The reference

Hon’ble Dr. Dhananjaya Yeshwant Chandrachud, C.J.—The present reference before the Division Bench has arisen from a referring order dated 3 February 2014 of a learned Single Judge. Noticing a conflict between two judgments of the learned Single Judges of this Court, while construing the provisions of the Uttar Pradesh Intermediate Education Act, 1921 (Act of 1921) and the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 (Act of 1982), the learned Single Judge referred the difference of opinion that has arisen for being resolved by a Division Bench. The two judgments of the learned Single Judges in which the difference of opinion has arisen are:

(i) Sanjay Singh v. State of Uttar Pradesh and others, (2013) 1 UPLBEC 758; and

(ii) Pradeep Kumar v. State of Uttar Pradesh and others, Writ-A No. 22520 of 2013 (decided on 1 May, 2013)

Facts

2. Briefly stated, the facts in the referring judgment are that Lokmanya Tilak Inter College, Pratapgarh is a non-Government recognized and aided institution governed by the provisions of the Act of 1921 and the Act of 1982. The College is on the grant-in-aid list of the State Government and salaries are paid under the provisions of the Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries to the teachers and other staff of the College) Act, 1971 (Act of 1971). A post of a Lecturer in Hindi fell vacant on the retirement of a substantively appointed teacher on 30 June 2013. On 1 July 2013, the institution sent a request to the District Inspector of Schools to make an appointment on the post. The Manager of the College, finding that no teacher was made available, decided to fill up the post on a temporary or ad hoc basis invoking the provisions of Section 16-E (11) of the Act of 1921. After the vacancy was advertised by the Committee of Management, the petitioner was selected by a selection committee and was appointed as a Lecturer in Hindi until a regularly selected candidate was made available by the Uttar Pradesh Secondary Education Services Selection Board (Board). The petitioner, who is working since then, sought a writ of mandamus requiring the State to allow him to continue to work and to pay his salary for the post of Lecturer in Hindi from the State exchequer until a regularly selected candidate provided by the Board is made available.

Rival positions

3. In support of the case, the petitioner has relied upon the judgment of a learned Single Judge of this Court in Sanjay Singh (supra). The issue which arose before the learned Single Judge was in respect of persons who are appointed as Assistant Teachers or Lecturers against substantive vacancies or against short term vacancies which were subsequently converted into substantive vacancies in the Inter Colleges across the State of Uttar Pradesh.

4. The contention of the State is that after the enforcement of the Act of 1982 in the State of Uttar Pradesh, the Committee of Management had no right to select or appoint candidates against substantive vacancies in the posts of Assistant Teachers or Lecturers. On the other hand, the case of the Managements is that since the Board constituted under the Act of 1982 has not been able to send selected candidates, the institutions were entitled to appoint persons on an ad hoc basis until regularly selected candidates become available and the State would be liable to pay salaries to these teachers out of the grant made available to the institutions.

The decision in Sanjay Singh

5. The learned Single Judge in Sanjay Singh (supra) accepted the submission which was urged on behalf of the Management. The learned Single Judge observed that there was no dispute about the legal position that after the enforcement of the Act of 1982, no Committee of Management would have the power to make an appointment against a permanent vacancy. This position of law which, as we shall notice is not in dispute, has been set out in the following observations of the learne