the petitioners was working and drawing salary - During the
course, regularization u/s 33-G of the Act, 1982 was claimed, which was rejected by the DIOS -
Validity challenged - Neither the reference as required under S. 18(8) of the Act, 1982 was made
nor sub-section (7) was complied with during the selection process - Effect: (E-1)
712 INDIAN LAW REPORTS ALLAHABAD SERIES
Held: The petitioners were appointed by the Committee of Management not following the provisions
contained in Section 18 of the Act of 1982 as existing on the date of their appointment, inasmuch as they
were not selected by the Selection Committee referred to in Sub-section (8) of Section 18, nor the vacancies
were advertised following Sub-section (7). Thus, the ad-hoc appointment of the petitioners on the substantive
vacancies was not as per the provisions contained in Section 18 of the Act of 1982. [Para 36]
Further held: When the initial appointment itself is void and bad in law, then no such direction can be given
for regularization solely on the basis that the petitioners are continuously working on their posts since the
date of their initial appointment - The petitioners cannot be extended the benefit of Section 33-G of the Act
of 1982 as their initial appointment on ad-hoc basis was dehors the statutory provisions and illegal, being void
ab initio. [Para 39 and 44(c)]

Case Law Cited
Radha Raizada vs. Committee of Management, V.D.G.I. College and others, 1994 (3) UPLBEC 1551 (FB): Daya
Shankar Pandey vs. State of U.P. and Others, 2001 (1) UPLBEC 741; Jahaj Pal vs. District Inspector of
Schools, 2019 SCC OnLine All 6998; Shesh Mani Shukla vs. District Inspector of Schools, Deoria, (2009) 15
SCC 436; Pramod Kumar vs. U P Secondary Education Services Commission, (2008) 7 SCC 153 - referred to.

List of Acts
U.P. Secondary Education Services Selection Board Act, 1982 - Ss. 16(1), 18, 33, 33-B, 33-G and 33-E; U.P.
Secondary Education Act, 1921 - Section 16-E (11); UP Secondary Education Service Commission (Removal of
Difficulties) Order, 1981; UP Secondary Education Service Commission (Removal of Difficulties) (Second)
Order, 1981; U.P. Secondary Education Services Commission and Board Ordinance, 1981; U.P. Secondary
Education Services Commission and Selection Boards (Amendment) Act, 1995.

List of Keywords
Sanctioned post, retirement, Intimation, Requisition, Process of selection, Interview, Approval, Ad hoc
appointment, Interruption, Financial approval, Interim order, Payment of salary, Regularization, Absorption of
surplus teachers, Contingencies, Recruitment, Substantive vacancy, Leave vacancy, Misconceived, Void, Bad in
law, Cut-off dates, Illegal, Void ab initio, Continuously serving the institution.

Case Arising From
Impugned order dated 7.12.2005 passed by the opposite party no. 3 and the G.O. dated 3.11.1997 issued by
the opposite party no. 2.

Appearances for Parties
Advs. for the Appellant: Anand Mani Tripathi (Sr. Adv.) Pandit Venktesh, Pankaj Bajpai, Pradeep Kumar
Pandey, V.P. Pandey
Advs. for the Respondents: C.S.C.

(Delivered by Hon'ble Amitabh Kumar Rai, J.)

1. Heard Sri Anand Mani Tripathi, learned Senior Advocate, assisted by Sri Pandit Venktesh,
learned counsel for the petitioners, and learned Standing Counsel for the State.

2. The instant writ petition has been filed seeking following reliefs :-

"(a) Issue a writ order or direction in the nature of certiorari quashing the impugned
order dated 7.12.2005, contained in annexure no.31, passed by the opposite party no.3 and the
G.O. dated 3.11.1997, issued by the opposite party no.2, contained in annexure no.33.
4 All. Kamla Kant Misra & Anr. Vs. C/M D.A.V. Inter College
713

(b) Issue a writ, order or direction in the nature of mandamus commanding the opposite
parties no.2 to 5 and specifically the opposite party no.3 to accord the approval to the posts and
salaries of the petitioners w.e.f. 1.7.97 and to pay the petitioners their salaries along with their
arrears of salaries from the aforesaid date till date along with all the admissible allowances and
increments as and when they fall due for the posts of Lecturer (Geography) and Lecturer (Biology)
in the college of the opposite party no.1.

(c) Issue a writ, order or direction in the nature of mandamus commanding the opposite
party no.3 to give assent to the salaries of the petitioners deeming the appointments of the
petitioners to be approved as per the provisions of clauses 2 (3)(iii) and 2(3)(iv) of the Removal of
Difficulties (Second) Order, 1981 with an specific direction to the opposite parties no.2, 3, 4 and 5
to accord their approval to the salaries of the petitioners (specifically the opposite party no.3) and
to release the same forthwith after treating the petitioners in continuous service w.e.f. 1.7.97 till
date and to continue to pay the same to the petitioners in the form of their current salaries as and
when it falls due along with all admissible allowances.

(d) Issue a writ, order or direction in the appropriate nature and manner declaring
Section 18 and Section 33-E of the U.P. Secondary Education Services Selection Board Act, 1982
as ultra vires.

(e) Issue a writ, order or direction in the appropriate nature and manner declaring the
provision regarding the validity of the appointments till the end of the academic session, envisaged
under Section 16 E (11) of U.P. Secondary Education Act, 1921."

3. The counsel for the petitioners, Sri Anand Mani Tripathi at the outset submits that he is not
pressing the relief nos.(d) & (e) whereby vires of Section 18 and Section 33-E U.P. Secondary
Education Services Selection Board Act, 1982 (hereinafter referred to as the "Act of 1982") as well
as vires of Section 16 E (11) of the U.P. Secondary Education Act, 1921 (hereinafter referred to as
"Act, 1921") have been challenged in the instant writ petition.

4. The brief facts, as per the narration in the memo of writ petition and as per the arguments
advanced by learned counsel for the petitioners, are that two clear, vacant and sanctioned posts of
Lecturer (Geography) and Lecturer (Biology) fell vacant in D.A.V. Inter College, Kanpur Nagar on
the retirement of permanent incumbents on 30.06.1994. It is the case of the petitioners that after the
retirement of permanent incumbents, namely, Sri Kripa Shanker Chowdhary and Sri Bisheshwar
Prasad Srivastava, who were working on the posts of Lecturer (Geography) and Lecturer (Biology),
respectively, the Committee of Management communicated the event of the vacancies to the
District Inspector of Schools (in short, "D.I.O.S."), Kanpur Nagar through intimation/requisition
dated 01.12.1994. A reminder was also sent by the Committee of Management of the College on
08.07.1996 and again on 15.03.1997, but no candidate was recommended by the D.I.O.S. for
appointment on the aforesaid two vacant posts and as such, steps were taken by the Committee of
Management of the College authorizing Manager to make selection for ad-hoc appointments. The
Manager of the college, thereupon, initiate the process of selection through advertisement of the
posts-in-question in two newspapers, namely, "Satya Samvad" and "Apna Abhiyan," in their issues
dated 05.03.1997.

5. The petitioners, being duly qualified, having qualifications of M.A. Geography and M.Sc.
Botany, respectively, applied in pursuance of the advertisement published in the newspapers on
714 INDIAN LAW REPORTS ALLAHABAD SERIES
05.03.1997 and they were called for interview along with other candidates, which was held on
21.06.1997. The petitioners were recommended on the basis of quality marks obtained in the
interview for selection on the posts-in-question and thereupon the Committee of Management
resolved in its meeting dated 26.06.1997 to appoint the petitioners on the posts of Lecturer
(Geography) and Lecturer (Biology), respectively. Subsequently, the documents pertaining to the
appointments were forwarded to the D.I.O.S., Kanpur Nagar for approval vide letter dated
26.06.1997 and the appointment letters dated 01.07.1997 were issued to the petitioners appointing
them on the aforementioned posts. The appointment letters specifically provided that the
appointment is an ad-hoc appointment which will continue till a regularly selected candidate joines.

6. It has been submitted that in furtherance of the appointment orders dated 01.07.1997,
petitioners joined their respective posts on the same date i.e. 01.07.1997 and continued to work
without any interruption, as no duly selected candidate for the aforesaid posts was sent by the U.P.
Secondary Education Services Selection Board for appointment.

7. It is the case of the petitioners that despite repeated representations/reminders sent by the
petitioners through Principal of the College, no financial approval was granted towards their salary
for a long time. Lastly, the D.I.O.S., vide letter dated 07.12.2005, refused to grant financial
approval for payment of salary to the petitioners on the ground that their appointments were in
violation of the provisions contained in the Act of 1982, as the Committee of Management had no
power to make such appointments. Feeling aggrieved, the petitioners filed the instant writ petition
seeking the reliefs as indicated hereinabove.

8. Learned counsel for the petitioners has further contended that since the petitioners have
been continuously working on their posts since 01.07.1997 and they are also getting salary in terms
of the interim order dated 14.12.2005 passed by this Court in the instant writ petition, they are now
entitled for regularization in terms of Section 33-G of the Act of 1982. It has further been submitted
that the case of the petitioners for regularization under Section 33-G was rejected vide separate
orders dated 15.02.2024 passed for petitioners nos. 1 and 2, rejecting their claim, against which
both petitioners filed separate writ petitions, i.e., Writ A No. 7344 of 2024 (Kamla Kant Mishra vs.
State of U.P. and 4 Others) and Writ A No. 7434 of 2024 (Shishir Krishna Sinha vs. State of U.P.
and 4 Others) challenging their individual orders of rejection dated 15.02.2024.

9. During the pendency of aforesaid writ petitions, they also filed Writ A No. 19886 of 2024
(Kamla Kant Mishra vs. State of U.P. and 4 Others) and Writ A No. 19877 of 2024 (Shishir
Krishna Sinha vs. State of U.P. and 4 Others) in which they prayed to reconsider their claim for
regularization under Section 33-G of the Act of 1982 in terms of the judgment and order dated
30.09.2024 passed in Writ A No. 21492 of 2023 (Vinod Kumar Srivastava vs. State of U.P. and
others).

10. It has been submitted by learned counsel for the petitioners that Writ A No. 7344 of 2024
and Writ A No. 19886 of 2024 filed by petitioner no.1 were connected and decided together vide
judgment and order dated 19.12.2024, whereby Writ A No. 7344 of 2024 was allowed, quashing
the rejection order dated 15.02.2024 and a direction was issued to reconsider the claim of petitioner
no.1, i.e., Kamla Kant Mishra, for regularization in terms of the order dated 30.09.2024 passed in
4 All. Kamla Kant Misra & Anr. Vs. C/M D.A.V. Inter College
715
the case of Vinod Kumar Srivastava (supra), whereas Writ A No.19886 of 2024 was dismissed as
having rendered Infructuous.

11. Likewise, the Writ A No. 7434 of 2024 and Writ A No. 19877 of 2024 filed by petitioner
no.2 were also connected and decided together vide judgment and order dated 19.12.2024, whereby
Writ A No. 7434 of 2024 was allowed, quashing the rejection order dated 15.02.2024, and a
direction was issued to reconsider the claim of petitioner no.2 for regularization in terms of the
order dated 30.09.2024 passed in the case of Vinod Kumar Srivastava (supra), whereas Writ A
No.19877 of 2024 was dismissed as having rendered Infructuous.

12. Subsequently, in compliance of the directions passed in the aforesaid writ petitions for
petitioner nos.1 and 2, the case of the petitioners were considered for regularization and rejected
vide separate orders dated 19.08.2025 on the ground that since the issue of validity of ad-hoc
appointments of the petitioners is pending consideration in the instant writ petition, it is not
possible at this stage to dwell into the question of regularization under Section 33-G of the Act of
1982.

13. On the other hand, a counter affidavit has been filed on behalf of respondent nos.2 to 5, in
which it has been indicated that the communication regarding vacancies, as alleged by the
petitioners, was not received in the office of the D.I.O.S. and the ad-hoc appointments of the
petitioners were made against the statutory provisions, inasmuch as the procedure for notifying the
vacancies, as laid down in the Full Bench judgment in Radha Raizada case [(1994) Vol. III
U.P.LBEC 1551], was not followed by the Committee of Management, as the vacancies were not
advertised in newspapers having adequate circulation in U.P.

14. It has further been alleged in the counter affidavit that the Secondary Education Service
Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as "Second
Order"), stood rescinded w.e.f. 25.01.1999 by U.P. Act No. 13 of 1999, by which Section 33-E was
inserted. Thus, it has been argued that the claim of the petitioners cannot be sustained, as such
rights were not saved upon repeal of the said Order. Reliance has been placed on the judgment
passed in the case of Daya Shankar Pandey vs. State of U.P. and Others [(2001) Vol. I U.P.LBEC
741].

15. Thus, learned Standing Counsel has contended that since the initial appointment of the
petitioners on ad-hoc basis is against the statutory provisions, the claim of the petitioners for
regularization under Section 33-G of the Act of 1982 is misconceived and liable to be rejected.

16. It has been further submitted that the claim of the petitioners that they are working on the
posts of Lecturer (Geography) and Lecturer (Biology), is also not correct in view of the fact that the
Committee of Management of the College declared 37 teachers as surplus vide its letter dated
20.05.2006, in which the name of petitioner no. 1 finds place at serial no. 23 and the name of
petitioner no. 2 finds place at serial no. 24. In furtherance of such declaration by the Committee of
Management of the College; the Director of Education (Secondary), U.P., Lucknow, vide letter
dated 24.02.2006, absorbed 15 teachers of the lecturer cadre and 22 teachers of L.T. Grade in other
institutions. The petitioners, who were also declared surplus by the Committee of Management,
716 INDIAN LAW REPORTS ALLAHABAD SERIES
were not absorbed by the State Government in other colleges; hence, the claim of the petitioners
that they are discharging the functions of their respective posts is factually incorrect. It has been
further submitted that the aforesaid absorption of surplus teachers was carried out by the State
Government in terms of the order dated 18.11.2005 passed in Civil Misc. Writ Petition No. 70709
of 2005 at Allahabad.

17. Be that as it may, the undisputed fact which emerges from the pleadings available on
record of the instant writ petition as well as on the basis of arguments advanced by learned counsel
for the parties, are that the petitioners were appointed on ad-hoc basis on the substantive vacancies
which fell vacant on 30.06.1994 due to the retirement of Sri Kripa Shanker Chowdhary, who was
working on the post of Lecturer (Geography) and Sri Bisheshwar Prasad Srivastava, who was
working on the post of Lecturer (Biology).

18. The undisputed fact is also that the petitioners were appointed on ad-hoc basis by the
Committee of Management and, as per their own version, the appointments were made under the
provisions of the Second Order, under which the Committee of Management has the power to make
such ad-hoc appointments.

19. In order to appreciate the arguments advanced by the parties, it is necessary to have a look
at the statutory provisions regarding selection and appointment of teachers in Secondary Education
Institutions, which were initially governed by the provisions contained in the Act, 1921.
Subsequently, in order to bring uniformity and impartiality in the process of selection and
appointment of teachers, the U.P. Secondary Education Services Commission and Board
Ordinance, 1981 (hereinafter referred to as the "First Ordinance") was enacted, which was
published in the U.P. Gazette (Extraordinary) dated 10.07.1981, which provided for the
composition of a Commission, namely, the U.P. Secondary Education Services Commission, vide
Section 3. It also provided for selection and recruitment of teachers for Secondary Education
Institutions by the said Commission.

20. The term 'Institution' was defined in Section 2(e), which comprised all schools recognized
under the Act, 1921, including institutions maintained by a local authority. Since the First
Ordinance, which was given effect from 14.07.1981, could not be transformed into an Act, another
Ordinance, i.e., U.P. Ordinance No. 23 of 1981 (hereinafter referred to as the "Second
Ordinance"), was issued and it was also given effect from 14.07.1981 and the Second Ordinance
also contained provisions similar to those in the First Ordinance. The Second Ordinance was
published in the U.P. Gazette (Extraordinary) dated 27.10.1981.

21. The Second Ordinance was replaced by the Act of 1982, which received the assent of the
President on 25.02.1982 and was published in the U.P. Gazette (Extraordinary) dated 26.02.1982
and it was given effect from 14.07.1981, except Section 21, which was left to be enforced on a date
to be notified by the State Government.

22. Section 16(1) of the Act of 1982 provides that, subject to the provisions of Sections 18 and
33, every appointment of a teacher on or after 10.07.1981 shall be made on the recommendation of
4 All. Kamla Kant Misra & Anr. Vs. C/M D.A.V. Inter College
717
the Commission/Board (as the case may be). Sub-section (2) of Section 16 declares that any
appointment of a teacher made in contravention of Section 16(1) is void.

23. Section 18 permitted appointment of ad-hoc teachers. Section 18 was amended and
substituted w.e.f. 14.07.1992, by U.P. Act No.24 of 1982 providing the contingencies of making
ad-hoc appointment, the procedure for such ad-hoc appointments and the tenure of such ad-hoc
appointments. The amended Section 18 provided for a Selection Committee for selection of
candidates for ad-hoc appointments comprising of D.I.O.S. (Chairman), Basic Shiksha Adhikari,
District Inspector of Girls' Schools and where there is no such Inspectors, 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.

24. Then, by the U.P. Secondary Education Services Commission and Selection Boards
(Amendment) Act, 1995 (U.P. Act No. 15 of 1995), published in the U.P. Gazette (Extraordinary)
dated 08.08.1995, which came into force on 28.12.1994, a number of amendments were made in
the Act of 1982. Section 18 was substituted, which reads as under:

"18. Ad-hoc teachers. -(1) Where the Management has notified a vacancy to the
Commission in accordance with sub-section (1) of section 10 and the post of a teacher actually
remained vacant for more than two months, the Management may appoint by direct recruitment or
promotion a teacher on purely ad-hoc 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 (8).

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

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

(b) in the Certificate of Teaching grade, as teacher in the trained graduate's Grade, in
the case of a vacancy in the 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 Headmaster may be filled by promoting the senior most
teacher in the trained graduate's grade.

(6) For the purposes of making appointments under sub-sections (2) and (3), the
Management shall determine the number of vacancies, as also the number of vacancies to be
reserved for the candidates belonging to the Scheduled Castes, the Scheduled Tribes and Other
Backward Classes of citizen in accordance with the Uttar Pradesh Public Services (Reservation for
Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and, as soon as may
be thereafter, intimate the vacancies to be filled by direct recruitment to the District Inspector of
Schools and if the Management fails to intimate the vacancies and the post of a teacher has
actually remained vacant for more than three months, the District Inspector of Schools may,
718 INDIAN LAW REPORTS ALLAHABAD SERIES
subject to such directions as may be issued by the Director and after verification from such
institution or from his own record, determine such vacancies himself.

(7) The District Inspector of Schools shall, on receipt of intimation of vacancies or as the
case may be, after determining the vacancies under sub-, section (6), forward the same to the
Deputy Director of Education in charge of the Region, who shall invite applications from the
persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the
regulations made thereunder, for ad-hoc appointment to the post of teachers other than Principal
or Head Master in such manner as may be prescribed.

(8) (a) For each region there shall be a Selection Committee for selection of candidates
for ad-hoc appointment by direct recruitment comprising-

(i) Regional Deputy Director of Education;

(ii) Regional Deputy Director of Education (Secondary);

(iii) Regional Assistant Director of Education (Basic).

The Regional Deputy Director of Education who is senior shall be the Chairman.

(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).

(c) The criteria and procedure for selection of candidates and the manner of preparation
of list of selected candidates and their allocation to the Institution shall be such as may be
prescribed.

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

(10) The provisions of section 21-D shall mutatis mutandis apply to the teachers who are
to be appointed under the provisions of this section.

(Emphasis supplied)

25. The Sub-section (1) of Section 18 as amended by U.P. Act No.15 of 1995 refers to Section
10 of Act of 1982 which provides procedure of selection by direct recruitment on vacancies
existing or likely to fall vacant during the year of recruitment. Thus, the Section 18 as substituted
by U.P. Act No.15 of 1995 only related to the ad-hoc appointments to be made on substantive
vacancy. For short term vacancies, the Second Order continued to remain in force till it was
rescinded w.e.f. 25.01.1999 by U.P. Secondary Education Services Selection Board (Amendment)
Act, 1999 by which Section 33-E was inserted in Act of 1982.

26. Section 18 of the Act of 1982 was further amended vide U.P. Act No. 25 of 1998,
published in the U.P. Gazette (Extraordinary) dated 27.07.1998.

27. For the sake of consideration with regard to the validity of appointment of the petitioners
on ad-hoc basis, Section 18 as amended by U.P. Act No. 15 of 1995, which came into force w.e.f.
28.12.1994, is relevant, as it is the case of the petitioners that they were appointed by the
Committee of Management on the substantive posts which fell vacant due to the retirement of two
lecturers during the subsistence of the period when Section 18, as substituted by U.P. Act No. 15 of
1995, was in force w.e.f. 28.12.1994 till 20.04.1998, when U.P. Act No. 25 of 1998 came into
force.
4 All. Kamla Kant Misra & Anr. Vs. C/M D.A.V. Inter College
719

28. Section 18(2) of the Act of 1982, which stood at the time of appointment of the petitioners
on ad-hoc basis, provides that a teacher, other than the Principal or Headmaster, who is to be
appointed by direct recruitment, can be appointed only on the recommendation of the Selection
Committee referred to in sub-section (8). The composition of the Selection Committee, as per subsection (8), comprised of the Regional Deputy Director of Education, Regional Deputy Director of
Education (Secondary) and Regional Assistant Director of Education (Basic).

29. It is not in dispute that the petitioners were appointed by the Committee of Management
without any reference to the Selection Committee as referred to in sub-section (8) of Section 18 of
the Act of 1982 nor the applications for ad-hoc appointment were invited as per provision
contained in Sub-section (7) and hence, the ad-hoc appointment of the petitioners was in blatant
violation of the statutory provisions.

30. The argument of learned counsel for the petitioners inasmuch as that the ad-hoc
appointment of the petitioners was made under the Second Order is without any basis, as the ad-hoc
appointment of the petitioners was made on the substantive vacancies arising due to retirement of
the serving incumbents on the post of Lecturer (Geography) and Lecturer (Biology), and not on
short-term vacancies.

31. In this regard it would be proper to examine the scope of Removal of Difficulties Orders
issued by State Government from time to time under Section 33 of the Act of 1982. Section 33 of
the Act of 1982 empowered the State Government to issue orders for removing difficulties, which
reads as under:-

"33. Power to remove difficulties. - (1) The State Government may, for the purposes of
removing any difficulty, by a notified order, direct that the provisions of this Ordinance shall
during such period as may be specified in the order, have effect subject to such adaptations,
whether by modification, addition or omission, as it may deem to be necessary or expedient:

Provided that no such order shall be made after two years from the date of promulgation
of this Ordinance.

(2) Every order made under sub-section (1) shall be laid before both the Houses of State
Legislature.

(3) No order under sub-section (1) shall be called in question in any Court on the ground
that no difficulty as is referred to in sub-section (1) existed or required to be removed."

32. After enactment of the First Ordinance, neither Commission nor Selection Board was
constituted, nor did the Ordinance come to be replaced by an Act. Hence, the U.P. Secondary
Education Services Commission (Removal of Difficulties) Order, 1981 (hereinafter referred to as
the "First Order") was notified vide notification dated 31.07.1981, exercising powers under Section
33 of the Act, 1982, which provided for making ad-hoc appointment by the management on the
substantive vacancy as well as on leave vacancy. Subsequently, the State Government issued
another Order, i.e. the Secondary Education Service Commission (Removal of Difficulties)
(Second) Order, 1981, vide notification dated 11.09.1981, which is reproduced hereinbelow:-
720 INDIAN LAW REPORTS ALLAHABAD SERIES

"Whereas, the Uttar Pradesh Secondary Education Services Commission and Selection
Boards Ordinance, 1981 (U.P. Ordinance No. 8 of 1981), was promulgated on July 10, 1981 with a
view to establish a Secondary Education Services Commission and six or more Secondary
Education Boards for selection of teachers in the institutions recognised under the Intermediate
Education Act. 1921 (U.P. Act No. II of 1921);

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

And whereas, a number of vacancies in the posts of teachers in various institutions
recognised under the said Act exist and the failure or delay in filling up of such vacancies is likely
to create difficulties;

And whereas, the filling up of certain short-term temporary vacancies caused by grant of
leave to or on account of suspension of a teacher or otherwise, in accordance with the provisions
of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order,
1981 is likely to delay the appointment of substitutes in such vacancies;

Now, therefore, in exercise of the powers under sub-section (1) of Section 33 of the Uttar
Pradesh Secondary Education Services Commission and Selection Boards Ordinance, 1981 (U.P.
Ordinance No. 8 of 1981), read with Section 21 of the U.P. General Clauses Act, 1904 (U.P. Act
No. 1 of 1904), the Government is pleased to direct that the provisions of the said Ordinance shall
have effect subject to the provisions of the following Order :

Short title and commencement. - (1) This Order may be called the Uttar Pradesh
Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981.

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, possessing 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' of 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-4993/XV - 7-1(79)-1981, dated July 31,
1982, 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."

33. The inter-play and effect of provisions contained in the First and the Second Orders, in the
context of provisions contained in Sections 16 and 18 of the Act of 1982, was considered by the
Full Bench of this Court (Five Judges) in the case of Jahaj Pal v. District Inspector of Schools,
2019 SCC OnLine All 6998, and the relevant paragraphs 37 to 59 are as follows:-
4 All. Kamla Kant Misra & Anr. Vs. C/M D.A.V. Inter College
721

"37. In order to bring uniformity, impartiality and objectivity in the process of selection
and recruitment of teachers in Secondary Educational Institutions governed by Act, 1921, State
Government issued a Radiogram on 07.04.1981 stopping all fresh selections and appointments of
Principals etc. in all non-government aided schools. Validity of this Radiogram was considered by
Supreme Court in Dr. Ramji Dwivedi vs. State of U.P. and others 1983 (3) SCC 52. Court held that
power to issue such Radiogram had its source in Section 9(4) of Act, 1921. Once such direction
was issued, Management had no power to make selection and appointment.

38. The aforesaid Radiogram followed by enactment of U.P. Secondary Education
Services Commission and Selection Board Ordinance, 1981 (U.P. Ordinance No. 8 of
1981)(hereinafter referred to as "First Ordinance") published in U.P. Gazette (Extraordinary)
dated 10.7.1981. It contemplated composition of a Commission, namely, U.P. Secondary Education
Services Commission vide Section 3. It also provided for selection and recruitment of Teachers for
Secondary Educational Institutions by the said Commission. The term 'Institution' was defined in
Section 2(e) which comprised of all schools recognized under Act, 1921 including Institutions
maintained by a local authority. It, however, excluded an 'Institution' maintained by State
Government. Section 16 declares that any appointment made in violation of the provisions of First
Ordinance would be void and reads as under:-

"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 -

(a) every appointment of a teacher specified in the scheduled shall, after the date of
promulgation of this Ordinance, 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,
after the date of such promulgation, be made by the management only on the recommendation of
the Board.

(2) Every appointment of a teacher, in contravention of the provisions of sub-section (1),
shall be void." (emphasis added)

39. Section 3 contemplated establishment of a Commission while Section 12
contemplated establishment of Regional Selection Boards which may have jurisdiction over such
local area as State Government may specify. It also permitted ad-hoc appointment of Teachers vide
Section 18 where vacancy has been notified to Commission but no recommendation has been made
within six months from the date of such notification. Sub-section (3) of Section 18, however,
provided that every appointment of an ad-hoc Teacher under sub-section (1) or sub-section (2) of
Section 18 shall cease to have effect from the earliest of the following dates:

(a) when the candidate recommended by 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.

40. Section 32 provided that Act, 1921 and Regulations made thereunder, insofar as not
consistent with First Ordinance or Rules or Regulations made thereunder, shall continue to be
enforced for the purpose of selection, appointment, promotion, dismissal, removal, termination or
reduction in rank of a Teacher.

41. Section 33 conferred power upon State Government to issue orders removing
difficulties and read as under:-
722 INDIAN LAW REPORTS ALLAHABAD SERIES

"33. Power to remove difficulties. - (1) The State Government may, for the purposes of
removing any difficulty, by a notified order, direct that the provisions of this Ordinance shall
during such period as may be specified in the order, have effect subject to such adaptations,
whether by modification, addition or omission, as it may deem to be necessary or expedient :

Provided that no such order shall be made after two years from the date of promulgation
of this Ordinance.

(2) Every order made under sub-section (1) shall be laid before both the Houses of State
Legislature.

(3) No order under sub-section (1) shall be called in question in any Court on the ground
that no difficulty as is referred to in sub-section (1) existed or required to be removed." (emphasis
added)

42. After enactment of First Ordinance, for more than six month, neither Commission or
Selection Board was constituted nor Ordinance came to be replaced by Act. Since delay in
selection and appointment of Teachers was causing grave loss to educational institutions and in
particular, students in their studies, State Government intervened and issued a Removal of
Difficulties Order i.e. U.P. Secondary Education Services Commission (Removal of Difficulties)
Order, 1981 i.e. First Order, vide notification dated 31.07.1981. It clearly stated that there was
likelihood to take some time in the establishment of Commission/ Selection Boards and even
functioning thereof would take further time. Further, it is said that a number of vacancies of
Teachers were existing and continuing in Educational Institutions and delay in filling all such
vacancies may create difficulties, hence First Order is being issued.

43. Para 2 of First Order conferred power upon Management to make ad-hoc
appointments and reads as under:-

"2. Vacancies in which ad-hoc appointment can be made.