2009 Supreme(All) 3705

[2010(3) ADJ 143]
ALLAHABAD HIGH COURT
BEFORE : ARUN TANDON, J.
ARUN KUMAR MISHRA AND OTHERS ....Petitioners
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 39088, 47130 of 2007, 61288 of 2006, 38571 of 2001, 528 of 2008, 59639, 59640, 59644, 59632 of 2007, 21295 of 2008, 36040 of 1999, 39090, 39089, 39091, 46511, 39093, 39092 of 2007, decided on 4th December, 2009)

Headnote:(A) Equitable jurisdiction—Exercise of, by High Court—Permissibility—Scope of—Writ petition challenging an order—On ground that it was passed without observance of principles of natural justice—High Court although found that this plea was correct but quashing of that order would revive an order which itself was illegal—As such, refused to interfere with that order on ground on non-observance of principles of natural justice because interference would be futile exercise of equity jurisdiction, would not serve any purpose and would be merely an empty formality of law. [Constitution of India, Article 226]. [Paras 4,6 and 7]

       (B) Appointment—Ad-hoc basis—In education institution in pursuance of advertisement only in one newspaper—Does not satisfy requirement of procedure of advertisement as enunciated by Full Bench decision, approved by Supreme Court and without any resolution of management—Consequently, such appointment is null and void in view of Section 16 of Act 1982. [U.P. Secondary Education Service Selection Board Act, 1982—Section 16]. [Paras 15, 33 and 35]

       (C) Salary—Payment of ad-hoc appointees in educational institution—Under the guide of interim order of High Court, which was time bound, even after expiry of that time—By D.I.O.S., after grant of Selection Grade to those appointees and knowingly that their appointment is dehors statutory rules and without any resolution of Management—Amounts to cheating public exchequer. [Paras 36 and 37]

       (D) Appointment—Made initiation on ad-hoc basis on short term vacancy in educational institution—Subsequently that vacancy converted into substantive vacancy—Such appointee cannot claim to continue in service as that vacancy ceases automatically—Continuance on service on that vacancy even by help of order of Court—Spoils legal system—Because when law requires something to be done in particular manner it can be done in some manner and not otherwise. [Paras 17, 21 and 23]

       (E) Appointment—Ad-hoc basis on class III and Class IV posts in educational institution—Without prior approval for such appointment of District Inspector of Schools—Not permissible in law. [Para 18]

       (F) Salary—Payment of, to employees of recognized educational institutions—Through State Exchequer can be paid only to employees working on post created under orders of Director of Education in exercise of his powers under Act, 1971. [U.P. High School and Intermediate College (Payment of Salaries of Teachers and Other Employees) Act, 1971—Section 9]. [Para 19]

       (G) Appointment—Made on ad-hoc basis in accordance with relevant provisions of law—Can only be regularised and appointees can claim for their continuance in service—Mere fact that employees who were appointed through backdoor but continued in service since long time—Cannot give them right to claim their continuance in service. [Para 20]

       (H) Appointment—On ad-hoc basis in educational institution—Appointees given selection grade without following required legal process—They were given salary of selection grade without any information to higher authorities—Such conferment of selection grade and payment of salary of that grade—Amounts to giving of illegal benefits—High Court directed for holding enquiry in matter and also for recovery of amount paid as salary from officers who are found responsible for such illegal work. [Paras 41 and 45 to 47]

       (I) Appointment—On post of clerk in education institution—Without any advertisement for post in newspapers and on non-existent vacancy without any resolution of Committee of Management—No order of approval by D.I.O.S. to such appointment given—In such situation appointment was manifestly illegal and even order for adjustment of such appointee—Illegal—As such rightly withdrawn—High Court directed for enquiry into the matter, because withdrawal of money for payment of salary to such appointee is fraudulent act—Likewise person appointed without following legal procedure—Cannot seek relief for reinstatement. [Paras 51 to 63]

       (J) Promotion—Principal of ‘H’ a lecturer of Geography on ad-hoc basis on retirement of Principal—‘V’, another lecturer of Geography posted on post created due to promotion of ‘H’—In the meanwhile, two other lecturers also posted on same post who were not eligible even—Posting of these two lecturers on same post on which ‘V’ was already posted—Wrong and illegal—Thereafter, ‘H’ was regularized on post of Principal, therefore, vacancy on which ‘V’ was posted, automatically substantive and appointment of ‘V’ also became substantive in nature—As appointment of two other lecturers was illegal and farce, salary drawn by them be recovered from D.I.O.S. and Committee of Management. [Paras 65 and 68 to 73]

       (K) Appointment—Assistant Teacher on ad-hoc basis in primary section of Educational institution—On non-existent post, without issuing any advertisement and only on basis of resolution of Committee of Management—Illegal—On such salary drawn by those appointees without authority of law—Be recovered from Committee of Management and D.I.O.S. jointly. [U.P. High School and Intermediate College (Payment of Salaries of Teachers and Other Employees) Act, 1971—Section 9]. [Paras 75 to 79]

       (L) Appointment—Short term vacancy in C.T. Grade in Educational institution—Without issuing advertisement of vacancy—Not only this, appointee was treated to be in L.T. Grade by virtue of G.O. dated 4.12.1990—This G.O. was not applicable to this case—As entire appointment was found to be against prescribed procedure—It has to be treated an illegal appointment—Appointee, as such, not entitled to any relief. [Paras 84 and 85]

       (M) Appointment—Short term vacancy, on ad-hoc basis, caused due to promotion of persons working on that post—Without due advertisement in newspapers, only on recommendation of Committee of Management, which had no power to make those appointments—As such, appointment found to be illegal—No relief can be given to appointees. [Paras 91 to 96]

       (N) Appointment—Made on ad-hoc basis in Educational Institution of post of Assistant Teacher—Found to have been made without following necessary procedure for appointment—Illegal and no relief can be given to appointees. [Paras 103 to 114]

       (O) Appointment—Made on vacancy caused due to superannuation or death of teachers concerned—Is not short term vacancy—It is substantive in nature—Petitioners who claim appointment on these vacancies in 1996 by Committee of Management—Cannot get any relief because in 1996, Committee of Management had no power to make such appointments. [Paras 125 and 131]

       (P) Appointment—Assistant Teacher on ad-hoc basis on short term vacancies caused due to promotion of earlier Assistant Teacher—Orders passed by D.I.O.S. found to have been passed without application of mind—High Court, therefore, accepting writ petition of writ petitions, directed D.I.O.S. to examine their claim keeping in view legal position. [Paras 126 to 130]

       (Q) Appointment—Assistant Teacher on ad-hoc basis on short term vacancies caused due to promotion of teachers from C.T. Grade to L.T. Grade—Without satisfying requirement of advertisement of vacancy, in two newspapers having vide circulation as explained by Full Bench—Illegal—Mere resolution of Managing Committee—Cannot take away illegality—Salary paid to them has to be recovered from Management and D.I.O.S. [Paras 138 and 140 to 143]