# Maheshwar Prasad Tiwari v. Joint Director of Education and others

- **Citation:** (2000) 2 ILRA 16
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/maheshwar-prasad-tiwari-v-joint-director-of-education-and-others-39602
- **Pages:** 5

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000
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By the Court

1. The question that crops up for
consideration in this Special Appeal is as to
whether Adhoc appointment of a Lecturer in a
recognized intermediate College can be made
by promotion under Section 18 of U.P.
Secondary Education Service Selection Board
Act,1982 in short the Act read with provisions
confined in the U.P. Secondary Education
Service Commission Rules, 1995 in short the
Rules in respect of a "vacancy" which is
ultimately to be filled in by direct recruitment
in accordance with the provisions of the Act
read with Rule 14 of the Rules.

2. The facts of the case lie in a short
compass. Lady Prasanna Kaur Inter College
Sardar
Nagar
Gorakhpur
is
recognized
intermediate College in short the College. A
substantive vacancy in the post of Lecture
(English ) occurred on 1.7.1996. The vacancy
fell in the 50% quota prescribed for direct
recruitment. The Committee of Management
of the college however, passed a resolution on
16.11.1995 for giving adhoc promotion to the
appellant in the vacant post of Lecturer in
English as the appellant according to the
Committee of Management was qualified for
appointment to the post of Lecturer in
English. The papers were sent to the District
Inspector
of
Schools
vide
letter dated
11.3.1997 for financial approval for the
promotion of the appellant. The letter dated
11.3.1997 states that the Committee of
Management had taken the vacancy in
question to be one falling within 50% quota to
be filled in by promotion. It appears that no
decision in the matter was communicated by
the District Inspector of Schools to the
Management of the college whereupon the
appellant filed a Writ Petition being Civil
Misc. Writ Petition No.30587 of 1997 seeking
issuance of writ of mandamus commanding
2All] Maheshwar Prasad Tiwari V. Joint Director of Education and others
17
 the respondents therein to pay him salary
in the Lecturer's grade since the date he
started functioning as such. The said writ
petition was disposed of by judgment and
order dated 18.9.1997 with the direction that
the petitioner would submit a representation
before the District inspector of Schools who
would
examine
as
to
whether
ad-hoc
promotion of the appellant was valid in
accordance with the provisions of the U.P.
Secondary Education Services Commission
(Removal of Difficulties) Order.1981. It
appears that the attention of the learned Judge
was not invited to the amended Section 18
and
the
Rules
providing
for
ad-hoc
appointment of teachers and that is why the
direction was to examine whether the ad-hoc
promotion was valid in accordance with the
provisions of The U.P. Secondary Education
Services
Commission
(Removal
of
Difficulties) Order 1981. The District
Inspector
of
Schools
rejected
the
representation vide order dated 16.3.1998.
Where upon the appellant filed another writ
petition being Civil Misc. Writ Petition No.
10770 of 1998 which was dismissed on the
ground that the appellant-petitioner had an
alternative remedy to approach the Regional
Deputy Director of Education under clause 7
of the U.P. Secondary Education Service
Commission (Removal of Difficulties) Order,
1981
as
amended
by
U.P.
Secondary
Education Service Commission (Removal of
Difficulties) (Fourth) Order, 1982. Thereafter
the matter was taken up in Special Appeal
wherein the question raised was that the rule
of 50% quota of promotion and direct
recruitment would not be applicable to ad-hoc
appointments. The Special Appeal Bench
declined to interfere with the order passed by
the learned Single Judge but disposed of the
appeal with the direction that the Regional
Deputy Director of Education will take note
of the contention and dispose of the matter in
accordance with law.

3. Thereafter the matter was examined by
the Joint Director of Education 7th Region,
Gorakhpur who rejected the representation
and maintained the order passed by the
District Inspector of Schools though on a
different ground holding that the ad-hoc
promotion of the appellant was not in
accordance with the provisions of the Act and
the Rules referred to above. The Joint
Director clearly held that the U.P. Secondary
Education Services Commission (Removal of
Difficulties) Order 1981 would not apply and
instead the provisions in the U.P. Secondary
Education Service Commission Rules, 1995
would govern the appointment. Aggrieved
against the order dated 15.2.1999 passed by
the Joint Director of Education, the appellant
filed the writ petition which came to be
dismissed wide judgment and order under
challenge in this appeal. The learned Single
Judge was of the view that the U.P. Secondary
Education Services Commission Rules. 1995
which came into force on 8.5.1995 would
govern the present case and the Rule of 50%
quota of direct recruitment and promotion
would govern ad-hoc appointment as well.
Aggrieved the petitioner-appellant has filed
the instant appeal.

4. We have had heard Shri R.K. Ojha,
learned counsel appearing for the appellant
and
Standing
Counsel
representing
the
respondents 1and 2.

5. The thrust of the submissions made by
Shri R.K. Ojha is that in the matter of ad-hoc
appointment the rule providing the 50%
vacancies
would
be
filled
by
direct
recruitment and 50% by promotion as
visualised by Rule 10 of the Rules need not be
adhered to. Learned counsel for the appellant
placed reliance on the Division Bench
decision of this Court in Charu Chandra
Tiwari Vs. District Inspector of Schools,
Deoria and another1; Full Bench decision in
Radha
Raizada
Vs.
Committee
of
Management2 and the Supreme Court decision

1 1990(1) U.P.L.B.E.C.160
2 1994(3) U.P.L.B.E.C.1551
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
18
in Prabhat Kumar Sharma Vs. State of U.P.3
in support of his contention that if an occasion
arises for ad-hoc appointment in terms of
Section 18 of the Act, every vacancy will
have to be filled in by ad-hoc promotion if
suitable and qualified candidates are available
for promotion. Recourse to appointment by
direct recruitment, proceeds the submission,
may be taken only if no suitable and qualified
candidate is available for giving ad-hoc
promotion to the post of Lecturer. The
submission made by the learned Counsel for
the appellant cannot be countenanced. The
Division Bench decision in the case of Charu
Chandra Tiwari (Supra) is based upon
consideration of the provisions contained in
the
U.P.
Secondary Education Services
Commission (Removal of Difficulties) Order,
1981 wherein there was a clear stipulation in
para 4(2) that every vacancy in the post of a
teacher in Lecturers grade may be filled by
promotion by the senior most teacher of the
institution in the trained graduate (L.T.) grade.
Recourse to ad-hoc appointment by direct
recruitment it was provided in paragraph 5
was to be taken only "where any vacancy
cannot
be
filled
by
promotion
under
Paragraph 4" The Division Bench had no
occasion to examine Section 18 of the Act as
it stands substituted by U.P. Act No. 24, 1992
w.e.f.14.7.1992 and again by U.P. Act No.1 of
1993 and the provisions contained in Rules 9A and 9-B of U.P. Secondary Education
Services Commission Rules 1983 or those of
the
U.P.
Secondary
Education
Service
Commission Rules.1995 which contain the
procedure for ad-hoc appointment by direct
recruitment and by promotion respectively.

6. The full Bench of this Court in Radha
Raizada case (Supra) no doubt noticed the
substituted/amended Section 18 as well as
U.P.
Secondary
Education
Service
Commission Rules. 1983 but the question that
has arisen in the present case was neither
raised nor decided by the Full Bench in that
case. The Supreme Court decision in Prabhat

3 1996(3) U.P.L.B.E.C.1959
Kumar Sharma (Supra) too did not go in to
the question raised in the present case. The
question raised herein was neither examined
nor decided in that case.

7. Accordingly, we are of the view that the
decisions aforestated are not of much avail to
the appellant for the purpose of construction
of the provisions contained in Rules 15 and 16
of the Rules. Appointments of teachers in
recognised High Schools and Intermediate
Colleges are governed by the Act. Earlier the
field was occupied by Intermediate Education
Act. 1921. Section 16(1) of the Act as it
stands amended up to date envisages that
"every appointment of a teacher shall on or
after the date of commencement of the Uttar
Pradesh
Secondary
Education
Services
Selection Board (Amendment) Act, 1995, be
made by the management only on the
recommendation of the Commission". This is
however, subject to certain exceptions e.g.,
ad-hoc
appointment
under
Section
18;
absorption of reserve pool teacher' under
Chapter
IV-A;
appointments
under
the
provisions to sub-Section (1) of Section 16
etc. 'Any appointment' in contravention of the
Act it is provided in sub-section (2) of Section
16 shall be void". By amendment vide U.P.
Act No.25 of 1998 the word Commission has
been substituted by the word "Board". Section
18(1) provides that where the Management
has notified a vacancy to the Board in
accordance with Section 10(1) 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 " Sub-Section (2) and (3)
of Section 18 read as under :

"(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).
2All] Maheshwar Prasad Tiwari V. Joint Director of Education and others
19
(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 senior most
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 graduates grade, in the
case of a vacancy in the Trained graduate's
grade."

8. It would be evident from the provisions
quoted above that ad-hoc appointment by
direct recruitment may be made only on the
recommendation of the Selection Committee
referred
to
in
sub-Section
(8)
while
appointment by provisions in the Lecturer
grade is required to be made in "prescribed
manner" by promoting the senior most
teacher
in
the
L.T.
grade
possessing
prescribed qualifications. The manner is
prescribed in the Rules, Rule 15 of the Rules
provides
the
procedure
for
ad-hoc
appointment by direct recruitment under
Section 18 of the Act "in respect of vacancies
to be filled in by direct recruitment "Rule 16
provides
the
procedure
for
ad-hoc
appointment under Section 18 of the Act by
promotion "in respect of the vacancies to be
filled in by promotion". It is not disputed that
50% of the posts in the Lecturer's grade are to
be filled by promotion and 50% by direct
recruitment vide Rule 10 of the Rules. The
expression "in respect of the vacancies to be
filled in by direct recruitment" and "in respect
of the vacancies to be filled in by promotion'
occurring in Rule 15 (1) and 16 (1)
respectively are significant. These expressions
in our opinion have reference to vacancies as
determined and notified in accordance with
Section 10 read with Rules 10 and 11 of the
Rules. The notification of vacancies to the
Board contains statement of vacancies for
each category of posts to be filled in by direct
recruitment or by promotion. Ad -hoc
appointment under Section 18 is permissible
only on fulfilment of the twin conditions
precedent: firstly, the vacancy had been
notified, and secondly; the post remained
vacant for two months. If the vacancy
determined in the aforesaid manner falls in the
quota
of
promotion
and
the
condition
precedent as visualized in Section 18(1) are
satisfied, it can be filled in on ad hoc basis
only in the manner prescribed by Rule 16 of
the Rules as prescribed in Section 18(3) and
not by direct recruitment under sub-Section
(2) read with sub-Section (8) of Section 18
and Rule 15 of the Rules except on pains of
invalidation of appointment in terms of
Section 16 (2) of the Act. In our opinion
therefore if the vacancy falls in the quota of
direct recruit then the same cannot be filled by
ad-hoc promotion under Rule 16 of the Rules
which
provides
procedure
for
ad-hoc
appointment
by
promotion
where
such
appointments are to be made under Section 18
of the act "in respect of the vacancies to be
filled in by promotion" it may be observed
that the U.P. Secondary Education Services
Commission (Removal of Difficulties) Order,
1981 has since been rescinded and the
procedure laid down in the Rules holds the
field of ad hoc appointment. The view taken
by the learned Single Judge warrants no
interference.

9. Before parting with the case, it may be
observed that the Act has been amended in
certain respects by U.P. Act No.25 and Rules
have been replaced by the U.P. Secondary
Education Service Selection Board Rules,
1998 but the legal position discussed above
remains unaltered even under the new Rules.
In the instant case the 1995 Rules were very
much in force at the time of the appointment
in question herein. Regular promotion is now
to be made on the recommendation of a
Selection
Committee
constituted
under
Section 12 inserted by U.P. Act No. 25
(preceded by Ordinance No.3 of 1998)
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
20
In view of the above discussion the appeal
fails and is dismissed without any order as to
costs.
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By the Court

1. One Shyam Bihari Lal Sharma was an
employee on Class-III post as Village
Development Officer alleged to be civil post
of government of U.P. at Block Bahadarabad,
District Haridwar. Unfortunately he died on
9.2.90 leaving behind him the petitioner (Ajay
Kumar Sharma) and three other sons as
mentioned in para 4 of the writ petition.

2. In the writ petition it has been
categorically stated that petitioner was given
appointment on compassionate ground under
relevant 'dying in harness rules, 1974' which
were applicable to the facts of the instant case.
This fact has not been disputed by the
respondent in the counter affidavit. A copy of
the appointment letter has been filed on
25.05.90 which has been filed as annexure-1
to the writ petition. In pursuance of the
aforementioned
appointment
letter,
the
petitioner joined the post of peon on 7.6.90,
the appointment letter however, mentioned
that appointment of the petitioner was
temporary.

3. By the order dated 26.9.95, filed as
annexure -3 to the petition issued by Block
Development Officer, Banadarabad, District
Haridwar indicates that the petitioner was
appointed on 7.6.90. and thereafter he was
given benefit of annual increment in salary
uninterruptedly.
Another
order
of
Jt.
Development Commissioner dated 14.1.97
(annexure-4) to the writ petition shows that
petitioner was sought to be transferred.

4. The aforesaid facts have not been
disputed in the counter affidavit as also
admitted to the learned standing counsel. In
view of the above it appears that petitioner
was treated as temporary employee but he was
treated as purely temporary employee. Even
otherwise this court in the decision reported in
1997 ALJ 834 held that compassionate
appointment cannot be for short- term.

5. Needless to mention that appointment
in dying in harness rules cannot and should