Special Appeal dismissed. Court upheld lower court's finding that appellant's appointment was void ab initio due to non-compliance with First Removal of Difficulties Order, 1981, following categorical claim of substantive vacancy.
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Court No. - 39
Case :- SPECIAL APPEAL No. - 363 of 2018
Appellant :- Smt. Amita Tripathi (Tiwari) Respondent :- The Director Of Education And 4 Others Counsel for Appellant :- Ram Sajiwan Mishra,Nand Lal Pandey Counsel for Respondent :- C.S.C.,Vijay Kumar Singh
Hon'ble Dilip Gupta,J. Hon'ble Neeraj Tiwari,J.
This Special Appeal is directed against the judgment and order dated 28 February 2018 by which a learned Judge of this Court has dismissed Writ A No.6698 of 1995 filed by the appellant for a direction upon the respondents to pay salary and permit the petitioner to sign the attendance register.
The learned Judge has recorded a finding of fact that the appellant was appointed as an Assistant Teacher against a substantive vacancy without following the procedure contemplated in the First Removal of Difficulties Order, 1981 and, therefore, the appointment was void ab initio .
It is contended by learned counsel for the appellant that the petitioner had been appointed against a short-term vacancy and not against a substantive vacancy and, therefore, there was no requirement for compliance of the provisions of the First Removal of Difficulties Order, which relates to appointment against a substantive vacancy. His contention is that the Second Removal of Difficulties Order was required to be complied with as it relates to appointment made against short-term vacancies and there is no requirement of publication in the two newspapers.
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We are unable to accept the submission of learned counsel for the appellant for the simple reason that in paragraph 4 of the writ petition, the petitioner has made a categorical statement that she had been appointed in 1982 in L.T. Grade against a clear vacancy to teach Science subjects to the students of Class IX and X.
Such being the position, when there is a categorical averment in the writ petition that the petitioner was appointed against a substantive vacancy, it was imperative for the Management to have ensured compliance of the provisions of the First Removal of Difficulties Order which provides for publication of the advertisement in two newspapers and also a detailed procedure for making appointment. This was not followed. The appointment was, therefore, void ab initio.
This is also what has been observed by the Supreme Court in Prabhat Kumar Sharma and others Vs. State of U.P. and Ors.,1 . It has been held that any ad hoc appointment not made in accordance with paragraph 5 of the First Removal of Difficulties Order is an illegal appointment and is void and confers no right on the appointee. It may be useful to reproduce a passage from the judgment made in the context of paragraph 5 of the First Removal of Difficulties Order and it is 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
1 (1996) 10 SCC 62
3 prescribed under the Act read with the First 1981, Order".
In Shesh Mani Shukla Vs. The District Inspector of Schools,
Deoria2 , the Supreme Court reiterated what was earlier observed in Prabhat Kumar Sharma.
In view of the aforesaid facts and in view of the principles laid down by the Supreme Court in the aforesaid cases we are unable to accept the argument put forth by the learned counsel for the appellant.
The Special Appeal, therefore, deserves to be dismissed and is, accordingly, dismissed.
Order Date :- 15.5.2018 NSC
(Dilip Gupta, J.)
(Neeraj Tiwari, J.)
2 (2009) 15 SCC 436
3 issues framed by the court
Whether appointment against substantive vacancy without compliance of First Removal of Difficulties Order is void ab initio.
Whether categorical averment of substantive vacancy binds the parties to follow statutory appointment procedure.
Whether Special Appeal against dismissal of writ petition deserves dismissal.
Colour shows how this judgement treated each authority
Prabhat Kumar Sharma and others Vs. State of U.P. and Ors.Relied on¶12
Prabhat Kumar Sharma and others Vs. State of U.P. and Ors.
Shesh Mani Shukla Vs. The District Inspector of Schools, DeoriaRelied on¶16
Shesh Mani Shukla Vs. The District Inspector of Schools, Deoria
Smt. Amita Tripathi (Tiwari)
The Director Of Education And 4 Others
Dilip Gupta
Neeraj Tiwari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
