IMPORTANT POINT
Compliance with the prescribed procedure in Clause 2(3)(ii)&(iii) of the Second Order of 1981 is essential for the validity of teacher appointments.

JUDGMENT :

1. This appeal is directed against the judgment and order dated 31.10.2018, passed by learned Single Judge in Writ-A No.5050 of 2001, whereby the claim of appellant-petitioner of appointment as Assistant Teacher is turned down primarily on the ground that the procedure prescribed in Clause 2(3)(ii)&(iii) of Uttar Pradesh Secondary education Services Commission (Removal of Difficulties) Second Order, 1981 (hereinafter referred to as ‘Second Order of 1981’) was not followed and consequently the appointment of appellant-petitioner was nullity.

2. There exists an educational institution known as Krishak Inter College, Kashauta, Allahabad (Prayagraj) [hereinafter referred to as ‘Institution’], which is duly recognized under the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as ‘Act of 1921’) and provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 are applicable upon it. The provisions of U.P. Secondary Education Service Selection Boards Act, 1982 (hereinafter referred to as ‘Act of 1982’) regulated the appointment of Teachers in the Institution.

3. Vide letter/order dated 13.11.1991, which was effective from 01.04.1991, one post of Principal; two post of L.T. Grade Teacher; and four post of C.T. Grade Teacher were sanctioned by the competent authority in the Institution. The senior most teacher in the Institution, namely Surendra Prasad Tripathi, was appointed as ad-hoc Principal. Resultantly, a short-term vacancy on the post of Assistant Teacher (L.T. Grade) came into existence against which the appellant-petitioner claims to have been appointed on 05.08.1992 under the Second Order of 1981.

4. Though the appellant-petitioner claimed to have been validly appointed but his salary was not paid. Consequently, he filed a Writ Petition No.31694 of 1994, which was dismissed on 31.10.1995, observing that the procedure laid down by the Full Bench in the case of Radha Raijada vs. State of U.P. and others, 1994 UPLBEC 1551 regarding publication of vacancy in two newspapers etc. has not been followed. This order of learned Single Judge has been reversed in Special Appeal No.948 of 1995 vide judgment dated 18.08.1998. The Division Bench held that the procedural requirement made applicable in case of short-term vacancy in Radha Raijada’s case (supra) was to apply prospectively and since the appointment of appellant-petitioner was made prior to such judgment, therefore, the rigours of procedure laid down in Radha Raijada’s case (supra) would not be attracted. It was thereafter that the matter was again considered and rejected by the District Inspector of Schools, Allahabad (hereinafter referred to as ‘Inspector’) vide his order dated 17.11.1998. Appellant-petitioner then filed Writ Petition No.40140 of 1998 challenging the order dated 17.11.1998, which was allowed relying upon the previous adjudication made in the special appeal. The authorities, however, again reiterated their stand while rejecting the claim of appellant’s appointment, which came to be challenged by the appellant-petitioner in Writ-A No.5050 of 2001.

5. Writ Petition No.5050 of 2001 was entertained and an interim protection was granted. The appellant-petitioner continued to work under the interim order and also received salary. We are informed that he has attained the age of superannuation on 31.03.2020. The writ petition, however, came to be dismissed by the learned Single Judge vide impugned judgment and order 31.10.2018, wherein the facts relating to appointment and creation of vacancy etc. have been elaborately noticed. In para 17 of the judgment learned Single Judge has crystallized following three issues that required examination in the writ petition:-

“(1) Whether ban imposed by Government Order dated 29.06.1991 could be extended to short term vacancies?

(2) Whether ad hoc appointment of petitioner was validly made by following relevant Removal of Difficulties Order i.