Supreme Court of India
SHESH MANI SHUKLAversusD.I.O.S. DEORIA & ORS.
- Citation
- 2009 INSC 991
- Decided
- 31 July 2009
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
The appointment of the appellant, made in disregard of the District Inspector's recommendation, is illegal and void ab initio; the Committee of Management lacks authority to appoint teachers contrary to the statutory procedure.
Summary
A vacancy for a teacher arose in Satya Prakash Vivekanand Inter College, Deoria. The District Inspector of Schools (DIS) recommended a candidate, Ali Hussain Ansari, within the one‑year period prescribed by the First Removal of Difficulties Order, 1981. The college's Committee of Management ignored this recommendation, advertised the post, and selected the appellant, Shesh Mani Shukla, who thereafter worked as an ad‑hoc employee without DIS approval. The appellant challenged the legality of his appointment before the High Court, which dismissed the writ petition, and the matter was taken on appeal to the Supreme Court. The Court held that the Committee could not appoint a teacher contrary to the DIS recommendation; such an appointment is illegal and void ab initio, and the appellant could not claim a legal right to the post. Consequently, the appeal was dismissed.
Issues considered
- Whether the Committee of Management of a aided educational institution can make an appointment to a teacher's post ignoring the recommendation of the District Inspector of Schools under the UP Secondary Education Services Commission and Selection Boards Act, 1982 and the First Removal of Difficulties Order, 1981.
Subjects
ad‑hoc appointmentteacher recruitmentstatutory compliancevoid appointmentmandamuseducation lawU.P. Secondary Education Services Commission ActRemoval of Difficulties Order
Judgment
[2009] 11 S.C.R. 841
SHESH MANI SHUKLA A
V.
0.1.0.S. DEORIA & ORS.
(Civil Appeal No. 4966 of 2009)
JULY 31, 2009
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]
Servi9e law:
,,
UP. Secondary Education Services Commission and c
Selection Boards Act, 1982 - ss. 16 and 18 - First Removal
of Difficulties Order, 1981 - Para 5 - Post of Teacher -
Appointment for- Respondent no.3 recommended by District
Inspector of Schools - Committee of Management ignoring
the recommendation and selecting appellant - Disapproval D
of, by DIS - Challenge to - Dismissal of writ petition as also
) appeal - On appeal, held: Committee of Management could
not appoint a teacher ignoring recommendations of DIS -
Institution did not comply with the provisions of 1981 Act as
also para 5 of 1981 Order - Appointment of the appellant was
E
void ab initio, thus, could not be granted approval by statutory
authority - No exception could be taken only because
appellant worked for a long time - Appellant must establish
legal right in himseif and corresponding legal duty in the State
- Constitution of India, 1950 - Article 226.
F
The question which arose for consideration in this
appeal is whether the Committee of Management could
make appointment in the post of a teacher ignoring the
recommendations of the District Inspector of Schools.
G
Dismissing the appeal, the Court
HELD: 1.1. A substantive vacancy arose on or about
15.10.1985. Intimation as regards vacancy was given on
841 H
842 SUPREME COURT REPORTS [2009] 11 S.C.R.
A 19.9.1986. Recommendation of respondent No.3 by the
District Inspector of Schools was made on 8.6.198~. Thus,
a recommendation~ad 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
B to be ineligible for holding the said post was not
disclosed. Thus, the conduct of the Committee of
Management of the institution is required to be
considered having regard to the afore mentioned
provisions. [Paras 8 and 11] [846-H; 850-G-H; 851-A-B]
c 1.2. Para 6 of the First Removal of Difficulties Order,
1981 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
D final. The District Inspector of Schools in his letter dated
8.6.1987 addressed to the manager of the Institution
regarding issue of appointment letters to the selected
candidates, on temporary basis. A reminder thereto was
also sent by the Distri<;t Inspector of Schools on 3.8.1987
E as respondent No.3 was not allowed to join his service.
Again by order dated 20.4.1988, it was directed that till
now, this Department has not received the intimation
about joining of the duties by respondent No. 3. It was
submitted that another person was appointed in place of
F respondent No. 3. This act is absolutely illegal, on which
it is not possible to give consent, because no directions
have been given by this office for appointment of any
person. Hence it is directed to take necessary action
immediately for getting joining of duty done by
G respondent No. 3, otherwise, Departmental action would
be taken. [Paras 12 and 13) [851-B-D; 852-A-D]
1.3. Both the Single Judge as also the Division Bench
of High Court found that the institution did not comply
H
SHESH MANI SHUKLA v. D.1.0.S. DEORIA & ORS. 843
with the provisions of the U.P. Secondary Education A
Services Commission and Selection Boards Act, 1982 as
amended as also para 5 of the 1981 order. 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. . B
Appellant has worked for a long time. His appointment,
however, being in contravention of the statutory provision
was illegal, and, thus, void ab initio. The question of
granting any approval thereto did not arise. If his
appointment has not been granted approval by the c
statutory authority, no exception can be taken only
because the appellant had worked for a long: time. The
same by itself cannot form the basis for obtai~ing a writ
of or in the nature of mandamus; as it is well known tilat
for the said purpose, ·the writ petitioner must ~stablish a
0
legal right in himself and a corresponding legal duty in
) the State. Sympathy or sentiments alone, cannot form the
basis for issuing a writ of or in the nature of mandamus.
[Para 14] [852-D-G]
Food Corporation of India and Ors. v. Ashis Kumar E
Gangu!y and Ors. 2009 (8) SCALE 218 and State of M.P. and
Ors. v. Sanjay Kumar Pathak and Ors. (2008) 1SCC 456,
relied on.
Radha Raizada v. Committee of Management; Vidyawati F
DarbariGirls' College (1994) 3 UPLBEC 1551 (FB); Prabhat
KumarSharma and Ors. v. State of U.P. and Ors. (1996) 10
sec 62, referred to.
Case Law Reference:
G
(1994) 3 UPLBEC 1551 (FB) referred to. Para 9
(1996) 10 SCC 62 Referred to. Para 9
H
844 SUPREME COURT REPORTS [2009) 11 S.C.R.
A 2009 (8) SCALE 218 Relied on. Para 14
(2008) 1 sec 456 Relied on. Para 14
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
4966 of 2009.
B
From the Judgment & Order dated 22.02.2006 of the High
Court of Allahabad in Special Appeal No. 590 of 2004.
S.R. Singh, Manoj Swarup, Lalita Kohli (for Manoj Swarup
& Co.) for the Appellant.
c
R.G. Padia, Purnima Bhat, Sanjay Pandey, Mona
Rajvanshi, Anurag Kashyap, D. K. Shahi, Prashant Chaudhari,
Bharat Ram, Shrish Kumar Misra, for the Respondents.
D
The Judgment of the Court was delivered by
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
E 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
F 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
G 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
H
SHESH MANI SHUKLA v. D.1.0.S. DEORIA & ORS. 845
[S.B. SINHA, J.]
recommendations made by the District Inspector of Schools A
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, B
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 c
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 24.4.1988.
Appellant, however, continued to work in the school as an ad
hoc employee. ·
D
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 E
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 F
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,
G
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
H
846 SUPREME COURT REPORTS [2009] 11 S.C.R.
A 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
B 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
procedure prescribed. Thus, also it is not open to the
petitioner to challenge the communication dated 8.6.1987
c 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
D 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
E 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
F 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.
G 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.
H
SHESH MANI SHUKLA v. D.1.0.S. DEORIA & ORS. 847
[S.B. SINHA, J.]
i.
Section .16 of the Act prescribes for the procedure for A
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 8
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 satne may be filled by direct recruitment in
accordance with clauses (2) to (5). c
(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 D
advertisements in at least two newspapers.
(ii,i) Every application referred to in clause (2) shall be
addressed to the District Inspector of Schools and shall
be accompanied-
E
(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. F
(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 G
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 H
./
848 SUPREME COURT REPORTS [2009] 11 S.C.R.
A 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."
B 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.
c 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
D
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 procedure prescribed in para 5 of the First 1981 Order
E 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
F 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:
G '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.'"
H
SHESH MANI SHUKLA v. D.1.0.S. DEORIA & ORS. 849
[S.B. SINHA, J.]
This Court, however, in that decision itself, held : A
"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,
8
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 C
imparting education to the students, Section 18 gives
power to the Management to make ad hoc 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 D
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 E
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 t~,e High
Court has elaborately considered the effect of the Order F
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 G
faulted with. Accordingly, we find no merit in the special
leave petition."
10. Section 18 of the Act reads as under :
H
850 SUPREME COURT REPORTS [2009] 11 S.C.R.
A "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
B
teacher specified in the Schedule within one year
from the date of such notification; or
(b) the post of such teacher has actually remained
vacant for more than two months, then, the
c 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.
D
(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'.
E (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
F 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;
G (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
H
SHESH MANI SHUKLA v. D.1.0.S. DEORIA & ORS. 851
[S.B. SINHA, J.]
of Schools was made on 8.6.1987. Thus, a recommendation A
.. 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
Management of the institution, thus, is required to be B
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 C
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 D
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 c'andidates may take over the charge after E
verification '9,f 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 Qualification Category F
)
selected candidate
Ali Hussain Ansari High School II
Viii. Barwa Bazar, Intermediate II"
Post : Sekhwaria, B.A. G
Distt. Dewaria, M.A.
UP B.Ed. -
Theory
Practical
H
852 SUPREME COURT REPORTS [2009] 11 S.C.R.
A 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
B 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
c 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
D 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,
E 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,
F however, being in contravention of the 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
G 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
H
SHESH MANI SHUKLA v. D.1.0.S. DEORIA & ORS.- 853
[S.B. SINHA, J.] ·
• sentiments alone, it is well settled, cannqt form the basis for A
issuing a writ of or in the natu[e of mandamus:i[See State of
M.P. & Ors. v. Sanjay Kumif-pathak & Ors. [(2008) 1 SCC
456]}
15. For the reasons aforementioned, there is no merit in ·B
this appeal. It is di~missed accordingly. However, in the fa~ts ·
and circumstances of the case, there shall be no order.as to
costs.
N.J. Appeal dismissed.
I
)
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