- (1.) S. R. Singh, J. Petitioner in the instant case was appointed Lecturer in Kishan National Inter College, Muradnagar Ghaizabad, vide letter 9-10-1990, issued under the signature of the Manager of the college. The instant writ petition has been filed inter alia for the following reliefs : (a) Issue a writ order or direction in the nature of certiorari quashing the order dated 21-2-1994 passed by the respondent No. 1 (Annexure 18 ). (b) Issue a writ, order or direction in the nature of mandamus directing respondent No. 1 to pay the salary to the petitioner as Lecturers grade, Kisan National Inter College Muradnagar, district Ghaziabad w. e. f. 9-10-1990 and continue to pay him his salary regularly as and when it falls due. (c) Issue a writ order or direction in the nature of mandamus directing respondent No. 1 to accord approval to the ad hoc appointment of the petitioner in Lecturer grade math's in Kishan National Inter College Muradnagar district Ghaziabad.
(2.) BY means of the order dated 21-2-1994, subject-matter of impingement in the instant petition, the District Inspector of Schools, Ghaziabad refused to give his imprimatur to the ad hoc appointment of the petitioner for the purpose of payment of salary under the provisions of U. P. High School and Intermediate College (Payment of Salaries of Teachers and other Employees) Act, 1971. The petitioner claims to have been appointed on ad hoc basis under Section 18 of the U. P. Secondary Education Service Commission Act, 1982 against clear a vacancy coming into existence owing to the death of incumbent Sri Mahesh Ram Sharma on 14-4-1988. It is alleged that the vacancy was notified to the Secondary Education Services Commission through a letter dated 19-11-198. Seemingly, no action was taken within 60 days consistent with the urgency of the matter, and this stimulated the Committee of Management to resolve to make appointment in the vacancy on ad hoc basis under Section 18 of the said Act. The vacancy is said to have been advertised by the Management of the Institution in the News Papers known as Samarchar Shivir' and 'veer Bhusan' in their Issue dated 11-6-1990 and to cum up the fact, the petitioner was selected on 1-7-1990 by a Selection Committee constituted by the Committee of Management of the College. As stated supra, the District Inspector of Schools declined to approve of the appointment by order dated 21-2-1994 inter alia on the premises that on the basis of financial Survey Report, there could be only nine posts of Lecturer in the Institution as against which eleven Lecturers were already at work in July, 1990 and therefore, no appoint ment in the Lecturer grade could be made in the Institution, which was contingent upon sanction of post by the appropriate authority in pursuance of the letter dated 27-7-1991 of the Management of the Institution and further that the material on record did not manifest that the procedure prescribed for ad hoc appointment was followed. It was also noticed by the District Inspector of Schools that even the appointment order dated 9-10-1990 was reticent, if the appointment was not specified>n the appointment letter. It was also found by the District Inspector of Schools that though the petitioner was permitted to join his duties, but the attendance in the Institution and payment of salary were subordinated to approval. The District Inspector of Schools further found that the staff attendance register of the College did not bear the signature of the petitioner. It was on these finding that the District Inspector of Schools declined to accord financial approval for the purposes of Payment of Salary Act, 1971, vide impugned order dated 21-2-1994. The petition was presented in the Registry on 23-2-1994 and it was placed as a fresh matter before the Single Judge Bench of this Court on 24-3-1994 on which date the Standing Counsel was afforded six weeks, time to file counter-affidavit and the petitioner was directed to serve the notice to respondent No. 2. As a measure of interim relief, it was provided that the petitioner would continue to work as Lecturer in Maths and be paid until a regularly selected candidate joined duty. The payment of salary was however, made subject to decision of the writ petition. The matter came up before me on 2-5-1995 and in observance of the decision of the Full Bench of this Court in Radha Raizaada v. Committee of Management, (1994) 3 UPLBEC 1551, this Court dismissed the petition inlimine and discharged the interim order dated 24-3-1994. The order dismissing the writ petition in limine was, however, upturned by the Supreme Court vide judgment and order dated 20-11-1995 actuated by the consideration that the petition was disposed of without the petitioner being given an opportunity of being heard. The matter has been remitted to this Court for disposal in accordance with law after affording the parties an opportunity of being heard in the matter by the date of hearing being notified on the cause list. It is these antecedent facts which relegated the petition to be listed again before me.
(3.) I have heard Sri Vinod Sinha, appearing for the petitioner and Sri Nanhe Lal appearing for the Management and also the Standing Counsel appearing for the State Authorities. Section 18 of the U. P. Act 5 of 1982, as it stood at the relevant time, invested the Manage ment with the power to make ad hoc appointment upon fulfilment of pre requisite conditions specified therein, namely, that the Management had notified the vacancy to the Commission in accordance with the provisions of the Act, and, (a) the Commission had failed to recommend the name of any suitable candidate for being appointed as a teacher within one year from the date of notification ; or (b) the post of such teacher had actually remained vacant for more than two months. The Management could make ad hoc appointment under Section 18 of the Act either by direct recruitment or by promotion from amongst the persons equipped with qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder. It is settled by a catena of decisions of this Court that recourse to direct recruitment could be taken by the Management only if a suitable and qualified person was not available for promotion. The present case is not one of promotion. The petitioner claims to have been appointed by the Management directly under Section 18 of the Act which by itself does not expressly lay down the procedure to be followed in the case of direct recruitment on ad hoc basis unlike the U. P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 which prescribed procedure to be followed both for direct recruitment as well as for promotion. The question as to what procedure was attracted for application in the case of direct recruitment on ad hoc basis against a substantive vacancy, surfaced up for consideration before the Full Bench of this Court in Radha Raizada's case (supra ). It was ruled by the Full Bench while dealing with the question of ad hoc appoint ment of teachers by direct recruitment that Section 18 as well as the U. P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981, operate in one and the same field and are part of one integrated scheme pertaining to recruitment of ad hoc teachers, who are urgently required in the Institutions. The Full Bench has clearly ruled that ad hoc appointment of teacher either under 'section 18 of the Act or under the provisions of Removal of Difficulties Order has to be done in the manner laid down in paragraphs 4 and 5 or the aforesaid Removal of Difficulties Order, 1931 and further that the provisions may be two but the power to appoint is the one and the same and therefore, the provisions contained in Section 18 and those of the Removal of Difficulties Order are to be harmonised. V. N. Khare, J. (as he then was), seeking for himself and Asthana, J. further ruled that if contingncy arises for ad hoc appointment of teachers by direct recruitment, the procedure provided under the Removal of Difficulties Order aforestated, has to be followed. It is beyond the pale of dispute that 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 the vacancies and it is the District Inspector of Schools who has to invite the applications from the local Employment Exchange and also through public advertisement in at least two news papers having adequate circulation in Uttar Pradesh. This procedure was admittedly not gone through. The appointment of the petitioner, therefore, operated, in vacuum by virtue of Section 16 (2) of the Act as it the stood in that every appointment of teacher in the teeth of the provisions of sub-section (1) of Section 16 would be void. I am hide bound by the above proposition of law laid down by the Full Bench which I cannot depart from but what was canvassed by Sri Vinod Sinha, learned Counsel appearing for the petitioner is that the pronouncement by the Full Bench in Radha Raizada's case is intended to have prospective effect and could not be made retroactive so as to impinge upon appointment already made before the decision in Radha Raizada's case was rendered by the Full Bench. In order to give proper to his filing contention, Sri Sinha called in aid the decision of a single Judge of this Court in K. N. Dwevidi v. District. Inspector of Schools, (1994) 1 UPLBEC 461, and as also the Supreme Court decision in Managing Director E. C. I. L. , Hyderabad v. B. Karunkar, JT 1993 (6) SC 1.;