SMT. RAM SAKHI DEVI ETC.versusSTATE OF U.P. AND ORS. ETC.

                      SMT. RAM SAKHI DEVI ETC.                                    A
                                       v.
                    STATE OF U.P. AND ORS. ETC.

                              MARCH 20, 1997

          [K. RAMASWAMY ANDS. SAGHIR AHMAD, JJ.)                                  B

      Service Law :

       U.P. Jntennediate Education Act, 1921/U.P. Secondmy Education
(Service Commission) Act, 1982:                                                   C

       S.16-E/s. l(J-Junior High School-Upgraded as High School-Appoint-
ment of Head Master-Managing Committee adve1tised the post and selected
the appellant, the Headmistress of the erstwhile Junior High Sclwol-Dist1ict
Inspector of Schools did not accord ratification-Wiit petition by appel-
lant-Dismissed by High Cowt~Held, though High Cowt may not be con·ect             D
infallowing its earlier judgment in dismissing the writ petition, the selection
of appellant by Managing Committee cannot be sustained--Under s.10 of the
1982 Act e·very institution is enjoined to notify to Commission the vacancies
and the Commission will give vide publicity and invite applications from all
qualified candidates so that talented candidate is selected-After the 1985        E
Amendment, the power of the Management to constitute a Selection Com-
mittee u/s. 16-E has been taken away-Appellant could not be regularised
under s.33-A of the Regulations made u/s. 16-E of the Act-Recourse to
s.33-A of the Regulations should be made sparingly and not as a routine.

     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 472 of                       F
1986 Etc.

     From the Judgment and Order dated 6.11.85 of the Allahabad High
Court in C.M.W.P. No. 10982 of 1985.
                                                                                  G
      T.N. Singh, B.M. Sharma and S.N. Singh for the Appellants.

     R.C. Verma for R.B. Misra, (Pramod Swarup) (NP) and Mrs. Rani
Chhabra for the Respondents .

     .The following Order of the Court was delivered :                            H
                                     157
    158                   SUPREME COURT REPORTS                   [1997] 3 S.C.R.

A CA. No. 472186 :
         This appeal by special leave arises from the judgment of the Division
    Bench of the Allahabad High Court, made on November 6, 1985 in Civil
    Miscellaneous Writ Petition No. 10982/85.

B         The admitted facts are that the appellant was appointed as Head-
    mistress of a Junior High School, Kamla Nehru Kanya Vidyalaya, Shiv
    Shankari Dham Pachewara Chunal Mirzapur which was upgraded in July,
    1982 as High School. The Managing Committee advertised through
    newspaper under the U.P. Intermediate Education Act, 1921 for selection
C   of the candidates, obviously, under Section 16-E. The Committee had
    selected the appellant on December 17, 1983 and the appelhint
                                                                I
                                                                    was sought
    to be retired. Since the ratification was not accorded by the District
    Inspector, the appellant had approached the High Court. The High Court
    relying upon its earlier decision in Jai Prakash Shanna v. State of U.P. &
D   Ors. WP (No. 174/85) dismissed the writ petition. Thus, this appeal by
    special leave.

          Though the High Court may not be correct in following its judgment
    in dismissing the writ petition, on facts we find that there is no substantial
    difference in the result. The admitted position is that the U .P. Secondary
E   Education (Services Commission) Act, 1982, had come into force with
    effect from July 14, 1981. Section 10 of the Act specifies the purpose of
    making appointment to the posts of teachers specified in the Schedule. It
    postulates thus :

             "(1) For the purpose of making appointment of a teacher specified
F
             in the Schedule, the management shall notify the vacancy to the
             Commission in such manner and through such office or authority
             as may be prescribed.

             (2) The procedure of selection of candidates for appointment to
G            the posts of such teachers shall be such as may be prescribed :

             Provided that the Commission shall, with a view to inviting talented
             persons, give wide publicity in the State to the vacancies notified
             under sub-section (1)".

H         It is, thus, clear that Section 10 envisages two steps, namely,· every
                           RAMSAKHIDEVI~         STATE                       159


•    institution is enjoined to notify to the Commission the vacancies through A
     such officer or authority as may be ·prescribed. The Service Commission,
     before selection, will give wide publicity by inviting applications from all
     qualified candidates so that talented candidates would apply for get
     selected to the post. Though this Section has been amended by Amend-
     ment Act 12 of 1985, the same is not relevant and has no application to B
     this case. It reads as under :

             "Notwithstanding anything to the contrary contained in the Inter-
             mediate Education Act, 1921 or the Regulations made thereunder
•            but subject to the provisions of Sections 18, 21-B, 21-C, 21-D, 33
.-           and 33-A on or after July 10, 1981 be made by the management C
             only on the recommendation of the Commission;

             (b) every appointment of a teacher specified in the Schedule, shall,
             on or after July 1, 1981, be made by the management only on the
             recommendation of the Board."
                                                                                    D
           Thus, it could be seen that after coming into force of the said
     Amendment Act, the power of the Management to constitute a Selection
     Committee under Section 16-E of the U.P. Intermediate Act has been
     taken away. Instead the selection has to be made only through the Com-
     mission under the Act and the selected candidate shall be appointed on its E
     recommendation and in no other manner. The selection by the School
     under Intermediate Education Act, 1921 is illegal.

           Learned counsel for the appellant has sought to place reliance on
     Section 33-A of the Regulation made under Section 16-E of the U.P.
     Intermediate Act to regularise such ad hoc appointments. Undoubtedly, F
     every teacher directly appointed before the commencement of the Act, in
     other words, on ad hoc basis, against the substantive vacancy may be
     regularised under Section 33-A; but it cannot be used as a routine. It is
     mandatory for the management to notify to the Commission and in case
     the Commission is unable to recommend the selected candidates within a G
     reasonable time, any candidate appointed on ad hoc basis will be deemed
     to have been appointed in substantive capacity. The recourse to Section
     33-A should be made sparingly and not as a routine. If Section 33-A route
     is adopted as a routine, the entire process of selection contemplated under
     the ~ct would be given a decent burial and illegal appointments would gain H
    160                   SUPREME COURT REPORTS                [1997] 3 S.C.R.

A legitimacy. Under these circumstances; we do not think that the cn\insel is
    right in contending that the appellant could be regularised under Section
    33-A of the Regulation.

           The appeal is accordingly dismissed. No costs.

B          C4 No. 1825186 .:

           The appeal having become infructuous, is dismissed. No. costs.

    R.P.                                                    Appeals dismissed.




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