Special Appeal dismissed. The Single Judge cited Second Order violated mandatory procedures required for short-term vacancy filling.
The writ petition was dismissed with no merit; interim order vacated.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Court No. - 34
Case :- SPECIAL APPEAL No. - 1776 of 2010
Appellant :- Jagdish Sharan Agrawal Respondent :- The District Inspector Of Schools & Others Counsel for Appellant :- Anil Bhushan,Hriday Narayan Shukla Ii,Navaneet Kumar Shukla Counsel for Respondent :- C.S.C.
Hon'ble Sudhir Agarwal,J. Hon'ble Ajit Kumar,J.
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1981 (hereinafter referred to as “Second Order”) read with Section 18 of U.P. Secondary Education Service Selection Board Act, 1982 (hereinafter referred to as “Act, 1982”) was not followed while making ad-hoc appointment of the petitioner as Assistant Teacher in C.T. Grade.
" 2. Procedure for filing 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 immediate inform the District Inspector of Schools of such promotion along with the particulars of the teacher so promoted.
(2) Where any vacancy referred to in clause (1) cannot be filled by promotion, due to non-availability of a teacher in the next lower grade in the institution, possessing the prescribed minimum qualification, 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 "B" 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 Services Commission (Removal of Difficulties) Order, 1981, issued with Notification No.Ma1993/ XV7(79)1981, dated July 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 supervision of the Head of institution.
(ii) The names and particulars of the candidates selected and also of other candidates and the quality point marks allotted to them shall be forwarded by the Manager to the District Inspector 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 District 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 Management shall appoint the selected candidates and an oder of appointment shall be issued under the signature of the Manager.
Explanation-For the purpose of this paragraph-
(i)the expression "senior most teacher" means the teacher having longest continuous service in the institution in the Lecturer's grade or the Trained graduate (L.T.) grade or Trained undergraduate (C.T.) grade or J.T.C. or B.T.C. Grade as the case may be;
(ii) in relation to institution imparting instructions to women, the
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expression 'District Inspector of Schools' shall mean the Regional Inspectress of Girls' Schools;
(iii) short term vacancy which is not substantive and is of a limited duration."
"16. The question as to whether a teacher appointed on short term basis pursuant to the provisions of Second Order has a right to continue if subsequently the vacancy becomes substantive, specifically came up for consideration before a Full Bench in Smt. Pramila Mishra Vs. Deputy Director of Education, 1997 (2) ESC 1284 (All)(FB) and on page 1291 the Court held that "from the provisions of the Acts, Rules, Regulations and Removal of Difficulties Orders discussed above, it is manifest that a clear distinction has been maintained between substantive vacancy and short term vacancy of the post of a teacher. The authority to make the appointment, the procedure to be followed in making the appointments and the considerations to be made in making the appointment in the two cases are distinct and different from each other. In each case the duration of ad hoc appointment is also laid down under the statutory provisions. In the case of ad hoc appointment in a short term vacancy paragraph 3 of the Second Order specifically lays down that the appointment will come to an end if the short term vacancy otherwise ceases to exist. It follows, therefore, that when a vacancy caused due to grant of leave to or suspension of the permanent incumbent becomes a substantive vacancy on account of his death, resignation or termination or removal from service, the short-term vacancy ceases to exist and a substantive vacancy is created in its place. On a perusal of the relevant provisions of the Acts, Rules, and Removal of Difficulties Orders and giving our anxious consideration to the matter, we do not find any provision which directly or even indirectly vests a right in a person appointed an ad hoc teacher in a short-term vacancy to continue even after the said vacancy has ceased to exist and a substantive vacancy has been created in its place. The contention raised on behalf of the respondents that such an appointee (in short-term vacancy) is entitled to continue in the post (substantive vacancy) till a candidate selected by the Commission/Board joins the post does not get any support from the statutory provisions and, therefore, cannot be accepted. The contention is also not acceptable for the reason
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that it runs counter to the intendment of the provisions of the Act, Rules and Regulations. We should not be understood to be saying that an ad hoc teacher in a short-term vacancy cannot be appointed in a substantive vacancy. He can be appointed in the substantive vacancy if he is selected in accordance with the procedure and in the manner laid down in the relevant provisions of the Acts, Rules, Regulations and Removal of Difficulties Orders. What we want to stress and which is clear to under section is that he cannot claim as a matter of right that he is entitled to continue in the post till the candidate selected by the Commission/Board joins even if the short term vacancy has ceased and a substantive vacancy in the post of teacher has been created in its place."
17. A careful reading of the law laid down by the Full Bench in Smt. Pramila Mishra (Supra) makes it clear that the Court specifically rejected the contention that a person has a right to continue when a substantive vacancy is created or occurred if he has been appointed as ad hoc teacher in a short term vacancy and held that there is no provision to support this contention. It has also specifically observed that acceptance of such contention would run counter to the specific provisions of the Act and the Rules framed thereunder. Further in the operative part of the judgment, the Full Bench, while discarding the contention that a teacher appointed by the Management on ad hoc basis in a short term vacancy which is subsequently converted into a substantive vacancy can claim a right to continue further held that however he has a right to be considered along with other eligible candidates for ad hoc appointment in the substantive vacancy, if he possess the requisite qualification. The Full Bench also overruled all the judgments taking contrary view as is apparent from the following: "Summing up our conclusions in the light of the discussions in the foregoing paragraphs, we hold that a teacher appointed by the management of the institution on ad hoc basis in a short term vacancy (leave vacancy suspension vacancy), which is subsequently converted into a substantive vacancy in accordance with the provisions of the Act, Rules and Orders, (on death, resignation, dismissal or removal of the permanent incumbent), cannot claim a right to continue. He has, however, a right to be considered along with other eligible candidates for ad hoc appointment in the substantive vacancy if he possesses the requisite qualifications. Consequent upon the view taken by us, as noticed above, we hold that the decisions of this Court like Km. Meena Singh's case (supra) and other cases taking contrary view, are declared to be no longer good law."
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strictly, the appointment, if any, shall be void ab initio and would not confer any right upon the incumbent either to hold the post or to claim salary. This decision was reiterated and followed by the Apex Court recently in Shesh Mani Shukla Vs. D.I.O.S., Deoria & others, J.T. 2009 (10) S.C. 309.
Order Date :- 4.12.2017 S. Thakur
3 issues framed by the court
Whether an ad-hoc appointment made by management without following the mandatory procedure of the Removal of Difficulties Order is valid.
Whether a teacher appointed on short-term basis can claim a right to continue if the vacancy becomes substantive later.
Whether the appellant has a right to hold the post or claim salary for an appointment declared void ab-initio.
Colour shows how this judgement treated each authority
Surendra Kumar Srivastava Vs. State of U.P. and othersFollowed¶26
Surendra Kumar Srivastava Vs. State of U.P. and others 2007 (1) ESC 118
Smt. Pramila Mishra Vs. Deputy Director of EducationFollowed¶27
Smt. Pramila Mishra Vs. Deputy Director of Education, 1997 (2) ESC 1284 (All)(FB)
Anil Kumar Singh Vs. Joint Director of EducationFollowed¶30
Anil Kumar Singh Vs. Joint Director of Education (Writ petition No. 18650 of 1998)
Prabhat Kumar Sharma & others Vs. State of U.P. & othersFollowed¶32
Prabhat Kumar Sharma & others Vs. State of U.P. & others, A.I.R. 1996 SC 2638 · Who else cites this
Shesh Mani Shukla Vs. D.I.O.S., Deoria & othersFollowed¶33
Shesh Mani Shukla Vs. D.I.O.S., Deoria & others, J.T. 2009 (10) S.C. 309 · Who else cites this
2 provisions across 2 enactments
Jagdish Sharan Agrawal (Legal Representatives)
District Inspector Of Schools & Others
Sudhir Agarwal
Ajit Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
