# Raghunath Prasad Yadav / v. District Inspector of Schools, Gorakhpur and others /Opp. Parties

- **Citation:** (2006) 3 ILRA 1109
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-05-18
- **Case number:** Special Appeal No.1169 of 2004
- **Bench:** Ajoy Nath Ray, C.J. Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raghunath-prasad-yadav-v-district-inspector-of-schools-gorakhpur-and-others-opp-40744
- **Pages:** 5

## Headnote

Sri R.U. Ansari
Sri R.V. Singh
S.C.

U.P.
Secondary
Education
Service
Commission of Selection Board Act,
1982-Selection Board Act, 1982-Section
18-read with U.P. Secondary Education
Service
Commission
(Removal
of
Difficulties)
Order
1981)-Pra-5-Adhoc
Appointment-on substantive post of L.T.
grade Teacher-vacancy caused due to
retirement of one Mr. K.P. Singh on
30.6.91-vacancy notified by manager on
10.6.91-further amended authorising the
manager to fill the post on 2.8.01vacancy notified on notice board on
23.8.91-appointed on 26.8.91-whether
the period of sixty days as mentioned in
Section 18 is mandatory?-held-"yes"-
appointment without advertisement in
two news papers-State can not be
burdened for salary.

Held: Para 11

In view of the aforesaid the appointment
of the appellant having been made
without advertisement in two news
papers which is the case of the petitioner
1110 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
himself, the petitioner has expressly, in
paragraph 9 of the writ petition, stated
that the Manager of the Institution
advertised the post on the Notice Board
of the Institution, no relief can be
granted to the appellant. We don not
find any good ground to interfere with
the Judgement of the learned Single
Judge. In the event the appellant has
performed any duties at the instance of
the
Management
it
is
for
the
Management to consider the claim of the
appellant for payment of salary if any.
Case law discussed:
1995 AWC-71,
1994 (3) UPLBEC-1551
2003 (3) E.S.C. (Alld.)-1357
1988 UPLBEC-640
J.T. 1996 (6)-579

## Text

3 All] M/s Ashok Prakashan and another V. Sunil Kumar and others
1109
below.
Consequently,
the
injunction
cannot continue any further.

23. In view of the aforesaid, the
effect and operation of the injunction
order dated 29.5.2006 passed by the
Incharge
District
Judge,
Meerut
in
Original Suit No.1 of 2006 shall remain
stayed till further orders of the Court.

24. In view of the aforesaid, I do not
find it feasible to dwell upon the other
grounds raised by the appellants and the
plaintiff opposite party.

25. Since 6.7.2006 has been fixed
for the appearance of the defendantsappellants.
I
direct
the
defendantsappellants to appear before the Court
below on the said date and file their reply/
objections.
The
Court
below
shall
consider the injunction application afresh
and shall pass such and further orders
after hearing the parties within six weeks
from the date of the production of a
certified copy of this order.

26. It is made clear, that any
observation or finding given in this order
are only prima facie opinion of the Court
and the Court below shall not be
influenced by any observation or finding
given in this order while considering the
injunction application.

27. List this appeal for admission
and for orders before the appropriate
Court in the third week of August 2006.

Certified copy of this order to be
made available to the parties, upon
payment of usual charges, within four
days.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2006

BEFORE
THE HON'BLE AJOY NATH RAY, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No.1169 of 2004

Raghunath Prasad Yadav ...Petitioner/
Appellant
Versus
District Inspector of Schools, Gorakhpur
and others ...Respondents/Opp. Parties

Counsel for the Appellant:
Sri Dr. R.G. Padia
Sri Prakash Padia

Counsel for the Respondents:
Sri R.U. Ansari
Sri R.V. Singh
S.C.

U.P.
Secondary
Education
Service
Commission of Selection Board Act,
1982-Selection Board Act, 1982-Section
18-read with U.P. Secondary Education
Service
Commission
(Removal
of
Difficulties)
Order
1981)-Pra-5-Adhoc
Appointment-on substantive post of L.T.
grade Teacher-vacancy caused due to
retirement of one Mr. K.P. Singh on
30.6.91-vacancy notified by manager on
10.6.91-further amended authorising the
manager to fill the post on 2.8.01vacancy notified on notice board on
23.8.91-appointed on 26.8.91-whether
the period of sixty days as mentioned in
Section 18 is mandatory?-held-"yes"-
appointment without advertisement in
two news papers-State can not be
burdened for salary.

Held: Para 11

In view of the aforesaid the appointment
of the appellant having been made
without advertisement in two news
papers which is the case of the petitioner
1110 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
himself, the petitioner has expressly, in
paragraph 9 of the writ petition, stated
that the Manager of the Institution
advertised the post on the Notice Board
of the Institution, no relief can be
granted to the appellant. We don not
find any good ground to interfere with
the Judgement of the learned Single
Judge. In the event the appellant has
performed any duties at the instance of
the
Management
it
is
for
the
Management to consider the claim of the
appellant for payment of salary if any.
Case law discussed:
1995 AWC-71,
1994 (3) UPLBEC-1551
2003 (3) E.S.C. (Alld.)-1357
1988 UPLBEC-640
J.T. 1996 (6)-579

(Delivered by Hon'ble Ajoy Nath Ray, C.J.)

1. Heard Sri R.G. Padia, Senior
Advocate appearing for the appellant and
Sri Ravn Vijay Singh, the learned
standing
counsel
appearing
for
the
respondents.

2. This is an appeal against the
judgment and order dated 24th November,
2003 by which judgment the writ petition
filed by the appellant has been disposed
of.

3. Brief facts necessary for deciding
the appeal are:-

Bapu
Inter
College
Pipriganj,
Gorakhpur is a recognised institution
receiving grant in aid. On retirement of
one Kali Prasad Singh on 30th June, 1991
a substantive vacancy arose on the post of
Assistant Teacher
L.T.
Grade. The
petitioner's case is that the vacancy was
notified by the Manager by the letter
dated 10th June, 1991. On 22nd June, 1991
he amended the requisition. It is claimed
that the Committee of Management
authorised the manager to fill up the post
on 2.8.1991 and on 10th August, 1991 the
Notice Board of the Institution and
thereafter the petitioner was selected on
23rd August, 1991 and appointed on 26th
August, 1991. The petitioner's papers
were sent to the Inspector for payment of
salary. The salary was not paid by the
Inspector. Consequently, writ petition was
filed by the petitioner praying for a writ of
mandamus directing the respondents to
pay the petitioner's arrears of salary. The
writ petition has been dismissed by the
learned Single Judge. One of the grounds
taken by the learned Single Judge for
dismissing the writ petition is that the
selection of the petitioner on ad hoc basis
by way of direct recruitment was made
prior to expiry of sixty days of sending
the requisition sent to the Commission.

4. Dr. R.G. Padia, learned counsel
for the appellant submitted that the period
of sixty days as mentioned in Section 18
of the U.P. Secondary Education Service
Commission and Selection Board Act,
1982 (U.P. Act No. 5 of 1982) is not
mandatory and the appointment of the
petitioner before expiry of sixty days can
at best be an irregularity not affecting the
validity of the appointment. He has placed
reliance on a Division Bench judgment of
this Court reported in 1995 A.W.C. 71
Prabhu Dayal and others Versus
District Inspector of Schools, Firozabad
and others.

5. Sri Ran Vijay Singh, learned
standing
counsel
appearing
for
the
respondents
has
submitted
that
the
requirement of period sixty days as
mentioned in Section 18 is mandatory. He
further submitted that the appointment of
the appellant as an ad hoc Assistant
Teacher L.T. Grade was void ab-initio
3 All] Raghunath Prasad Yadav V. D.I.O.S., Gorakhpur and others
1111
and Allahabad Bank initio having been
made contrary to the provisions of Act
and rules. According to the own case of
the petitioner his appointment was made
after advertising the vacancy on the
Notice
Board.
There
being
no
advertisement in two news papers, the
petitioner
is
not
entitled
for
any
mandamus by this Court. Reliance has
been placed by the learned standing
counsel on Full Bench judgment of this
Court in 1994 (3) UPLBEC 1551 Radha
Rani
Raizada
and
others
Versus
Committee of Management, Vidyawati
Darbari Girls Inter College and others
and the Division Bench judgment of this
Court reported in 2003 (3) E.S.C.
(Allahabad) 1357 Anllesh Pratap Singh
Versus State of U.P. and others. Dr.
Padia refuting the submission of the
learned standing counsel submitted that
the appointment of the petitioner was
made by the Committee of Management
within its jurisdiction and the power under
Section 18 of the Uttar Pradesh Secondary
Education Services Selection Board Act,
1982.
He
contended
that
prior
to
14.7.1992 there was no requirement of
publication of any advertisement in two
news papers for ad hoc appointment under
Section 18. He has placed reliance on the
judgment of the Division Bench of this
Court reported in 1988 UPLBEC 640
Chhatrapal Versus District Inspector of
Schools, Bareilly and others.

6.

We
have
considered
the
submissions of counsel for the parties and
perused the record.

7. The first question which has been
raised in the case is as to whether the
period of sixty days as mentioned in
Section 18 is mandatory; and what is the
effect of the appointment if made prior to
sixty days. According to Section 18 of the
U.P. Act No. 5 of 1982 the Committee of
Management was empowered at the
relevant time to make ad hoc appointment
where a vacancy has been notified to be
Commission and period of one year has
expired or the post had actually remained
vacant for more than two months to
Management can fill up the vacancy
absolutely on ad hoc basis. The Division
Bench judgment relied by the learned
counsel for the appellant in Prabhu
Dayal's case (supra) has taken the view
that the Management is competent to
initiate process even before expiry of two
months. The Division Bench held that
what is required to be done after two
months is the appointment, issuing
advertisement inviting applications for
such appointment within the period of two
months, is not prohibited. Paragraph 3 of
the judgment is quoted below:-

"Under Section 18 (1) (b) the
appointment can be made if the post of a
teacher, remained vacant for more than
two months. What is required to be done
after two months is the appointment.
Issuing
advertisement
inviting
applications for such appointment within
the period of two months, is not
prohibited. As the process of selection on
the basis of which the appointment is to
be made, is likely to take time, there is no
prohibition in the law against inviting
applications for such appointment even
before expiry of two months."

8. The present case is not similar to
above. Not only process was initiated
before expiry of two months but the
appointment had been made before expiry
of two months. The Division Bench
judgment in Anilesh Pratap Singh's case
(supra) relied by the learned standing
1112 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
counsel do support the contention of the
learned standing counsel. Paragraph 15 of
the judgment is quoted below:-

"15 Applying the principles laid
down in the aforementioned cases, we are
of the considered opinion that the
provisions of Section 18 of the 1982 Act is
mandatory and unless and until the period
of two months expires from the date if
notifying the vacancy to the Commission,
the Committee of Management does not
get any power to fill up the vacancy on ad
hoc basis."

9. We, however, do not rest our
judgment only on above issue. One of the
questions which has been raised by the
learned standing counsel is that the
appointment of the appellant is void. The
submission raised by Dr. Padia is that for
the appointment under Section 18 there
was no requirement of advertisement in
news paper. He submitted that Section 18
does not mention or refer to notification
of the vacancy in two news papers and the
vacancy notified only on the Notice Board
was sufficient. The question raised has
already been settled by the Apex Court
vide its Judgement reported in Judgement
Today 1996 (6) S.C. 579 Prabhat
Kumar Sharma and others Versus State
of U.P. and others. The Apex Court in
the said judgement has held that any ad
hoc
appointment
of
teachers
under
Section 18 can be made in accordance
with
the
procedure
prescribed
in
paragraph
5
of
the
Uttar
Pradesh
Secondary
Education
Service
Commission (Removal of Difficulties)
Order, 1981, which is extract below:-

"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 news papers
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 envelope
bearing postal stamp for purposes of
registration.

(4) The District Inspector of Schools
shall cause the best candidates selected
on the basis of quality points specified in
Appendix. J 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 names of the
institution shall be arranged in Hindi;
alphabetical order. The candidate whose
name appears on the top of the list shall
be allotted to the institution the name
whereof appears on the top of the list of
the institution. This process shall be
repeated till both the lists are exhausted.

Explanation:- In relation to an
institution imparting instruction to women
3 All] Raghunath Prasad Yadav V. D.I.O.S., Gorakhpur and others
1113
the expression "District Inspector of
Schools" shall mean the "Regional
Inspector of Girls' Schools:.

10. Similar view has already been
taken by the Full Bench of this Court in
Radha Raizada and others Versus
Committee of Management, Vidyawati
Darbari Girls Inter College and others
(supra) case. Section 18 does not provide
the procedure of selection of ad hoc
Assistant Teacher but Section 18 has to be
harmonised with the Difficulties Order.
Thus wherever the ad hoc appointment is
made on substantive vacancy paragraph 5
of the Uttar Pradesh Secondary Education
Service
Commission
(Removal
of
Difficulties)
Order,
1981
shall
be
applicable
and
for
any
ad
hoc
appointment the Inspector has to invite
applications from the local Employment
Exchange
and
also
through
public
advertisement in at least two news papers
having adequate circulation in Uttar
Pradesh. The Division Bench Judgement
in Chhatrapal's case (supra) relied by the
counsel for the appellant was a case
where the Division Bench took the view
that for substantive vacancy in C.T. Grade
approval of the District Inspector of
Schools is not necessary and such teacher
is to be treated in C.T. Grade till the
selection is made by the Board. What
shall be the procedure for ad hoc
appointment under Section 18 has been
expressly considered nor it has been held
in the said Judgment that for ad hoc
appointment advertisement only on the
Notice Board is sufficient. The said
Judgment does not support the contention
raised by the learned counsel for the
appellant in the present case.

11. In view of the aforesaid the
appointment of the appellant having been
made without advertisement in two news
papers which is the case of the petitioner
himself, the petitioner has expressly, in
paragraph 9 of the writ petition, stated
that the Manager of the Institution
advertised the post on the Notice Board of
the Institution, no relief can be granted to
the appellant. We don not find any good
ground to interfere with the Judgement of
the learned Single Judge. In the event the
appellant has performed any duties at the
instance of the Management it is for the
Management to consider the claim of the
appellant for payment of salary if any.

12. Subject to above observation the
appeal is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.04.2006

BEFORE
THE HON'BLE V.K. SHUKLA, J.

Civil Misc. Writ Petition No. 12901 of 2004

Mool Chand and others ...Petitioners
Versus
State of U.P. and others ...Respondents
Connected with
Civil Misc. Writ Petition No. 60669 of 2005

Mool Chand and others
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri R.P. Tiwari
Sri D.K. Mishra

Counsel for the Respondents:
Sri S.F.A. Naqvi
Sri Sant Ram Sharma

Constitution
of
India
Art.
226Regulation-Petitioners were appointed