- (1.) The present reference to the Full Bench has been occasioned by a referring order of a Division Bench of this Court dated 20 March 2015. The questions which have been referred for decision by the Full Bench are thus: (a) Whether even after the rescission of Removal of Difficulties Orders under Section 33-E of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 (Act) (U P Act No 5 of 1982), with effect from 25 January 1999, the Committee of Management retains the power to make ad-hoc appointment against short term vacancies only because it had published an advertisement for the purpose prior to 25 January 1999; (b) Whether on enforcement of Section 33-E of the Act rescinding the Removal of Difficulties Orders issued earlier, the Committee of Management has lost all powers to make ad-hoc appointment against short term vacancies; (c) Whether under Section 16-E of the Intermediate Education Act 1921 (Act of 1921), there is a power with the Committee of Management to make ad-hoc appointment against short term vacancies and if so then for what period; and (d) Whether the Division Bench in the case of Subhash Chandra Tripathi Vs State of U P (Writ-A No 70271 of 2010 decided on 14 July 2014) has laid down the correct law.
(2.) The Act established the Secondary Education Services Selection Board (Board) for selection of teachers in institutions recognized under the Act of 1921. Section 16 of the Act provides that notwithstanding anything to the contrary contained in the Act of 1921 or the regulations made thereunder but subject to certain specified provisions of the Act, every appointment of a teacher shall on or after the date of the commencement of the Uttar Pradesh Secondary Education Services Selection Board (Amendment) Act, 2001 be made by the Management only on the recommendation of the Board. Section 32 provides that the provisions of the Act of 1921 and the regulations made thereunder, insofar as they are not inconsistent with the provisions of the Act or its regulations, shall continue to be in force for the purposes of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher. Section 33 of the Act provides that the State Government may, for the purposes of removing any difficulty, by a notified order, direct that the provisions of the Act shall, during such period as may be specified in the order, have effect subject to such adaptations, whether by way of modification, addition or omission as it may deem to be necessary or expedient. Section 33-E was introduced into the Act by U P Act No 13 of 1999 so as to provide for the rescission of the Removal of Difficulties Orders made under Section 33 of the Act and is in the following terms: " 33-E. Rescission of Orders.- The Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Third) Order, 1982 and the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Fourth) Order, 1982 are hereby rescinded." Section 33-E was introduced with effect from 25 January 1999. Prior to the introduction of Section 33-E, the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 (Removal of Difficulties Order) was issued in exercise of the power conferred by Section 33 to remove difficulties. Para 2 of the Removal of Difficulties Order provided for the vacancies on which ad hoc appointments could be made while Para 3 referred to the duration of ad hoc appointments. The Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (Removal of Difficulties (Second) Order) was thereafter notified. Para 2 of Removal of Difficulties (Second) Order provided the procedure for filling up short term vacancies, while Para 3 provided for the duration of ad hoc appointments.
(3.) The issue which has been referred to for adjudication before the Full Bench relates to a situation where the process of selection for making an ad hoc appointment had commenced prior to 25 January 1999 when the Removal of Difficulties Orders stood rescinded as a result of the insertion of Section 33-E.;