REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.    4966         OF 2009 (Arising out of SLP (C) No.10606 of 2006)

Shesh Mani Shukla … Appellants

Versus

D.I.O.S. Deoria & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Satya Prakash Vivekanand Inter College, Musahari District Deoria is  

an  institution  recognized  by  the  Board  of  High School  and Intermediate  

Education Act,  1921(for short,  ‘the  1921 Act’)  as  also by the U.P.  High  

School  and  Intermediate  Colleges  (Payment  of  Salaries  & Teachers  and  

Other Employees) Act, 1971 (for short, ‘the 1971 Act’).  

3. One B.G.  Mishra  was a  teacher  working in  the  said  school  in  CT  

grade.   As  he  left  the  institution,  a  vacancy  arose  on  15.10.1985.   The  

Management of the college gave intimation of the said vacancy to District  

Inspector of Schools on or about 19.10.1986 requesting the said authority to  

forward  the  name  of  an  eligible  teacher  for  occupying  the  vacant  post.  

Pursuant thereto or in furtherance thereof, the name of respondent No.3, Ali  

Hussain Ansari, was recommended.   However, the Management Committee  

did not find him suitable therefor.

4. Management Committee, ignoring the said recommendations made by  

the District Inspector of Schools issued advertisement on or about 8.7.2987.  

Names were called for from the Employment Exchange.  From amongst the  

candidates  whose  names  were  sent  by  the  Employment  Exchange,  the  

appellant was selected by the Managment Committee on 10.9.1987.  The  

School Authorities, however, refused to grant approval to his appointment  

and by an order  dated 10.12.1987 insisted on the Management  to accept  

joining of respondent No.3.  Despite the same, the respondent No.2 was not  

given any offer of appointment, inter alia, on the premise that he was not  

suitable  for  holding  the  post  of  Assistant  Teacher.   Indisputably,  

recommendation  of  the  name  of  the  appellant  for  his  appointment  was  

disapproved  by  the  District  Inspector  of  Schools  by  an  order  dated  

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24.4.1988.  Appellant, however, continued to work in the school as an ad  

hoc employee.

5. Questioning, inter alia, the legality of the said order dated 24.4.1988,  

the appellant filed a writ application before the High Court of Judicature at  

Allahabad  which  was  marked  as  Civil  Miscellaneous  Writ  Petition  

No.14530 of 1988.  By reason of an order dated 23.4.2004, the writ petition  

was  dismissed  by  a  learned  Single  Judge  of  the  said  Court,  inter  alia,  

holding:

“This apart, even if the Committee of Management  thought that the name of respondent No.3 had been  recommended  by taking  recourse  to  a  procedure  contrary to the provisions of the first Removal of  Difficulties  Order,  1981  then  too  it  could  have  either challenged the said recommendation before  this Court or it could have pointed out the alleged  defects  to the District  Inspector  of Schools,  who  upon  being  satisfied,  could  have  initiated  fresh  steps.  What is disturbing is that the Committee of  Management  in  the  present  case  completely  ignored  the  recommendation  of  the  District  Inspector  of  Schools  for  issuance  of  an  appointment  letter  in  favour  of  respondent  No.3  and proceeded on its own, as if it had the power to  do  so,  under  the  First  Remopval  of  Difficulties  Order,  1981.   I  am clearly  of  the  view that  the  Committee  of  Management  did  not  have  the  authority  to  make  selection  and  appoint  the  petitioner.  Further a person who himself was not  appointed in accordance with law cannot challenge  the appointment of a person on the ground that his  name  was  recommended  without  following  the  

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procedure prescribed.  Thus, also it is not open to  the  petitioner  to  challenge  the  communication  dated  8.6.1987  sent  by  the  District  Inspector  of  Schools.”

An intra court  appeal  preferred thereagainst  has been dismissed by  

reason of the impugned judgment.

6. Mr.  S.R.  Singh,  learned  senior  counsel  appearing  on  behalf  of  the  

appellant,  would  contend that  the  High  Court  committed  a  serious  error  

insofar  as  it  failed  to  take  into  consideration  that  the  Committee  of  

Management  was entitled  to  make selection and appointment  of  teachers  

whenever ad hoc appointment is  to be made due to non-availability  of a  

candidate selected by the Commission in terms of the provisions of Section  

18(2) of the UP Secondary Education Services Commission and Selection  

Boards  Act,  1982  read  with  para  5  of  the  First  Removal  of  Difficulties  

Order, 1981.

7. Dr.  R.G.  Padia,  learned  counsel  appearing  on  behalf  of  the  

respondent, on the other hand, urged that as the respondent No.3 has been  

working  and  getting  his  salary,  this  Court  should  not  exercise  its  

discretionary jurisdiction under Article 136 of the Constitution of India.

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8. The short question which arises for our consideration in this appeal is  

as to whether the Committee of Management can make appointment in the  

post of a teacher ignoring the recommendations of the District Inspector of  

Schools.   

A substantive vacancy arose on or about 15.10.1985.  Section 16 of  

the  Act  prescribes  for  the  procedure  for  appointment  of  teachers  by  the  

Commission.   Section  18  of  the  Act  as  it  then  stood  empowered  the  

Management to make appointment of the ad hoc teachers.  It is also not in  

dispute that the State of Uttar Pradesh in exercise of its power of Removal of  

Difficulties in terms of Section 33 of the Act issued an order in the year  

1981, para 5 whereof 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  accordance  with  clauses (2) to (5).

(ii)  The  Management  shall  as  soon  as  may  be,  inform the District Inspector of Schools about the  details  of  the  vacancy  and  such  Inspector  shall  invite  applications  from  the  Local  Employment  Exchange and also through public advertisements  in at least two newspapers.

(iii)  Every  application  referred  to  in  clause  (2)  shall  be  addressed  to  the  District  Inspector  of  Schools and shall be accompanied—

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(a) by a crossed postal order worth ten rupees  payable to such Inspector.

(b) by a self-addressed envelope bearing postal  stamp for purposes of registration.

(iv) The District Inspector of Schools shall cause  the best candidates selected on the basis of quality  points specified in Appendix. The compilation of  quality points may be done on remunerative basis  by retired Gazetted government servants 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 arranged 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.”

9. A Full Bench of the High Court in  Radha Raizada v.  Committee of  

Management,  Vidyawati  Darbari  Girls’  College [(1994) 3 UPLBEC 1551  

(FB)] held the said provision to be ultra vires.

Correctness of the said decision came up  for consideration before this  

Court in Prabhat Kumar Sharma & Ors. v. State of U.P. & Ors. [(1996) 10  

SCC 62], wherein it was held :

“7.  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  

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the  teachers  selected  by  the  Commission  and  recommended  for  appointment.  Such  ad  hoc  appointments should also be made in accordance  with the procedure 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 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 the second para of the  preamble to the First 1981 Order which reads as  under:

‘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.’”

This Court, however, in that decision itself, held :

“10.  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  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  

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appointments.  Section  16  is  mandatory.  Any  appointment in violation thereof is void. As seen  prior to the Amendment Act of 1982 the First 1981  Order envisages recruitment as per the procedure  prescribed  in  para  5  thereof.  It  is  an  inbuilt  procedure to avoid manipulation and nepotism in  selection and appointment of the teachers by the  Management to any posts in an aided institution. It  is obvious that when the salary is paid by the State  to  the  government-aided  private  educational  institutions,  public  interest  demands  that  the  teachers’ selection must be in accordance with the  procedure prescribed under the Act read with the  First  1981  Order.  Therefore,  the  Order  is  a  permanent one but not transient as contended for.  The Full Bench of the High Court has elaborately  considered 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  teachers  as  per  the  procedure  prescribed  under  Section  18  of  the  Act.  The  view  taken  by  the  Division Bench following the Full Bench decision,  therefore, cannot be faulted with. Accordingly, we  find no merit in the special leave petition.”

10. Section 18 of the Act reads as under :

“18.  Ad  hoc  Teachers.—(1)  Where  the  management  has  notified  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 suitable candidate for being  appointed  as  a  teacher  specified  in  the  Schedule within one year from the date of  such notification; or

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(b) the  post  of  such  teacher  has  actually  remained vacant for more than two months,  then,  the  management  may  appoint,  by  direct recruitment or promotion, 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 appointment 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 ‘Commission’.

(3) Every appointment of an ad hoc teacher under  sub-section  (1)  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;

(b) when the period of one month referred to in  sub-section (4) of Section 11 expires;

(c) thirtieth  day of  June following the date of  such ad hoc appointment.”

11. Intimation  as  regards  vacancy  was  given  on  19.9.1986.    

Recommendation of respondent No.3 by the District Inspector of Schools  

was made on 8.6.1987.  Thus, a recommendation had been made within a  

period of one year.  On what premise, the candidature of respondent No.3  

was not found suitable or he was otherwise found to be ineligible for holding  

the  said post  has not  been disclosed.   The conduct  of  the  Committee  of  

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Management  of  the  institution,  thus,  is  required  to  be  considered  having  

regard to the aforementioned provisions.

12. We have noticed hereinbefore paragraph 5 of the First 1981 Order.  

Para 6 of the Order provides for eligibility for appointment.  Para 7 thereof  

provides that in the event of any dispute in respect of the promotion or direct  

recruitment, the same would be referred to the Director whose decision shall  

be  final.   The  District  Inspector  of  Schools  in  his  letter  dated  8.6.1987  

addressed to the manager of the Institution, directed :

“According  to  the  abovesaid  order  of  the  Government,  you  have  been  selected  by  the  Regional  Selection  Board,  orders  are  given  for  issue  of  appointment  letters  to  the  selected  candidates, on temporary basis.  In case of need,  without  any  prior  notice  the  service  can  be  terminated.  The selected candidates may take over  the charge after  verification of the certificates of  their date of birth, educational qualifications, with  their  original  certificates.   Intimation  of  joining  duty may be sent to this officer, within one week  of joining the duties.

432. Name  of  the  selected candidate

Qualification Category

Ali Hussain Ansari Vill. Barwa Bazar, Post : Sekhwaria, Distt. Dewaria, UP

High School Intermediate B.A. M.A. B.Ed. – Theory Practical

II II”

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13. A reminder thereto was also sent by the District Inspector of Schools  

on 3.8.1987 as respondent No.3 was not allowed to join his service.  Yet  

again, by order dated 20.4.1988, it was directed :

“It is regretted that till now, this Department has  not  received  the  intimation  about  joining  of  the  duties by Ansari.  It is your submission that you  have appointed one person, in place of Shri Ansari.  Your this act is absolutely illegal,  on which it is  not possible for this office to give consent, because  no directions have been to you, by this office for  appointment of any person.

Hence  you  are  again  directed  to  kindly  take  necessary action immediately for getting joining of  duty  done  by  Shri  Ansari,  otherwise,  by  being  compelled  Departmental  action  shall  be  taken  under the Administrative provisions.”

14. Both the learned Single Judge as also the Division Bench have found  

that the institution has not complied with the provisions of the 1981 Act as  

amended  as  also  para  5  of  the  1981  order.   If  the  appointment  of  the  

appellant was not valid, the question of granting any approval thereto did not  

arise.   Action, on the part  of  the Committee  of the Management  to hold  

selection, being not consistent with Para 5 of the Order has rightly been held  

to be wholly unsustainable.  It is true that the appellant has worked for a  

long  time.   His  appointment,  however,  being  in  contravention  of  the  

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statutory provision was illegal, and, thus, void ab initio.  If his appointment  

has not been granted approval by the statutory authority, no exception can be  

taken only because the appellant had worked for a long time.  The same by  

itself, in our opinion, cannot form the basis for obtaining a writ of or in the  

nature of mandamus; as it is well known that for the said purpose, the writ  

petitioner must establish a legal right in himself and a corresponding legal  

duty in the State.  {See Food Corporation of India & Ors. v.  Ashis Kumar  

Ganguly & Ors. [2009 (8) SCALE 218]}.  Sympathy or sentiments alone, it  

is well settled, cannot form the basis for issuing a writ of or in the nature of  

mandamus.  {[See  State of M.P. & Ors. v.  Sanjay Kumar Pathak & Ors.  

[(2008) 1 SCC 456]}

15. For the reasons aforementioned, there is no merit in this appeal.  It is  

dismissed accordingly.  However, in the facts and circumstances of the case,  

there shall be no order as to costs.

……………………………….J. [S.B. Sinha]

..…………………………..…J.  [Cyriac Joseph]

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New Delhi; July 31, 2009

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