Holding

The appointment was not in accordance with the prescribed procedure under paragraph 5 of the First Removal of Difficulties Order, and therefore the appellant is not entitled to salary, rendering the State’s refusal lawful.

Summary

The appellant, a teacher, was appointed by the Management of a government‑aided private college to fill a substantive vacancy without complying with the procedure laid down in paragraph 5 of the First Uttar Pradesh Secondary Education Service Commission (Removal of Difficulties) Order, 1981. He sought financial approval for his salary, but the District Inspector of Schools refused, citing a state‑imposed ban on appointments and the irregularity of the appointment. The High Court upheld the refusal, and the appellant appealed to the Supreme Court. The Court examined the provisions of the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982 (especially sections 16 and 18) and the Removal of Difficulties Orders, concluding that the Management could appoint ad‑hoc teachers only after notifying the vacancy to the Commission, waiting a year for a recommendation or a vacancy of more than two months, and first attempting promotion. None of these conditions were satisfied, and the appointment was therefore illegal. Consequently, the appellant’s claim for salary was rejected and the State’s coffer was not liable. The appeal was dismissed.

Issues considered

Whether the Management’s appointment of the appellant to a substantive vacancy complied with the procedure prescribed under paragraph 5 of the First Removal of Difficulties Order, 1981.
Whether Section 18 of the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982 permits such an appointment without prior notification to the Commission and without a vacancy of the requisite duration.
Whether the District Inspector of Schools’ refusal to grant financial approval for the appellant’s salary was lawful.
Whether the State’s ban on appointments during the relevant period bars the appellant’s salary claim.

Legislation cited

Subjects

ad hoc appointmentteacher recruitmentSection 18Removal of Difficulties Ordersalary claimgovernment ban on appointmentsservice lawUttar Pradesh education

Judgment

58 [2019]
SUPREME COURT 14 S.C.R. 58
REPORTS [2019] 14 S.C.R.

A RAVINDRA SINGH
v.
DISTRICT INSPECTOR OF SCHOOLS AND ORS.
(Civil Appeal No. 9228 of 2016)
B NOVEMBER 06, 2019
[R. BANUMATHI, A. S. BOPANNA AND
HRISHIKESH ROY, JJ.]
Uttar Pradesh Secondary Education Services Commission and
C Selection Boards Act, 1982: First Uttar Pradesh Secondary
Education Service Commission (Removal of Difficulties) Order dated
1981 – Second Removal of the Difficulties Order, 1981 – Appointment
of appellant-teacher by Management in a substantive vacancy –
Non-adherence to the procedure contemplated in paragraph 5 of
the First Removal of Difficulties Order – Claim for salary by
D
appellant – Refusal of financial approval by District Inspector of
Schools – Correctness of – Held: The analysis of the 1982 Act and
the Removal of the Difficulties Order by the Allahabad High Court
in Radha Raizada suggested that the Management has very limited
scope to make appointment to the substantive vacancy in their
E Institution – s.18 of the Act of 1982, lays down the process for
direct appointment of ad hoc teachers but before the Management
takes any step to fill up vacancy, the conditions laid therein must be
peremptorily satisfied – The Management is required to firstly notify
the vacancy to the Commission and in turn, the Selection Commission
is expected to recommend a suitable candidate within one year of
F
such notification – Secondly, the post should have remained vacant
for more than 2 months – Only if these two conditions are satisfied,
the Management can take short term measures – Further stipulations
to this process provided in paragraphs 4 and 5 of the First Removal
of Difficulties Order are that only when the vacancy cannot be filled
G by promotion under paragraph 4, the paragraph 5 permits ad hoc
appointment by direct recruitment – Appellant’s appointment by the
Management, was not in accordance with paragraph 5 of the
Removal of Difficulties Order – The decision repudiating the salary
claim for the appellant was in order since the Management failed
H
58
RAVINDRA SINGH v. DISTRICT INSPECTOR OF SCHOOLS 59

to adhere to the due process in filling up the substantive vacancy – A
Moreover, the State had imposed a ban on appointment during the
relevant period – Therefore, the appellant cannot enforce a claim
for salary against the State – Service law.
Dismissing the appeal, the Court
HELD : 1.1 The UP Secondary Education Services B
Commission and Selection Boards Act, 1982 was enacted to
constitute Selection Committees and Selection Boards to select
teachers for appointment in Government Aided Private
Educational Institutions. Since the Commission failed to
commence functioning before 01.11.1983, in order to address C
the difficulties in the interregnum, the Government had issued
the First Uttar Pradesh Secondary Education Service Commission
(Removal of Difficulties) Order dated 1981 followed by the 2nd
Removal of the Difficulties Order, 1981, to fill up short term
vacancies. Section 16 of the Act of 1982, provides for recruitment
of teachers by the Commission on the requisition made by the D
Management and then the selected teachers are allotted to the
Intuitions/Colleges as per their requirement. When the
Commission is unable to allot teachers, Section 18 comes into
operation and permits appointment of ad hoc teachers, as a
transient measure. [Para 9] [63-B-D] E
2. Section 18 of the Act of 1982, lays down the process for
direct appointment of ad hoc teachers but before the Management
takes any step to fill up vacancy, the conditions laid therein must
be peremptorily satisfied. The Management is required to firstly
notify the vacancy to the Commission and in turn, the Selection F
Commission is expected to recommend a suitable candidate
within one year of such notification. Secondly, the post should
have remained vacant for more than 2 months. Only if these two
conditions are satisfied, the Management can take short term
measures. Further stipulations to this process are provided in
paragraphs 4 and 5 of the First Removal of Difficulties Order. G
Only when the vacancy cannot be filled by promotion under
paragraph 4, the paragraph 5 permits ad hoc appointment by direct
recruitment. [Para 12] [67-C-E-]

H
60 SUPREME COURT REPORTS [2019] 14 S.C.R.

A 3. Paragraph 2 of the Removal of Difficulties Order, was
substituted by the Second Removal of the Difficulties Order, which
enabled the Management to make appointment against
substantive vacancy either by promotion or by direct recruitment.
In the instant matter, it was not the District Inspector of Schools
but the Management, which resolved to appoint the appellant.
B
This is contrary to the prescribed process in paragraph 5(4) of
the First Removal of Difficulties Order. The State coffer should
not be burdened with salary obligation for an appointment, not
made by them. The decision repudiating the salary claim for the
appellant is also found to be in order since the Management failed
C to adhere to the due process in filling up the substantive vacancy.
Moreover, the State had imposed a ban on appointment during
the relevant period. Therefore, the appellant cannot enforce a
claim for salary against the State. [Paras 13, 14] [67-G-H; 68-A,
D-E]
D Prabhat Kumar Sharma and Others v. State of U.P. and
Ors. (1996) 10 SCC 62 : [1996] 3 Suppl. SCR 424
– relied on.
Radha Raizada v. Committee of Management Vidyawati
Darbari Girls Inter College and Ors. 1994 All.L.J. 1077
E – approved
Case Law Reference
1994 All.L.J. 1077 approved Para 6
[1996] 3 Suppl. SCR 424 relied on Para 8
F CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9228
of 2016.
From the Judgment and Order dated 20.05.2016 of the High Court
of Judicature at Allahabad in Special Appeal No. 345 of 2016.
Manoj Prasad, Sr. Adv., Prakash Kumar Singh, K. Uma Shanker,
G Ms. Purnima Jauhari, Advs. for the Appellant.
Harish Pandey, Ms. Asha Jain Madan, Mukesh Jain, Advs. for
the Respondents.

H
RAVINDRA SINGH v. DISTRICT INSPECTOR OF SCHOOLS 61

The Judgment of the Court was delivered by A
HRISHIKESH ROY, J.
1. This appeal is directed against the Judgment and Order dated
20.05.2016 in the Special Appeal No. 345 of 2016, of the High Court of
Judicature of Allahabad. Under the impugned order, the Division Bench
rejected the Appeal of the Writ Petitioner and upheld the judgment dated B
12.04.2016 whereby, the learned Single Judge dismissed the Writ - A
No.38790 of 2000, filed by the present appellant.
2. Before the High Court, the appellant challenged the decision
dated 16.02.2000 of the District Inspector of Schools, Kanpur Nagar
whereunder, the appellant’s representation for financial consent and C
approval for his service was negated. While rejecting the representation,
the authority observed in the speaking order that Government has placed
a ban on all types of recruitment by the Management and that the
concerned Bilhaur Inter College, (hereinafter, “the Institution”), was
not empowered to make any appointment. Moreover, the appellant was D
found to be appointed without any financial implication. The District
Inspector of Schools passed the impugned speaking order in pursuance
to the High Court’s earlier direction dated 10.07.1998 in the Writ Petition
(C) No.21713 of 1998 and hearing was afforded to the appellant and the
Manager of the Institution.
E
3. Adverting to the speaking order (16.02.2000) of the Inspector
of Schools, which was challenged in the Writ - A No.38790 of 2000, the
Learned Judge noted that the appellant was appointed in a substantive
vacancy which has occurred after transfer of one Ramesh Chandra
Pandey who was serving in the Institution as a LT Grade Teacher. While
appointing against a substantive vacancy, the Management according to F
the High Court, failed to adhere to the procedure contemplated in
paragraph 5 of the First Removal of the Difficulties Order, 1981.
The Learned Judge in his Judgment dated 12.04.2016 accordingly found
no infirmity in the authority’s decision, to refuse financial approval for
appellant’s appointment. G
4. The above decision was challenged in the Special Appeal where
the appellant reiterated his argument that Management is competent to
appoint even against a substantive vacancy. The full Bench Judgment in
Radha Raizada vs. Committee of Management Vidyawati Darbari
H
62 SUPREME COURT REPORTS [2019] 14 S.C.R.

A Girls Inter College and Ors.1, was cited to argue that the Managing
Committee is not denuded of its power during the ban period, to make
ad hoc appointment under Section 18 of the U.P. Act No.5 of 1982.
5. However those contentions did not impress the Division Bench
and the High Court observed in the impugned order dated 20.05.2016
B that the procedure prescribed under paragraph 5 of the First Removal
of Difficulties Order, was disregarded by the Management, in appointing
the appellant. Accordingly, the appeal was found devoid of merit and
same was dismissed resulting in the present challenge.
6. We have heard Mr Manoj Prasad, the learned Senior Advocate
C representing the appellant. The State of Uttar Pradesh and their officers
(Respondent Nos.1, 2 & 4) are represented by Mr. Harish Pandey, the
learned Counsel. We have perused the impugned judgment and
considered other the materials on record.
7. Assailing the legality of the impugned judgment of the Allahabad
D High Court, Mr Manoj Prasad, the learned Senior Counsel projects that
the appellant has served without remuneration since 1997 and, therefore,
approval for paying his salary should have been accorded by the
authorities. According to the learned Counsel, the High Court
misconstrued the ratio in Radha Raizada. The counsel argues that the
Management of the Institution is competent to make short term ad hoc
E appointment in available vacancies and since the appellant was appointed
after selection and advertisement, his salary should have been approved
by the authorities.
8. Per contra, Mr Harish Pandey, the learned Counsel representing
the authorities of the State of Uttar Pradesh firstly argues that during
F the Government imposed ban period, the Management of the Institution
had no authority to make appointment against substantive vacancy. The
Government Counsel then refers to the Uttar Pradesh Secondary
Education Services Commission Procedure (Removal of Difficulties)
Order, 1981 notified under Section 18 of the Uttar Pradesh Act No.5
G of 1982 and submits that at first instance, the Management should
attempt to fill up the substantive vacancy by promotion and should not
take recourse to direct recruitment. Mr Pandey then refers to the
decision/ratio in Prabhat Kumar Sharma and Others vs. State of U.P.
and Ors.2, to point out that the High Court’s Judgment in Radha
1
1994 All.L.J. 1077
H 2
(1996) 10 SCC 62
RAVINDRA SINGH v. DISTRICT INSPECTOR OF SCHOOLS 63
[HRISHIKESH ROY, J.]

Raizada(supra) was approved by this Court and it is too late in the day A
for the appellant to argue that he is entitled to financial approval for his
service, although he was unauthorizedly appointed against a substantive
vacancy, by the Managing Committee of the Institution.
9. The UP Secondary Education Services Commission and
Selection Boards Act, 1982 hereinafter “the Act, 1982”, was enacted B
to constitute Selection Committees and Selection Boards to select teachers
for appointment in Government Aided Private Educational Institutions.
Since the Commission failed to commence functioning before 01.11.1983,
in order to address the difficulties in the interregnum, the Government
had issued the First Uttar Pradesh Secondary Education Service
Commission (Removal of Difficulties) Order dated 1981 followed by C
the 2nd Removal of the Difficulties Order, 1981, to fill up short term
vacancies. The Section 16 of the Act of 1982, provides for recruitment
of teachers by the Commission on the requisition made by the
Management and then the selected teachers are allotted to the Intuitions/
Colleges as per their requirement. When the Commission is unable to D
allot teachers, Section 18 comes into operation and permits appointment
of ad hoc teachers, as a transient measure.
10.1 Analyzing the above prescription of the 1982 Act and also
the provisions of the Removal of the Difficulties Order, the Allahabad
High Court in Radha Raizada(supra) had formulated for itself the E
following two questions to be answered by the Full Bench:
“. . . . . . . . . . . . . . . . . . . . .
QUESTION NO. (c)
What would be the criteria and procedure for ad hoc appointment F
of a teacher or Principal either under Removal of Difficulties Order
or under Section 18 of the U.P. Act, No. 5 of 1982?
QUESTION NO. (d)
Whether any approval or prior approval of the District Inspector
of Schools or Regional Inspectors of Girls Schools, as the case G
may be, is necessary for making ad hoc appointment of a teacher
or Principal either under Removal of Difficulties Order or under
Section 18 of the Act?”
.....................
H
64 SUPREME COURT REPORTS [2019] 14 S.C.R.

A 10.2 The Court then observed the following:
“. . . . . . . . . . .. . . . .. . . . .. . . . .. . . . .. . . .. . . . . . . . . . . . . . .
AD HOC APPOINTMENT BY PROMOTION
35. Paragraph 5 of the First Removal of Difficulties Order provides
B 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.
36. Second Removal of Difficulties Order provides for ad hoc
C appointment against the short-term vacancy in the posts of teacher
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
D institutions. But section 18 does not provide the method and manner
of such appointment. Whereas Removal of Difficulties Order 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.
E 37. 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
F 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
G 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
H
RAVINDRA SINGH v. DISTRICT INSPECTOR OF SCHOOLS 65
[HRISHIKESH ROY, J.]

is first required to fill up the substantive vacancy by promotion on A
ad hoc basis from 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 by promotion of the senior most teachers in
the institution in the trained graduate. Similarly, every vacancy in
B
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).
38. Paragraph 5 of the First Removal of Difficulties Order provides
that where any vacancy cannot be filled by promotion under C
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 D
disturbance in teaching of the institution which may affect the
career of student. 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, E
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.
AD HOC APPOINTMENT OF TEACHERS BY DIRECT
RECRUITMENT: F

40. 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 G
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 or
the post of such teacher has actually remained vacant for more H
66 SUPREME COURT REPORTS [2019] 14 S.C.R.

A 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 11-9-1981, Removal of
B
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,
C 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.
. . . . . . . . . . .. . . . .. . . . .. . . . .. . . . .. . . .. . . . . . . . . . . . . . . .
Thus, if contingency arises for ad hoc appointment of teacher by
D direct recruitment the 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 vacancy and the District Inspector of Schools shall
E invite application from the local employment Exchange and also
through public advertisement in at least two newspapers having
adequate circulation in Uttar Pradesh.
. . . . . . . . . . .. . . . .. . . . .. . . . .. . . . .. . . .. . . . . . . . . . . . . . . .
41. In view of these provisions the ad hoc appointment of a teacher
F 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. However, it
goes without saying that if a management without following the
G 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.
. . . . . . . . . . .. . . . .. . . . .. . . . .. . . . .. . . .. . . . . . . . . . . . . . . .”
H
RAVINDRA SINGH v. DISTRICT INSPECTOR OF SCHOOLS 67
[HRISHIKESH ROY, J.]

11. The above analysis would suggest that the Management has A
very limited scope to make appointment to the substantive vacancy in
their Institution. Adverting to the ratio in Radha Raizada, the Division
Bench observed in the present impugned order that the Management of
the Institution failed to adhere to the procedure under paragraph 5 of
the First Removal of Difficulties Order, in appointing the appellant,
B
against a substantive vacancy. On this basis, the High Court declined to
interfere with the salary disapproval decision of the District Inspector of
Schools, Kanpur Nagar.
12. Section 18 of the Act of 1982, lays down the process for
direct appointment of ad hoc teachers but before the Management takes
any step to fill up vacancy, the conditions laid therein must be peremptorily C
satisfied. The Management is required to firstly notify the vacancy to
the Commission and in turn, the Selection Commission is expected to
recommend a suitable candidate within one year of such notification.
Secondly, the post should have remained vacant for more than 2 months.
Only if these two conditions are satisfied, the Management can take D
short term measures. Further stipulations to this process are provided in
paragraphs 4 and 5 of the First Removal of Difficulties Order. As
can be seen, only when the vacancy cannot be filled by promotion under
paragraph 4, the paragraph 5 permits ad hoc appointment by direct
recruitment. Besides, recourse to direct appointment is visualized only in
accordance under sub-clauses 2 to 5 of paragraph 5. It is also important E
to bear in mind that when ad hoc appointments are made under
paragraph 2 of the First Removal of Difficulties Order, the duration
of such ad hoc appointment automatically expires after six months, under
paragraph 3(b) of the Order.
13. Proceeding with the above understanding of the norms the F
question to be decided now is whether the High Court was correct in its
view that the Management of the Institution, did not adhere to the
procedure prescribed under the First Removal of Difficulties Order to
make appointment against a substantive vacancy. The paragraph 2 of
the Removal of Difficulties Order, was substituted by the 2nd Removal G
of the Difficulties Order, which enabled the Management to make
appointment against substantive vacancy either by promotion or by direct
recruitment. In the present matter, it was not the District Inspector of
Schools but the Management, which resolved to appoint the appellant.
But as earlier discussed, this is contrary to the prescribed process in
H
68 SUPREME COURT REPORTS [2019] 14 S.C.R.

A paragraph 5(4) of the First Removal of Difficulties Order. The learned
Single Judge in the High Court specifically noted that there was no
adherence to the procedure prescribed under paragraph 5 of the First
Removal of Difficulties Order. There was concurrence of views of
the learned Single Judge and the Division Bench to the effect that the
State authorities rightly denied financial approval to the illegal appointment
B
of the appellant.
14. When the impugned judgment is analysed in light of the
applicable norms, there is no escape from the conclusion that the
appellant’s appointment by the Management, was not in accordance
with paragraph 5 of the Removal of Difficulties Order. We are also
C of the view that the ratio in Radha Raizada (supra) of the Allahabad
High Court (approved by the Supreme Court in Prabhat Kumar Sharma
(supra)) was correctly applied to the present facts. The State coffer
should not according to us, be burdened with salary obligation for an
appointment, not made by them. The decision repudiating the salary claim
D for the appellant is also found to be in order since the Management
failed to adhere to the due process in filling up the substantive vacancy.
Moreover, the State had imposed a ban on appointment during the relevant
period. Therefore, the appellant cannot enforce a claim for salary against
the State. The Appeal accordingly is found devoid of merit and is
dismissed. The parties to bear their respective cost.
E

Devika Gujral Appeal dismissed.

F

G

H