A. N. Gupta, J. - (1.) IN this Special Appeal which is directed against the judgment dated 7.9.1992 passed by a Single Judge of this Court, adjudication is sought on the question as to whether Ram Jit Tewari appellant or M. D. Pandey respondent No. 4 is entitled to hold the post of Principal of Brajendra Mani INter College, Kohindaur, District Pratapgarh. State of U. P. and the District INspector of Schools, Pratapgarh are respondents No. 1 and 2 to this Special Appeal and the Committee of Management of the said INtermediate College is respondent No. 3. This controversy has arisen in the circumstances appearing hereinafter.
(2.) SRI Jagdeo Prasad Misra was regularly appointed Principal of the said SRI Brajendra Mani Inter College (hereinafter referred to as 'the College'). He retired from service on 30.6.1988 on attaining the age of superannuation. Immediately before his retirement, SRI J. P. Misra addressed a letter jointly to the Chairman/President of the Managing Committee and its Secretary enquiring from them as to whom he should hand over charge on his retirement. In that letter, he mentioned that respondent No. 4 was senior-most lecturer of the College having been appointed on 12.8:69 and the second senior-most lecturer was the appellant. On this letter of the retiring Principal, the Secretary of the Managing Committee made an endorsement to the President/Chairman of the Committee stating that SRI Jagdeo Prasad Misra was superannuating on 30.6.1988 and respondent No. 4 was the senior-most lecturer of the College and, therefore, he recommended that the charge of the post of Principal be given to respondent No. 4. This recommendation was accepted by President/Chairman on 1.7.1988. In pursuance of this order, a letter of appointment dated 30.6.1988 was issued under the signatures of Chairman/President of the Managing Committee appointing respondent No. 4 as the Principal of the College. However, no resolution of the Managing Committee appointing respondent No. 4 to the post of Principal was passed. It was mentioned in this letter of appointment that respondent No. 4 was being appointed purely on ad hoc basis and his appointment shall last till a suitable candidate was made available by the U. P. Secondary Education Services Selection Board (hereinafter referred to as 'the Board') or till any other decision was taken by the Management. In pursuance of this appointment letter, the respondent No. 4 started working as Principal of the said College. On 29.10.1988, the Managing Committee of the College passed a resolution approving ad hoc appointment of respondent No. 4 on the post of Principal. This appointment was approved by the District Inspector of Schools vide his letter dated 19.5.1989 for payment of salary under the provisions of U. P. High Schools and Intermediate Colleges (Payment of Salaries to Teachers and other Employees) Act, 1971. In the said letter of approval, it was mentioned that the approval was given for appointment under Section 18 of the U. P. Secondary Education Service Commission and Selection Board Act, 1982 (hereinafter referred to as 'the Act') and the appointment was purely temporary and would last till a candidate selected by the Board was available. It is admitted to the parties that respondent No. 4 is senior to the appellant. The respondent No. 4 was appointed as a Lecturer in Sanskrit w.e.f. 12.8.69 whereas the appellant was appointed as a Lecturer in Geography on 14.8.1969. It is further admitted that the Management in July, 1988, sent requisition to the U. P. Secondary Education Services Selection Board for selection of a regular Principal of the College. As prescribed under the Rules framed under the Act, the Management forwarded names of respondent No. 4 and the appellant to the Board which called both the candidates and others for interview. The Board after interviews notified on 3.5.1991 that it had selected the appellant at SI. No. 1 and another person, namely, Sri Shiv Sagar Shukla at SI. No. 2, in order of merit for the post of Principal of the College. However, the respondent No. 4 was not selected. The Board communicated the said notification to the management vide its letter dated 6.5.1991. In pursuance of the said selection, the Committee of Management appointed the appellant to the post of Principal of the College vide its resolution dated 13.5.1991 and letter of appointment of the same date was issued in favour of the appellant who took over charge from respondent No. 4 on 14.5.1991. The respondent No. 4 filed W. P. No. 2848 (S/S) of 1991 claiming that his appointment as Principal of the College came to be regularised under sub- section (1A) of Section 33A of the Act. Another W. P. No. 6564 (S/S) of 1991 was also filed by him substantially for the same relief. On the other hand, the appellant filed W. P. No. 7076 (S/S) of 1991 contending that since he was selected by the Board under the Act and as he had taken over the charge, he was entitled to continue on the post. These three writ petitions were disposed of by one judgment dated 7.9.1992 by a Single Judge of this Court. He allowed the writ petitions of respondent No. 4 and dismissed the writ petition of the appellant. He held that the appointment of respondent No. 4 came to be regularised statutorily under the provisions of sub-section (1A) of Section 33A of the Act. Aggrieved by the said judgment. Ram Jeet Tewari has filed this Special Appeal.
(3.) BEFORE proceeding further, it may be mentioned that in the writ petitions this Court passed several interim orders directing that status quo be maintained regarding the post of Principal. The appellant had proceeded on earned leave and respondent No. 4 was again given charge by the management. Considering that the managements of aided institutions were indulging into malpractices in appointment of teachers and Heads of Institutions and as the Government had taken liability of payment of their salary under the U. P. High Schools and Intermediate Colleges (Payment of Salaries to Teachers and other Employees) Act, 1971, the U.P. Legislature enacted the Act which was preceded by Ordinances, namely, U.P. Ordinance No. 8 of 1981 and U. P. Ordinance No. 23 of 1981. The Ordinances commenced w.e.f. 14.7.1981. The Act was amended by U. P. Ordinance No. 28 of 1991 which came into effect on 6.5.1991. It was subsequently replaced by U. P. Act No. 26 of 1991. By this amending Act, sub-sections (1A), (1B) and (1C) were inserted in Section 33A and sub-section (2) was substituted. Section 16 of the Act provides that subject to the provisions of Section 33A, every appointment of a teacher shall be made by the management only on the recommendation of the Board. It further provides that any appointment made in contravention of the said provision, shall be void. Section 18 of the Act as it stood at the relevant time prior to its deletion by U. P. Act No. 1 of 1983 reads as follows : "18. Ad hoc Teacher.-(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 possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder. (2) The provisions of sub-section (1) shall also apply to the appointment of a teacher (other than a teacher specified in the Schedule) on ad hoc basis with the substitution of the expression Board' for the expression "Commission". (3) Every appointment of an ad hoc teacher under sub-section (1) or sub-section (2) shall cease to have effect from the earliest of the following dates, namely- (a) when the candidate recommended by the Commission or the Board, as the case may be, joins the post; (b) when the period of one month referred to in sub-section (4) of Section 11 expires ; (c) thirtieth day of June following the date of such ad hoc appointment. ;