Supreme Court of India
PRABHAT KUMAR SHARMA AND ORS.versusSTATE OF U.P. AND ORS.
- Citation
- 1996 INSC 725
- Decided
- 10 July 1996
- Disposal
- Dismissed
- Bench
- K RAMASWAMY
Holding
Appointments of teachers made in contravention of Section 16 and the procedure prescribed in para 5 of the First Removal of Difficulties Order, 1981 are void, and the Order is a permanent scheme to be read with Section 18 of the 1982 Act.
Summary
The petitioners, appointed as LT Grade teachers in a government‑aided private college, challenged the legality of their ad‑hoc appointments, alleging that the college had not complied with the procedure prescribed in Section 18 of the Uttar Pradesh Secondary Education Services Commission and Selection Board Act, 1982 and the First Removal of Difficulties Order, 1981. The High Court held that the appointments were void for contravening the mandatory provisions of Section 16 and the procedure of para 5 of the 1981 Order, a view affirmed by the Division Bench. On appeal, the petitioners argued that the 1981 Order was only a temporary measure and that the appointments were valid under Section 18. The Supreme Court examined the legislative history, held that the 1981 Order was a permanent scheme intended to supplement Section 18, and that any appointment not made in accordance with its procedure is illegal and confers no right. Consequently, the Court dismissed the special leave petition, upholding the High Court’s decision.
Issues considered
- Whether ad‑hoc appointments of teachers made without following the procedure of Section 18 of the 1982 Act and para 5 of the First Removal of Difficulties Order, 1981 are valid.
- Whether the First Removal of Difficulties Order, 1981 is a transient or permanent provision and its applicability after the 1982 Act came into force.
- Whether violation of the mandatory procedure under Section 16 renders an appointment void.
- Whether the High Court’s finding that the appointments were illegal is legally sustainable.
Subjects
ad hoc appointmentteacher recruitmentUttar Pradesh education lawSection 16Section 18Removal of Difficulties Ordervoid appointmentpublic intereststatutory interpretation
Judgment
A PRABHAT KUMAR SHARMA AND ORS.
v.
STATE OF U.P. AND ORS.
JULY 10, 1996
B (K. RAMASWAMY AND G.B. PATTANAIK, JJ.]
Uttar Pradesh Secondmy Education Services Commission and Selec-
tion Board Remov~l of Difficulties Order, 1981 : Para 5.
Uttar Pradesh-Government Aided Private Educational Institu-
c
tions-Ad hoc appointment of teachers-Procedure prescribed for in
orde1~Nature of Orde,._He/d the Order supplements the power to select and
appoint adhoc teachers as per the procedure pre.mibec}-Held the Order was
pennanent and not transient-Adhoc appointn1ents should be ntade in ac-
D cordance with procedure prescribed in para ~Appointn1ents n1ade in trans-
gressin thereof are illegal appointments and confer no right on the appointees.
U.P. Secondmy Se1vices Commission and Selection Board Act, 1982:
Sections 16, 18 and 33.
E Service Law-Govemment Aided Private Educational Institu-
tions-Inter-College--Recntitment of L. T. Grade teachers-Intimation Issued
to U.P. Secondary Education Services Conunission-In the n1eantin1e
petitioners appointed by Col/ege--Adhoc appointments made by College not
as per procedure prescribed in para 5 of 1981 orda-Financial sanction for
F payment of salaries not accorded by Distlict Inspector of School-W!it:-High
Court holding that the selection and appointment of petitioners was not in
accordance with law-A]Jpeal-Held 1981 order envisages recruit111ent as per
procedure presc1ibed in para 5 thereof-ft is an in-built procedure to avoid
111anipulation and nepotisn1 in selection and appointnzent of the teachers by
G the Management to any posts in aided institution-The view taken by High
Carat 1vas con·ect.
Re The Delhi Laws Act, 1912, T71e Ajmer Merwarit (Extension of Laws)
Act, 1947 and The Pwt C States (Laws) Act, i950, [1951] SCR 747;
Mahadeva Upendra Sinai Etc. Etc. v. Union of India & Ors., [1975] 2 SCR
H 640 and Radha Raizada & Ors. v. Committee of Management, Vidyawati
424
P.K.SHARMA v. STAIB 425
Darbari Gi11s College & 01:1·., (1994) 3 U.P.LB.E.C. 1551, referred to. A
CIVIL APPELLATE JURISDICTION: Special Leave Petition (C)
No. 12454 of 1996.
From the Judgment and Order dated 27.3.96 of the Allahabad High
Court in S.A. No. 258 of 1996. B
P.P. Rao and R.P. Gupta for the Appellants.
The following Order of the .Court was delivered :
Thi.' special leave petition arises from the judgment and order dated c
March 27, 1996 made by Allahabad High Ccurt in Special Appeal No. 258
of 1996. The petitioners came to join as LT. Grade teachers in S.S.V. Inter
College, Ghaziabad. It is claimed that 16 substantive vacancies and arisen
in the said college and the intimation thereof was claimed to have been
issued to the U.P. Secondary Education Services Commission at Allahabad D
(for short, the ncommission11 ). But before recommendatioD came to be
made by the Commission for appointment of the teachers, advertisement
notifying the said 16 vacancies appears to have been issued in two
newspapers on June 28 and July 3;1991 and interviews are claimed to have
been conducted by the Management of the said college on July 12, 1991
and the petitioners were allowed, as stated above, to join as teachers on E
July 15 and 16, 1991. When papers were sent on November 2, 1991 to
District Inspector of Schools, Ghaziabad for according financial sanction
to make payment of their salaries, he made C\'rtain queries regarding
vacancies and the procedure adopted in making their appointments by
proceedings dated December 19, 1991. Thereon the writ petition bearing F
No. 20128 of 1992 was filed and is stated to have been allowed by the High
Court. Thereon, since salaries were not paid, they filed another writ
petition bearing No. 26646 of 1992. In the meanwhile, an appeal came to
be filed against the order in the first writ petition. The Division Bench
dismis.sed the appeal but on appeal arising out of the Special Leave Petition G
No. 12338 of 1994, this Court on August 8, 1994 set aside the High_Court's
order and remitted the matter to ascertain whether appointments had been
made properly and in accordance with law. The learned single Judge in an
elaborate Judgment dated February 27, 1996 held that the Management
claimed to have selected the petitioners and made them to join duty
without issuing any letters of appointment before expiry of two months' H
426 SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.
A period required under Section 16 and the appointments were not made in
accordance with Section 18 of the U.P. Secondary Services Commission
and Selection Board Acl, 1982 (5 of 1982) (for short, the "Act") read with
First Uttar Pradesh Secondary Education Services Commission and Selec-
tion Board Removal of Difficulties Order, 1981 (for short, the "First 1981
B Order"). The learned single Judge held that the selection and appointment
of the petitioners, therefore, were not in accordance with law. On appeal
the Division Bench upheld the same. Thus this special leave petition.
Shri P.P. Rao, learned senior counsel, contended that the U.P.
Secondary Education Services Commission and Selection Board Or-
C dinance, 1981 (Ordinance No. 8 of 1981) was enacted lo constitute Selec-
tion Committees and Boards to make available teachers recruited by the
Commission or the Board for appointment in Government aided private
educational institutions. Prior lo the Act, appointment lo the posts of
teachers and principals in those institutions used to be made by the
D Management of such institutions in the manner envisaged under the U.P.
Intermediate Education Act, 1921. Since the Commission could not start
functioning prior to November 1, 1983, the Government had issued First
1981 Order which came into force w.e.f. July 31, 1981 for making ad hoc
appointments to substantive. vacancies and Second Removal of Difficulties
Order, 1981 which came into force w.e.f. September 11, 1981 to fill up
E short-term vacancies as per the procedure prescribed thereunder. After
the Commission started functioning from November l, 1983, the First 1981
Order outlived its purpose. The U .P. Secondary Education Services Com-
mission and Selection Board Act, 1982 was further amended by the Act
which came into force with retrospective effect from July 14, 1981. Section
F 16 of the Act provides procedure for recruitment of the teachers by the
Commission and allotment of the selected teachers to the institutions/col-
leges as per the requisition. On its failure to allot the teachers, Section 18
comes into play and gives power for appointment of ad hoc teachers in
accordance with the procedure prescribed thereunder. The removal of
difficulties is only transient and is effective during its operational efficacy
G since the Commission did not function prior to from November 1, 1983.
The First 1981 Order and the procedure prescribed thereunder for selec-
tion and appointment of ad hoc teachers would no longer be available nor
applicable. The Full Bench of the Allahabad High Court in Radha Raizada
& Ors. v. Committee of Management, Vidyawati Darbari Girls College & Ors.
H (1994) 3 U.P. L.B.E. C. 1551 had not properly considered the effect of the
P.K.SHARMA v. STAHl 427
First 1981 Order. The appointments of the petitioners, therefore, were A
validly made in accordance with the procedure prescribed under Section
18 of the 1982 Act. The learned single Judge and the Division Bench,
therefore, were not right in their conclusion that the appointments of the
petitioners were not valid in law. We find no force in the contention.
It is true that Section 16 of the Act prescribes procedure for appoint- B
ment of teachers by the Commission. The said section reads as under :
"16. Appointments to be made only on recommendations of the
Commission or the Board - (J.) Notwithstanding anything to the
contrary contained in the lntermediale Education Act, 1921 or the
Regulations made thereunder but subject lo the provision of Sec-
c
tions 18 and 33.
(a) every appointment of a teacher specified in the Schedule
shall, on or after July 10, 1981, be made by the management
only on the recommendation of the Commission; D
(b) every appointment of a teacher (other than a teacher
specified in the Schedule) shall, on or after July HJ, 1981 be
made by the management only on the recommendation of the
Board:
E
Provided that in respect of retrenched employees, the provisions
of Section 16-EE of the Intermediate Education Act, 1921, shall
apply with the modification that in sub-section (2) of the aforesaid
section, for the words 'six months' the words ' two years' shall be
deemed to have been substituted. F
(2) Every appointment of a teacher, in contravention of the
provi.,ions of sub-section (1), shall be void.
Section 18 of the Act speaks of the procedure for appointment of ad
hoc teachers and reads as under : G
"18. Ad hoc Teachers. - (1) Where the management has notifi~d a
vacancy to the commission in accordance with the provisions of
the Act, and -
(a) the Commission has failed to recommend the name of any H
428 SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.
A suitable candidate for being appointed as a teacher specified
in the Schedule within one year from the date of such notifica-
tion; or
(b) the post of such teacher has actually remained vacant for
more than two months, tlten the n1anagen1enl n1ay GJJJJDint, by
B direct recnLitnzent or JJron1otion, a teacher on purely ad hoc
basis from amongst the persons possessing qualifications
prescribed under the Intermediate Education Act, 1921 or
the regulations made thereunder.
(2) The provisions of sub-section (1) shall also apply to the ap-
c pointment of a teacher (other than a teacher specified in the
Schedule) on ad hoc basis with the substitution of the expression
'Board' for the expression 11 CommiSsion 11 •
(3) Every appointment of an ad hoc teacher under sub-section (1)
D or sub-section (2) shall cease to have effect from the earliest of
the following dates, namely -
(a) when the candidate recommended by the Commission or the
Board, as the case may be, joins the post;
E (b) when the period of one month referred to in sub- section (4)
of Section expires;
(c) thirtieth day of June following the date of such ad hoc
appointment.
F Section 33 of the Act empowers the State Government to issue by a
notification order for removal of difficulties in implementation of, and to
give effect to the Act by way of modification, addition or omission, as it
may be deemed necessary cir expedient. In exercise of this power, the First
1981 Order came to be made. Para 5 of the First 1981 Order which is
G relevant for our purpose reads as under :
"5. - Ad hoc appointment by direct recruitment.
(i) Where any vacancy cannot be filled by promotion under
paragraph 4, the same may be filled by direct recruitment in
H accordance with clauses (2) to (5).
P.K.SHARMA v. STATE 429
(ii) The Management shall as soon as may be, inform the District A
Inspector of Schools about the details of the vacancy and such
Inspector shall invite applications from the Local Employ-
ment Exchange and also through public advertisements in al
least two newspapers.
(iii) Every application referred lo in clause (2) shall be addressed B
to the District Inspector of Schools and shall be accompanied
(a) by a crossed postal order worth ten rupees payable to
such Inspector.
(b) by a self addressed envelop bearing postal stamp for
c
purposes of registration.
(iv) The Distt. Inspector of Schools shall cause the best can·
dictates selected on the basis of quality points specified in
Appendix. The complication of quality points may be done D
on remunerative basis by retired Gazetted Governn1ent ser-
vants under the personal supervision of such Inspector.
(v) If more than one teacher of the same, subject or category is
to be recruited for more than one institution, the names of
selected teachers and names of the institution shall be ar- E
ranged in Hindi alphabetical order. The candidate whose
name appears on the top of the list shall be allotted to the
Institution the name whereof appears on the top of the list
of institution. This process shall be repeated till both the lists
are exhausted". F
We are not concerned m this case with the second removal of
difficulties order, 1981 which deals with filling up of short- term vacancies
of ad hoc teachers. It is, therefore, not necessary to deal with the procedure
, prescribed in that behalf. The Full Bench has elaborately considered the
legislative history. In paragraphs 26 and 27 it had dealt with the amend- G
ments to the U.P. Intermediate Education Act, 1921 and various provisions
of Ordinance 8 of 1981. The object was to provide teachers selected
through the Commission or the Board with a view to raise the standard of
education and in the event of there being delay in allotting the selected
teachers, with a view to allow the institution to appoint teachers on ad hoc H
430 SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.
A basis so as to avoid hardship to the students. Procedure under Section 18
was provided for appointment of such teachers in the institutions purely
on ad hoc basis in accordance with the procedure prescribed thereunder.
The method of recruitment and appointment of such teachers is regulated
in para 5 of the First 1981 Order. The appointment, therefore, should be
B made in accordance with the said procedure. In paragraph 4 J of the
Judgment, it has expressly dealt with ad hoc appointments as under:
"41. 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 substan-
c tive vacancy in the institution \Vhen 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 a teacher
within one year from the date of such notification of the post of
D
such teacher has actually remained vacant for more than twc
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 issue
E three Removal of Difficulties Or.dcr dated 30.1.82 and Removal of
Difficulties Order dated 14.4.1982. In fact these Removal of Dif-
ficulties 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 recruit-
ment thus, it available only when pre-conditions mentioned in
F
Section 18 of the Act are satisfied, secondly, the vacancy is sub-
stantive vacancy and thirdly, the vacancy could not be filled by
promotion. Neither the Act nor the Removal of Difficulties order
defined vacancy. However, the vacancy has been defined in Rule
2(11) of U.P. Secondary Education Services Commission Rules
G 1983. 'Vacancy' means 'a vacancy arising out as a result of death,
retirement, resignation, termination, dismissal, creation of new
post or appointment prevention of the incumbent to any higher
post in substantive capacity. Thus, both under Section 18 of the
Act and under the Removal of Difficulties Order, the management
H
P.K. Sl·IARMA v. STATE 431
of an institution is empowered to make ad hoc appointment by A
direct recruitment, in the manner laid down in paragraph 5 of the
First Removal of Difficulties Order only when such vacancy cannot
be filled 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 B
Order provide for ad hoc appointment of teacher in the institution,
later further providing for method and manner of such appoint-
ments are part of the 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 con-
c
tained in Section 18 and Removal of Difficulties Order are to
harmonized. It is, therefore, not correct to say that appointment
of a teacher on ad hoc basis is either under Section 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 D
procedure provided under the first Removal of Difficulties Order
. has to be followed. Paragraph 5 of the 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 vacan-
cy and the District Inspector of Schools shall invite applications E
from the local Employment Exchange and also through public
advertisement in at least two newspapers having adequate circula-
tion in Uttar Pradesh. Sub-paragraph (3) of paragraph 5 further
provides that every such application shall be addressed to the
District Inspector of Schools. Sub-paragraph (4) of paragraph 5 of F
the Removal of Difficulties Order provides that the District In-
spector of Schools shall cause the best candidate selected on the
basis of quality point specified in Appendix. The complication 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 G
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 II of the Regulations made in
the Intermediate Education Act.
H
42. In view of these provisions the ad hoc appointment of a teacher
432 SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.
A by direct recruitment can be resorted to only when the condition
precedent for exercise of such powers as staled in paragraph 18
of the Acl arc present and only in the manner provided in para-
graph 5 of the Removal of Difficulties Order."
"........... Thus, both under Section 18 of the Act and under the
B
Removal of Difficulties Order the Management of an inslilulion 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
c Commission joins the post. 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 provid-
ing for n1ethod and manner of such appointments are part of one
scheme. Scheme being provision for ad hoc appointments of
D teacher in the absence of duly selected teachers by the Commis-
sion. 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 harmonised. ll is,
therefore, not correct to say that appointment of a teacher on ad
E hoc basis is either under Section 18 of the Act or under the First
Removal of Difficulties Order. Tims if contingency arises for ad hoc
appointment of teacher by direct recntitment the procedure provided
under the First Removal of Difficulties Order has to be followed."
F It would thus be clear that any ad hoc appointment of the teachers
under Section 18 shall be only transient in nature, pending allotment of the
teachers selected by the Commission and recommended for appointment.
Such ad hoc appointments should also be made in accordance with the
piocetlure prescribed in para 5 of the First 1981 Order which was later
streamlined in the amended Section 18 of the Act with which we are not
G presently concerned. Any appointment made in transgression thereof is
illegal appointment and is void and confers no right on the appointees. The
removal of difficulties envisaged under Section 33 was effective not only
during the period when the Commission was not constituted but also even
thereafter as is evident from second paragraph of the preamble to the First
H 1981 Order which reads as under :
P.K. SHARMA v. STATE 433
"And whereas the establishment of the Commission and the Selec- A
tion Boards is likely to take some lime and even after the estab-
lishment of the said Commission and Boards, it is not possible to
make selection of the teachers for the first few months."
Jn Re 17ie Delhi Laws Act, 1912, 771e Ajmer Me1wara (Extension of B
Laws) Act, 1947, and 771e Pmt C States (Laws) Act, 1950 [1951] SCR 747
al 846 this Court had dealt with the power of modification and held thus:
"I will now deal with the power of modification which depends
on the meaning of the words "with such modifications as it thinks
fit". These are not unfamiliar words and they are often used by C
careful draftsmen lo enable laws which are applicable to one place
or object to be so adapted as to apply to another. The power of
introducing necessary restrictions and inodifications is incidental
to the power to apply or adapt the law, and in the context in which
the provision as to modification occurs, it cannot bear the sinister
sense attributed to it. The modifications arc to be made within the D
frarnc\vork of the Act and they cannot be such as to affect its
identity or structure or the essential purpose to be served by it.
The power to modify certainly involves a discretion to make
suitable changes, but it would be useless to give an authority the
power to adapt a law without givingit the power to make suitable E
changes 11
At page 849, this Court had further held thus :
"Similar instances may be multiplied, but that will serve no
useful purpose. The 1nain justification for a provision cn1po\vering F
modifications to be made, 'is said to be that, but for it, the Bills
would take longer to be made ready, and the operation of impor-
tant and wholesome measures would be delayed, and that once the
Act became operative, any defect in its provisions cannot be
removed until amending legislation is passed. It is also pointed out G
that the po\ver to modify within certain circumscribed limits does
not go as far as many other powers which are vested by the
legislature in high officials and public bodies through whom it
decides to act in certain matters."
In Mahadeva Upendra Sinai Etc. Etc. v. Union of India & Ors., [1975] H
434 SUPREME COURT REPORTS (1996] SUPP. 3 S.C.R.
A 2 SCR 640 at 653 this Court had held thus :
"To keep pace with the rapidly increasing responsibilities of a
Welfare democratic State, the legislature has to turn out a plethora
of hurried legislation, the volume of which is often matched with
its complexity. Under conditions of extreme pressure, with heavy
B demands on the time of the legislature and the endurance and skill
of the draftsman, it is well nigh impossible to foresee all the
circumstances to deal with which a statute is enacted or to an-
ticipate all the difficulties that might arise in its working due to
peculiar local conditions or even a local law. This is particularly
c true when Parliament undertakes legislation which gives a new
dimension to socio-economic activities of the State or extends the
existing Indian laws to new territories or areas freshly merged in
the Union of India. In order to obviate the necessity of approaching
the legislature for removal of every difficulty, howsoever trivial,
encountered in the enforcement of a statute, by going through the
D
time consuming amendatory processi the legislature sometimes
thinks it expedient to invest the Executive with a very limited power
to make minor adaptations and peripheral adjustments in the
statute, for making its implementation effective, without touching
its substance. 11
E
These principles are unexceptionable. However, the question is
whether they get attracted to the facts of this case. It is seen that when
intimation was given by the college to the Commission for allotment of the
teachers, the Act envisaged that within one year the recommendation
F would be made by the Commission for appointment; but within two months
from the date of the intimation if the allotment of the selected candidates
is not made to obviate the difficulty of the Management in imparting
education to the students, Section 18 gives power to the Management to
make ad hoc appointments. Section 16 is mandatory. Any appointment in
vio1ation thereof is void. As seen prior to the Amendment Act of 1982 the
G First 1981. Order envisages recruitment as per the procedure prescribed in
para 5 thereof. It is an in-built procedure to avoid manipulation and
nepotism in selection and appointment of the teachers by the Management
lo any posts in aided institution. It is obvious that when the salary is paid
by the State to the Government aided private educalional institutions,
H public interest demands that the teachers' selection must be in accordance
PK SHARMA v. STATE 435
with the procedure prescribed under the Act read with the First 1981 A
Order. Therefore, the Order is a permanent one but not transient as
contended for. The Full Bench of the High Court has elaborately con-
sidered the effect of the Order and for cogent and valid reasons it has held
that the Order will supplement the power to select and appoint ad hoc
teaches as per the procedure prescribed under Section 18 of the Act. The B
view taken by the Division Bench following the Full Bench decision,
therefore, cannot be faulted with. Accordingly, we find no merit in special
leave petition.
The special leave petition is accordingly dismissed.
T.N.A. Petition dismissed. c
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