The appointment made in violation of the mandatory procedure prescribed in the U.P. Secondary Education Services Selection Board Act, 1982, is void ab initio and does not confer any right upon the incumbent. Granting injunction in such a case would amount to directing the defendants to commit a blatant breach of statutory provisions, which is impermissible.

1. Heard learned Standing Counsel for the appellants and Sri K.S. Tiwari, Advocate for respondent.

2. The following substantial questions of law are involved in this matter:

(I) Whether in the facts and circumstances of the case, the decree of injunction could have been granted in favour of plaintiffs-respondents by Lower Appellate Court?

(II) Whether the injunction, in the facts and circumstances of the case, was barred by Section 41 of Specific Relief Act, 1963?

3. This is a defendants' second appeal filed under Section 100 C.P.C. The plaintiff-respondent, Anil Kumar Singh Yadav, instituted Original Suit No. 839 of 1996 in the Court of Civil Judge (Senior Division), Varanasi. The plaint case was that a vacancy on the post of Lecturer occurred due to retirement in Gandhi Rashtriya Inter College, Sadalpur, Varanasi (hereinafter referred to as the "College"). One Ram Awadh Singh Yadav working as Assistant Teacher, L.T. Grade was given promotion in 50% promotional quota on the aforesaid vacancy by Committee of Management of College and he was promoted on 01.07.1994. It resulted another vacancy on the post of Assistant Teacher, L.T. Grade and since no person in promotional quota was found eligible and suitable to fill in aforesaid vacancy, the Committee of Management proceeded to make direct recruitment. The vacancy was advertised in newspaper, interview was hold on 10.01.1996, as result whereof the plaintiff-respondent, Anil Kumar Singh Yadav appointed on ad hoc basis under Section 18 of U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the "Act, 1982") for a period till regular selected candidate through Secondary Education Service Selection Board (hereinafter referred to as the "Board") is available or is otherwise directed. The documents were forwarded to District Inspector of Schools, Varanasi (hereinafter referred to as the "DIOS") for his approval but no such approval was received from his office though document was received in the office of DIOS on 17.01.1996. Thereafter several reminders were given and yet salary was not paid, hence the management threatened the plaintiff for removal and that is how the suit in question was instituted. The defendants-respondents no. 1 to 4 who are, State of U.P., DIOS, Director of Education and Accounts Officer in the office of DIOS contested the matter pleading that appointment of plaintiff was illegal and contrary to the provisions of Act, 1982 and, therefore, the plaintiff was not entitled for salary from State Exchequer. The defendants no. 5 and 6 were the College and Committee of Management of the College. They did not contest the matter and suit proceeded ex parte against them. The Trial Court formulated five issues and Issue No. 1, 2 and 3, relevant in this matter, may be reproduced as under:

@ Hindi @

"1. Whether the appointment of plaintiff to the post of Assistant Teacher was made as per rules by the Competent Officer, Management Committee, Gandhi Inter College, Sadalpura, Varanasi? If yes, its effect?

2. Whether the plaintiff is entitled to the relief of mandatory injunction as prayed in the plaint?

3. Whether the suit of the plaintiff is barred by Section 41 of Specific Relief Act?" (English translation by the Court)

4. The Trial Court found that ad hoc appointments were made by Government Order 14.05.1991 and the aforesaid Government Order was upheld by Division Bench in Durgesh Kumari Vs. State of U.P., (1995) 3 UPLBEC 1387 and also that the ad hoc appointment of plaintiff was not made in accordance with Section 18 and hence it was clearly illegal. The issue No. 1 was decided accordingly.

5. The court also held that where an appointment is illegal, the incumbent has no right either to hold post or continue in service. No injunction can be granted which would require the defendants to commit breach of law and such an injunction is barred by Section 41(h) of Specific Relief Act, 1963 (hereinafter referred to as the "Act, 1963"),