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V.N. Khare, J.—Over a decade''s history of recruitment of teachers in the Government aided recognised institutions run by the private managements in the State of Uttar Pradesh discloses that the recruitment of teachers began with ad hoc appointment which was subsequently regularised by legislative intervention. In fact the Government could not achieve its object to recruit competent teachers through fair selection by instrumentality of the U.P. Secondary Education Services Commission (hereinafter referred to as the Commission) initially due to its non-establishment and subsequently due to long delay entailed in the process of selection of teachers. Thus, due to non-availability of duly selected teachers, who were urgently required in the institutions the whole machinery got involved in recruiting teachers by ad hoc appointment in the institutions. In the absence of complete legislation in respect of method of appointment of ad hoc teachers the management of the institutions resorted to make ad hoc appointment in the manner which suited them best and this gave rise to enormous litigations which have brought burden on the Court as well as on public exchequer and further affected the standard of the education in this State. Despite illustrious judgments rendered by this Court the controversy in respect of ad hoc appointment of teachers/principal in the institutions continued to be debated in this Court. It is in this back ground when these writ petitions came up before the learned single Judge the controversy as to whether the ad hoc appointment of Principal in the institution is to be done either by promotion from amongst the senior most teacher or by direct recruitment, was raised. In the special appeal also the question raised was as to whether any approval or prior approval of the District Inspector of Schools in the matter of ad hoc appointment of teacher is required or not. In the writ petitions the question raised before the learned single Judge was that since the U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 has ceased to be operative, the ad hoc appointment of principal in the institution has to be done in accordance with the provisions of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as the Intermediate Education Act) and the regulations framed thereunder. According to the learned single Judge various Removal of Difficulties Orders issued by the State Government u/s 33 of the U.P. Secondary Education Services Commission and Selection Board Act 1981 (hereinafter referred to as the Act) cannot continue for, unlimited period of time inasmuch as the reason for issuing of Removal of Difficulties Order by the State Government has attained its purpose adding a new Section 33A by which all the ad hoc appointments made there stood regularised and as such First Removal of Difficulties Order as amended by subsequent order has ceased to be operative. In view of this, the learned single Judge Was of opinion that ad hoc appointment of Principal in the institution is permissible under the provisions of the U.P. Intermediate Education Act and under the regulations thereunder and not under the Removal of Difficulties Order issued under the Act. The learned single Judge was of further opinion that the questions involved in the writ petitions require to be considered by a Full Bench of this Court. The learned single Judge by order dated 31st March, 1992 framed five questions of law to be answered by a Full Bench. Before the learned single Judge, it appears that certain amendments in the Act were not brought to his notice and further subsequent to the date of reference the Act has undergone through major legislative changes which are being mentioned hereinafter. BY U.P. Act No. 26 of 1991, in Section 33A, three sub-sections namely Sub-section (1-A), (1-B) & (1-C) were added and further Subsection (2) of Section 33A was substituted by now Sub-section (2). By this new sub-section certain categories of teachers who were appointed on ad hoc basis, either by promotion or direct recruitment, their services were regularised, By U.P. Act No. 1 of 1993 a proviso was added in Sub-section (1) of Section 33 of the Principal Act which is in the following terms;
Provided that no such order shall be made after two years from the date of commencement of U.P. Secondary Education Services Commission and Selection Boards (Amendment) Act, 1992 (U.P. Act No. 1 of 1993).
Thus, this proviso gave power to the State Government to issue Removal of Difficulties Orders for a further period of two years from coming into force of Act No. 1 of 1993. The view taken by the learned single Judge that since original proviso to Section 33 of the Act prohibited issuance of Removal of Difficulties Order after two years of commencement of the Act, namely 14th July, 1981, there is no justification for treating the Removal of Difficulties Orders to be continuing in force, lost its relevance in view of substitution of new proviso in Sub-section (1) of Section 33 of the U.P. Act No 1 of 1993. Since the very premise on which the questions framed were required to be answered by Full Bench has disappeared, we were inclined to send the case back to the learned single Judge for decision on merit. However, since the learned Counsel for the parties questioned the validity of Section 33 of the Act which empowers the State Government to issue Removal of Difficulties Orders and also various Removal of Difficulties Orders issued by the State Government, we with the consent of the parties by our order dated 17-9-1993 reframed the following questions:
(a) Whether Section 33 of the U.P. Act No. 5 of 1982 suffers from vice of excessive delegation of legislative power and as such it is void?
(b) If the answer to question No. (a) is in negative, whether Removal of Difficulties Orders published on 31st July, 1981, Removal of Difficulties (Second) Order published on 11th September, 1981, and Removal of Difficulties (Third Order published on 30th January, 1982 issued by the Government tend to amend, scheme and essential features of the Act and as such are ultra vires the provisions of Section 33 of the Act.
(c) What would be the criteria and procedure for ad hoc appointment of a teacher or Principal either under the Removal of Difficulties Order or u/s 18 of the U.P. Act No. 5 of 1982?
(d) Whether any approval of prior approval of the District Inspector of Schools or Regional Inspectress of Girls Schools, as the case may be, is necessary for making ad hoc appointment of a teacher or Principal either under the Removal of Difficulties Order or u/s 18 of the Act?
Before I answer to these questions, it is necessary to give brief facts of the petitions which have given rise to the question require to be answered by this Full Bench. In Civil Misc. Writ Petition No. 18934 of 1991 the vacancy in the post of Principal of the College came into existence on account of retirement of permanent Principal. Although the Management notified the vacancy to the Commission yet the Commission was not able to send duly selected principal for appointment to the said post. Since duly selected Principal by the Commission was not available the Management appointed contesting respondent on ad hoc basis to the post of principal. This appointment was challenged by the petitioner claiming that in fact the ad hoc appointment to the post of Principal has to be done on the basis of promotion, amongst the senior most teacher in the lecturer grade. In Civil Misc. Writ petition No. 23642 of 1991 the Committee of Management instead of taking recourse to the method of promotion for filling the vacancy in the post of Principal, restored to the method of direct, recruitment for ad hoc appointment to the said post and on that basis the contesting respondent was appointed on ad hoc basis as principal of the institution and who is the petitioner in the Civil Misc. Writ Petition No. 23737 of 1991. The third Civil Misc. Writ Petition No. 23737 of 1991 has been filed by the ad hoc principal, appointed by direct recruitment challenging the order of the District Inspector of Schools directing the Management to fill the said post by promotion. In Special Appeal No. 31 of 1991 the appellant was appointed by letter dated 6-1-1989 only for a period up to 30th April, 1989 without obtaining any approval from the District Inspector of Schools. This petitioner was dismissed against which the special appeal was filed wherein it was. contended that for ad hoc appointment it is not necessary to comply with the provisions contained in the first Removal of Difficulties Order issued u/s 33 of the Act. The validity of Section 33 of the Act as well as various Removal of Difficulties Orders has been questioned by the respondents presumably on this hope that in case Section 33 of the Act or various Removal of Difficulties Orders issued by the Stale Government if found void, it would not be necessary for the Management to comply with the provisions of first Removal of Difficulties Order. In the light of the aforesaid allegations in the writ petitions and special appeal, I proceed to answer the questions refrained by us:
Question No. (a);
Whether Section 33 of the U.P. Act No. 5 of 1982 suffers from vice of excessive delegation of legislative power and as such it is void?
Question No. 1 raises the validity of Section 33 of Act, which is in following terms;
Power to remove difficulties.--(1)The State Government may, for (he purpose of removing any difficulty, by a notified order, direct that the provisions of this Act shall, during such period as may be specified in the order have effect subject to such adaptations, whether by way of modification, addition or omission, as it may deem to be necessary or expedient:
Provided that no such order shall be made after two years from the date of commencement of this Act.
(2) Every order made under Sub-section (1) shall be laid before the House of State Legislature,
(3) No order under Sub-section (1) shall be called it question in any Court on the ground that no difficulty as is referred to in Sub-section (1) existed or required to be removed.
The provision like Section 33 of the Act quoted above which empowers the State Government or any other body to issue Removal of Difficulties Order by directing that the provisions of the Act shall have effect subject to such adaptation whether by modification, addition or omission after the Act has come into force has been nick named "the Henry VIII Clause" presumably because the British Monarch Henry VIII, who was well known for his autocracy persuaded the British Parliament to enlarge his power to make law by means of proclamation. Initially, inclusion of such provision in Statute-in England invited uncharitable comments. The Committee on Minister''s power while admitting such a provision be rarely incorporated in a statute which is cited In re Article 143 of the Constitution of India and Delhi Laws Act, is extracted below:
...We are clear in our opinion, first that the adoption of such a clause ought on each occasion when it is, on the initiative of the Minister incharge of the Bill, proposed to parliament to be justified by him up to the essential. It can only be essential for the limited purpose of bringing an Act into operation and it should accordingly be in most precise language restricted to those purely machinery arrangements vitally requisite for that purpose; and the clause should always contain a maximum time limit of one seat after which the powers should lapse. If in the event the time limit proves too short which is unlikely the Government should then come back to parliament with one clause Bill to extend it.
Although the Henry VIII Clause was much frowned upon in England yet such clause continued to find place in number of statute enacted by British Parliament presumably to shield the drafts man''s inability to fore see all the difficulties that might arise in future in giving effect to that statute. The above reason for retention of such clause in the Statute find a support from Sir Thomss Corr''S Book ''concerning English Administrative law'' which is reproduced below:
Of all the types of orders which alter statutes, the so-called "Henry VIII, Clause" sometimes inserted in big and complicated Acts, has probably caused the greatest flutter in England. It enables the Minister by order to modify the Act itself so far as necessary for bringing it into operation. Anyone who will look to see what sort of orders have been made under this power will find them surprisingly innocuous. The device is partly a draftsman''s insurance policy, in case he has overlooked something, and is partly due to the immense body of local Acts in England creating special difficulties in particular areas. These local Acts are very hard to trace, and the draftsman could never be confident that he has examined them all in advance, the Henry VIII, Clause ought, of course to be effective for a short time only.
The rapid changes in the society in post independent era in India, brought more responsibility on State to meet the need and aspiration of people which are legitimately expected from a welfare State which resulted in multifarious activities by the State. This brought tremendous pressure on legislature to enact numerous laws. Seeing the pressure on legislature''s time, the technical character of modern law, need for flexibility and the amount of time which is being consumed in amending laws, the legislature though fit and expedient only to concentrate on essential leaving the details to be worked out by the executive by making such adaptation whether by was of modification, addition or omission. Of course without doing any violence to the essential feature and purposes of the Statute. This course was adopted by the legislature in order to implement the Statute more effectively and without waiting for amending process in the legislature which often took lot of time.
It is in this back ground, I proceed to examine the arguments of Sri P.G. Padia, learned Counsel appearing for the respondent is Civil Misc. Writ Petition No. 23642 of 1991, who contends that Section 33 of the Act is void as it permits the State Government to alter the provisions of the Act. It is also contended that the Section 33 of the Act is also void on the ground that the Removal of Difficulties Orders issued by the State Government have been made beyond the purview of the judicial review by the Court. On the other hand Sri Rakesh Dwivedi, learned Additional Advocate General, who appeared for the State Government, contended that the power given to the State Government to issue Removal of Difficulties Order is not uncontrolled or unfettered and in fact it is the conditional and restricted. He further argued that Section 33 of the Act does not suffer from vice or delegation of essential legislative function on the executive and in fact it is the valid piece of legislation.
The provision like Section 33 of the Act has not come for interpretation for the first time before this Court. In fact, it was subject matter of interpretation before English Court as. well as in India before the appex Court including in various High Courts. I, therefore, propose to refer the decisions of the Supreme Court on the provisions like Section 33 of the Act which empowers the State Government| to issue Removal of difficulties Orders for removing the difficulties in giving effect to the provisions of the Act.
In the case of the The Commissioner of Income Tax, Hyderabad Vs. Dewan Bahadur Ramgopal Mills Ltd., the validity of Order known as Taxation Laws (Part-B States) (Removal of Difficulties) Order (1950) issued u/s 12 of the Finance Act, 1950 was challenged. While examining the validity of the order the Supreme Court held as thus (Para 7 of AIR):
Furthermore, the true scope and effect of Section 12 seems to be that it is for the Central Government to determine if any difficulty of the nature indicated in the section has arisen and then to make such order, or give such direction, as appears to it to be necessary to remove the difficulty. Parliament has left the matter to the executive but that does not make the notification of 1956 bad. In Pandit Banarsi Das Bhanot Vs. The State of Madhya Pradesh and Others, . We said at page 435; "Now, the authorities are clear that it is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods and the like. "We are, therefore, of the view that the notification of 1856, was validly made u/s 12 and is not ultra vires the powers conferred on the Central Government by that section.
In the case of Kalawati Devi Harlalka Vs. Commissioner of Income Tax, West Bengal and Others, the constitutionality of Section 298 of the Income Tax Act, 1961 was challenged which empowered the Central Government to issue general or special order in case any difficulty arises in giving effect to the provisions of the Act. While upholding its validity the Supreme Court held as follows (at p. 168):
In Pandit Banarsi Das Bhanot Vs. The State of Madhya Pradesh and Others, "Now the authorities arc clear that it is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods, and the like. We are, therefore, of the view that the notification of 1958 was validly made u/s 12 and is not ultra vires the powers conferred on the Central Government by that section." It is true that in that case the attack was on the notification and not on the section itself, but it seems to us that the ratio given by the Court is appropriate to cover the validity of the section itself.
In the case of Madeva Upendra Sinai and Others Vs. Union of India (UOI) and Others, the Taxation Laws (Extension to Union Territories) (Removal of Difficulties) Order (2 of 1970) issued under Clause 7 of the Taxation Laws (Extension to Union Territories) Regulation (III of 1963) was challenged. Clause 7 of the Regulation empowers the Central Government to issue a general or special order in case any difficulty arises in giving effect to the provisions of the Act. The Supreme Court in this case while interpreting Clause 7 held as thus (Para 47 of AIR);
How let us turn to Clause (7) of the Regulation. It will be seen that the power given by it is not uncontrolled or unfettered. It is strictly circumscribed, arid its use is conditioned and restricted. The existence of, arising of a "difficulty" is the sine qua non for the exercise of the power. If this condition precedent is not satisfied as an objective fact, the power under this clause cannot be invoked at all. Again, the "difficulty" contemplated by the clause must be a difficulty arising in giving effect to the provisions of the Act and not a difficulty arising aliunde, or an extraneous difficulty. Further, the Central Government can exercise the power under the Clause only to the extent it is necessary for applying or giving effect to the Act etc, and no further. It may slightly tinker with the Act to round off angularities, and smoothen the joints or remove obscurities to make it workable, but it cannot change, disfigure or do violence to the basic structure and primary features of the Act. In no case, can it, under the guise of removing a difficulty, change the scheme and essential provisions of the Act.
In the case of Maharana Mills Pvt. Ltd. Vs. Income Tax Tribunal, Ahmedabad and Others, the Supreme Court approved the earlier decision of Supreme Court rendered in the case of The Commissioner of Income Tax, Hyderabad Vs. Dewan Bahadur Ramgopal Mills Ltd., .
In the case of Bengal Iron Corporation and another Vs. Commercial Tax Officer and others, the validity of Section 42 of the Andhra Pradesh General Sales Tax Act, which authorised the State Government to issue orders as appear to them to be necessary or expedient for removing the difficulty, in case any difficulty arises in giving effect to the provisions of the Act was upheld.
The analysis of the aforesaid decisions would show that the provision like Section 33 of the Act, which provides that the State Government for the purposes of removing any difficulty, by a notified order, direct the provisions of the Act shall have effect subject to such adaptation whether by modification, addition or omission as it may deem necessary or expedient, is not uncontrolled or unfettered power. In fact such power conferred upon the Government is restricted and has, to be exercised in consonance with the essential feature of the Act. It may be emphasised that such an order is not permitted to violate the basic structure of the provisions of the Act and further it could be only issued when there is real difficulty arises in giving effect to the provisions of the Act.
Learned Counsel for the respondents urged that Section 33 of the Act permits adaptation whether by way of modification, addition or omission which in fact delegation of essential legislative function on the State Government. It is true that if the argument of learned Counsel for the respondents is taken literally it may appear that the section gives unfettered power of modifying and amending the Act but such interpretation has not been accepted by the Courts. In Black''s law Dictionary, Vth, Edition, "adapted" means "capable of use", has been made fit by alteration." Thus by adaptation the essential features of the Act are preserved and this does not amount to conferment of essential legislation function on the State Government, Similarly the word "modification" also has restricted meaning. The power to modify the Act is controlled and restricted. The Act can be modified to the extent only for making the enactment suitable for giving effect to as observed by the Supreme Court in the case of Madeva Upendra Sinai and Others Vs. Union of India (UOI) and Others, that it may slightly tinker with the Act to round off angularities, and smoothen the joints or remove minor obscurities to make it workable. The power to modify the Act does not cover any amendment in essential features of the Act or object of the Act. Further the section does not give any discretionary power to the State Government to modify or amend the Act or change the policy contain in the Act. In the case of Lachmi Narain and Others Vs. Union of India (UOI) and Others, the provision empowering the Government to modify the Act by an order came for interpretation before the Supreme Court. Their Lordships held as thus (at p. 725, Para 60 of AIR):
We must, therefore, confine the scope of the words restrictions and modifications about to alterations of such a character which keep the in built policy essence and substance of the enactment sought to be extended in fact and introduce only such peripheral or insubstantial changes which are appropriate and necessary to adapt and adjust it to the local condition of the Union Territory.
There are number of decisions of the Supreme Court on this point which I need not refer Suffice it is to say that the consistent view is that the power conferred on the executive to modify the Act is only to the extent that such modification shall not affect the object of the Act or essential features or bring any essential change in the Act. It is true where a modification affects the radical change in the basic structure or object of the Act no doubt such power could not be delegated to the executive and such delegation of power then would be ultra vires. Section 33(1) & (2) of the Act does not permit the State Government to change the basic structure of the Act and, therefore, such power to modify the Act is not ultra vires or suffers from vice of delegation of essential legislative function on the executive.
The validity of Section 33 of the Act can be examine from another angle also. A reading of Section 33 would show that the power conferred to the State Government to adopt whether by way of modification, addition or omission is not unrestricted and in fact is a controlled one. Section 33 embodies several safe guards in the matter of issuing Removal of Difficulties Order by the State Government. The first safeguard is that the has been given to the State Government to issue such an order only for removing any difficulty which might have come in the way of State Government in giving effect to the provisions of the Act. The existence of difficulty is sine quo non for exercises of power under Sections 33 of the Act. The existence of difficulties is not depended upon the subjection opinion of the State Government but objectively it has to be demonstrated that there are difficulties in the way of giving effect to the provisions of the Act which has necessitated to issue the Removal of Difficulties Orders.
The second safeguard is born-out from Section 33 itself is that the power to issue the Removal of Difficulties Order can be exercised only when it is necessary or expedient. The meaning of word ''expedient'' in Black''s Law Dictionary, Vth Edition is suitable or appropriate''. Thus the power of the State Government to issue Removal of Difficulties order can only be exercised when it is appropriate and necessary.
The third safeguard provided in that if the order is made under Sub-section (1) of Section 33 the same has to be laid before the House of Legislature. In view of the aforesaid discussions, I am of opinion that the power given to the executive to adopt whether by way of modification, addition or omission is not akin to the power to amend law as to deface the basic structure of the Act but is a power conferred to the executive (sic) on the Parliament or the Legislature, Learned Counsel Sarvsri R.G. Padia & R.C. Shukla strongly relied upon the decision of Supreme Court in the case of Jalan Trading Co. (Private Ltd.) Vs. Mill Mazdoor Union, which is the sheet anchor of their argument. Although the decision of Supreme Court in the case of Jalan Trading Co. (supra) is not overruled but consistently it has been distinguished on the ground that Section 37 of the Payment of Bonus Act authorised the Government to determine for itself what the purposes of the Act were and to make provisions for removal of doubts and difficulties and secondly the power to remove the doubts and difficulties by altering the purposes of the Act would amount to exercise of legislative authority which could not be delegated lo the executive. In the present case Section 33 of the Act does not empower the State Government to determine for itself what are the purposes of the Act at all. I am, therefore, of the view that learned Counsel do not derive any assistance from the decision in the case of Jalan Trading Co. AIR 1067 SC 691 (supra). In fact it is distinguishable. Thus, in view of the aforesaid discussions 1 am of view that Section 33(1) & (2) of the Act does not confer on the State Government essential legislative function. In fact Section 33(1) and (2) is a valid piece of legislation.
Sri R. G. Padia, learned Counsel for the respondent then referred to Sub-section (3) of Section 33 of the Act which provides that no order issued under Sub-section (1) of Section 33 shall be called in question in any Court on the ground that no difficulty existed or required to be removed. On the strength of this Sub-section (3) of Section 33 it was argued that since Sub-section (3) of Section 33 debars the judicial review of the order issued under Sub-section (1) of Section 33 on the ground that no difficulty existed or required to be removed and as such the whole section is void. Learned Counsel Sri R.C. Padia strongly relied upon the decision of Supreme Court in the case of Jalan Trading Co. (Private Ltd.) Vs. Mill Mazdoor Union, . Sub-section (3) of Section 33 of the Act is in the following terms:
No order in Sub-section (1) shall be called in question in any court on the ground that no difficulty as is referred to in Sub-Section (1) existed or required to be removed.
It is true that existence of difficulty in giving effect to the provisions of the Act is condition precedent for issuing the Removal of Difficulties Order u/s 33 of the Act. The arising of difficulty is not a matter of subjective satisfaction of the Government and it has to he demonstrated objectively. Sub-section (3) of Section 33 prohibits the judicial review of the existence of difficulty in issuing the order under Sub-section (1) of Section 33 of the Act. In the case of Jalan Trading Co. (Private Ltd.) Vs. Mill Mazdoor Union, Section 37 of the Payment of Bonus Act, 1965 which was in following terms was struck down by the Supreme Court:
Power to remove difficulties.-- If any difficulty or doubt arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provision, not inconsistent with the purposes of this Act as appears to it to be necessary or expedient for the removal of the difficulty or doubt and the order of the Central Government, in such cases shall be final.
The decision of Supreme Court in the case of Jalan Trading Co. (Private Ltd.) Vs. Mill Mazdoor Union, although is not overruled by any subsequent decision of Supreme Court but has been explained in later decisions in Gammon India Ltd. and Others Vs. Union of India (UOI) and Others, and in the case of Bengal Iron Corporation and another Vs. Commercial Tax Officer and others, , by holding that the decision in Jalan Trading Co. (Private Ltd.) Vs. Mill Mazdoor Union, was influenced by the words occurring at the end of Section 37 of the Payment of Bonus Act to the effect that the direction of the Government issued thereunder was final. Since existence of difficulty is the sine qua non for issuing an order u/s 33 of the Act no such provision like Sub-section (3) of Section 33 of the Act can be enacted as to debar the judicial review by the Court in view of decision of Supreme Court in Jalan Trading Co. (Private Ltd.) Vs. Mill Mazdoor Union, as explained in Gammon India Ltd., 1974 Lab IC 707 (supra) and Iron Corporation (supra) Thus, Sub-section (3) of Section 33 of the Act can be struck down on the ground that it debars the judicial review of order by the Court, However, I refrain to strike down Sub-section (3) of Section 33 of the Act on the grounds enumerated hereinafter. Firstly, Sub-section (3) of Section 33 does not debar the judicial review of order the High Court while exercising the power under Article 226 of the Constitution on the ground that no difficulty was in existence when the order was issued. Article 226 of the Constitution is a constitutional remedy and no act of Legislature can prohibit the judicial review of order by the High Court and it fact also it does not do so. Secondly, Sub-section (3) of Section 33 of the Act is severable from Sub-section (1) of Section 33 of the Act and even if it is struck down, the power to issue of Removal of Difficulties Order with the Government remains. And, thirdly, a provision of an Act ordinarily should not be struck down unless it comes in the way of deciding a matter. Since, Sub-section (3) of Section 33 of the Act does not prohibit the judicial review of the Removal of Difficulties Order by the High Court while exercising the constitutional power under Article 226 of the Constitution, I am not inclined to strike down Sub-section (3) of Section 33 of the Act and proceed to decide the validity of various Removal of Difficulties Orders issued by the State Government under Sub-section (1) of Section 33 of the Act.
Question No. (b).
If the answer to question No. (a) is in negative, whether Removal of Difficulties Orders published on 31st July, 1981, Removal of Difficulties (Second) Order published on 11th September, 1981, and Removal of Difficulties (Third) Order published on 30th January, 1982 issued by the Government tend to amend, scheme and essential features of the Act and as such are ultra vires the provisions of Section 33 of the Act?
In this respect learned Counsel for the respondents contended that the provisions of the Act have been made subordinate to the Orders issued by the State Government u/s 33 of the Act inasmuch as the provisions of the Removal of Difficulties Order override the provisions of the Act and as such are ultra vires. In support of his argument learned Counsel referred to the statement and object stated in the Removal of Difficulties Orders issued by the State Government. For appreciating the argument of the learned Counsel it is necessary to extract the relevant portions of the objects and reasons stated in the Removal of Difficulties Older, which is in following terms:
And whereas the establishment of the Commission and the Selection Boards is likely to take some time and even after the establishment of-the said Commission and Boards, it is not possible to make selection of the teachers for the first few months:
And whereas number of vacancies in the posts of teachers in various institutions recognised under the Intermediate Education Act, 1921, exist and the failure or delay in filling up of such vacancies is likely to create difficulties:
Now, therefore, in exercise of the powers u/s 33 of the Uttar Pradesh Secondary Education Services Commission and Selection Boards Ordinance, 1981 (U.P. Ordinance, No. 8 of 1981) the Governor is pleased to direct that the provisions of the said Ordinance shall have effect subject to the provisions of the following older:
A perusal of the statement and reasons discloses (hat in the last paragraph which cite the power under which the Removal of Difficulties Order has been issued provides that the provisions of the Ordinance (Act) shall have effect subject to the provisions of the order. If the argument of the learned Counsel is taken literally it may appear that the Act has been subjected to the Removal of Difficulties Order issued u/s 33 of the Act which is not permissible. But the question is as to whether such a recital in any statement and object is evidence of the fact that the provisions of the Removal of Difficulties Order make the Act subordinate to it. As regards the propriety of the reference to the statement of objects and reasons in statute or in subordinate legislation is concerned it only explains the reasons which impelled the framer of such subordinate legislation but that statement may not correspond to the provisions of the subordinate legislation or the Removal of Difficulties Order issued under the Act. It has been invariably seen that the objects and reasons so stated in statute or subordinate legislation or Removal of Difficulties Order or altogether lost sight when ultimately the subordinate legislation attains finality. Thus, the intention of the framer of the subordinate legislation does not represent what are the provisions of the subordinate legislation. Although it is permissible to consider the statement of the objects and reasons for the purposes of interpreting the provisions of the Act or for the discovering the background of a particular statute but it cannot be taken as evidence of the fact that the provisions of the Removal of Difficulties Order really make the Act subordinate to it. We, therefore, have to see the provisions of the Act and various Removal of Difficulties Orders issued under the Act as to find out whether the Act has been subjected to the Removal of Difficulties Order or not.
The essential features of the Act are that Section 3 of the Act provides for the establishment of the Commission; Section 10 deals with the procedure of selection of the teachers; Section 11 requires that the Commission shall, after the notification of vacancy select the candidates; Section 16 provides that subject to the provisions of Sections 18, 21B, 21C, 21D, 33 and 33A of the Act every appointment of teachers shall be made by the Management only on recommendations pf the Commission. Sub-section (2) of Section 16 provides that every appointment of a teacher, in contravention of the provisions of Sub-section (1) of Section 16 is void. Section 18 of the Act provides for ad hoc appointment of teachers in the institutions till the availability of the selected candidates by the Commission. Since the Commission was not established when the Ordinance or the Act was enforced and even after the establishment of the Commission it was not possible for the Commission to make available teachers for all the institutions as the Commission has necessarily to follow an elaborate procedure which is both time consuming and cumbersome and, therefore, in order to solve the difficulty the Government issued the Removal of Difficulties Order, which provided for appointment of teachers in the institutions either by promotion or direct recruitment, purely on ad hoc basis. The provisions of the Removal of Difficulties Order do not make the Act subordinate to it. In this connection, it may also be noticed that the provisions of the Removal of Difficulties Order do not override the provisions of the Act at all. Section 18 itself provides for appointment of teachers, purely on ad hoc basis. Even if there would have no such provision in the Act, in view of the difficulty, it was open to the Government to issue such an order u/s 33 of the Act. providing for ad hoc appointment of teachers in the institutions, either by promotion of direct recruitment in order to provide teachers to the institutions in the State of Uttar Pradesh. The provisions contained in the Removal of Difficulties Order do not provide for substantive appointments. By ad term appointment no right is conferred in favour of such teacher. In fact it is a short term appointment for a period till the duly selected teacher joins the post. In fact such provisions in an order in the words of Supreme Court Madeva Upendra Sinai and Others Vs. Union of India (UOI) and Others, slightly tinker with the Act to round of angularities and smoothen then the joints or remove minor obscurities to make it workable. In the case of Umesh Chandra v. District Inspector of Schols 1987 UPLBEC 105, it was held as thus:
The power conferred on the management to fill in substantive vacancies on ad hoc basis following the norms laid in the Removal of Difficulties Orders is, it will be noticed, in addition or supplemental to the power conferred by Section 18 of the Act. This flows clearly from the purpose which Section 33 of the Act is designed to subserve in its terms. The Removal of Difficulties Orders occupy the field had provide the requisite mechanism for so long as the Act in all its relevant provisions cannot be implemented. True these in a sense amount to tinkering with what the Act lays down (including in (Section 18).
In view of this decision the provisions contained in the Removal of Difficulties Orders empowering the management to appoint teachers on ad hoc basis either by promotion or direct recruitment in the manner laid down therein can be validly issued u/s 33 of the Act independently of Section 18 of the Act. I am, therefore, of view that neither provisions of the Removal of Difficulties Orders make the provisions of the Act subordinate to it nor the Removal of Difficulties Order override the provisions of the Act.
It was then urged that in fact no difficulty existed when these Removal of Difficulties Orders were issued and at present no difficulty is in existence in giving effect to the provisions of the Act and as such various Removal of Difficulties Outers issued by the State Government are void. It is true, as held in the case of Madeva Upendra Sinai and Others Vs. Union of India (UOI) and Others, that the existence of arising of a ''difficulty'' is the sine qua non for the exercise of the power and if this condition precedent is not satisfied as an objective fact, the power under this clause cannot be invoked at all Again, the difficulty contemplated by the clause must be a difficulty arising in giving effect to the provisions of the Act and not the difficulty arising aliunde or an extraneous difficulty. In view of this decision, the existence of difficulty in giving effect to the provisions of the Act is the condition precedent for the exercise of the power but in the present writ petitions, the allegation that there was no difficulty in existence when these Removal of Difficulties Orders were issued, has not been pleaded and as such the State has no opportunity to admit or deny the said allegation. As stated earlier the Act provides lot substantive appointment of teachers or Principals against the substantive vacancies to be selected by the Commission. At the time when the Ordinance and subsequently the Act was enforced, neither the Commission nor the Boards were established. No doubt after some time the Commission was established but as the Commission has necessarily to follow an collaborate procedure to finalise the selection of the candidates while vacancies in the large number of institutions in the State continue to multiply. In fact the Commission was not in position to send the required number of teachers in the institutions. Had this Removal of Difficulties Orders not been issued, the teaching in the institutions would have paralysed. I am, therefore, of the opinion that there was a difficulty, which is still continuing, when these Removal of Difficulties Orders were issued by the State Government u/s 33 of the Act.
Question No.(c)
What would be the criteria and procedure for ad hoc appointment of a teacher or Principal either under Removal of Difficulties Order or u/s 18 of the U.P. Act, No. 5 of l982?
Question No. (d)
Whether any approval or prior approval of the District Inspector of Schools or Regional Inspectress of Girls Schools, as the case may be, is necessary for making ad hoc appointment of a teacher or Principal either under Removal of Difficulties Order or u/s 18 of the Act?
Since both the questions are overlapping, I propose to answer these questions together.
As noticed earlier the Act which replaced the U.P. Ordinance No, 8 of 1981, came into force w.e.f. 14-7-81. The object and purpose of the Act is to provide teachers selected through the instrumentality of Commission or the Board as the case may be in the institutions with a view to raise the standard of education. However Section 18 of the Act provides for appointment of teachers in the institutions purely on ad hoc basis on certain condition which I shall notice at appropriate place. Since after coming into force of the Ordinance which was subsequently replaced by the Act, the Commission or the Board was not constituted, therefore, certain difficulties arose in providing teachers who were urgently required in the institutions and as such the State Government by a notification issued First Removal of Difficulties Order by notification dated 31-7-81. This First Removal of Difficulties Order provides for ad hoc appointment of teachers either by direct recruitment or by promotion till the appointment of duly selected teachers or Principals by the Commission. By a notification dated 11-9-1981 the State Government issued a Second Removal of Difficulties Order. This Second Removal of Difficulties Order provides for appointment against the short term vacancies. Subsequently, by a notification dated 30-1-82, Government issued Third Removal of Difficulties Order. By this order amendments were made in certain paragraphs of the First Removal of Difficulties Order.
In short it was made open to the management of the institutions to make ad hoc appointment of teachers against substantive vacancies either by promotion or by direct recruitment after following the procedure laid down in the Removal of Difficulties Order issued u/s 33 of the Act by the State Government. Subsequently by U.P. Act No. 24 of 1992 Section 18 of the Act was amended and was substituted by new Section 18. This amendment came into force on 14-7-1992. The substituted Section 18 provided the manner and method of ad hoc appointment of a teacher in the institutions either by promotion or direct recruitment. A Selection Committee for selection of candidates for ad hoc appointment was required to be constituted consisting of District Inspector of Schools, Basic Shiksha Adhikari and the District Inspectress of Girls Schools. In pith and substance the only departure from earlier procedure was that the ad hoc appointment by direct recruitment was required to be done by a Selection Committee consisting of three officials. Thereafter U.P. Legislatures passed an Act known as U.P. Secondary Education Service Commission and Selection Board Amendment Act; 1992 being U.P. Act No. 1 of 1993. This Act was published in the U.P Gazette on 6th January, 1993. Sub-section (2) of Section 1 of this Act provided that the Act shall come into force on such date as the State Government may by notification appoint in this behalf and different dates may be appointed for different provisions. This amendment Act brought several amendments in the Principal Act. Since I am not concerned with all the provisions of this amendment Act, I will notice only those provisions which are relevant for the purpose of my answer to questions referred. By Section 11 of U.P. Act No. 1 of 1993 the reference of Section 18 occurring in Section 16 of the Act was omitted and Section 13 of the amending Act further provides that Section 18 of the Principal Act shall be omitted. The State Government by a notification dated 7-8-93 in exercise of its power under Sub-section (2) of Section 1 of U.P. Act No. 1 of 1993 appointed 7-8-93 as the date on which the said Act except Section 13 shall come into force. The result of this notification is that although Section 18 is still continuing, Section 16 is not subject, to the provisions of Section 18 of the Principal Act. Thus any appointment made u/s 18 is void under Sub-section (2) of Section 16 of the Act. Thus no ad hoc appointment can now be made u/s 18 of the Act which although omitted by U.P. Act No. 1 of 1993 but still continuing.
In view of these different legislative changes brought in the Act, it is necessary to examine the power of ad hoc appointment either by direct recruitment or by promotion and the method and manner of such appointment at different point of legislative changes in the Act. This period can be split in three stages: (1) period beginning from 31st July, 1981 to 13-7-92 after which date U.P. Act No. 24 of 1992 came into force; (2) period beginning from 14-7-92 to 6th of August, 1993; and (3) period beginning from 7th of August, 1993 when U.P. Act No. 1 of 1993 enforced up till date (hereinafter referred to as first, second and third stage respectively).
First Stage:
First, I will take up and consider the power and procedure of ad hoc appointment of teacher or Principal either by promotion or by direct recruitment during the period beginning from 31st July, 1981 till 13th July, 1992 after which date U.P. Act No. 24 of 1992 came into force.
As stated earlier the purpose of the Act is to appoint teachers in the institutions to be selected by the Commission or the Board as the case may be, Section 16 of the Act provides that notwithstanding anything to the contrary contained in the Intermediate Education Act but subject to the provisions of Sections 18, 21B, 21C, 21D, 33 and 33A of the Act, every appointment of teacher shall on or after 10th July, 1991 be made by the management only on the recommendation of the Commission. Its Sub-section (2) further provides that every appointment of a teacher in contravention of the provisions of Sub-section (1) shall be void. However, this Section 16 is subject to Section l8 of the Act. Original Section 18 provided that where the management has notified a vacancy to the Commission and (a) the Commission has failed to recommend the name of any: suitably candidate, or (b) the post of such teacher has actually remained vacant for more than two months, then the Manager may appoint by direct recruitment or promotion a teacher on purely ad hoc basis from amongst the person possessing qualification prescribed under the Intermediate Education ACT OR THE regulation made thereunder. However this| Section 18 did not provide the procedure to be followed for appointment of ad hoc teacher either by promotion or by direct recruitment Since the Commission or the Board was not constituted, therefore, the difficulty arose in making available teachers in the institutions and as such the Government by notification dated 31-7-91, 11th Sept. 91 and 30th Jan., 1992 issued separately three Removal of Difficulties Orders known as First, Second and Third Removal of Difficulties Orders.
Paragraph 2 of the First Removal of Difficulties Order provides as follows:
The Management of an institution may appoint by promotion or by direct recruitment a teacher on purely ad hoc basis in accordance with the provisions of this order in the case of substantive vacancy caused by death, retirement, resignation or otherwise.
Paragraph 3 of the First Removal of Difficulties Order provides as follows:
Every promotion of an ad hoc teacher under para 2 shall cease to have effect when a candidate recommended by the Commission or the Board as the case may be join the post.
Paragraph 4 of the First Removal of Difficulties Order provides:
Every vacancy in the post of head of institution may be filled by promotion (a) in the case of an Intermediate College by the Senior most teacher of the institution in the lecturer''s grade, (b) in the case of High Schools raised to the level of Intermediate College by the Head Master of such High School, and (c) in the case of Junior High School raised to the level of High School by the Head Master of such Junior High School.
Sub-Paragraph (2) of Paragraph 4 of the Order further provides that every vacancy in the post of teacher in the lecturers grade may be filled by promotion by the senior most teacher of the institution in the trained graduate (grade).
Sub-Paragraphs (3) and (4) of Paragraph 4 of the Order are not relevant as we are informed that C.T. Grade has now been abolished.
Paragraph 5 of the First Removal of Difficulties Order provides that where any vacancy cannot be filled by promotion under Paragraph 4 of the Order, same may be filled by direct recruitment in accordance with the procedure laid down in Clauses 2 to 5 of Paragraph 5 of the order.
Second Removal of Difficulties Order provides for ad hoc appointment against the short term vacancy in the posts of teachers caused by grant of leave to him or on account of his suspension duly approved by the District Inspector of Schools or otherwise. Thus, these provisions show that Section 18 and First Removal of Difficulties Order, both independently empower the Management of institutions to make ad hoc appointment of teachers in the institutions. But Section 18 does not provide the method and manner of such appointment. Whereas Removal of Difficulties Orders while empowering the management of the institutions to appoint teachers on ad hoc basis further lay down the procedure of such ad hoc appointment of teachers. In fact Section 18 as well as First Removal of Difficulties Order operate in one field and are part of one integrated scheme, namely for providing ad hoc teachers who are urgently required in the institutions. Thus ad hoc appointment of teacher either u/s 18 of the Act or under the provisions of First Removal of Difficulties Order has to be done in the manner laid down in Paragraphs 4 and 5 of the First Removal of Difficulties Order, 1981.
Ad Hoc Appointment By Promotion.
When a substantive vacancy has been notified to the Commission and duly selected teacher is not available for appointment controversy has arisen as to whether the management is required to appoint teacher either by direct recruitment or by promotion. The power of ad hoc appointment either by direct recruitment or by promotion can be exercised only when the management has notified the substantive vacancy to the Commission and the Commission has failed to recommend the name of suitable candidate within one year from the date of such notification or the posts of teacher has actually remained vacant for more than two months. Thus one of the two conditions is sine qua non for enabling the management to exercise the power to appoint a teacher on ad hoc basis, either by promotion or by direct recruitment in the institution. If the condition is absent, such a power to appoint on ad hoc basis either by promotion or direct recruitment is not available to the management of the institution. In case the pre-condition is found to be present, the management is first required to fill up the substantive vacancy by promoting on ad hoc basis front amongst the senior most teachers of the institution. Paragraph 4 of the First Removal of Difficulties Order provides that every vacancy in the posts of teacher in lecturer grade shall be filled up by promotion of the senior most teachers in the institution in the trained graduate. Similarly, every vacancy in the post of teacher in the trained graduate (grade) is to be filled by promotion by the senior most teacher of the institution from the trained undergraduate grade C.T. (grade) (Now we are not concerned with it since it is reported abolished).
Paragraph 5 of the First Removal of Difficulties Order provides that where any vacancy cannot be filled by promotion under paragraph 4 of the Order, same may be filled by direct recruitment. Thus, it is mandatory on the part of the Management to first fill up the vacancy by promotion on the basis of seniority alone. This method has to be resorted to as the teachers are available in the institution and any other method of recruitment may cause disturbance in teaching of the institution which may affect the career of students. Another reason why the vacancy has to be filled by ad hoc appointment by promotion is that it is a short term appointment in the sense that, shortly a duly selected teacher would be available for appointment against the said vacancy. So long the posts can be filled under paragraph 4 of the Order by promotion, it is not open to the Management to take resort to the power to appoint ad hoc teacher by direct recruitment under paragraph 5 of the First Removal of Difficulties Order. In Charu Chandra Tiwari v. District Inspector of Schools (1990) 1 UPLBEC 160 : 1990 Lab IC 129 it was held that the Management has to fill the vacancy by ad hoc promotion of a senior most teacher of the same institution qualified for such appointment and ad hoc appointment through direct recruitment is permissible only in case no such teacher in the institution is available. This according to me lays down the correct view of law. I am, therefore, of the view that the existing substantive vacancy which has been notified to the Commission and the condition provided u/s 18 of the Act is present, the vacancy has to be filled up firstly by promotion from amongst senior most of teacher in next lower grade.
There is another aspect of the matter as to whether any approval or prior approval of the District Inspector of Schools is required for ad hoc appointment by promotion or not. Neither the Act nor the provisions of Removal of Difficulties Order provide for such prior approval or approval by the District Inspector of Schools in case of such ad hoc appointment by promotion. There is another reason for not taking approval of the District Inspector of Schools of such appointment because teacher working in the institution is already approved and thus no further or subsequent approval is needed for it and only intimation to the District Inspect for of Schools is required to be given regarding such appointment. See Ram Kripal Pandey v. District Inspector of Schools, Faizabad (1989) 2 UPLBEC 98. However, if it is found that senior most teacher has not been promoted, adequate power is given to the District Inspector of Schools under the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as Payment of Salary Act) to make enquiry in this respect. If found illegal, it goes without saying that he can stop payment of salary to such promotee.
Ad Hoc Appointment Of Teachers By Direct Recruitment:
It has already been noticed that Section 18 of the Principal Act provides for power to appoint a teacher purely on ad hoc basis either by promotion or by direct recruitment against the substantive vacancy in the institution when the condition precedent for exercise of powers exist namely that the Management has notified the said, vacancy to the Commission in accordance with the provisions of the Act and the Commission has failed to recommend the name of any suitable candidate for being appointed as teacher within one year from the date of such notification of the post of such teacher has actually remained vacant for more than two months. However, since the State Government was alive to the situation that the establishment of the Commission may take long time and even after it is established, it may take long time to make available the required teacher in the institution and as such issued three Removal of Difficulties Orders namely Removal of Difficulties ORDER dated 11-9-81, Removal of Difficulties Order dated 30-1-1982 and Removal of Difficulties Order dated 14-4-1982 In fact these Removal of Difficulties Orders were issued to remove the difficulties coming in the way of a Management in running the institution in absence of teachers. This power to appoint ad hoc teachers by direct recruitment thus, is available only when pre-conditions mentioned in Section 18 of the Act are satisfied, secondly the vacancy is substantive vacancy and thirdly, the vacancy could not be filled by promotion. Neither the Act nor the Removal of Difficulties Order define vacancy. However, the vacancy has been defined in Rule 2(11M) (sic) of U.P. Secondary Education Services Commission Rules, 1983. ''Vacancy'' means a vacancy arising out as a result of death, retirement, resignation, termination, dismissal, creation of new post or appointment/promotion of the incumbent to any higher post in substantive capacity. Thus, both u/s 18 of the Act and under the Removal of Difficulties Order the Management of an institution is empowered to make ad hoc appointment by, direct recruitment, in the manner laid down in paragraph 5 of the First Removal of Difficulties Order only when such vacancy cannot be filled by promotion and for a period till a candidate duly selected by the Commission joins the post. As noticed earlier both Section 18 of the Act and the provisions of First Removal of Difficulties Order provide for ad hoc appointment of teacher in the institution, later further providing for method and manner of such appointments are part of one scheme. Scheme being provision for ad hoc appointment of teacher in the absence of duly selected teachers by the Commission. The provisions may be two but the power to appoint is one and the same and, therefore, the provisions contained in Section 18 and Removal of Difficulties Order are to be harmonised. it is, therefore, not correct to say that appointment of a teacher on ad hoc basis is either u/s 18 of the Act or under the Removal of Difficulties Order. Thus if contingency arises for ad hoc appointment of teacher by direct recruitment the procedure provided under the First Removal of Difficulties Order has to be followed. Paragraph 5 of she First Removal of Difficulties Order provides that the management shall, as soon as may be INFORM the District Inspector of Schools about the details of vacancy and the District Inspector of Schools shall invite application from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh. Subparagraph (3) of paragraph 5 further provides that every such application shall be addressed to the District Inspector of Schools. Subparagraph (4) of paragraph 5 of the Removal of Difficulties Order provides that the District Inspector of Schools shall cause the best candidate selected on the basis of quality point specified in Appendix. The compilation of quality point may be done by the Retired Government Gazetted Officer, in the personal supervision of the Inspector, Paragraph 6 of the First Removal of Difficulties Order further provides for appointment of such teacher under paragraph 5 who shall possess such essential qualification as laid down in Appendix-A referred to in the Regulation 1 of Chapter 11 of the Regulations made in the Intermediate Education Act.
41 In view of these provisions the ad hoc appointment of a teacher by direct recruitment can be resorted to only when the condition precedent for exercise of such powers as stated in paragraph 18 of the Act are present and only in the manner provided for in paragraph 5 of the Removal of Difficulties Order. This view of mine finds support in a number of decisions namely, Suresh Chandra v. District Inspector of Schools, Saharanpur (1991) 2 UPLBEC 1079 and Lalta Prasad Yadav v. State of U.P. 1988 UPLBC 345 When a teacher is appointment on ad hoc basis is in accordance with the paragraph 5 of the first Removal of difficulties Order there is further no requirement of approval or prior approval of the District Inspector of Schools for such appointment. However it goes, without saying that if a management without following the procedure indicated above makes an ad hoc appointment the District, Inspector of Schools possess general power under the Payment of Salaries Act to stop payment of salary to such teachers.
Ad Hoc Appointment of Teacher Against Short Term Vacancies:
Neither Section 18 of the Principal Act nor the First Removal of Difficulties Order envisaged for ad hoc appointment against the short term vacancy. As earlier noticed, Section 18 and the First Removal of Difficulties Order provided for ad hoc appointment either by promotion by direct recruitment only against substantive vacancy which has been notified to the Commission. Since short term vacancy is not a substantive vacancy, the state Government by notification dated 7-9-1981 came out with a Second Removal of Difficulties Order providing procedure for filling the short term vacancies. The short vacancy as envisaged in the Second Removal of Difficulties Order which arises on account of teachers going on leave granted to him or on account of suspension of a teacher pending disciplinary proceedings which is duly approved by the District Inspector of Schools. The power to appoint teachers either by promotion or by direct recruitment under the Second Removal of Difficulties Order is open only against short term vacancies and not against substantive vacancy. Paragraph 2 of the Second Removal of Difficulties Order provides that if short term vacancy in the post of teacher caused by grunt of leave to him or on account of his suspension duly approved by the District Inspector of Schools or other wise arises the same is required to be filled by the management of the institution by promotion of permanent senior most teacher of the institution from lower grade. The Management is further required to immediately inform the District Inspector of Schools of such promotion along with particulars of the teaches who is promoted. Thus if the short term vacancy arises the said vacancy has to be filled in by the promotion from amongst the permanent senior most teacher of the institution in the next lower grade and such promotion has to be intimated to the District Inspector of Schools. Paragraph 2 of the Order further-provides that the short term vacancy, if cannot be filled by promotion due to non-availability of a teacher in the lower grade possessing the prescribed minimum qualification, the same may be filled by the direct recruitment in the manner laid down in sub-paragraph (3) of paragraph of the Order which provides that the management shall intimate the vacancy to the District Inspector of Schools and shall also immediately notify the same on the notice board of the institution requiring the candidate to apply to the Manager of the institution along with particulars. The advertisement of short term vacancy on the notice board of the institution according to me, n fact no notice to the prospective eligible candidates as no prospective candidate is expected to visit each institution to see the notice board for finding out whether, any short term vacancy has been advertised. Since the payment of salary to the teachers appointed against the short term vacancy is the liability of the State Government, the advertisement of short term vacancy must conform to the requirement of Article 16(1) of the Constitution which prohibit the State from doing anything whether by making rule or by executive order which would deny equal opportunity to all the citizens. The provision contained in sub-paragraph (3) of paragraph 2 of the Second Removal of Difficulties Order which provides that the short term vacancy shall be notified on the notice board of the institution does not give equal opportunity to all the eligible candidates of the District, Region or the State to apply for consideration for the appointment against the said short term vacancy. Such kind of notice is an eye-wash for the requirement of Article 16 of the Constitution. This aspect can be examined from another angle. If the notice of short term vacancy, through the notice board of the institution is accepted, it will throw open the doors for manipulation and nepotism. A management of an institution may or may not notify the short term vacancy on the notice board of the institution and yet may show to the authority that such vacancy has been notified on the notice board of the institution and may process the application of its own candidate for the appointment against, the short term vacancy. 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 Newspapers 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. Thus, the procedure provided for notifying the short tern vacancy should be the same as contained in sub-paragraph (2) of paragraph 5 of the First Removal of Difficulties Order. Thereafter, the procedure provided in subparagraph (3) (i, ii, iii, iv) of paragraph 2 of the Second Removal of Difficulties Order has to be followed for making such appointment. As seen the procedure provided under subparagraph (3) of paragraph 2 of the Second Removal of Difficulties Order, the selection is required to be made on the basis of quality point marks specified in the Appendix to the First Removal of Difficulties Order. The name and particulars of the candidates as selected and other candidates along with quality point marks allotted to them as required to be forwarded by the Manager to the District Inspector of Schools for the prior approval. The District Inspector of Schools is under obligation to communicate his decision within seven days of submission of such particulars failing which the District Inspector of Schools is deemed to have given his approval. The duration of such ad hoc appointment is till the teacher who was on leave or under suspension joins the post or When the short term Vacancy otherwise ceases to exist. This ad hoc appointment by direct recruitment against short term vacancy can only be resorted only after it is found that the said vacancy cannot be filled in by promotion. This ad hoc appointment against the short term vacancy is not an appointment either u/s 18 of the Act or under the First Removal of Difficulties Order as the power and procedure provided for the ad hoc appointment against the short term vacancy is under the Second Removal of difficulties Order and further is not against the substantive vacancy. After the procedure Provided in paragraph 2 of the Second Order has gone through no further approval of the district Inspector of Schools is required for such appointment. However it has come to notice that sometimes the Management resort to unfair practice in case of such appointments. For that contingency there is adequate safeguard provided in the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971.
Ad Hoc Appointment Of Principal/Head Master Against The Vacancy In The Post Of Head Of Institution:
There has been a controversy in respect of as to what is the method and criteria for ad hoc appointment against the substantive vacancy in the post of head of institution. One line of decisions of this Court is that the ad hoc appointment against the substantive vacancy in the posts of Principal or the Head Master has to be made by promotion on the basis of seniority. Second line of cases are that the ad hoc appointment to the post of Principal or the Head Master as the case may be may be made on the basis of seniority subject to rejection of the unfit. The third line of cases are that the ad hoc appointment in the post of head of institution has to be done on the basis of direct recruitment. Section 18 does not provide the method and criteria for ad hoc appointment to the post of Principal or the Head Master as the case may be. However, the First Removal of Difficulties Order provides that very vacancy in the post of head of institution may be filled by promotion, in case of Intermediate College by the senior most teacher of the institution in the lecturers grade and in the case of High School by the Senior most teacher of the institution in the trained graduate L.T. Grade. Sarvasri R. Dwivedi and Shyam Narain, learned Counsel for the petitioner in the Writ Petition No. 18734 of 1991 contend that vacancy in the post of Principal in an Intermediate College has to be filled by senior most teacher in the lecturer�s grade. According to paragraph 4 of the First Removal of Difficulties Order the vacancy in the post of Institution is required to be filled in by promotion. In Charu Chandra Tiwari v. District Inspector of Schools (1990) 1 UPLBEC 160 : 1990 Lab 1C 129 Hon''ble Mr. Justice R.M. Sahai, as he then was, summed up the law thus:
From what has been stated above, it is clear that any vacancy whether substantive or Temporary which is to be filled by ad hoc selection has to be filled by promotion and in absence of availability of a candidate, by direct recruitment. There appears no rational basis to exclude this method from Section 18 of the Act empowering the Committee of Management to make direct appointment even though senior most teacher in the institution was available.
In the case of Km. Bandana Banerji v. Arya Kanya Pathshala Inter College (1990) 1 UPLBEC 116, it was held that the ad hoc appointment against the substantive vacancy in the post of Principal of the institution has to be made by promotion amongst senior most teacher. In Maya Saxena v. Committee of Management (1989) 1 UPLBEC 666, it is again held that, the senior most teacher is'''' entitled to be appointed on ad hoc basis on the post of Principal in case a substantive vacancy arises. In the case of Gauri Shanker Dubey v. District Inspector of Schools, Deoria (1992) 1 UPLBEC 158, it was held that a senior most teacher is required to be appointed as ad hoc Principal of the institution. This has been the consistent view of this Court in respect of ad hoc appointment of Principal in the institution. In the case of Mohd. Naim v. District Inspector of Schools 1992 All WC 528, a learned single Judge of this Court while agreeing with the view expressed in all these cases mentioned above, held that the ad hoc appointment in the post of head of institution should be made by promotion on the basis of seniority subject to rejection of the unfit. In the case of Tribhuwan Mishra v. District Inspector of Schools (1992) 1 UPLBEC 716, another learned single Judge of this Court held that the criteria for ad hoc appointment to the post of Principal is by promotion on the basis of seniority subject to rejection of the unfit. However, the learned single Judge in this case laid down the guidance as to when the senior most person can be overlooked for ad hoc appointment to the post of Principal. The third line of the view is that the Management is not bound to make ad hoc appointment by promotion from amongst the senior most teacher but it can make ad hoc appointment by direct recruitment. This view has been expressed in the case of Yogendra Prasad Chaturvedi v. Addl. Civil Judge 1985 UPLBEC 1531. According to learned Judge in the said case Removal of Difficulties Order merely deals with how an ad hoc appointment is to be made in certain contingency and the same cannot curtail the ambit or width of power available u/s 18(1)(b)of the Act. As noticed earlier Section 18 docs not provide in what manner the ad hoc appointment of the principal is to be made. While answering question No. (b) I have already dealt with in detail that the State Government u/s 33 of the Act can provide for ad hoc appointment of a teacher, or Principal in the institution as r the case may be, for removing the difficulties in implementing the Act. Since the ad hoc appointment is for a period till the appointment of duly selected candidate by the Commission, such provision in the Removal of Difficulties Order does not go against the abject and essential features of the Act. Paragraph 4 of the First Removal of Difficulties Order clearly provides that the ad hoc appointment to the post of Principal of institution may be made by promotion from amongst the senior most teachers in the lecturer''s grade. This provision is not repugnant to the scheme or essential feature of the Act. Since the appointment is for a limited period of time, it would be futile exercise if the procedure for direct recruitment has to be resorted and further the ad hoc appointment by promotion from amongst the senior most teacher is a healthy criterion for such appointment as it excludes the possibility of nepotism and arbitrariness, If for such temporary appointment any other view is taken, it will open the gate of arbitrariness and choosing and picking by the Management which would not be conducive to the interest of the institution. The appointment by promotion from amongst the senior most teacher is a healthy criterion and the same is also provided for in paragraph 4 of the First Removal of Difficulties Order, It was then urged by Sri G.P. Singh, Advocate that paragraph 4(1) ''uses the word ''may'' and not ''shall'' and, therefore, it is discretionary on the part of the Management either to fill the vacancy in the post of head of institution either by promotion or by direct recruitment as it desires. It is true the word used is ''may'' and not ''shall''. However, in order to find out whether use of word ''may'' is permissive and enabling or obligatory. If such a situation arises, one has to look at the object which vests this particular discretion in the Management. If the object is to confer a right to a particular person, then there would be a duty cast upon the person to whom the power is given to exercise it for the benefit of party to whom the right is given when required on this behalf in paragraph 5 a senior most teacher has been conferred a right to be promoted to the post of head of institution till the availability of duly selected candidate by the Commission. Thus the Management is ordinarily under obligation to exercise the power for benefit of such teacher.
Thus the seniority plays a dominant role in the matter of ad hoc appointment to the post of Principal/Head Master in the institution and ordinarily a senior most teacher in the lecturer grade is to be appointed by promotion to the post of Principal. However, there is another aspect of the matter that a principal is not only required to teach the students but in fact he has to run the institution. He is captain of the team. A Principal is entrusted to enormous administrative responsibilities and for that, only a person who is fit to discharge such function, deserves to be appointed. In the case of Mohd. Naim 1992 All WC 528 (supra) and in the ease of Tribhuwan Mishra v. District Inspector of Schools, Azamgarh two learned single Judges of this Court took the view that the criterion for ad hoc, appointment to the post of Principal is by promotion on the basis of seniority subject to rejection of the unfit. In view of the extra responsibilities entrusted to Principal, I am, therefore, of the view that the criterion for ad hoc, appointment to the post of Principal is by promotion keeping in view the seniority subject to rejection of the unfit.
The learned single Judge in the case of Tribhuwan Mishra 1992 (1) UPLBEC 716 (supra) has laid down several guideline as to when a senior most teacher in lecturer''s grade on L.T. grade as the case may be can be superseded. The guidelines laid down are given in the case of Tribhuwan Mishra (supra), are being reproduced below:
However, in order to minimise the possibility of arbitrariness I am of the opinion that the Management wishes to supersede the senior most teacher (who is qualified to be appointed Principal), it can only do so if (1) there are grave charges against him which are so serious that it will be wholly detrimental to the interest of the institution to appoint him ad hoc Principal, or (2) he suffers from such a serious physical disability that the cannot properly perform the function of Principal. In either case the senior most teacher must be given a show cause notice by the Management stating the charges against him (or the physical disability) and stating that it is proposed to supersede him. The hearing to be given be the Management need not be a personal hearing, but copies of any material sought to be relied upon (whether contained in the service book or elsewhere) must he supplied in advance so as to enable the teacher to give his reply explanation. After considering the teacher''s reply the Management can supersede him but only by a reasoned order, and such reasons can be scrutinised by the High Court under Article 226 of the Constitution. If the second seniormost teacher is also sought to be superseded, then the same procedure must be followed in respect of him also, and so on.
If the vacancy occurs due to retirement, or a resignation to take effect after two months, then this entire process should begin by giving a show cause notice at least two months prior to the occurrence of the vacancy and it should be completed within two months. In other circumstances the show cause notice must be given as soon as the vacancy occurs, or its future occurrence becomes known, and the process must be completed within two months for which period the second senior most teacher can be allowed to officiate.
These guidelines, according to me, is a correct guideline in order to keep check on the Management while superseding a seniormost teacher on the ground that he is unfit. Besides these guidelines, one thing may be kept in mind that the rejection of unfit should not be utilised by the Management to supersede a senior most teacher. The charge against such teacher must be valid and real one and has to be objectively demonstrated by the Management. An unwalling Management of an institution is not entitled to supersede a senior most teacher merely by awarding an adverse entry in his character roll. A senior most teacher can be found unfit only when persistent defaults are reflected in his character roll in span of five to ten years. In view of the foregoing discussions, I am of the view that the vacancy in the post of Principal of an Intermediate College is required to be filled in by the senior most teacher of the institution in lecturers grade and in the case of High School by seniormost teacher of the institution in the trained graduate grade on the basis of seniority subject to rejection of the unfit. In case of such promotion no approval of the District Inspector of Schools is required and only intimation to the District Inspector of Schools of such appointment is sufficient.
The Method of Ad Hoc Appointment During Period Between 14-7-1992 to 6-8-1993 of Teacher or Principal of an Institution-Second Stage:
BY U.P. Act No. 24 of 1992, new Section 18 was substituted in place of Section 18 of the Principal Act which is reproduced below:
Ad hoc teachers. -- (1) Where the Management has notified a vacancy to the Commission in accordance with the Provisions of this Act, and the post of such teacher has actually remained vacant for more than two months, the Management may appoint by direct recruitment or promotion a teacher, on purely ad hoc basis, in the manner hereinafter provided in this section.
(2) A teacher, other than a Principal or Headmaster, who is to be appointed by direct recruitment, may be appointed on the recommendation of the Selection Committee referred to in Sub-section (9).
(3) A teacher, other than a Principal or Headmaster who is to be appointed by promotion, may in the manner prescribed be appointed by promoting the seniormost teacher possessing prescribed qualifications-
(a) in the trained graduate''s grade, as lecturer, in the case of a vacancy in lecturer grade,
(b) in the Certificate of Teaching grade, as a teacher in the trained graduate''s grade, in the case of vacancy in trained graduate''s grade.
(4) A vacancy in the post of a Principal may be filled by promoting the senior most teacher in the lecturer''s grade.
(5) A vacancy in the post of a Headmaster may be filled by promoting the seniorsmost teacher in the trained graduate''s grade
(6) For the purpose of making appointments under sub-sections (2) and (3), the Management shall determine the number of vacancies, as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories in accordance with the rules or orders issued by the State Government in this behalf. If in determining the vacancies it is found that persons belonging to such categories are not holding such number of posts as should have been held by them in accordance with such rules or orders, then the vacancies shall be determined that first and every alternate vacancy shall be reserved for the persons of such categories until the required percentage of posts is held by them.
(7) After determining the number of vacancies as provided in Sub-section (6) the Management shall within fifteen days from the date of the commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Board (Second Amendment) Act, 1992 intimate the vacancies to be filled by direct recruitment to the District, Inspector of Schools. If the Management fails, to intimate such vacancies within the said period of fifteen days, the District Inspector of Schools may, after verification from such institution or from his own records, determine such vacancies himself.
(8) The District Inspector of Schools shall, on receipt of intimation of vacancies or, as the case may be, after determining the vacancies under Sub-section (7), invite applications, from the persons, possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder, for ad hoc appointment to the post of teachers, other than Principal or Headmasters in such manner as may be prescribed.
(9) (a) For each district, there shall be a Selection Committee for selection of candidates for ad hoc appointment by direct recruitment comprising
(i) District Inspector of Schools, who shall be the Chairman;
(ii) Basis Shiksha Adhikari;
(iii) District Inspeetress of Gill''s Schools and where there it no such Inspectress'' the Principal of the Government Girls'' Intermediate College and where there are more than one such college, the seniormost Principal of such Colleges and where there is no such College, the Principal of the Government Girls'' Intermediate College as nominated by the State Government.
(b) The selection Committee constituted under Clause (a) shall make selection of the candidates, prepare a list of the selected candidates, allocate them to the institutions and recommend their names to the Management for appointment under sub-section (2).
(c) The criteria and procedure for selection of candidates and the manner of preparation of list of selected candidates and their allocation to the institutions shall be such as may be prescribed.
(10) Every appointment of an ad hoc teacher under Sub-section (1) shall cease to have effect from the date when the candidate recommended by the Commission or the Board joins the post.
(11) The provisions of Section 21D shall, mutatis mutandis, apply to the teachers who are to be appointed under the provisions of this section.
A perusal of this new section would show that it is substantially the same provision excepting the provision for constitution 6f Selection Committee for selection of candidate for ad hoc appointment in place of giving quality point marks as contained in the First Removal of Difficulties Order, In fact what was contained in the First Removal of difficulties Order has not been brought in the Act, by this amending Act. Thus, the method of ad hoc appointment by promotion of teacher remained the same as it was during the period 14-7-1981 to 13-7-1992. The method of ad hoc appointment of Principal and Head Master in the institution also remains the same as it was in the period 14-7-1981 to 13-7-1992 (first period) Similarly, the provision in respect of appointment against the short term vacancy also remains the same as it was in 14-7-1981 to 13-17-1992. The only change that has been brought by the new-Section 18 is in respect of method of ad hoc appointment by direct recruitment. Under Sub-section (8) of Section 18 the District Inspector of Schools on receipt of intimation of vacancy or as the case may be after determining the vacancy in Sub-section (7) is required to invite application from the person possessing qualification prescribed in the Intermediate Education Act or the regulations framed thereunder for ad hoc appointment to the post of teacher. Under Sub-section (9) of Section 18 a Selection Committee is to be constituted for selection of candidate for ad hoc appointment by direct recruitment comprising of District Inspector of Schools as Chairman, Basic Shiksha Adhikari and District Inspectress of Girls Schools. The Selection Committee so constituted is further required to make selection of the candidate and prepare a list of selected candidate and allocate them to the institution and recommend their name to the Management for appointment. This is in brief the procedure which is required to be undergone where the ad hoc appointment is to be made by the direct recruitment. If the ad hoc appointment by direct recruitment is made under Sub-section (9) of Section 18, no further approval of the District Inspector of Schools for such appointment is required.
The Method of Ad Hoc Appointment During Period Beginning From 7-8-1993 Uptill Date: of Teacher or Principal in the Institution
Third Stage:
The U.P. Legislature passed the Act known as U.P. Secondary Education Service Commission and Selection Board Amendment Act 1992 being U.P. Act No. 1 of 1993. Sub-section (2) of Sub-section (1) of this amendment Act provides that Act shall come into force on such date as the State Government may, by notification, appoint in this behalf or different dates may be appointed for different provisions. This amendment Act brought several amendments in the Principal Act, I am not concerned with all the amendments but shall notice only those provisions which are very material for my answer to the questions. Section 16 of the Principal Act provided that subject to the provisions of Section 18, 21-B, 21-C, 21-D, 33, 33-A and 33-B every appointment of a teacher on or after commencement of the Act shall be made by the management only on the recommendation of the Board, Sub-section (2) thereof further provided that any appointment made in contravention of the provisions of Sub-section (1) shall be voids Since Section 16 was subject to Section 18 of the Act, ad hoc appointment could validly be made u/s 18 of the Act and such appointment would not be void within the meaning of Sub-section (2) of Section 16 of the Act. By Section 11 of U.P. Act No. 1 of 1993 new Section 16 has been substituted for Section 16 of the Principal Act. The substituted Section 16 runs as under:
Appointment to be made only on the recommendation of the Board. (1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the regulations made thereunder but subject to the provisions of Section 21B, 21C, 21D, 33, 33-A and 33B, every appointment of a teacher, shall, on or after the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1992, be made by the Management only on the recommendation of the Board:
Provided that in respect of retrenched employee, the provisions of Section 16EE of the Intermediate Education Act, 1921, shall mutatis mutandis apply:
Provided further that the appointment of a teacher by transfer from the Institution of another, may be made in accordance with the regulations made under Clause (c) of Sub-section (2) of Section 16G of the Information Education Act, 1921.
(2) Any appointment made in contravention of the provisions of Sub-section (1) shall be void.
It is interesting to note that reference of Section 18 in Sub-section (1) of Section 16 has been omitted with the result that Section 16 is no longer subject to Section 18 of the Act. By Section 13 of U.P. Act No. 1 of the U.P. Act No. 1 of 1993, Section 18 of the principal Act has been omitted. In exercise of powers under Sub-section (2) of Section 1 of U.P. Secondary Education Services Commission and Selection Board (Amendment) Act 1992 being U.P. Act No. 1 of 1993, the Governor of Uttar Pradesh pleased to appoint 7th Aug. 1993 as the date on which the said Act except Section 13 thereof shall come into force. The notification dated 7-8-1993 is reproduced below
In exercise of the powers under Sub-section (2) of Section 1 of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1992 (U.P. Art No. 1 of 1993) the Governor is pleased to appoint 7 August, 1993 as the date on which the said Act, except Section 13 thereof, shall come into force.
After enforcement of U.P. Act No. 1 of 199." except Section 13 thereof the situation that emerges is that by new Section 11 of Amendment Act which has substituted Section 16 of the principal Act, has come into force whereas the omission of Section 18 from the principal Act by Section 13 of this amending Act has not been enforced which means Section 18 still continues in the principal Act. In view of this legislative development a peculiar situation has arisen that now Section 16 which has come into force is no longer subject to Section 18 of the Act which means that no appointment on ad hoc basis can be made u/s 18 of the Act. New Section 16 begins with non obstinate clause which means inspite of other provision, no appointment shall be made except on the recommendation of the Board. Where a section begins with a non obstinate clause, it indicates that the provision should prevail despite anything to the contrary in the provisions in the Act. Thus after omission of Section 18 from Section 16 no ad hoc appointment is permissible u/s 18 and if made, would be void under Sub-section (2) of Section 16 of the Act. It has not been brought to my notice that First Removal of Difficulties Order 1981 issued by the State Government has either been revoked or rescinded. On the contrary, it was asserted that the said Removal of Difficulties Order is still continuing.
Now the question for consideration is that if no ad hoc appointment of teacher or Principal can be made u/s 18 of the Act, whether it is permissible, to appoint a teacher of Principal on ad hoc basis the First Removal of Difficulties Order? A perusal of Section 16 would show that Section 16 is still subject to Section 33 of the Act which empowers the State Government to issue Removal of Difficulties Order. Since Removal of Difficulties Orders have been issued u/s 33 of the Act, an ad hoc appointment either by direct recruitment or by promotion under the Removal of difficulties Order would be a valid appointment. While answering question No. (b) I have already held that it is open to State Government to issue Removal of Difficulties Order providing for ad hoc appointment either by promotion or by direct recruitment as this ad hoc appointment is not a permanent appointment but a short term appointment which dots not confer any right on a teacher or the Principal so appointed. I have further held that the Removal of Difficulties Order which empower for ad hoc appointment either by promotion or by direct recruitment does not violate the essential feature of the Act as it only tinkers or smoothen the edges of the Act. In view of this an ad hoc appointment of teacher by Principal can be made either by promotion or by direct recruitment under the Removal of Difficulties Orders issued u/s 33 of the Act. Omission of Section 18 has not yet been enforced with a result the conditions precedent namely notification of substantive vacancy to the Commission and further the post has remained vacant for more than two months are still there and if these two conditions are fulfilled, it is only then the management can appoint ad hoc teacher either by promotion or by direct recruitment in accordance with the procedure laid down in the first Removal of Difficulties Order.
To sum up the method and procedure of ad hoc appointment of teacher either by promotion or by direct recruitment, the ad hoc appointment of Principal in the institution and the short term appointment against the short term vacancy remains the same as it was during the period beginning from commencement of the Act till 13th July 1992.
My answer to the questions framed by us are these:
Answer to Question No. (a):
Answer to Question No. (a) so far as it relates to sub-sections (1) & (2) of the Act is in the negative. So far as Sub-section (3) to Section 33 of the Act is concerned, it is affirmative but not struck down for the reasons given above.
Answer to Question No. (b):
Answer to Question No. (b) is in the negative.
Answer to Question No. (c) and (d):
First Stage:
The substantive vacancy in the post of teacher is firstly required to be filled by promotion. If not available, then by direct recruitment in the manner laid down in paragraph 5 of the First Removal of Difficulties Order. Short-term appointments are to be made in accordance with the provisions of Second Removal of Difficulties Order only after advertising the vacancy in the manner laid down under sub-paragraph (2) of paragraph 5 of the First Removal of Difficulties-Order in addition to notifying the short term vacancy on the notice board of the institution. Ad hoc appointment of head of institution is to be made by promotion on the basis of seniority subject to rejection of the unfit.
Second Stage:
The method of ad hoc appointment of teacher, Principal against the short term vacancy remains the same as it was in the first stage. The direct recruitment of ad hoc teacher is required to be done in accordance with the procedure laid down in Section 18 of the Act.
Third Stage:
Ad hoc appointment of teacher/Principal either by promotion or by direct recruitment is permissible under the First Removal of Difficulties Order and the procedure such appointment remains the same as was during the first stage. Ad hoc appointment against the short term vacancy remains the same as it was in the first stage. The ad hoc appointment of Principal is required to be done under paragraph 4 of the First Removal of Difficulties Order on the basis of seniority subject to rejection of the unfit.
Let the papers of these cases be laid before the learned single Judge or the appropriate Division Bench dealing with the special as the case may be, which this opinion and answer.
G.P. Mathur, J.:- I have had the advantage of perusing the opinion of my esteemed brother Hon''ble V.N. Khare, J. I agree with him on question Nos. (a) and (b) but would like to say few words on question Nos. (c) and (d).
U.P. Intermediate Education Act was enacted in 1921 to establish a Board to take the place of Allahabad University in regulating and supervising the system of the High School and Intermediate Education in the State and prescribe courses, therefore. It is a comprehensive Act which provides for almost everything associated with the field of education upto Intermediate level including the matters relating to selection and appointment of teachers, their qualifications and service conditions. The endeavour to spread education to masses, specially in the rural are, led to tumultuous growth of institutions and consequent demand of teachers. Over years it was felt that the field of selection of teachers under the provisions of the aforesaid Act was not only very much restricted but the selection itself was often not free and fair leading to appointment of sub-standard teachers which adversely affected the quality of education being imparted to the students. With this end in view the Legislature enacted U.P. Secondary Education Services Commission And Selection Boards Act (U.P. Act No. 5 of 1982) thereinafter referred to as the Act) which came into force on July 14, 1981.
The Act lays down an elaborate procedure for making appointment on the post of a teacher. Section 10 provides that the Management of the institution has to notify the vacancy to the Commission and Section 11 provides that the Commission after holding interview shall prepare a panel. After receipt of panel, name of the candidate selected shall be intimated to the Management which shall issue an appointment letter to him. u/s 2(k) teacher means a person employed for imparting instruction in an institution and includes a Principal or a Headmaster and under Rule 2(hh) of U.P. Secondary Education Services Commission Rules (hereinafter referred to as the Rules) vacancy means a vacancy (arising out as a result of death, retirement, resignation, termination, dismissal, creation of new post or appointment/promotion of the incumbent to any higher, post in a substantive capacity. Since u/s 10 a vacancy has to be notified to the Commission, it follows as a corollary that the Commission has to make selection of teacher, Headmaster or Principal, as the case may be, only for a substantive vacancy as defined in rule 2(hh) and not for a short term vacancy. Sub-section (i) of Section 16 lays down that subject to provisions of Sections 18, 21B, 21C, 21D and 33 and 33A every appointment of a teacher specified in the Schedule shall be made by the Management only on the recommendation of the Commission. Sub-section (2) of Section 16 lays down that every appointment of a teacher, in contravention of the provisions of Sub-section (1), shall be void. So the appointment is to be made only on the recommendation of the Commission otherwise it would be void. The only exception is Section 18, where the Management has been given the right to make ad hoc appointment of teacher, if the conditions enumerated therein are satisfied. Therefore, Section 18 is the repository of power of the Management to make ad hoc appointment of a teacher on a substantive vacancy. In absence of such a provision the Management, will have no authority to make even an ad hoc appointment on a substantive vacancy,
Though Section 18 empowers the Management it makes ad hoc appointment on a substantive vacancy, the procedure to make such appointment has, however, not been given therein. A short term vacancy may arise on account of grant of leave or suspension of a teacher and such a vacancy cannot be filled through the Commission nor the procedure for filling up such a vacancy has been given in the Actor Rules. As the procedure for making ad hoc appointment on substantive or short term vacancy had not been given there was difficulty and necessary condition for exercise of power u/s 33 came into existence.
The Government of U.P. has issued three Removal of Difficulties Orders on July 31, 1581; September 11, 1981; and January 30, 1982 (hereinafter "referred" to as the First Order, Second Order and Third Order respectively) under Sub-section (1) of Section 33 of the Act. The First Order governs the case of a substantive vacancy''s will be evident from para 2 thereof. Para 4 of this Order gives the procedure for filling in the vacancy by promotion and para 5 gives the procedure for filling in the vacancy by direct recruitment; During the course of argument much emphasis has been laid on the word ''may'' occurring in para 4. It has been urged that use of word ''may'' shows that the provision, is directory and not mandatory. But reading it together with para 5 would show that first the vacancy has to be filled in by promotion and only where it is not possible to do so that the Management can take recourse to direct recruitment. It is a well known principle of interpretation that every clause of a statute is to be construed with reference to context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute. Construction is to be made of all the parts together and not of one part only by itself. Individual words are not considered in isolation but may have their meaning determined by other words in the section in which they occur (see Maxwell on Interpretation of Statutes 12th Edn. pages 47 and 58). In Societe De Traction Et D''electricite Societe Anonyme Vs. Kamani Engineering Company Ltd., , it has been held as under (para 9):
The use of the expression ''may'' is not decisive. Having regard to the context the expression ''may'' used in a Statute has varying significance. In some context it is purely permissive, in other, it may confer a power and make it obligatory upon the person invested with the power to exercise it as laid down.
The word ''may'' has been used in the sense of ''shall'' or ''must'' in para 4 and should be construed to mean ''command''. If the word ''may'' is given its ordinary meaning, it would mean that the Management has a discretion in the matter either to make appointment by promotion or by direct recruitment. Such an interpretation would make the provision arbitrary and unconstitutional as there is no guideline as to when the Management may make appointment by promotion and when by direct recruitment. Therefore, the correct interpretation would be that the vacancy can be filled in by direct recruitment only where it is not possible to do so by promotion and not otherwise.
It may be mentioned here that seniority has been given a special importance under the scheme of the Act itself. It will be evident from Rule (1)(ii) of the Commission Rules which provides that with regard to the post of the Head of an Institution, the Management shall also forward the names of two seniormost teachers. Rule 6 provides that in respect of the post of the Head of an institution the Commission shall also call for interview two seniormost teachers whose names are forwarded by the Management under Sub-rule (1) of Rule 4. This shows that even while making direct selection for the post of Principal or Head master, the Commission has to consider two senior most teachers without their making any application in that behalf.
This view is in line with the decisions rendered by some illustrious Judges of this Court in Smt. Maya Saxena v. Committee of Management (1989) 1 UPLBEC 666, Km. Bandana Baherji v. Administrator (1990) 1 UPLBEC 116, Charu Chandra Tiwari v. D.I.O.S. (1990) 1 UPLBEC 160 : 1990 Lab IC 129, Mohd. Naim v. D.I.O.S. 1992 AWC 528 and Gauri Shanker Dubey v. Zila Vidyalay Nirikshak (1992) 1 UPLBEC 158 with which I respectfully agree. The contrary view expressed in Yogendra Pd. Chaturvedi v. Addl. Civil Judge 1985 UPLBEC 1531 which was followed in some other cases, in my opinion, does not lay down the correct law.
It has been contended at the bar that in a given case the seniormost teacher may be suffering from a disability, physical or otherwise, and it may not be in the interest of the Institution to have such a person as its Principal or Head Master. The legislature itself had provided sufficient guidelines for this purpose. Rule 9 lays down the procedure for appointment by promotion, Sub-rule (2) thereof provides that criterion for promotion shall be seniority subject to rejection of unfit. Therefore, if the seniormost person is unlit, he may be rejected and in such a situation the post can be offered to the next senior most person. I entirely agree with the view expressed by Hon''ble M. Katju, J. in Tribhuwan Mishra v. D.I.O.S. (1992) 1 UPLBEC 716 and the procedure to be followed in such a situation.
Para 3, after its amendment by Third Order, provides that every appointment of ad hoc teacher under para 2 shall cease to have affect when a candidate recommended by the Commission joins the post. This is para material with Sub-clause (a) of Sub-section (3) of Section 18 of the Act. Sub-clause (c) of Sub-section (3) of Section 18 however provides that every appointment of an ad hoc teacher under Sub-section (1) or Sub-section (2) shall cease to have effect on 30th day of June following the day of such ad hoc appointment. The enforcement of this provision will lead to unnecessary hardship and waste of public time and money in doing the whole exercise all over again. Once an appointment has been made in accordance with the provision of the Order, the teacher so appointed is entitled to the benefit of para 3 and should continue till a candidate recommended by the commission joins the post.
As already stated Section 18 of the Act as well as First Order apply only in the case of substantive vacancy. So far as appointments on short term vacancies by grant of leave of on account of suspension of a teacher or otherwise is concerned, provision in this regard is made in the Second Order as will be evident from its pre-amble Para 2 of the Order provides that such a short-term vacancy shall be filled by the Management by promotion of the Senior most teacher of the Institution in the next lower grade. The word ''otherwise'' has to be read ejusdem generis with the preceding WORDS namely short term vacancy in the post of a teacher caused by grant of leave of on account of his suspension duly approved by the D.I.O.S. It is well settled principle that when particular words pertaining to a class, category of genus are followed by general words, the general words are construed as limited to things of the same kind as those specified (see Thakur Amar Singhji Vs. State of Rajasthan, and Siddeshwari Cotton Mills (P) Ltd. Vs. Union of India (UOI) and Another, . This will also be clear from Explanation (iii) to para, 2 which lays down that for the purpose of this para, short term vacancy means which is not substantive and is of limited duration.
Para 2 of this Order provides in no uncertain terms that the vacancy shall be filled in by promotion of senior most teacher of the Institution in a next lower grade. Here the word used is ''shall'' and not ''may''. Therefore, the Management has no option in the matter and the short term vacancy, as aforesaid, has to be filled in by promotion and not by any other means. If a senior most teacher of the institution is suffering from any disability, physical or otherwise, the vacancy may be filled in by the next senior most teacher after following the same procedure which has been indicated earlier while considering the case of a substantive vacancy in accordance with the First Order. The Management can make direct recruitment only when vacancy cannot be filled in by promotion due to non-availability of a teacher possessing the prescribed minimum qualification in the next lower grade in the institution and not otherwise, as laid down by sub-para (2)of para 2 of this Order.
The salary to teachers in aided and recognized institutions is paid in accordance with U.P. High School and Intermediate Colleges (Payment of Salary to Teachers and other Employees) Act, 1971 (hereinafter referred to as the Payment of Salary Act). It is common knowledge that except for a small fraction the entire salary is paid by the State out of its own exchequer. Since practically the entire salary to a teacher is paid by the State, there has to be equality of opportunity for all citizens in matters relating to appointment on the post of teachers in an institution which is covered under the purview of Payment of Salary Act. The method of notification of the vacancy on the notice board of the Institution as provided in sub-Para (3) of para 2 of the Order violates the guarantee regarding equal opportunity in the matter of employment as persons desirous of getting employment as teachers are kept in dark by an advertisement of the vacancy on the notice board of the Institution. The proper course would, therefore, be that in addition to intimation of the vacancy to the D.I.O.S., the same should also be advertised in one newspaper having circulation in the State or at least in the region.
In accordance with para 3, appointment of a teacher under para 2 shall cease when the teacher who was on leave or under suspension joined the post or when the short term vacancy otherwise ceased lo exist.
Section 18 of the Commission Act has undergone a major amendment by U.P. Secondary Education Service Commission and Selection Boards (Second Amendment) Act 1992 (U.P. Act No. 24 of 1992) which has come into force on July 14, 1992 by virtue of Sub-section (2) of Section 1 of Act. It provides that where the management has notified a vacancy to the Commission in accordance with the provisions of the Act and the post of the teacher has actually remained vacant for more than two months, the management may appoint by direct recruitment or promotion a teacher on purely ad hoc basis, Sub-section (4) provides that vacancy on the post of Principal may be filled by promoting senior most teacher in the Lecturers grade and Sub-section (5) provides that vacancy on the post of Head Master may be filled by promoting senior most teacher in the Trained Graduate Grade Therefore, appointment on the post of Principal and Head Master has to be made by promoting the senior most teacher in the Lecturers or Trained Graduate Grade as the case may be. The management cannot make appointment on the aforesaid posts through direct recruitment as there is no provision to that effect. The procedure for making appointment on the post pf teachers has been given in sub-sections (8) and (9). Since the procedure for making direct selection has been given in the amended Section 18 itself, there is no difficulty in the working of the Act and the necessary conditions for exercise of powers u/s 33 of the Act does not exist and as such the procedure prescribed for direct recruitment in the First Order, would not be applicable. The management has to follow the procedure prescribed by sub-sections (6) and (7) and the selection has to be made in accordance with sub-sections (8) and (9). Regarding short term vacancy the procedure given in Second Order would be applicable.
The Act has again been amended by U.P. Secondary Education Services Commission and Selection Boards (Amendment)'' Act 1092 (U.P. Act No. 1 of 1993) and this amending Act has come into force on August 7, 1993 by virtue of a notification issued under Sub-section (2) of Section 1. However, Section 13, by which Section 18 of the Principal Act (U.P. Act No. 5 of 1982) has been omitted, has not been enforced. The result, therefore, is that Section 18 still remains in the Statute book. The substituted Sub-section (1) of Section 16 now does not save appointment made u/s 18 on account of its omission from its language us it did prior to amendment. Sub-section (2) of Section 16 still provides that any appointment made in contravention of the provisions of Sub-section (1) shall be void. This has created an anomalous situation as any appointment made u/s 18 would be void. Therefore, in my opinion, the management has no power left to make an ad hoc appointment on a substantive vacancy after enforcement or U.P. Act No. 1 of 1993. However, it can mate appointment on a 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 D.I.O.S. or otherwise, in accordance with the Second Order.
Under the Scheme of the Act the Management has no power of selection and it is bound to appoint a person as a teacher whose name has been forwarded in the panel prepared by the selection Commission after holding a process of Selection. Since u/s 18 a power to make ad hoc appointment is conferred on the management its provision must be strictly followed. It was held in Taylor v. Taylor (1875) 1 Ch. D 426 that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This was reiterated by Privy Council in AIR 1936 253 (Privy Council) and by Supreme Court in Ramchandra Keshav Adke (Dead) by Lrs. and Others Vs. Govind Joti Chavare and Others, , Hukam Chand Shyam Lal Vs. Union of India (UOI) and Others, and in several other cases.
The opening part of Section 18 of the Principal Act uses the expression -- where the Management has notified a vacancy to the Commission in accordance with the provision of the Act. Sub-section (1) of Section 10 says that management shall notify the vacancy to the Commission in such manner and through such officer, or authority as may be prescribed, Rule 4 provides that management shall determine and intimate to the Commission the vacancies existing or likely to fall vacant in pro forma given in Appendix ''A'', which is a Requisition Form. The Management has to furnish all the details like number of students, number of teachers, subjects and sections etc. as mentioned in Appendix ''A''. Only after the notification had been done by sending the Requisition Form (Appendix A) and the period mentioned in Sub-clause (a) or (b) of Sub-section (1) of Section 18 had elapsed that the management became entitled to proceed in accordance with the First order in the period prior to July 14, 1992. The notification of the vacancy has to be done in the same manner even after enforcement of U.P. Act 24 of 1992. The provisions of Removal of Difficulties Orders, whichever and wherever applicable should be strictly followed, failing which the ad hoc appointment so made would be invalid. This view finds support from the observation made by a Division Bench in Santosh Kumar Singh v. State of U.P. 1993 (2) ESC 158, which while considering the provisions of Section 16 of U.P, Higher Education Services Commission Act which is somewhat similar lo Section 18 of the Act, held that ad hoc appointment made without notifying the vacancy would be illegal.
Sri G. K. Singh has vehemently contended that if the management is required to observe the conditions of Section 18 of the Commission Act, it necessarily means that recourse to the procedure prescribed by the First Order cannot be initiated until expiry of two months from the date of the Notification of the vacancy to the Commission and in the case of direct recruitment, the process of inviting applications after advertisement in two newspapers is bound to take some further time. Similarly in case of a short term vacancy, the process of making direct recruitment will lake considerable time and during this period, there will be no teacher in the institution which will seriously affect the students studying that subject. He has submitted that a teacher may resign or fall seriously ill or die just a few months before the examination, which is the peak period of students. The Management would then be left in a precarious situation, as following the procedure would mean that the students will have to appear in the examination without having been taught the subject for several months. It has been submitted that in order to get over this difficulty, the management should have the right to make ad hoc appointment in he quickest possible time which can only be done by following the procedure prescribed in sub para (3) of para 2 of the Second Order, namely, by notifying the vacancy on the notice board of the institution and requiring the D.I.O.S. to communicate his decision within seven days failing which the Inspector would be deemed to have given his approval. I have given my deepest consideration to the difficulty pointed put by the learned Counsel on account of happening of a substantive or a short time vacancy mid session but I am unable to accept the solution suggested by him. A huge bulk of litigation has come to this Court over years and experience shows that there has been a tremendous misuse of power by the Management in making ad hoc appointments where wholly substandard teachers have been appointed on extraneous consideration. Unscrupulous managements have not hesitated in making ad hoc appointments at the slightest pretext to the detriment of the large body of students who are studying in the institution or would be studying in future. Services of such ad hoc teachers have subsequently been regularised by the legislature and they have acquired the status of a permanent employee. If the management is given a free hand the very purpose for which the legislature intervened and enacted the Act would be frustrated. The whole scheme of the Act is/i6 ensure a free and fair selection after giving wide publicity throughout the State so that the best person is appointed as a teacher.
The management of an institution can not totally shirk its responsibility and pass on the entire burden to the State. Under the present system where salary is paid under the Payment of Salary Act, except for a small fraction which is met out of the tuition fee paid by the students, the entire salary is paid by the State out of public exchequer. Those who establish an institution must also share some responsibility and burden. During the period of waiting, which is occasioned on account of the provisions of Section 18 of the Commission Act or the Removal of Difficulties Order, the; Management can appoint teachers and pay them salary out of its own resources. Such teachers, however, would not be recognized for the purpose of Payment of Salary Act (U.P. Act No. 24 of 1971) or the U.P. Secondary Education Services Commission and Selection Boards Act (U.P. Act No. 5 of 1982). This may sound little strange as over the years an impression has been created or gathered, though wrongly, that the job and responsibility of the Management is over once an institution has been recognised and has come within the purview of the Payment of Salary Act. The view which I am taking that the Management should make arrangement during the interregnum by appointing suitable persons and paying them salary out of its own resources is not repugnant to any statutory provision or scheme of the Act. On the contrary U.P. Intermediate Education Act which is the principal enactment dealing with the field of education up to Intermediate level in the State of U.P. and which lays down qualification etc, of the teachers and formerly provided the procedure for appointment, has somewhat akin in provisions. By the Intermediate Education (Amendment) Act 1987 (U.P. Act No. 18 of 1987), Sections 7A, 7AA and 7AB were inserted. Sub-section (1) of Section 7AA provides that notwithstanding anything contained in this Act, the Management of an institution may from its own resources, employ as an interim measure part time teachers for imparting 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 u/s 7A. Section 7AB provides that nothing in the U.P. High School and Intermediate Colleges Payment of Salaries of Teachers and other Employees Act (U.P. Act No. 24 of 1971) or the U. P. Secondary Education Service Commission and Selection Boards Act (U.P. Act No. 5) of 1982) shall apply in relation to part time teacher and part time instructors employed in an institution u/s 7AA. The aforesaid provisions show that the legislature itself contemplates appointment of such teachers as an interim measure who may be paid salary by the management from its own resources and the Acts referred to in Section 7AB, shall not apply to them. Therefore, the difficulty posed by Sri Singh is not insurmountable and the management can always employ qualified persons who may be even retired teachers for the period of interregnum till a proper selection is made in accordance with the provisions of the Act.
It has also been contended that the life of various Removal of Difficulties Orders has. come to an end after two years and therefore they have ceased to be operative. The limitation on the power of the State Government to issue a Removal of Difficulties Order has been laid down in the proviso to Sub-section (1) of Section 33 of the Act which is two years from the date of the commencement of the Act. Since the Act has come into force on July 14, 1981, by virtue of the date so fixed in Sub-section (2) of Section 1 of the Act, the State Government had the power to issue such orders only up to July 14, 1983. It will be seen that all the Removal of Difficulties Orders have been issued much before July 14, 1983 and, therefore, there can be no doubt regarding the power of the State Government to issue the Orders. Under Sub-section (1) of Section 33 the State Government is empowered to limit the life of the Removal of Difficulties Order by making a provision to that effect in the Orders itself. However, there is no provision limiting their life in all the Removal of Difficulties Orders issued so-far. Therefore, all the Orders are still in force and shall continue to be operative till the State government, or the legislature directs otherwise. It may be pointed out that the Commissioner Act has been amended by U.P. Secondary Education Service Commission and Selection Board;. (Amendment) Act, 1992 (U.P. No. 1 of 1993) which has come into force on August 7, 1993. Section 23 of this Act has amended Section 33 of the Commission (sic) and has substituted a new proviso which (sic) that no such order shall be made (sic) two years from the date of commence- (sic) of the U. P. Secondary Education (sic) Commission and Selection Boards (Amendment) Act, 1992. The result of this (sic) amendment that the State Government is (sic) empowered to issue a Removal of Difficulties Order up to August 7, 1995. Thus amendment shows the legislative intent that not only the Removal of Difficulties Orders issued in the year 1981-82 are still continuing to be in operation, but the State Government has been given further power to issue fresh Orders for removing any difficulties which may be experienced in the working of the Act in future as well.
Question (b):
It may now he considered whether ad hoc appointment made in accordance with the procedure prescribed by First Order or Second Order or Section 18 as substituted by U.P. Act No. 24 of 1992, would require any prior or subsequent approval of the D.I.O.S. So far as First Order is concerned if the appointment is made by promotion, it is obvious that such a teacher would have been working in the institution for a fairly long time after a regular Selection by a competent body and therefore there is no necessity of a further approval. If the appointment is made by direct recruitment under para 5, the actual process to selection is done by the D.I.O.S. himself. So far as Second Order is concerned if the ad hoc appointment is made by promotion the position would be the same as indicated above. If direct appointment is made, then under Sub-clauses (ii) and (iii) of sub-para (3) of para 2, the D.I.O.S, would either give his approval or there would be a deemed approval. So far as the period from July 14, 1992 to August 6, 1993 is concerned, if the ad hoc appointment is made by promotion, the position as explained earlier would apply and if direct recruitment is made, the whole process of selection having been done by the D.I.O.S. himself, there is no occasion for grant of a further approval. Therefore, if the procedure prescribed by First Order or Second Order or substituted Section 18 is strictly followed, there is no occasion or requirement for obtaining any further approval from the D.I.O.S.
In so far as the institutions coming under the purview of Payment of Salary Act are concerned the D.I.O.S. has an implied power under the aforesaid Act to examine whether the appointment of the teacher, whose salary he is called upon to pay, has been made in accordance with law and in bona fide manner. If the appointment is not valid he can take appropriate action to withhold or stop payment of his salary. This view has been taken by a Division Bench in Radhey Shyam Dubay v. D.I.O.S. 1987 UPLBEC 553 with which I am in respectful agreement.
My answer to question (c) and (d) is as follows:
Question No. (c).
First Stage: (July 31, 1981 to July 13, 1992) Both substantive and short term vacancies have to be filled in by promotion. If it is not possible to do so on account of non availability of a teacher possessing requisite qualification the same can be filled by direct recruitment in accordance with the First Order in the case of substantive vacancy and in accordance with Second Order in the case of short term vacancy.
Second Stage (July 14, 1992 to Aug. 6, 1993). Post of principal and Head Master has to be filled in by promotion only. Substantive vacancy on the post of teacher has to be filled in accordance with amended Section 18 and short term vacancy in the same manner as in First Stage.
Third Stage (Aug. 7, 1993 onwards)-
No ad hoc appointment on a substantive vacancy can be made. Only short term vacancy can be filled in the same manner as in first Stage.
Question (d).
If appointment is made strictly in the manner indicated in answer to question No. (c) no prior or subsequent approval of Education Authorities is required.