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Appointments in violation statute would be illegal

Posted on 05 March 2009 by AEJAZ AHMED

Court

HIGH COURT OF JUDICATURE AT ALLAHABAD



Brief

Appointment not made in accordance with Removal of Difficulties Order void. Irrespective of continuance for a long period. Appointments made in violation of the mandatory provisions of a statute would be illegal and, thus, void. Illegality cannot be ratified. Illegality cannot be regularized, only an irregularity can be.'



Citation

HIGH COURT OF JUDICATURE AT ALLAHABAD, Judgment delivered on 2nd March, 2009 Civil Misc. Writ Petition No. 40788 of 2003 Ramjee Dwivedi Vs. State of U.P. & Ors., With Civil Misc. Writ Petition No. 31703 of 2004 Ramjee Dwivedi Vs. State of U.P. & Ors., With Civil Misc. Writ Petition No. 51290 of 2006 Ram Jee Dwivedi Vs. The State of U.P. & Ors., With Civil Misc. Writ Petition No. 6941 of 2007 Ramjee Dwivedi Vs. State of U.P. & Ors.,



Judgement

HIGH COURT OF JUDICATURE AT ALLAHABAD

Judgment reserved on 18th February, 2009
Judgment delivered on 2nd March, 2009
Court No. 27
Civil Misc. Writ Petition No. 40788 of 2003
Ramjee Dwivedi Vs. State of U.P. & Ors.,
With
Civil Misc. Writ Petition No. 31703 of 2004
Ramjee Dwivedi Vs. State of U.P. & Ors.,
With
Civil Misc. Writ Petition No. 51290 of 2006
Ram Jee Dwivedi Vs. The State of U.P. & Ors.,
With
Civil Misc. Writ Petition No. 6941 of 2007
Ramjee Dwivedi Vs. State of U.P. & Ors.,
*********

Hon. Dilip Gupta, J.
The dispute in all these four connected writ petitions is in connection with the appointment of a Lecturer in the Nehru Inter College, Kakrahwa, District Siddharthnagar (hereinafter referred to as the 'College').
The College was initially upto the level of a High School and was brought in the grant-in-aid list of the State Government in 1974. On 13th January, 1983 it was upgraded as an Intermediate College. The Education Department granted recognition to six subjects namely Hindi, Economics, Sanskrit, Geography, English and Civics but subsequently Geography was replaced by Sociology. When the College was upgraded to Intermediate level, four posts of Lecturers and one post of Principal were sanctioned for the College on 4th February, 1984. Sita Ram Mishra who was working as the Head Master of the High School was promoted on the post of Principal when the College became an Intermediate College and against the four posts of Lecturers, Raja Ram Chaudhary and Satya Narain Gupta were appointed as Lecturers against the two posts to be filled by promotion, while Shanker Prasad and Jokhu Ram Shukla were appointed on the remaining two posts to be filled by direct recruitment. Sita Ram Mishra continued as the Principal of the College upto 30th June, 1997 when he retired.
Jokhu Ram Shukla who had been appointed as a Lecturer in Hindi by direct recruitment retired on 30th June, 2000. It is the case set up by Ramjee Dwivedi, who had earlier been appointed as Assistant Teacher in the CT Grade in 1973 when the College was a High School, that against this vacancy the Committee of Management resolved to appoint him by promotion on ad hoc basis as a Lecturer by the resolution dated 1st July, 2000 and this ad hoc appointment was approved by the District Inspector of Schools on 22nd September, 2000.
On the other hand, Rakesh Nath Pandey claims that a short-term vacancy had arisen in the College on the post of Lecturer in Civics due to the ad hoc promotion of Sita Ram Mishra as Principal of the College and he was appointed against the said short-term vacancy as ad hoc Lecturer on 1st January, 1991 under ''The Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981' (hereinafter referred to as the ''Second Removal of Difficulties Order'). Subsequently, the Manager sent the papers to the District Inspector of Schools on 5th January, 1991 for grant of financial sanction to his appointment but as the District Inspector of Schools failed to communicate his decision within the stipulated period of seven days, his appointment stood approved by the District Inspector of Schools in accordance with Clause 2(3)(iii) of the Second Removal of Difficulties Order. It is his case that though he was continuously teaching in the College from 1st January, 1991 but he was not paid salary under the Payment of Salaries Act, 1971 from the Government funds and was being paid some amount by the Manager of the College and so he filed Writ Petition No.44822 of 1998 for a direction upon the respondents to pay his arrears of salary from the joint bank account of the College under the Payment of Salaries Act, 1971. This petition was disposed of by means of the judgment and order dated 18th January, 1999 with a direction to the District Inspector of Schools to examine the matter relating to the grant of approval to his ad hoc appointment. Pursuant to the aforesaid directions issued by this Court, the District Inspector of Schools by the letter dated 17th March, 1999 directed the Accounts Officer to make payment of his salary from the month of February, 1999.
In the meantime the U.P. Secondary Education Services Selection Board (hereinafter referred to as the ''Board') recommended the name of Vidya Shanker for the post of Lecturer in Hindi that had fallen vacant on the retirement of Jokhu Ram Shukla on 30th June, 2000 and pursuant to the directions issued by the District Inspector of Schools he joined the College as a Lecturer in Hindi on 31st May, 2003.
All the four petitions have been filed by Ramjee Dwivedi.
Writ Petition No. 40788 of 2003 has been filed by Ramjee Dwivedi for quashing the order dated 26th April, 2003 as also the order dated 26th May, 2003 passed by the District Inspector of Schools. By the order dated 26th April, 2003, the District Inspector of Schools informed the Manger of the Committee of Management of the College that pursuant to the notification dated 7th April, 2003 issued by the Board, Vidya Shanker had been selected as a Lecturer in Hindi and, therefore, appointment letter should be issued by the Manager of the College for his appointment as a Lecturer in the College. By the order dated 26th May, 2003, the District Inspector of Schools reminded the Manager of the College that the appointment of Ramjee Dwivedi had been made on ad hoc basis till a regularly selected candidate from the Board was recommended and so Vidya Shanker should be allowed to join the College as a Lecturer in Hindi. The Court by an interim order dated 19th September, 2003 stayed the operation of the impugned orders dated 26th April, 2003 and 26th May, 2003, but Vidya Shanker had joined the College earlier on 31st May, 2003 and is working and has continued to receive salary.
Writ Petition No.31703 of 2004 has been filed by Ramjee Dwivedi for quashing the orders dated 18th March, 1999, 18th October, 2003 and 3rd July, 2004 passed by the District Inspector of Schools in favour of Rakesh Nath Pandey and for a direction upon the Director of Education (Madhyamik) U.P. to decide the representation filed by him on 10th September, 2003 under Section 16-E(10) of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as the ''Intermediate Education Act'). By the order dated 17th March, 1999, the District Inspector of Schools had directed Govind Yadav, Account Officer in the Office of the District Inspector of Schools, to pay salary to Rakesh Nath Pandey from February, 1999 and to also ensure that in future the benefits of the High Court's order are granted to him. By the order dated 18th October, 2003, the District Inspector of Schools decided the seniority between Ramjee Dwivedi and Rakesh Nath Pandey and held that Rakesh Nath Pandey was senior. By the third order dated 3rd July, 2004, the District Inspector of Schools granted selection grade to Rakesh Nath Pandey.
The Court by the order dated 2nd February, 2005 directed the Director of Education to either himself or through any other competent officer not below the rank of Joint Director of Education enquire into the matter of appointments of Ramjee Dwivedi as also Rakesh Nath Pandey and submit a report before the Court within three months. It was further provided that in this regard, opportunity of hearing should be given to Ramjee Dwivedi, the Committee of Management, the Principal of the College as well as Rakesh Nath Pandey and comments may also be called from the District Inspector of Schools. The relevant portion of the order is quoted below:-
"Having heard learned counsel for the parties, I prima-facie find that there are various controversial facts involved in this writ petition and the conduct of the District Inspector of Schools while granting approval to the appointments of the petitioner as well as respondent No.6 does not appear to be fair. It appears from the record that the order for regularization of teachers of the college in question have been passed without application of mind and without considering the record of the case but merely by stating that it is being passed on the directions of the High Court, where in fact there are no such directions issued. Although a prayer has been made for staying the order dated 17/18.3.1999 passed by the District Inspector of Schools but since it is an order passed nearly six years back, I am not inclined to pass any such stay order at this stage without having the matter investigated by a competent officer. In my view, a senior officer should first be required to enquire into the matter regarding the appointments of the petitioner and respondent No.6 and submit his report. Thus, in the circumstances, it is directed that the Director of Education (Madhyamik) U.P., Lucknow (who is a responsible officer of the Education department) shall either himself of through any other competent officer (not below the rank of Joint Director), duly authorized by him, enquire into the matter of appointments of the petitioner as well as respondent No.6 and submit its report before this Court within three months from today. The said respondent No.2 (or the officer so authorized) shall give opportunity of hearing to the petitioner, respondent Nos.4, 5 and 6 as well as, if possible, also call for comments of the then District Inspector of Schools, Siddarth Nagar who had passed the order dated 17.3.1999. He shall inform this Court the name and the present posting of the District Inspector of Schools who had passed such order. The petitioner as well as the contesting respondent no.6 are directed to cooperate in the enquiry proceedings and shall appear before the officer concerned, as an when required by him."

In compliance of the aforesaid directions issued by this Court, the Joint Director of Education passed a detailed order dated 27th July, 2005.
In respect of the appointment of Ramjee Dwivedi, a finding has been recorded by the Joint Director of Education that a vacancy on the post of Lecturer in Hindi had arisen in the College on account of the retirement of Jokhu Ram Shukla, who had been appointed as a Lecturer in Hindi by direct recruitment. This vacancy could have been filled up on ad hoc basis till such time only as a regularly selected candidate recommended by the Board joined the College. Ramjee Dwivedi had been appointed on ad hoc basis against this vacancy. Vidya Shanker who had been recommended by the Board joined the College on 31st May, 2003 and so Ramjee Dwivedi could not continue as Lecturer on ad hoc basis after 30th May, 2003 and could continue only as a teacher in the lower LT Grade.
In respect of the appointment of Rakesh Nath Pandey, the Joint Director of Education noticed that at the relevant time on 1st January, 1991, on which date Rakesh Nath Pandey claims to have been appointed ad hoc Lecturer against a short-term vacancy, there was infact no short-term vacancy as all the four posts of Lecturers in the College were filled up. The order also notices that by the order dated 23rd October, 1997, the Manager of the College had merely directed Rakesh Nath Pandey to teach Civics to Intermediate Classes and that the District Inspector of Schools completely failed to advert himself to the correct factual position in his order dated 17th March, 1999 and on a total misreading of the judgment and order of this Court dated 18th January, 1999 directed that salary be paid to Rakesh Nath Pandey from February, 1999. The Joint Director of Education, therefore, found as a fact that the ad hoc appointment of Rakesh Nath Pandey as Lecturer on 1st January, 1991 was illegal and void.
Writ Petition No.51290 of 2006 has been filed by Ramjee Dwivedi for quashing of the order dated 14th August, 2006 passed by the District Inspector of Schools by which the signatures of Mahesh Kumar Rao have been attested as the Officiating Principal of the College and for a direction upon the respondents to permit him to work as the Officiating Principal of the College. The Court, as an interim measure, by the order dated 27th September, 2006 stayed the operation of the order dated 14th August, 2006 passed by the District Inspector of Schools.
Writ Petition No.6941 of 2007 has been filed by Ramjee Dwivedi for quashing of the order dated 28th November, 2006 by which the District Inspector of Schools has attested the signatures of Rakesh Nath Pandey as the Officiating Principal of the College and for a direction upon the respondents to permit the petitioner to work as the Officiating Principal of the College. The Court by an interim order dated 8th September, 2007 directed that neither Ramjee Dwivedi nor Rakesh Nath Pandey shall be permitted to work as the Officiating Principal of the College.
It is the contention of Sri K. Shahi, learned counsel appearing for Ramjee Dwivedi that Ramjee Dwivedi was the senior most LT Grade teacher in the College when the post of Lecturer in Hindi fell vacant due to the retirement of Jokhu Ram Shukla on 30th June, 2000 and the Committee of Management in its meeting held on 1st July, 2000 promoted him on ad hoc basis as Lecturer in Hindi and the District Inspector of Schools also granted approval on 29th September, 2000. It is also his contention that the post of Lecturer in Hindi was required to be filled by the 50% promotion quota in accordance with Rule 14 of the U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as the 1998 Rules) and till such time as the decision was taken, he was promoted on ad hoc basis under Rule 16 of the 1998 Rules. His contention is that in accordance with Rule 14 of the Rules 1998, the Joint Director of Education has to consider his case for promotion on the post of Lecturer and the vacancy cannot be filled up by direct recruitment and so the Board committed an illegality in recommending the name of Vidya Shanker for appointment as a Lecturer in Hindi by direct recruitment. He has further contended that Rakesh Nath Pandey was never appointed as ad hoc Lecturer in the College against the short-term vacancy on 1st January, 1991 since there was no short-term vacancy on that date and it is only on the basis of some directions issued by the Manager of the College on 23rd October, 1997 to Rakesh Nath Pandey to teach Civics to the Intermediate Classes that he started working in the College. He also contended that Ramjee Dwivedi had been appointed as ad hoc Lecturer and that the District Inspector of Schools committed an illegality in passing the order dated 17th March, 1999 for payment of salary to Rakesh Nath Pandey from February, 1999 and as the senior most Lecturer working in the College he is entitled to officiate as the Principal of the College.
Sri A.N. Tripathi, learned Senior Counsel appearing for Rakesh Nath Pandey has, however, submitted that Rakesh Nath Pandey was appointed on ad hoc basis as a Lecturer on 1st January, 1991 against the short-term vacancy that had arisen after the High School was upgraded to the Intermediate College level. Sita Ram Mishra who was the Head Master of the College was first appointed as a Lecturer in the Intermediate College and thereafter he was appointed as the Principal of the College and it is because of this appointment as the Principal of the College that a short-term vacancy of a Lecturer had arisen against which Rakesh Nath Pandey was appointed in accordance with the Second Removal of Difficulties Order. He has, therefore, contended that Ramjee Dwivedi could not have been appointed as ad hoc Lecturer in 2000 and as the senior most Lecturer in the College he is entitled to function as the Officiating Principal of the College. He also contended that the Joint Director of Education could not have passed the order dated 2nd February, 2005 under Section 16-E(10) of the Intermediate Education Act.
Sri Akhilesh Tripathi, learned counsel appearing for Vidya Shanker has submitted that there was only one post of Lecturer in Hindi which fell vacant on the retirement of Jokhu Ram Shukla on 30th June, 2000 and this vacancy was duly notified to the Commission and on the basis of advertisement issued by the Commission he was selected by the Board and thereafter recommended for appointment to the College by the District Inspector of Schools. He further submitted that pursuant to the letter dated 26th April, 2003 sent by the District Inspector of Schools, the Manager issued the appointment letter to him on 30th May, 2003 and he joined the College on 31st May, 2003 and is working as such and is receiving his salary.
Learned Standing Counsel has supported the order dated 27th July, 2005 passed by the Joint Director of Education and has contended that the appointment of Vidya Shanker as Lecturer in Hindi by direct recruitment by the Commission is justified. He has further contended that Rakesh Nath Pandey was never appointed as ad hoc Lecturer in the College and the order dated 17th March, 1999 passed by the District Inspector of Schools was not justified and that even the ad hoc appointment of Ramjee Dwivedi came to an end on 31st May, 2003 when Vidya Shanker who was recommended by the Board joined the College as Lecturer in Hindi.
Sri Ashwani Mishra, learned counsel appearing for Committee of Management has very fairly stated that it is Vidya Shanker who was recommended by the Board who is entitled to function as the Lecturer in Hindi in the College against the vacancy that had arisen on the retirement of Jokhu Ram Shukla on 30th June, 2000. He has also very fairly stated that a regular Principal should be sent to the College at the earliest so that the dispute amongst the various Lecturers of the College about officiating on the post of Principal of the College comes to an end.
I have carefully considered the submissions advanced by learned counsel for the parties.
It is now not in dispute that only four posts of Lecturers were sanctioned in the College, though in the earlier writ petitions filed by Ramjee Dwivedi he had come out with a case that there were five sanctioned posts of Lecturers. Out of these four sanctioned posts, two have to be filled up by promotion and two have to be filled up by direct recruitment. In the year 1984, all these four posts of Lecturers were filled up. Raja Ram Chaudhary and Satya Narain Gupta had been appointed as Lecturers in Economics and Sociology respectively against the promotional posts, while Shanker Prasad and Jokhu Ram Shukla had been appointed by direct recruitment as Lecturers in English and Hindi respectively. It is also not in dispute that Sita Ram Mishra was appointed as the Principal of the College on its upgradation as an Intermediate College and he was teaching Civics. This position continued upto 30th June, 1997 when Sita Ram Mishra retired.
Rakesh Nath Pandey claims to have been appointed as ad hoc Lecturer in Civics on 1st January, 1991 against a short-term vacancy and according to him, an order dated 23rd October, 1997 was also issued by the Manager of the College directing him to teach Civics to the Intermediate Classes.
On 30th June, 2000, Jokhu Ram Shukla, who was a Lecturer in Hindi and who had been appointed by direct recruitment, retired. Ramjee Dwivedi, who was appointed in the CT Grade in the year 1973 and was treated to be in LT Grade in the year 1986, claims that he was granted ad hoc promotion as a Lecturer in Hindi against the promotional quota on the retirement of Jokhu Ram Shukla.
Sri Vidya Shanker claims that the Board had selected him as Lecturer in Hindi and on the basis of the directions issued by the District Inspector of Schools to the Committee of Management to appoint him on the post of Lecturer in Hindi, he joined the College on 31st May, 2003 as Lecturer in Hindi.
It is, in such circumstances, that validity of ad hoc appointment of Ramjee Dwivedi as a Lecturer in the College, validity of ad hoc appointment of Rakesh Nath Pandey as ad hoc Lecturer in the College and validity of the appointment of Vidya Shanker as Lecturer in the College in Hindi has to be examined. These are the basic issues that arise for consideration in Writ Petition No.40788 of 2003 and Writ Petition No.31703 of 2004. The fate of other two petitions will depend upon the validity of these appointments.

Validity of the appointment of Ramjee Dwivedi
The contention of Sri K. Shahi, learned counsel appearing for Ramjee Dwivedi is that the vacancy on the post of Lecturer in the College which arisen on the retirement of Jokhu Ram Shukla on 30th June, 2000 was required to be filled up by promotion in accordance with the procedure provided for in the Rule 14 of the 1998 Rules and till such time as this appointment was not made, ad hoc promotion could be made under Rule 16 of the 1998 Rules and it is in accordance with Rule 16 of the 1998 Rules that Ramjee Dwivedi was promoted on ad hoc basis and he has to continue till such time as his promotion is not approved under Rule 14 of the 1998 Rules.
This contention advanced by Sri K. Shahi, learned counsel for Ramjee Dwivedi cannot be accepted. As noticed hereinabove, there were only four posts of Lecturers in the College, out of which two have to be filled up by promotion and two have to be filled up by direct recruitment. It is on 30th June, 2000 that Jokhu Ram Shukla, who had been appointed as a Lecturer in Hindi in the College by direct recruitment, retired. Satya Narain Gupta and Raja Ram Chaudhary were already working against the two promotional posts of Lecturers and the post of Lecturer that had fallen vacant was the one occupied by Jokhu Ram Shukla who had been appointed as a Lecturer in Hindi by direct recruitment. The other Lecturer appointed by the direct recruitment was Shanker Prasad. Thus, this vacant post of Lecturer arising on the retirement of Jokhu Ram Shukla was necessarily to be filled up by direct recruitment as it did not fall under the 50% promotion quota.
It needs to be mentioned that in Writ Petition No.40788 of 2003, Ramjee Dwivedi came out with a categorical case in paragraphs 4 and 5 of the petition that there were five posts of Lecturers in the College and since Shanker Prasad and Rakesh Nath Pandey had been appointed by direct recruitment, the other three posts of Lecturers including the post falling vacant on the retirement of Jokhu Ram Shukla on 30th June, 2000 were required to be filled up by promotion. It is on this basis that he contended that the vacant post of Lecturer on 30th June, 2000 was required to be filled up by promotion.
The order dated 27th July, 2005 passed by the Joint Director of Education clearly mentions that only four posts of Lecturers had been sanctioned in the College. This fact has not been denied during the course of hearing of the petition by the learned counsel appearing for Ramjee Dwivedi. Infact, in the subsequent Writ Petition No.6941 of 2007 filed by him, he has made an attempt to clarify that it was only on account of the statement made by the Manager of the College that in the earlier writ petition he had stated that there were five posts of Lecturers. It appears that Ramjee Dwivedi deliberately took a false stand that five posts of Lecturers had been sanctioned in the College so that he could claim promotion against this additional post.
On 30th June, 2000, as seen above, the two promotional posts were occupied and only one post of direct recruitment which had arisen on the retirement of Jokhu Ram Shukla fell vacant. Ramjee Dwivedi, therefore, cannot claim promotion under Rule 14 of the 1998 Rules and so the ad hoc appointment could not have been made under Rule 16 of the 1998 Rules. He could only have been appointed on ad hoc basis under Section 18 of the U.P. Secondary Education Services Selection Board, Act 1982 (hereinafter referred to as the Secondary Act) in accordance with the procedure prescribed under Rule 15 of the 1998 Rules for making ad hoc appointment against the posts to be filled up by direct recruitment. Under Section 18(9) of the Secondary Act every ad hoc appointment ceases with effect from the date the candidate recommended by the Board joins the post. In such circumstances, the ad hoc appointment of Ramjee Dwivedi has necessarily to come to an end on 31st May, 2003 when Vidya Shanker who was recommended by the Board joined the College and he could continue thereafter only in the LT Grade. This is what has also been observed by the Joint Director of Education in his order dated 27th July, 2005.

Validity of the appointment of Rakesh Nath Pandey

The contention of Sri A.N. Tripathi, learned Senior Counsel appearing for Rakesh Nath Pandey is that a short-term vacancy had arisen in the College on account of promotion of Sita Ram Mishra from the post of Lecturer to the post of Principal and it is against this short-term vacancy that Rakesh Nath Pandey had been appointed on ad hoc basis under the Second Removal of Difficulties Order. According to Sri Tripthi, when the School was upgraded from High School to the Intermediate College, Sita Ram Mishra who was working as a Head Master was not directly promoted as the Principal of the Intermediate College, but was first given promotion as a Lecturer and it when he was subsequently promoted as Principal that a short-term vacancy on the post of Lecturer arose against which Rakesh Nath Pandey had been appointed on ad hoc basis.
This contention cannot be accepted. The communication dated 25th May, 1985 sent by the Manager of the College to the District Inspector of Schools regarding the promotion of Sita Ram Mishra on the post of Principal and the communication dated 25th June, 1985 sent by the District Inspector of Schools in response to the aforesaid communication clearly show that Sita Ram Mishra had been promoted from the post of Head Master to the post of Principal of the Intermediate College. It does not indicate that Sita Ram Mishra had been promoted as Principal from the post of Lecturer. This apart, there were only four posts of Lecturers in the College and all these four posts were occupied by Raja Ram Chaudhary, Satya Narain Gupta, Shanker Prasad and Jokhu Ram Shukla. There was no vacant post against which Sita Ram Mishra could have functioned as a Lecturer. In such circumstances, the contention of Sri Tripathi that a short-term vacancy had arisen on account of promotion of Sita Ram Mishra from the post of Lecturer to the post of Principal of the College is not correct. It is only on this basis that Rakesh Nath Pandey claims that he is continuing as ad hoc Lecturer in the College. His ad hoc appointment could not have been made under the Second Removal of Difficulties Order as the condition precedent that there must exist a short-term vacancy was absent.
The Supreme Court had an occasion to examine the validity of the ad hoc appointments which were not made in accordance with the procedure provided for under paragraph 5 of the First Removal of Difficulties Order in the case of Prabhat Kumar Sharma and others Vs. State of U.P. and others reported in (1996) 10, SCC 62 and it was 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. The relevant observations are:-
"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".

These observations will also apply to the alleged ad hoc appointment of Rakesh Nath Pandey.
The Joint Director of Education in his order dated 27th July, 2005 has also examined the alleged appointment of Rakesh Nath Pandey against the short-term vacancy in 1991. He has noticed that the Management mentioned in his service book that on 1st January, 1991, he had been appointed as ad hoc Lecturer by wrongly stating that there were five sanctioned posts of Lecturers in the College when infact there were only four posts. The Joint Director of Education has, therefore, mentioned in his order that the Management sought sanction for payment of salary on the basis that there were five posts of Lecturers and the District Inspector of Schools also without examining the factual position and the validity of the appointment of Rakesh Nath Pandey merely passed an order on 17th March, 1999 for payment of salary from February, 1999. The Joint Director of Education has also mentioned in his order that the Principal of the College could not show any document regarding the appointment or presence of the Rakesh Nath Pandey in the College from 1st January, 1991. He has not relied upon the torn register produced by Rakesh Nath Pandey showing payment for some months and has also noticed that the Principal of the College did state that the Manager had given permission on 23rd October, 1997 to Rakesh Nath Pandey to teach Civics to Intermediate Classes. He has further mentioned that this may have been given as Sita Ram Mishra who was the Principal of the College and was teaching Civics to the Intermediate Classes retired on 30th June, 1997. In view of the aforesaid, the Joint Director of Education concluded that the so called appointment of Rakesh Nath Pandey on 1st January, 1999 was not only illegal but doubtful also. The Joint Director of Education, in his order dated 27th July, 2005, after examining the entire factual position has recorded a categorical finding that the order dated 17th March, 1999 was passed by the District Inspector of Schools supposedly taking aid of the directions issued by this Court on 18th January, 1999 in Writ Petition No.44822 of 1998 filed by Rakesh Nath Pandey but he totally misread the directions of the High Court and without examining the validity of the ad hoc appointment, merely issued a direction for payment of salary from February, 1999.
Sri A.N. Tripathi, learned Senior Counsel appearing for Rakesh Nath Pandey, however, submitted that the Joint Director of Education could not have assumed power under Section 16-E(10) of the Intermediate Education Act as the said Act has no application in the present case. As noticed hereinabove, the Joint Director of Education had passed the order pursuant to the directions issued by this Court on 2nd February, 2005 in Writ Petition No.31703 of 2004 that had been filed by Ramjee Dwivedi. This order had been passed after hearing the counsel appearing for Ramjee Dwivedi, Rakesh Nath Pandey and the learned Standing Counsel. The Court noticed that there was a serious factual dispute regarding the ad hoc appointment of Ramjee Dwivedi and Rakesh Nath Pandey and, therefore, it was appropriate that some senior officer should first examine this so that it could facilitate the Court in deciding the petition. In such circumstances, it is not really material as to whether the Joint Director of Education had the authority to pass the order under Section 16-E(10) of the Intermediate Education Act.
Sri A.N. Tripathi further submitted that the appointment of Rakesh Nath Pandey on ad hoc basis cannot be examined at the instance of Ramjee Dwivedi, more particularly, when he has been teaching in the College for a considerable long period from 1st January, 1991.
As noticed hereinabove, the so called ad hoc appointment of Rakesh Nath Pandey on 1st January, 1991 is void and he has received salary from February, 1999 merely on the basis of the order dated 17th March, 1999 passed by the District Inspector of Schools which order was passed taking aid of the directions issued by this Court in the writ petition filed by Rakesh Nath Pandey. In the preceding paragraphs, it has also been found that the order was passed by the District Inspector of Schools without examining the validity of the ad hoc appointment of Rakesh Nath Pandey on a total misreading of the order passed by this Court.
Only one post of Lecturer had fallen vacant on the retirement of Jokhu Ram Shukla on 30th June, 2000. This vacancy was filled up by the appointment of Vidya Shanker, who had been recommended by the Board, on 31st May, 2003. Rakesh Nath Pandey was never appointed against this vacancy. The so called appointment of Rakesh Nath Pandey is against a non-existing post and he cannot be permitted to contend that such an illegal appointment should not be set aside merely because there has been some delay. 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 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.
This matter was also recently examined by the Supreme Court in Government of Andra Pradesh & Ors. Vs. K. Brahmanandam & Ors., 2008 AIR SCW 5352 and such a contention was repelled.

"Mr. G. Ramakrishna Prasad, learned counsel appearing on behalf of the respondents, on the other hand, would contend that in view of passage of time and particularly in view of the fact that the respondents had been continuing to work for a long time, this Court should not interfere with the impugned judgment.
The liability of the State to pay salary to a teacher appointed in the recognized schools would arise provided the provisions of the statutory rules are complied with, subject to just exception. The right to claim salary must arise under a contract or under a statute. If such a right arises under a contract between the appointee and the institution, only the latter would be liable therefor. Its right in certain situation to claim reimbursement of such salary from the State would only arise in terms of the law as was prevailing at the relevant time. If the State in terms of the statute is not liable to pay the salary to the teachers, no legal right accrues in favour of those who had been appointed in violation of mandatory provisions of the statute or statutory rules.
The equality clause contained in Articles 14 and 16 of the Constitution of India, it is trite, must be scrupulously followed. The court ordinarily would not issue a writ of or in the nature mandamus for regularization of the service of the employee which would be violative of the constitutional scheme.
Appointments made in violation of the mandatory provisions of a statute would be illegal and, thus, void. Illegality cannot be ratified. Illegality cannot be regularized, only an irregularity can be.'





Validity of the appointment of Vidya Shanker

The vacancy of Lecturer in Hindi which had arisen on 30th June, 2000 on account of retirement of Jokhu Ram Shukla was required to be filled up by direct recruitment and indeed, the Committee of Management had advertised the post and thereafter recommended the name of Vidya Shanker for appointment of Lecturer in Hindi and, accordingly, he joined the College on 31st May, 2003. In view of the discussion made while considering the validity of the ad hoc appointments of Ramjee Dwivedi and Rakesh Nath Pandey, there is no infirmity in the appointment of Vidya Shanker as a Lecturer in the College.
It is, therefore, clear that against the vacancy on the post of Lecturer in the College that had arisen on account of the retirement of Jokhu Ram Shukla on 30th June, 2000, Vidya Shanker was validly appointed as a Lecturer in the College on 31st May, 2003 and in the intervening period Ramjee Dwivedi was validly appointed as a Lecturer on ad hoc basis upto the time the candidate recommended by the Board joined the College on 31st May, 2003. The alleged appointment of Rakesh Nath Padney is void.
In the end, it needs to be mentioned that the post of Principal has not been filled up after 30th June, 1997 when Sita Ram Mishra retired. This has led to various disputes amongst the Lecturers as to who should officiate as the Principal of the College. It is, therefore, desirable that a regular Principal should be sent to the College at the earliest.
Thus, for all the reasons stated above, the writ petitions are devoid of merit and are, accordingly, dismissed. Interim order stands vacated.
Date: 02.03.2009
GS/SK




Tags :- appointments violation statute illegal




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