This Special Appeal dismissed a petition challenging the dismissal of an earlier writ claim for salary arrears. The court held the appointment was void because statutory procedures were not followed, and sympathy or length of service could not justify payment when the appointment was illegal.
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.39
Case :- SPECIAL APPEAL No. - 323 of 2018
Appellant :- Satya Prakash Mishra Respondent :- State Of U.P. Anmd 3 Ors Counsel for Appellant :- Vinod Kumar Agarwal Counsel for Respondent :- C.S.C.
Hon'ble Dilip Gupta, J. Hon'ble Neeraj Tiwari, J.
This Special Appeal has been filed under Chapter VIII Rule 5 of the Allahabad High Court Rules to assail the judgment and order dated 22 February 2018 of a learned Judge of this Court by which Writ-A No.67523 of 2015 filed by the appellant for a direction upon the respondents to make payment of arrears of salary with effect from 6 January 1999 till date as well as to pay the current salary was dismissed.
The appellant claims to have been appointed as an Assistant Teacher in Balbhadra Inter College, Pali, Subhashpur, District Jaunpur on 25 December 1998 against a short-term vacancy. It is stated that on account of ad-hoc promotion of Narendra Mishra, an Assistant Teacher in the Institution, one Radhey Krishna Ojha was appointed on 30 March 1998 but he submitted his resignation on 21 November 1998. It is against this short-term vacancy that the appellant claims to have been appointed on 25 December 1998 and according to the appellant, the District Inspector of Schools granted approval for payment of salary by order dated 18 January 1999 but salary was not paid to
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him from 6 January 1999 which is the date on which the appellant claims to have joined the Institution on the basis of the appointment order dated 25 December 1998.
The learned Judge dismissed the writ petition for the reason that not only was the appointment of the appellant made dehors the provisions of the Rules inasmuch as the advertisement was published in only one newspaper and that too which did not have wide circulation in the State but payment of salary had also been stopped by a specific order dated 10 March 1999 passed by the District Inspector of Schools. The learned Judge in such circumstances observed that a petition filed in 2015 by a teacher for payment of salary from 1999 was highly belated.
Sri Vinod Kumar Agarwal, learned counsel for the appellant has submitted that when approval had been granted by the District Inspector of Schools by order dated 18 January 1999, there is no reason why salary should not have been paid to the appellant and merely because the petition was filed in 2015, the claim of the appellant for payment of salary cannot be denied.
Learned Standing Counsel appearing for the respondents has pointed out that any appointment against short-term vacancy had to be made in accordance with the provisions of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 19811 but a perusal of the averments made in the writ petition as also the other documents clearly
1 The Second Order
3 reveal that it was made dehors the provisions of the Second Order. It is submitted that the appointment of the writ petitioner was void and for this submission reliance has been placed on the decisions of the Supreme Court in Prabhat Kumar Sharma & Ors. Vs. State of U.P. & Ors.2 and Shesh Mani Shukla Vs. The District Inspector of Schools, Deoria3 . It is also the submission of learned Standing Counsel that the writ petitioner had not challenged the order dated 10 March 1999 by which the District Inspector of Schools had ordered for stoppage of payment of salary and that the writ petition filed in 2015 was highly belated.
We have considered the submissions advanced by learned counsel for the parties.
What transpires from the records is that a short-term vacancy arose in the Institution on account of ad-hoc promotion granted to Narendra Mishra from the post of Assistant Teacher to the post of Lecturer. Earlier, this short-term vacancy was filled-up by appointment of Radhey Krishna Ojha on 30 March 1998 but the communication dated 16 June 2015 sent by the District Inspector of Schools to the Director of Education (Madhyamik) reveals that Radhey Krishna Ojha submitted his resignation on 21 November 1998. The Management claims to have, therefore, issued an advertisement in a newspaper called “Tarun Mitra”.
It is stated that the District Inspector of Schools granted approval to the appointment of the appellant by a communication
2 (1996) 10 SCC 62
3 (2009) 15 SCC 436
4 dated 18 January 1999. The communication dated 9 January 2015 sent by the District Inspector of Schools to the Director of Education, however, reveals that the District Inspector of Schools Sangam Lal Shukla who granted the approval had been placed under suspension at the relevant time. The Joint Director of Education, Varanasi had issued directions on 5 March 1999 to examine all such cases where the said District Inspector of Schools had granted approval and it is after examination that a specific order dated 10 March 1999 was passed by the District Inspector of Schools stopping payment of salary to the writ petitioner. This order was neither enclosed by the writ petitioner in the writ petition nor has it been placed on record in the Special Appeal. The appellant had also not sought the quashing of this order in the writ petition. It is for this reason that the salary was never paid to the writ petitioner and it is only in 2015 that the appellant filed a writ petition for payment of salary.
The issue that arises for consideration is whether the appointment of the writ petitioner against a short-term vacancy was made in accordance with the provisions of the Second Order because if the appointment was made in contravention of the provisions of the Second Order, it would be void ab-initio and would not confer any right upon the writ petitioner to receive salary.
Paragraph 2 of the Second Order prescribes the procedure for filling-up short-term vacancies. It provides that if a short-term
5 vacancy in the post of a teacher arises then it shall be filled-up by the Management by promotion of the senior most teacher of the Institution in the next lower grade but if it cannot be filled-up by promotion, then direct recruitment can be resorted to. Clause 3 of paragraph 2 of the Second Order provides that 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 Management.
A Full Bench of this Court in Radha Raizada & Ors. Vs. Committee of Management, Vidyawati Darbari Girls Inter College & Ors.4 while examining the Second Removal of Difficulties Order, however, observed that the notification of the vacancies on the notice board does not serve the purpose and it has to be published in two newspapers having wide circulation in the area and the observations are as follows :
“............I am, therefore, of the view that the procedure for notifying the short term vacancy should be the same as it is for the ad hoc appointment by direct recruitment under the First Removal of Difficulties Order. The management after intimating such vacancy to the District Inspector of Schools advertise such short term vacancy at least in two News Papers having adequate circulation in Uttar Pradesh in addition to notifying the said vacancy on the notice board of the institution and further the application may also be invited from the local employment exchange. …...............”
4 1994 (3) UPLBEC 1551
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Admittedly, the vacancy was advertised in only one newspaper and a finding has also been recorded that it did not have wide circulation in the State. Nothing has been brought on record to substantiate that this newspaper “Tarun Mitra” has wide circulation in the State. In any case, the advertisement was not published in another newspaper.
The District Inspector of Schools may have granted approval by letter dated 18 January 1999 but on record is the communication dated 9 January 2015 sent by the District Inspector of Schools to the Director of Education which clearly mentions that the District Inspector of Schools who had granted approval had been placed under suspension at the relevant time and that the Joint Director of Education had caused an inquiry to be made in regard to all orders passed by the said District Inspector of Schools during his period of suspension. It is for this reason that the District Inspector of Schools passed the order on 10 March 1999 specifically stopping the payment of salary to the appellant.
The Full Bench of this Court in Radha Raizada (supra), though in respect of an ad hoc appointment made under the First Order, held that any ad hoc appointment made without following the procedure is void and would not confer any right on such appointees.
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The Supreme Court in Prabhat Kumar Sharma and
others Vs. State of U.P. and others5 had an occasion to examine the validity of ad hoc appointments which were not made in accordance with the procedure provided for under paragraph 5 of the First Order. The Supreme Court held that any ad hoc appointment not made in accordance with paragraph 5 of the First Order would be illegal and void and would not confer any right on the appointee to claim salary and the relevant observations are as follows:
"It is an inbuilt procedure to avoid manipulation and nepotism in selection and appointment of the teachers by the management to any post in an aided institution. It is obvious that when the salary is paid by the State to the Government aided private educational institutions, public interest demands that the teachers' selection must be in accordance with the procedure prescribed under the Act read with the First 1981, Order".
In Shesh Mani Shukla Vs. The District Inspector of
Schools, Deoria6 , the Supreme Court reiterated what was earlier observed in Prabhat Kumar Sharma .
It has, however, been submitted by learned Senior Counsel for the appellant that even if there were some minor irregularities in making the ad hoc appointment, the same should not deprive the writ petitioner in claiming salary as he had continued to work for a substantial period of time from 1996 upto 2006.
5- (1996) 10 SCC 62
6- (2009) 15 SCC 436
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A similar submission was made before the High Court in the writ petition filed by Shesh Mani Shukla but it was not accepted. The decision is reported in (2004) 3 UPLBEC 25607 . While rejecting the aforesaid contention, the Court held as follows :-
“In my opinion, the petitioner is not entitled to a relief from this Court merely on the ground that an interim order had been passed in his favour under which he continued to receive salary. The petitioner has to give way to the candidate who had been appointed in accordance with the procedure then prescribed for making an ad-hoc appointment. In this context it may be useful to reproduce a passage from the judgment of the Supreme Court in the case of State of Madhya Pradesh and another Vs. Dharam Bir reported in JT 1998 (4) SC 363 wherein it has been observed as follows:-
"The plea that the Court should have a "human approach" and should not disturb a person who has already been working on this post for more than a decade also cannot be accepted as the Courts are hardly swayed by emotional appeals. In dispensing justice to the litigating parties, the Courts not only go into the merits of the respective cases, they also try to balance the equities so as to do complete justice between them. Thus the Courts always maintain a human approach. In the instant case also, this approach has not been departed from. We are fully conscious that the respondent had worked on the post in question for quite a long time but it was only in ad-hoc capacity. We are equally conscious that a selected candidate who also possesses necessary educational qualification is available. In this situation, if the respondent is allowed to continue on this post merely on the basis of his concept of "human
7 -Shesh Mani Shukla vs. The District Inspector of Schools, Deoria
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approach", it would be at the cost of a duly selected candidate who would be deprived of employment for which he has striven and had ultimately cleared the selection. In fact, it is the "human approach" which requires us to prefer the selected candidate over a person who does not possess even the requisite qualification."
The Supreme Court in the case of Kishorilal Charmakar and another Vs. District Education Officer and another reported in (1998) 9, SCC 395 examined the termination of persons who had been appointed under a bona fide mistake by considering them as Scheduled Tribes candidates and the mistake had not occurred on their account. It was submitted on their behalf that they had worked for 10 years as teachers under the interim orders granted by the Court in their favour and since they were not responsible for the mistake they should be allowed to continue. The Court rejected this contention holding that this alone could not entitle them to retain the undeserved benefit which had accrued to them. In yet another case the Supreme Court in the matter of State of Rajasthan Vs. Hitendra Kumar Bhatt (1997) 6 SCC 574 examined the effect of an interim order on the dismissal of the petition. In the said case the respondent was not called for an interview since he did not possess the technical qualification. However, pursuant to the interim order passed by the High Court requiring the appellant to call him for interview he was interviewed and his name was included in the list of selected candidates. He was also appointed on a provisional basis and was also subsequently confirmed. The writ petition was ultimately dismissed by the High Court holding that on the cut of date, he did not possess the requisite qualification. It was submitted by the respondent before the Supreme Court that since he had been continued in service and had also been confirmed, the Court should not disturb his appointment and his case should be considered sympathetically. The Supreme Court observed that the appellants had taken
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the correct stand right from the beginning and the respondent's application was not considered and he was not called for interview. It was only on account of the interim orders, which were obtained by the respondent that he was given an appointment and continued. He was aware that his appointment was subject to the out come of the petition. As such a sympathetic view could not be taken.
In view of the aforesaid facts and in view of the principles laid down by the Supreme Court in the aforesaid cases I am unable to accept the argument put forth by the learned counsel for the petitioner that even if it is held that the appointment of the petitioner was made in violation of the provisions of the First Removal of Difficulties Order, 1981, the Court should take a sympathetic view and allow the petition since he had received salary on the basis of the interim order which he has enjoyed for all these 11 years.”
The Special Appeal filed against the aforesaid decision was dismissed by a Division Bench of the High Court.
These two judgments were challenged before the Supreme Court. The Supreme Court did not accept the contention raised by the appellants and reiterated what was observed in Prabhat Kumar Sharma. The decision is reported in ( 2009) 15 SCC 4368 . The observations are as follows :-
“Both the learned Single Judge as also the Division Bench have found that the institution has not complied with the provisions of the 1981 Act as amended as also para 5 of the 1981 order. If the appointment of the appellant was not valid, the question of granting any approval thereto did not arise. Action, on the part of the Committee of the Management to hold selection, being not consistent with para 5 of the Order has rightly been held to be wholly unsustainable. It is true that the
8 -Shesh Mani Shukla vs. The District Inspector of Schools, Deoria
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appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab-initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a correspondent legal duty in the State. {See Food Corporation of India & ors. V. Ashish Kumar Ganguly & ors. [2009 (8) Scale 218] }. Sympathy or sentiments alone, it is well settled, cannot form the basis for issuing a writ of or in the nature of mandamus. { See State of M.P. & Ors. v. Sanjay Kumar Pathak & Ors. [JT 2007 (12) SC 219: (2008) 1 SCC 456] }”
In a subsequent decision of the Supreme Court in State of Karnataka & Ors., Vs. Uma Devi (3) & Ors.,9 the Supreme Court clearly held that no benefit can accrue to a person whose initial appointment was bad in law merely because that person had continued to work for some period.
In view of the law laid down in the aforesaid decisions, it has to be held that the appointment of the petitioner having been made in utter violation of the provisions of the law is void and does not confer any right upon the writ petitioner to receive payment of salary.
The appointment of the appellant was clearly dehors the provisions of the Second Order. The appellant cannot, therefore, claim payment of salary and in any case the order dated 10 March
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1999 was never assailed by the appellant in the writ petition. This apart, as noted above, the writ petition was filed in 2015 after almost 16 years from the date of appointment of the appellant.
Thus, for all the reasons stated above, no relief can be granted to the appellant and the judgment does not call for interference.
The Special Appeal is, accordingly, dismissed. Order Date :- 11.04.2018 GS
(Dilip Gupta, J.)
(Neeraj Tiwari, J.)
3 issues framed by the court
Whether an ad-hoc appointment made in violation of statutory removal of difficulties provisions is void ab-initio and confers no right to salary.
Whether continued service or interim salary grants due to human approach justify confirmation of an appointment violating statutory procedure.
Whether a court can grant relief when the appointment is illegal, void ab-initio, and no requirement was met by the relevant statutory authority.
Colour shows how this judgement treated each authority
Prabhat Kumar Sharma & Ors. Vs. State of U.P. & Ors.Referred¶14
Prabhat Kumar Sharma & Ors. Vs. State of U.P. & Ors.
Shesh Mani Shukla Vs. The District Inspector of Schools, DeoriaApplied¶14
Shesh Mani Shukla Vs. The District Inspector of Schools, Deoria
Radha Raizada & Ors. Vs. Committee of Management, Vidyawati Darbari Girls Inter College & Ors.Relied on¶24
Radha Raizada & Ors. Vs. Committee of Management, Vidyawati Darbari Girls Inter College & Ors.
State of Madhya Pradesh and another Vs. Dharam BirReferred¶42
State of Madhya Pradesh and another Vs. Dharam Bir
Kishorilal Charmakar and another Vs. District Education Officer and anotherReferred¶47
Kishorilal Charmakar and another Vs. District Education Officer and another
State of Rajasthan Vs. Hitendra Kumar BhattReferred¶47
State of Rajasthan Vs. Hitendra Kumar Bhatt
Food Corporation of India & ors. V. Ashish Kumar Ganguly & ors.Referred¶53
Food Corporation of India & ors. V. Ashish Kumar Ganguly & ors.
State of M.P. & Ors. v. Sanjay Kumar Pathak & Ors.Referred¶53
State of M.P. & Ors. v. Sanjay Kumar Pathak & Ors.
State of Karnataka & Ors., Vs. Uma Devi (3) & Ors.Applied¶57
State of Karnataka & Ors., Vs. Uma Devi (3) & Ors.
3 provisions across 3 enactments
Satya Prakash Mishra
State Of U.P. Anmd 3 Ors
Dilip Gupta
Neeraj Tiwari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
