S. C. Verma, J. - (1.) BY this petition, the petitioner has challenged the order of the District Inspector of Schools dated 11-2-1991 by which he has refused to accord approval to the petitioner's ad-hoc appointment.
(2.) THE brief facts of the case are that a permanent vacancy in L. T. Grade for Physical Instructor was created on account of the retirement of one Sri Kadam Singh Tyagi at the Institution S. D. Inter College, Saharanpur. Inspite of the necessary information to the authorities when no appointment was made, proceedings for adhoc appointment as required under section 18 of the U. P. Secondary Education Service Commission and Selection Board Act (herein referred to as the Act) were initiated by the Institution. After necessary advertisement and Selection, the Committee of Management selected the petitioner as the most meritorious candidate out of 14 applicants. THE necessary approval was sought by the Institution from the District Inspector of Schools with regard to the petitioner's adhoc appointment, but the District Inspector of Schools, after making necessary enquiries, refused to accord approval by the impugned order on the ground that the marks obtained by the respondent no. 4 Jasbir Singh were greater than the marks of the petitioner and as Such the approval was refused. According to the District Inspector of Schools, the quality point marks of Sri Jasbir Singh, respondent no. 4, are 24 marks and 7 marks in interview whereas the quality point marks of Suresh Chandra petitioner are 21 marks and 7 marks in interview. The petitioner has challenged this order on various grounds. According to the learned counsel for the petitioner, the approval in the case of adhoc appointment under section 18 of the Act are not required and in support of his case, the learned counsel cited before me the decision in Ravindra Singh Niranjan v. District Inspector of Schools, Jhansi, 1988 AWC (1) 658 = 1988 UP LB EC 223 and Chhatrapal v. District Inspector of Schools, Bareilly, 1988 UP LB EC 640. Before dealing with the aforesaid argument and the case law, it is necessary to consider the scheme and the requirement laid down under the provisions of the Act, Rules and Regulations framed thereunder and the various Removal of Difficulties Order issued under section 33 of the Act for effective implementation of the provisions of the Act. The provisions of section 18 (1) (a) and (b) of the Act are as follows : "18. Ad hoc Teachers-(1) Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and- (a) the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher specified in the Schedule within one year from the date of such notification; or (b) the post of such teacher has actually remained vacant for more than two months, then, the Management may appoint, by direct recruitment or promotion, a teacher on purely ad hoc basis from amongst the persons posses- ing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder."
(3.) THE criteria and procedure, for appointment of adhoc teachers has been laid down in various Removal of Difficulties Orders issued from time to time under this Act. In para 2 of the U. P. Secondary Education Service Commission (Removal of Difficulties) Order, it has been provided that management of an institution may appoint by promotion or by direct recruitment a teacher on purely adhoc basis in accordance with the provisions of this Order in the following cases : "(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 of two months subsequent to the date of such commencement." In paragraph 5 of the aforesaid Order, it has been provided : "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 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. 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." However, in this case the procedure for adhoc appointment as contained in paragraph 5 of the Removal of Difficulties Order was not complied with. The Committee of Management in accordance with the procedure for filling up short term vacancies as contained in the Removal of Difficulties (Second) Order filled up the present vacancy. The provision of paragraph 2 of Second Removal of Difficulties Order is quoted below :- "2. Procedure for filing 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 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 receipt 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 or appointment shall be issued under the signature of the Manager." ;