- (1.) D. K. Seth. J. The petitioners claim to have been appointed in short term vacan cies pursuant to U. P. Secondary Education Service Commission (Removal of Difficul ties) (Second) Order, 1981. They made a representation for payment of their salary on account of such ad hoc appointment but the same was turned down by the District Inspector of Schools, Deoria, by his order dated 20. 6. 1996 (Annexure-8) to the writ petition. It is against this order the present writ petition has been filed.
(2.) SRI O. K. Singh, learned counsel ap pearing on behalf of the petitioners con tends that in the said order the petitioners case was rejected on the ground that para-5 of U. P. Secondary Education Services Com mission (Removal of Difficulties) (Second) Order, 1981 was not complied with. Accord ing to him the said 1981 Order being the first order contemplates only appointment against permanent vacancies, as it stood after the Second 1981 Order was promul gated. Admittedly the petitioners were appointed in short term vacancies and such vacancies cannot be governed by para-5 of 1st Order of 1981. In the facts and circumstances of the case, in view of the protection safeguarding the interest of the respondent no. 3 provided in this order serve (sic) upon respondent no. 3 is dispensed with. Learned Standing counsel on the other hand contends that unless the appointment is made in compliance with the relevant order the same cannot be valid. But however, very fairly he conceded that if the appointment is in short term vacancies, in that event the 1st Order will not be ap plicable to the said appointment and will be governed by the Second Order of 1981, para-2 of the 1st Order, 1981 are as under: "2. Vacancit in which adhoc appointment can be made- The management of an institution may appoint by promotion or by direct recruit ment a teacher on purely adhoc basis in accord ance with the provisions of this Order in the fol lowing cases, namely- (a) in the case of a substantive vacancy exist ing on the date of commencement of this order caused by death, retirement, resignation or other wise; (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; (e) where a vacancy of the nature specified ta clause (a) or clause (b) comes into existence within period of two months subsequent to the date of such commencement. "
(3.) BY reason of para-5 of the Second Order para-2 of the First Order stood replaced. Para-2 of the 1st order is, there fore, to be read after the promulgation of the Second Order as follows: " 5. Substitution of paragraph 2 of the (First) Removal of Difficulties Order,1981.-ID the First Removal of Difficulties Order, 1981 for para-graph-2 the following paragraph shall be sub stituted, namely'- "2-The management of an institution may appoint by promotion or by direct recruitment a teacher on purely ad hoc basis in accordance with the provisions of this Order in the case of a sub stantive vacancy caused by death, retirement, resignation or otherwise. " Thus it appears that the First order deals with ad hoc appointment caused by death, retirement, resignation or otherwise. The ad hoc appointment against leave vacancy has been omitted from the First order. The Second Order in para-2 provides for appointment in short term vacancies, which lays down as under: " 2-Procedure for filling 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 Dis trict 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 avaliablility of a teacher in the next lower grade in the institution, possessing the prescribed mini mum 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 along with the particulars given in Appendix 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 Service Commission (Ramoval 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 super vision of the Head of institution. (ii) The names and particulars of the can didates selected and also of other candidates and the quality point marks allotted to them shall be forwarded by the Manager to the District Inspec tor 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 Dis trict 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 Mnanagment shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager. " Thus there is a marked difference in be tween the feld of operation between the said two order it is apparent that while the 1st order operates in the case of appoint ment against substantive vacancy the Second order operates in the field of ad hoc appointment against short term vacan cy. Since the procedure for making short term vacancies are provided in para-2 of the Second Order and the short term vacancies are not governed by the First order, therefore, compliance of para-5 of the First Order is not necessary, in respect of appointment against short term vacan cies. The appointment against short term vacancies are to be governed by the provisions of Second Order.;