# Nirmal Kumar Srivastava v. State Of U.P. & Ors

- **Citation:** (2016) 6 ILRA 240
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-06-09
- **Bench:** Dr. Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nirmal-kumar-srivastava-v-state-of-u-p-ors-44061
- **Pages:** 17

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240 INDIAN LAW REPORTS ALLAHABAD SERIES

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.06.2016

BEFORE

THE HON'BLE DR. DEVENDRA KUMAR ARORA, J.

Service Single/Writ Petition No.- 1189 Of 1998

Nirmal Kumar Srivastava ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Held -
Para 1-2: The petitioner, an Assistant Teacher (L.T. Grade) at C.L. Inter College, Sultanpur, filed
a writ of Mandamus seeking payment of salary and arrears from the State.

Para 3: The institution is governed by the U.P. Intermediate Education Act, 1921, and the U.P.
Secondary Education Services Commission Act, 1982. A vacancy arose when Mr. Rajendra Prasad
Srivastava was promoted to Lecturer, leading to the ad hoc promotion of Mr. Satyadeo Dubey to
L.T. Grade.

Para 4-5: The petitioner claims he was appointed by the Management on August 5, 1997, against
a "short-term vacancy" created by Mr. Dubey's promotion. Despite joining on August 14, 1997,
the District Inspector of Schools (DIOS) failed to grant financial approval for his salary.

Para 6-7: Petitioner's counsel argued that under the Second Removal of Difficulties Order, 1981,
a "deeming provision" exists: if the DIOS does not decide on approval within seven days, it is
deemed granted. Several citations were provided to support the validity of the ad hoc
appointment.

Para 8-10: The State (respondent) argued that no actual vacancy existed for the petitioner to fill.
They contended that Mr. Dubey's promotion only became effective later, meaning the petitioner
was appointed to a non-existent post, rendering the "deeming clause" inapplicable.

Para 11-12: The Court noted the historical transition of "C.T. Grade" to a "dying cadre" (merging
into L.T. Grade). The central issue identified was whether a valid vacancy existed when the
petitioner was appointed in August 1997.

Para 13-15: The Court examined the Order 1981, which defines the strict procedure for filling
short-term vacancies (leave, suspension, or limited duration). It noted that the power to fill such
vacancies remained with the Management but required strict adherence to transparency
(advertisements) and DIOS notification.

Para 16-18: The Court contrasted "short-term" vs "substantive" vacancies. It emphasized that
Section 18 of the 1982 Act and the First Removal of Difficulties Order mandate that substantive
vacancies be filled only via the Selection Board.
6 All. Nirmal Kumar Srivastava Vs State Of U.P. & Ors.

241
Para 19-20: Reference was made to settled law (Radha Raizada and Gandhi Inter College)
stating that the Management cannot bypass the Board for substantive vacancies; any
appointment made without following the prescribed legal procedure is void.

Para 21-23: The Court found that Mr. Satyadeo Dubey's promotion was only approved by the
DIOS on December 30, 1997. Therefore, in August 1997 (when the petitioner was appointed),
the post was still technically occupied by Mr. Dubey.

Para 24-25: Since the post was not vacant in August 1997, the Management's appointment of
the petitioner was against a non-existing post and in breach of law. Mr. Dubey only began
receiving L.T. Grade salary in January 1998.

Para 26-27: The Court concluded that any vacancy arising after Mr. Dubey's promotion would be
a "substantive vacancy" (due to the dying cadre merger), which the Management had no
jurisdiction to fill via the "short-term" procedure of the Second Removal of Difficulties Order.

Para 28-31: The Court cited the conflict resolution in Pradeep Kumar, establishing that the
Management cannot adopt its own procedure if the Board fails to provide a candidate.
Appointments against substantive vacancies made by Management are a nullity.

Para 32-33: The Court ruled the petitioner's appointment illegal and void. The writ petition was
dismissed as it lacked merit.

List of Citations:
Radha Raizada and others Vs. Committee of Management, Vidyawati Darbari Girl's Inter College
and others; 1994 (3) UPLBEC 1551.
Charu Chandra Tiwari Vs. District Inspector of Schools, Deoria and others: (1990) 1 UPLBEC 160.
Prem Prakash Singh Vs. State of U.P. and others: 2012 (30) LCD 1354.
Devendra Pratap Singh Vs. State of U.P. and others: 2004 (22) LCD 127.
District Inspector of Schools, Kanpur Nagar and others Vs. Diwakar Lal & others: (2000) 3
UPLBEC 2494.
Rakesh Kumar Shukla Vs. Joint Director (Education) & others: 2007 (25) LCD 445.
Udai Raj Misra Vs. State of U.P. and others: Writ Petition No. 89 of 1999 (SS), decided on
12.3.2014.
Committee of Management Gandhi Inter College, Mathura and another Vs. Regional Deputy
Director of Education and others: (2015) 4 UPLBEC 3231.
Prabhat Kumar Sharma and others Vs. State of U.P.: 1996 (10) SCC 62.
Smt. Pramila Mishra Vs. Deputy Director of Education: 1997 (2) UPLBEC 1329.
Sanjay Singh Vs. State of Uttar Pradesh and others: (2013) 1 UPLBEC 758.
Pradeep Kumar Vs. State of Uttar Pradesh and others: Writ-A No. 22520 of 2013 (decided on 1
May 2013).
Surendra Kumar Srivastava vs. State of U.P. & others: 2007 (1) ESC 118.
Abhishek Tripathi Vs. State of U.P. & others: Writ Petition No. 655 (S/S) of 2014.

(Delivered by Hon'ble Dr. Devendra Kumar Arora, J.)

1. Heard Mr. Ramesh Pandey, learned Counsel for the petitioner and Mr. Prashant Jaiswal,
learned Additional Chief Standing Counsel for the State.
242 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Petitioner, who is said to be working as Assistant Teacher (L.T. Grade) in C.L. Inter
College, Chhitepatti, District Sultanpur, has approached this Court under Article 226 of the
Constitution of India, seeking a writ of Mandamus against the respondents to pay salary and arrears
for the post of Assistant Teacher (L.T. Grade).

3. Shorn off unnecessary details of facts of the case are as under:

C.L. Inter College, Chhitepatti, District Sultanpur (in short 'Institution) is a nonGovernment recognized Institution and is governed by U.P. Intermediate Education Act, 1921 and
U.P. Secondary Education Services Commission Act, 1982.

According to the petitioner, one Mr. Rajendra Prasad Srivastava, who was working
on the post of Assistant Teacher (L.T. Grade) in the Institution, was promoted to the post of
Lecturer (Hindi) on regular basis, as a result thereof, one Mr. Satyadeo Dubey, who was working in
C.T. Grade, was promoted as Assistant Teacher (L.T. Grade) by the Committee of Management of
the Institution and his promotion was approved by the District Inspector of Schools vide order
dated 30.12.1997 on ad hoc basis till the availability of regularly selected candidate from the Uttar
Pradesh Secondary Education Service Commission.

4. Submission of learned counsel for the petitioner is that on account of ad hoc promotion
of Mr. Satyadeo Dubey, a post of Assistant Teacher (L.T. Grade) fell vacant on short term basis,
therefore, the Manager of the Institution vide letter dated 18.07.1997 informed the District
Inspector of Schools with regard to advertisement of short term vacancy occurred in the Institution.
Thereafter, the Manager of the Institution had published advertisement dated 24/25 and 26.07.1997
in the daily newspapers. Pursuant to the advertisement, the petitioner applied for the said post. The
Selection Committee, after due process, prepared select list in which the name of the petitioner was
placed at Serial No.1. Subsequently, on the basis of recommendation of the Selection Committee,
the Manager of the Institution, vide order dated 05.08.1997, appointed the petitioner on the post of
Assistant Teacher (L.T. Grade). The petitioner, in response to the appointment letter, joined the
Institution on 14.08.1997.

5. Further submission of learned counsel for the petitioner is that on joining of the
petitioner on the post in question, the Manager of the Institution, vide letter dated 07.11.1997,
requested the District Inspector of Schools, Sultanpur to grant financial approval with respect to
appointment of the petitioner on short term vacancy but inspite of several applications/reminders
having been sent, the District Inspector of Schools did not grant financial approval with respect to
the short term vacancy. Therefore, the petitioner is constrained to approach this Court by filing the
instant writ petition.

6. Mr. Ramesh Pandey, Counsel for the petitioner has contended that Clause 2 (3) (iii) of
the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second)
Order, 1981 provides that the District Inspector of Schools shall communicate his decision within
seven days of the receipt of particulars by him, failing which, the Inspector will be deemed to have
6 All. Nirmal Kumar Srivastava Vs State Of U.P. & Ors.

243
given his approval. His submission is that as there is no decision of the District Inspector of
Schools in the matter despite receipt of requisite papers, the appointment of the petitioner stands
approved in view of the said deeming provision in the Statute. Therefore, it is the liability of the
State Government to pay salary to the petitioner as he has been appointed validly in accordance
with statutory provisions contained in the Uttar Pradesh Secondary Education Services
Commission (Removal of Difficulties) (Second) Order, 1981.

7. To strengthen his arguments, Mr. Pandey has placed reliance upon Full Bench decision
rendered in the case of Radha Raizada and others Vs. Committee of Management, Vidyawati
Darbari Girl's Inter College and others;1994 (3) UPLBEC 1551, Charu Chandra Tiwari Vs.
District Inspector of Schools, Deoria and others : (1990) 1 UPLBEC 160, Prem Prakash Singh
Vs. State of U.P. and others : 2012 (30) LCD 1354, Devendra Pratap Singh Vs. State of U.P. and
others : 2004 (22) LCD 127, District Inspector of Schools, Kanpur Nagar and others Vs.
Diwakar Lal & others : (2000) 3 UPLBEC 2494, Rakesh Kumar Shukla Vs. Joint Director
(Education) & others : 2007 (25) LCD 445 and Udai Raj Misra Vs. State of U.P. And others
(writ petition No. 89 of 1999 (SS), decided on 12.3.2014.

8. Refuting the submissions of the learned Counsel for the petitioner, Mr. Prashant Jaiswal,
learned Additional Chief Standing Counsel appearing on behalf of the State has submitted that on
promotion of Mr. Rajendra Prasad Srivastava on the post of Lecturer (Hindi), the post of Assistant
Teacher (L.T. Grade) had fallen vacant and on that post, Mr. Satyadeo Dubey was promoted on ad
hoc basis, therefore, no such post of Assistant Teacher (L.T. Grade) was vacant for appointment as
claimed by the petitioner. Thus, the plea of the petitioner with regard to his appointment on short
term vacancy in L.T. Grade has no substance.

9. Mr. Prashant Jaiswal, learned Standing Counsel has further submitted that Radha
Raizada (supra), which has been relied by the petitioner, is not applicable in the facts and
circumstances of the case, as the appointment of the petitioner was made by the Committee of
Management of the Institution against non-existing post in the Institution, therefore, provisions of
Clause 2(3)(iii) of the Uttar Pradesh Secondary Education Services Commission (Removal of
Difficulties) (Second) Order, 1981 cannot be applied in the case of the petitioner.

10. To strengthen his submission, Mr. Jaiswal has placed reliance towards judgment of this
Court in Committee of Management Gandhi Inter College, Mathura and another Vs. Regional
Deputy Director of Education and others : (2015) 4 UPLBEC 3231.

11. There is no quarrel on the point that a Government Order dated 11.8.1989 was issued
whereby the C.T. Grade was declared as dying cadre w.e.f. May, 1980 in the aided institution.
Similarly vide Government Order dated 19.2.1991, similar provision was made with respect to the
Government College. After declaration of CT Grade as Dying Cadre, the Government Orders dated
4.10.1989 and 19.10.1989 were issued providing therein that the C.T. Grade Teachers who have
completed 10 years of service on 1.1.1986 or thereafter they shall be given L.T. Grade.
Subsequently, State Government has issued Government Order dated 22.5.2004 with respect to the
244 INDIAN LAW REPORTS ALLAHABAD SERIES

Assistant Teachers of the Government College as well as with regard to Assistant Teachers of the
aided Institution whereby five years benefit has been granted to the teachers w.e.f. 19.2.1991.

12. Having heard the rival submissions of the learned Counsel for the parties, factual
situation that has so emerged in the present case are that services of Mr. Satyadeo Dubey, who was
appointed on ad hoc basis in C.T. Grade on 25.8.1986, were regularized in C.T. Grade w.e.f.
6.4.1991 vide order of District Inspector of Schools, Sultanpur dated 11.8.1995. The stand of the
writ petitioner is that petitioner has been appointed on the post of Assistant Teacher (L.T. Grade)
against short term vacancy fell vacant on account of ad hoc promotion of Sri Satyadeo Dubey in
L.T. Grade vide order of the Management of the Institution dated 5.8.1997. Whereas stand of the
respondent is that there was no vacancy of Assistant Teacher either in C.T. Grade or in the L.T.
Grade in the Institution between July, 1997 to 30.12.1997, therefore, the plea of the petitioner that
he was working in the Institution w.e.f. 24.8.1997 as Assistant Teacher (L.T. Grade) in the
Institution and as such, he is entitled to get salary and arrears for the post in question, has no
substance. In these background, this Court proceed to examine the claim of the petitioner.

13. Admittedly, the appointment of Sri Satyadeo Dubey has been made on ad hoc basis in
C.T. Grade on 25.8.1986, which was prior to the decision of the State Government declaring C.T.
Grade as a dying cadre. Selection/appointment against short term vacancy is governed under the
provisions of U.P. Secondary Education Service Commission (Removal of Difficulties) (Second)
Order 1981 (hereinafter referred to as "Order 1981". The petitioner has disclosed in the writ
petition, the way and manner he has been appointed and same was clearly in the teeth of the
provisions of Second Removal of Difficulties Order, 1981, therefore, it is apt to reproduce the
Order 1981, which is as under :

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

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
alongwith 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 alongwith the particulars given in
6 All. Nirmal Kumar Srivastava Vs State Of U.P. & Ors.

245
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/XV-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 of 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 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 Inspector of Girls Schools.'

(iii) short term vacancy which is not substantive and is of a limited duration."

3. Duration of ad hoc appointment- Every appointment of a teacher under
paragraph 2 of this Order shall cease from the earliest of the following dates, namely:

(a) when the teacher, who was on leave or under suspension joins the post; or

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

(c) when the short term vacancy otherwise ceases to exist."

14. A perusal of the aforesaid provisions reveals that for filling short term vacancy by way
of direct recruitment, Management is obligated to intimate the vacancies to the District Inspector of
Schools, and further obligated to notify the same on notice board, requiring the candidates to apply
246 INDIAN LAW REPORTS ALLAHABAD SERIES

to Manager alongwith particulars given in Appendix "B" of Order. Selection has to be necessarily
made, on the basis of quality point marks specified in the Appendix specified under First Removal
of Difficulties Order 1981. Compilation of quality points marks is to be done under the supervision
of Head of Institution. The names and particulars of candidate selected and also of the other
candidates and the quality point marks allotted to them has to be forwarded by the Manager to the
District Inspector of Schools for his prior approval. The District Inspector of Schools is obligated to
communicate his decision within seven days of receipt of particulars by him failing which
Inspector will be deemed to have given his approval. After receipt of approval of District Inspector
of Schools or in the event of failure to communicate his decision within seven days of receipt of
papers, as the case may be Management is free to make appointment. Life span of short term
appointment is to come to an end when the short term vacancy otherwise would cease to exist.

15. "Short term vacancy" means a vacancy which is not substantive and is of limited
duration. It is true that subsequent to 14.7.1992 when Section 18 of the U.P. Secondary Education
Service Selection Board Act, 1982 have been amended, no ad hoc appointment could be made by
the Committee of Management on substantive vacancy but the ad hoc appointment could be made
on short term vacancy which was governed by the provisions of Uttar Pradesh Secondary
Education Services Commission (Removal of Difficulties ) (Second) Order, 1981. The power to
make ad hoc appointment on short term vacancy remained with the Committee of Management.
This has been specifically laid down by the Full Bench in Radha Raizada and others Versus
Committee of Management, Vidyawati Darbari Girls Inter College and others (supra). Para 43 of
the report is reproduced as under :

"43. Neither Section 18 of the Principal Act nor the First Removal of Difficulties
Order envisaged for ad hoc appointment against the short term vacancy. As earlier noticed, Section
18 and the First Removal of Difficulties Order provided for ad hoc appointment either by
promotion or by direct recruitment only against substantive vacancy which has been notified to the
Commission. Since short term vacancy is not a substantive vacancy, the State Government by
notification dated 7-9-1981 came out with a Second Removal of Difficulties Order providing
procedure for filling the short term vacancies. The short vacancy as envisaged in the Second
Removal of Difficulties Order is which arises on account of teachers going on leave granted to him
or on account of suspension of a teacher pending disciplinary proceedings which is duly approved
by the District Inspector of Schools. The power to appoint teachers either by promotion or by direct
recruitment under the Second Removal of Difficulties Order is open only against short term
vacancies and not against substantive vacancy. Paragraph 2 of the Second Removal of Difficulties
Order provides that if short term vacancy in the post of teacher caused by grunt of leave to him or
on account of his suspension duly approved by the District Inspector of Schools or other wise arises
the same is required to be filled by the management of the institution by promotion of permanent
senior most teacher of the institution from lower grade. The Management is further required to
immediately inform the District Inspector of Schools of such promotion along with particulars of
the teaches who is promoted. Thus if the short term vacancy arises the said vacancy has to be filled
in by the promotion from amongst the permanent senior most teacher of the institution in the next
lower grade and such promotion has to be intimated to the District Inspector of Schools. Paragraph
6 All. Nirmal Kumar Srivastava Vs State Of U.P. & Ors.

247
2 of the Order further-provides that the short term vacancy, if cannot be filled by promotion due to
non-availability of a teacher in the lower grade possessing the prescribed minimum qualification,
the same may be filled by the direct recruitment in the manner laid down in sub-paragraph (3) of
paragraph (2) of the Order which provides that the management shall intimate the vacancy to the
District Inspector of Schools and shall also immediately notify the same on the notice board of the
institution requiring the candidate to apply to the Manager of the institution along with particulars.
The advertisement of short term vacancy on the notice board of the institution according to me, n
fact no notice to the prospective eligible candidates as no prospective candidate is expected to visit
each institution to see the notice board for finding out whether, any short term vacancy has been
advertised. Since the payment of salary to the teachers appointed against the short term vacancy is
the liability of the State Government, the advertisement of short term vacancy must conform to the
requirement of Article 16(1) of the Constitution which prohibit the State from doing anything
whether by making rule or by executive order which would deny equal opportunity to all the
citizens. The provision contained in sub-paragraph (3) of paragraph 2 of the Second Removal of
Difficulties Order which provides that the short term vacancy shall be notified on the notice board
of the institution does not give equal opportunity to all the eligible candidates of the District,
Region or the State to apply for consideration for the appointment against the said short term
vacancy. Such kind of notice is an eye-wash for the requirement of Article 16 of the Constitution.
This aspect can be examined from another angle. If the notice of short term vacancy, through the
notice board of the institution is accepted, it will throw open the doors for manipulation and
nepotism. A management of an institution may or may not notify the short term vacancy on the
notice board of the institution and yet may show to the authority that such vacancy has been
notified on the notice board of the institution and may process the application of its own candidate
for the appointment against the short term vacancy I am, therefore, of the view that the procedure
for notifying the short term vacancy should be the same as it is for the ad hoc appointment by direct
recruitment under the First Removal of Difficulties Order. The management after intimating such
vacancy to the District Inspector of Schools advertise such short term vacancy at least in two
Newspapers having adequate circulation in Uttar Pradesh in addition to notifying the said vacancy
on the notice board of the institution and further the application may also be invited from the local
employment exchange. Thus, the procedure provided for notifying the short tern vacancy should be
the same as contained in sub-paragraph (2) of paragraph 5 of the First Removal of Difficulties
Order. Thereafter, the procedure provided in sub-paragraph (3) (i, ii, iii, iv) of paragraph 2 of the
Second Removal of Difficulties Order has to be followed for making such appointment. As seen
the procedure provided under sub-paragraph (3) of paragraph 2 of the Second Removal of
Difficulties Order, the selection is required to be made on the basis of quality point marks specified
in the Appendix to the First Removal of Difficulties Order. The name and particulars of the
candidates of selected and other candidates along with quality point marks allotted to them as
required to be forwarded by the Manager to the District Inspector of Schools for the prior approval.
The District Inspector of Schools is under obligation to communicate his decision within seven
days of submission of such particulars failing which the District Inspector of Schools is deemed to
have given his approval. The duration of such ad hoc appointment is till the teacher who was on
leave or under suspension joins the post or When the short term Vacancy otherwise ceases to exist.
This ad hoc appointment by direct recruitment against short term vacancy can only be resorted only
248 INDIAN LAW REPORTS ALLAHABAD SERIES

after it is found that the said vacancy cannot be filled in by promotion. This ad hoc appointment
against the short term vacancy is not an appointment either under Section 18 of the Act or under the
First Removal of Difficulties Order as the power and procedure provided for the ad hoc
appointment against the short term vacancy is under the Second Removal of difficulties Order and
further is not against the substantive vacancy. After the procedure Provided in paragraph 2 of the
Second Order has gone through no further approval of the district Inspector of Schools is required
for such appointment. However it has come to notice that sometimes the Management resort to
unfair practice in case of such appointments. For that contingency there is adequate safeguard
provided in the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and
other Employees) Act, 1971."

16. At this juncture, relevant provisions as contained in Section 18 of U.P. Act No. V of
1982 and U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981
are being looked into:

"Section 18- Ad hoc Principals or Headmasters -(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 to promotion of such teacher and 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 is pursuance of such order of promotion.

(3) Where the teacher to whom the order of promotion is issued under sub-section
(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)
shall cease to have effect from when the candidate recommended by the Board joins the post."

U.P. Secondary Education Service Commission (Removal of Difficulties) Order,
1981.
6 All. Nirmal Kumar Srivastava Vs State Of U.P. & Ors.

249

"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 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 two months subsequent to the date of such commencement.

5. Ad hoc appointment by direct recruitment.-(1) Where any vacancy cannot 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, 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 advertisement in at least two newspapers having
adequate circulation in Uttar Pradesh.

(3) 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 envelops bearing postal stamp for purposes of registration.

(4) The District Inspector of Schools shall cause the best candidates selected on the
basis of quality 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 teachers and the names of 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 institution. This
process 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".
250 INDIAN LAW REPORTS ALLAHABAD SERIES

17. 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
Section 18 of the Act are present and only in the manner provided for in paragraph 5 of the
Removal of Difficulties Order, 1981. When a teacher is appointed on ad hoc basis in accordance
with the paragraph 5 of the First Removal of Difficulties Order, there is no requirement of approval
or prior approval of the District Inspector of Schools for such appointment. However, it goes
without saying that if a Management without following the procedure indicated above makes an ad
hoc appointment the District Inspector of Schools possess general power under the Payment of
Salaries Act to stop payment of salary to such teacher.

18. The word "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/promotion 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 in by promotion and for a
period till a candidate duly selected by the Commission joins the post. 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.

19. It is pertinent to mention here that after the enforcement of the Uttar Pradesh Secondary
Education Services Selection Board Act, 1982, the Committee of Management had no right to
select or appoint candidates against substantive vacancies in the posts of Assistant Teachers or
Lecturers, whereas case of the petitioner is that since the Board constituted under the Act, 1982 has
not been able to send selected candidates, the institutions were entitled to appoint persons on an ad
hoc basis until regularly selected candidates become available and the State would be liable to pay
salaries to these teachers out of grant made available to the institutions.

20. The issue which emerges out from the aforesaid submissions of the learned Counsel for
the petitioner has already been dealt with by a Division Bench of this Court in Committee of
6 All. Nirmal Kumar Srivastava Vs State Of U.P. & Ors.

251
Management, Gandhi Inter College, Mathura and another Vs. Regional Deputy Director of
Education and others : (2015) 4 UPLBEC 3231, wherein a Division Bench of this Court, while
considering the provisions of U.P. Secondary Education Services Commission (Removal of
Difficulties) (Second) Order 1981, Section 33-B of U.P. Act No. 5 of 1982 as inserted by Act No.1
of 1993 w.e.f. 7.8.1993, and law laid down by the Full Bench of this Court in Km. Radha Raizada
(supra), which has been approved by the Apex Court in Prabhat Kumar Sharma and others Vs.
State of U.P. : 1996 (10) SCC 62, Smt. Pramila Mishra Vs. Deputy Director of Education : 1997
(2) UPLBEC 1329, has held as under:

"The inevitable conclusion is that even in the matter of selection and appointment on
adhoc basis made against the substantive vacancy under Section 18 of U.P. Act No. V of 1982,
procedural front has to be adhered to as is provided under First Removal of Difficulties Order
wherein the Committee of Management of the institution concerned is obligated to inform the
vacancy to the District Inspector of Schools and thereafter the District Inspector of Schools is
obligated to advertise the vacancy in question and carry out the selection based on quality point
marks.

On this parameter once claim of Hari Ram respondent-appellant no. 2 is being
examined. As far as appointment of Hari Ram is concerned, his appointment has been claimed to
have been made in exercise of authority vested under Section 18 of U.P. Act No. V of 1982 and
accepted position is that the procedure prescribed under First Removal of Difficulties Order, 1981
has not at all been adhered to as First Removal of Difficulties Order, clearly talks of advertisement
and also clearly talks about the fact that selection is to be made on the basis of quality point marks
awarded on the basis of marks obtained in High School, Intermediate, Graduate level and Post
Graduate level and here without following the procedure prescribed purported selection has been
made based on the strength of interview in question. Under First Removal of Difficulties order,
there is no provision to make selection/appointment on the post of teacher by way of interview,
rather selection is to be made on the basis of quality points marks as specified in the Appendix to
the First Removal of Difficulties Order. In view of this, procedure that has been adopted and
adhered to by the Committee of Management is not at all in consonance with the procedure
prescribed under Para-5 of the First Removal of Difficulties Order. District Inspector of Schools at
the point of time when he has proceeded to accord approval, at no point of time has ever considered
all these aspect of the matter and to the contrary has proceeded to mention that advertisement has
been made and appointment has been made without going into this aspect of the matter, as to
whether requisite procedure as prescribed stand fulfilled or not.

Consequently selection and appointment of appellant-defendant appellant no. 2
made under purported exercise of authority under Section 18 of U.P. Act No. V of 1982 read with
Para-5 of First Removal of Difficulties Order is void and cannot be subscribed. Learned Single
Judge, has rightly quashed the order passed in favour of Hari Ram by District Inspector of
Schools."
252 INDIAN LAW REPORTS ALLAHABAD SERIES

21. Keeping in mind the aforesaid legal provisions and law, this Court finds in the present
case that services of Mr. Satyadeo Dubey, who was appointed on ad hoc basis in C.T. Grade on
25.8.1986, was regularized w.e.f. 6.4.1991 vide order dated 11.8.1995 passed by the District
Inspector of Schools, Sultanpur. The criteria for promotion from C.T. Grade to L.T. Grade under
50% quota is five years satisfactory service in C.T. Grade subject to rejection of unfit. But the
Committee of Management, before the aforesaid period of five years, is said to have appointed Sri
Satyadeo Dubey as Assistant Teacher (L.T. Grade) from C.T. Grade and subsequently, sent a
proposal on 10.3.1993 to the District Inspector of Schools, Sultanpur to the effect that Sri Satyadeo
Dubey, M.A. (Sanskrit), Assistant Teacher C.T. Grade is the only such eligible and senior teacher
who possesses eligibility for promotion to the post of graduate pay grade, therefore, on the vacancy
caused due to promotion of Sri Rajendra Prasad Srivastava, Assistant Teacher (L.T.