- (1.) D. P. Mohapatra, C. J. The core ques tion that arised for determination in these appeals is whether a teacher appointed on ad hoc basis in a short-term vacancy, like leave vacancy, is entitled as of right to con tinue in the said post even after the short term vacancy has been converted to a per manent vacancy due to death, resignation or retirement of the permanent incumbent ? The answer to this question depends on the interpretation of Section 33-B of the U. P. Secondary Education Services and Selec tion Boards Act, 1982 (U. P. Act No. 5 of 1982) (hereinafter referred to as the Act) and its interaction with the provisions of the U. P. Secondary Services Commission (Removal of Difficulties) (Second) Order, 1981. The point was referred to Full Bench by a Division Bench by the order passed on 12-4-1994 in Special Appeal No. 322 of 1993. The relevant portion of the said order reads: "cites judgments of the Division Bench in Civil Writ Petition 7786 of 1986, Rafiq Ahmad and another v. State of U. P. and others decided on March 10, 1988, Heera Lal Sahuv. District Inspec tor of Schools Kanpur Dehat and others, decided on May 20, 1988. A reading of these judgments would show that there is no reference in either of them to the provisions of Clause-3 of the Uttar Pradesh Secondary- Education Services Commis sion (Removal of Difficulties) (Second) Order, 1981 regarding duration of ad hoc appointment. In this view of the matter both these judgments in our opinion require reconsideration and we con sequently admit this Special Appeal to Full Bench. " The other appeals have been ordered to he heard alongwith Special Appeal No. 322 of 1993 since they involve the same point. In the cases referred to in the reference order quoted above this Court took the view that an ad hoc teacher appointed in a short term vacancy, which is subsequently con verted into a permanent vacancy, is en titled to continue in the post till a can didate duly selected by the U. P. Secondary Education Services Commission joins the post. It is relevant to note here that in both the cases the main question for con sideration of this Court was the claim of salary by the ad hoc teacher. While in the case of Heera Lal Sahu (supra) a direction was issued to the District Inspector of Schools for payment of arrears salary to the petitioner within three months from the date of production of a certified copy before him and to continue to pay salary in future till a candidate found best suitable, who is recommended by the Commission, joins the post, in the case of Rafiq Ahmad and another v. State of U. P. and others (Supra) the direction to the District In spector of Schools was to pay to the petitioners their respective salaries and treat them as teachers in the institution ""concerned till their services are either done away in accordance with law or the Board makes a selection of teachers and the selectees of the Board join the post held by the petitioners or Arif Siddiqui returns to his original post.
(2.) FOR the sake of brevity and con venience we will refer to the relevant facts in Special Appeal No. 898 of 1995, which is the case in which detailed arguments were ad vanced before us. This Special Appeal was filed by Smt. Pramila Mishra, an Assistant Teacher of Nagar Palika Balika Inter Col lege, Kalpi, District Jalaun at Orai challeng ing the judgment dated 29-9-1995 of Civil Misc. Writ Petition No. 19152 of 1995. The writ petition was filed by Smt. Sneh Lata Mishra, respondent No. 5 in the appeal, citing the Deputy Director of Education Jhansi Division Jhansi, Regional In-spectress of Girls School/deputy Director of Education- II Jhansi, District Inspector of School Jalaun at Orai, Nagar Palika Balika Inter College, Kalpi, District Jalaun at Orai through its Officer-in- Charge and Smt. Pramila Mishra the appellant, as respondents. The petitioner challenged the order dated 6-7-1995 of the Deputy Direc tor of Education, Jhansi, disapproving the extension of her ad hoc appointment as Lec turer with effect from 19-4-1990. The facts of the case relevant for the purpose of present proceedings may be stated thus : When Smt. L. R. Mishra, a Lec turer in Economics, proceeded on medical leave, short-term vacancy arose in the post on 1-7-1989. The petitioner Smt. Sneh Lata Mishra was appointed in the post on ad hoc basis by order dated 1-1-1990. Smt. Pramila Mishra who was appointed an Assistant Teacher in the institution in C. T. Grade on 31-11-1978, became entitled to hold a post in L. T. Grade with effect from 1-2-1988 on completion of 10 years service in C. T. Grade. Respondent No. 5 moved Writ Peti tion No. 1 0393 of 1994 challenging the order of the District Inspector of Schools refusing her claim for pay fixation in L. T. Grade with effect from 1-1-1986. She also filed a separate writ petition challenging the ad hoc appointment of the petitioner Smt. Sneh Lata Mishra which was summarily dis posed of on 7-2-1990 with the observation that she had an alternative remedy. Upon the death of Smt. L. R. Mishra, the short term vacancy, in which the petitioner was appointed, was converted into a permanent vacancy and the same was notified to the Commission. Then, the question arose whether the petitioner was entitled to con tinue as ad hoc teacher or the claim of the respondent No. 5 for her promotion in the substantive vacancy was to be accepted. The Deputy Director of Education by order dated 21-7-1990 upheld the ad hoc appoint ment of the petitioner. The respondent No. 5 challenged the said order in Writ Petition No. 19052 of 1990 in which an exparte order of stay was passed. Thereafter the petitioner filed Writ Petition No. 17217 of 1992 for payment of her salary with effect from 22-1-1990 whereupon in interim mandamus was issued. Both the Writ Petitions No. 19052 of 1990 and 17217 of 1992 were considered together. While Writ Petition No. 19052 of 1990 was allowed on the ground that no opportunity of hearing was granted to the respondent No. 5 and the matter was remanded, in Writ Petition No. 17217 of 1992 a direction for payment of salary was made. Special Appeal No. 193 of 1993, 'filed by the respondent No. 5 against the interim order of payment of salary to the petitioner, was dismissed by order dated 2-2-1995. The appeal filed by the petitioner against the order passed in Writ Petition No. 19052 of 1990 was also dismissed. The Deputy Direc tor of Education by order dated 6-7-1995 disapproved the extension of ad hoc ap pointment of the petitioner and held the respondent No. 5 to be entitled to promo tion to the post of Lecturer of Economics. This order was challenged in Writ Petition No. 19152 of 1995. The learned single Judge relying on previous decisions of the Court, including the decisions in Km. Meena Singh v. District Inspector of Schools, 1992 (3) A. W. C. 1733 and Virendra Kumar Singh v. District Inspector of Schools and another, 1989 (2) UPLBEC 607, held that a teacher appointed on ad hoc basis against a short term vacancy would be entitled to continue even after the vacancy is converted into a substantive one till such time as a candidate selected by the Commission turns up to jo in. Consequently, the learned single Judge held that respondent No. 6, who could not claim promotion on the date of creation of the short-term vacancy, could not be con sidered for promotion to the post after the short term vacancy was converted into a substantive one. On such findings the learned Single Judge allowed the writ peti tion, quashed the order dated 6-7-1995 and directed that the petitioner will continue as ad hoc teacher of Economics in the institu tion. At the outset it would be convenient and useful to notice a few statutory provisions relevant for the consideration of the issues raised in the case. Section 7-AAof the U. P. Intermediate Education Act, 1921 (U. P. Act II of 1921), provides, inter alia, that not withstanding anything contained in the Act, the management of an institution may, from its own resources, employ as an inter im measure part-time teachers for impart ing instructions in any subject or group of subjects or for a higher class for which recognition is given or in any section of an existing class for which permission is granted under Section 7- A; that no part time teacher shall be employed in an institu tion unless such conditions may be specified by the State Government by order in this behalf are complied with; that no part-time teacher or part- time instructor shall be employed unless he possesses such mini mum qualifications as may be prescribed ; that a part-time teacher or a part-time in structor shall be paid such honorarium as may be fixed by the State Government by general or special order in this behalf; and that nothing in the Act shall preclude a person already serving as a teacher in an institution from being employed as a part time, teacher or a part-time instructor under section 7-AA.
(3.) SECTION 7-AB, which makes provisions for exemption, lays down that nothing in the Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (U. P. Act No. 24 of 1971) or the Uttar Pradesh Secondary Education Ser vices Commission and Selection Boards Act 1982 (U. P. Act No. 5 of 1982) shall apply in relation to part-time teachers and part-time instructors employed in an institution under SECTION 7-AA. Section 16-E of the said Act, which prescribes the procedure for selection of teachers and Head of institutions, provides, inter alia, that no person shall be appointed as Head of institution or teacher in an in stitution unless he possesses the minimum qualifications prescribed by the Regula tions, provided that a person who does not possess such qualification may also be ap pointed if he has been granted exemption by the Board having regard to his education, experience and other attainments ; that every application for appointment as Head of Institution or teacher of an institution in pursuance of an advertisement published under Sub-section (2) shall be made to the Inspector and shall be accompanied by such fee which shall be paid in such manner as may be prescribed ; that after the receipt of applications under sub-section (4), the In spector shall cause to be awarded, in respect of each such application, quality point marks in accordance with the procedure and principles prescribed and shall thereafter, forward the application to the Committee of Management; that the application shall be dealt with, the candidates shall be called for interview and the meeting of the Selec tion Committee shall be held, in accordance with the Regulations ; that the Selection Committee shall prepare a list containing in order of preference the names as far as prac ticable of three candidates for each post found by it to be suitable for appointment shall communicate its recommendation together with such list to the Committee of Management; that subject to the provisions of sub-section (8) the Committee of Management shall, on receipt of the recom mendations of the Selection Committee under sub-section (6), first offer appoint ment to the candidate given the first preference by the Selection Committee and on his failure to join the post, the candidate next to him in the list prepared by the Selec tion Committee under this Section and on the failure of such candidate also, to the last candidate specified in such list and in sub section (8) it is provided that the Commit tee of Management shall, where it does not agree with the recommendations of the Selection Committee, refer the matter together with the reasons of such disagree ment to the Regional Deputy Director of Education in the case of appointment to the post of Head of the Institution and to the Inspector in the case of appointment to the post of teacher of an institution and his decision shall be final. Sub-section (11) of Section 16-E provides that notwithstanding anything contained in the foregoing sub section, appointment in the case of tem porary vacancy caused by the grant of leave to an incumbent of a period not exceeding six months' or by death, termination or otherwise of an incumbent occurring during an educational session, may be made by direct recruitment or promotion without reference to the Selection Committee in such manner and subject to such conditions as may be prescribed, provided that no ap pointment made under this sub-section shall, in any case, continue beyond the end of the educational session during which such appointment was made.;