- (1.) THIS appeal, under the Rules of the Court, is preferred against the order of the Hon'ble Single Judge 18- 6-1992 allowing the respondent's writ petition.
(2.) WE have heard learned Counsel for the appellants. None appears on behalf of the respondent although names of Shri S. C. Budhwar, Dr. R. G. Padia, Shri Prakash Padia and Shri P. K. Jain, Advocates are shown in the cause list. It appears that the respondent filed writ petition No. 20969 of 1992 challenging the order of the District Inspector of Schools, Ghaziabad dated 20-5-1992 whereby his ad hoc appointment, as Lecturer in Chemistry, was cancelled by the District Inspector of Schools. The Hon'ble Single Judge, having heard learned Counsel for the parties, allowed the writ petition on two grounds. Firstly, that the reservation on caste basis for the post of lecturer in Science should not be made and secondly, that the appointment of the respondent before the expiry of sixty days, as provided under Section 18 of the U. P. Secondary Education Service Commission Act, is mere irregularity and will not vitiate the appointment. Thus, the short points, which requires to be considered in this appeal, is, whether the reservation policy cannot be applied in respect of appointment of appointment of Science teacher in Intermediate College and as to whether the requirement under Section 18 of the Act enabling the committee of management to make ad hoc appointment only after the expiry of sixty days, from the date the vacancy is notified, is mandatory and its non-compliance would not vitiate the appointment and can be cured by lapse of time.
(3.) WE are of the view that both the points are no more res integra and are squarely covered by the pronouncement of Hon'ble Apex Court as well as of this Court. We propose to consider the later question first. In the case of Prabhat Kumar Sharma and Ors. v. State of U. P. and Ors. , 1996 (2) LBESR 394 (All) : JT 1996 (6) SC 579, the question was about the validity of appointment under Section 18, which provides that after notifying the vacancy to the Commission, the appointment on ad hoc basis can be made, if within a period of two months of the intimation, a selected candidate is not allotted to the Management. The question, if the appointment is made before the period of two months, what would be its effect, was considered by the Apex Court in paras 7 and 11 of the judgment and it held as under: "any appointment made in transgression thereof illegal appointment and is void and confers no right on the appointees. " (para 7) "it is seen that when intimation was given by the college to the Commission for allotment of the teachers, the Act envisaged that within one year the recommendation would be made by the Commission for appointment; but within two months from the date of intimation if the allotment of the selected candidates is not made to obviate of difficulty of the Management in imparting education to the students, Section 18 gives power to the Management to make ad hoc appointments. Section 16 is mandatory, any appointment in violation thereof is void. " (para 11);