Case: RAVINDRA SINGH Vs. DISTRICT INSPECTOR OF SCHOOLS

is established, it may take long time to make available the required teacher in the institution and as such issued three Removal of Difficulties Orders namely Removal of Difficulties Order dated 11-9-1981, Removal of Difficulties Order dated 30-1-1982 and Removal of Difficulties Order dated 14-4-1982. In fact these Removal of Difficulties Orders were issued to remove the difficulties coming in the way of a Management in running the institution in absence of teachers. This power to appoint ad hoc teachers by direct recruitment thus, is available only when pre-conditions mentioned in Section 18 of the Act are satisfied, secondly the vacancy is substantive vacancy and thirdly, the vacancy could not be filled by promotion. . . . . . . . . . . . . . . . . . . . . . . Thus, if contingency arises for ad hoc appointment of teacher by direct recruitment the procedure provided under the First Removal of Difficulties Order has to be followed. Paragraph 5 of the First Removal of Difficulties Order provides that the management shall, as soon as may be, inform the District Inspector of Schools about the details of vacancy and the District Inspector of Schools shall invite application from the local employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh. . . . . . . . . . . . . . . . . . . . . . . 41.In view of these provisions the ad hoc appointment of a teacher by direct recruitment can be resorted to only when the condition precedent for exercise of such powers as stated in paragraph 18 of the Act are present and only in the manner provided for in paragraph 5 of the Removal of Difficulties Order. However, it goes without saying that if a management without following the procedure indicated above makes an ad hoc appointment the District Inspector of Schools possess general power under the Payment of Salaries Act to stop payment of salary to such teachers. . . . . . . . . . . . . . . . . . . . . . . 11. The above analysis would suggest that the Management has very limited scope to make appointment to the substantive vacancy in their Institution. Adverting to the ratio in Radha Raizada, the Division Bench observed in the present impugned order that the Management of the Institution failed to adhere to the procedure under paragraph 5 of the First Removal of Difficulties Order, in appointing the appellant, against a substantive vacancy. On this basis, the High Court declined to interfere with the salary disapproval decision of the District Inspector of Schools, Kanpur Nagar. 12. Section 18 of the Act of 1982, lays down the process for direct appointment of ad hoc teachers but before the Management takes any step to fill up vacancy, the conditions laid therein must be peremptorily satisfied. The Management is required to firstly notify the vacancy to the Commission and in turn, the Selection Commission is expected to recommend a suitable candidate within one year of such notification. Secondly, the post should have remained vacant for more than 2 months. Only if these two conditions are satisfied, the Management can take short term measures. Further stipulations to this process are provided in paragraphs 4 and 5 of the First Removal of Difficulties Order. As can be seen, only when the vacancy cannot be filled by promotion under paragraph 4, the paragraph 5 permits ad hoc appointment by direct recruitment. Besides, recourse to direct appointment is visualized only in accordance under sub-clauses 2 to 5 of paragraph 5. It is also important to bear in mind that when ad hoc appointments are made under paragraph 2 of the First Removal of Difficulties Order, the duration of such ad hoc appointment automatically expires after six months, under paragraph 3(b) of the Order. 13. Proceeding with the above understanding of the norms the question to be decided now is whether the High Court was correct in its view that the Management of the Institution, did not adhere to the procedure prescribed under the First Removal of Difficulties Order to make appointment against a substantive vacancy. The paragraph 2 of the Removal of Difficulties Order, was substituted by the 2 nd Removal of the Difficulties Order, which enabled the Management to make appointment against substantive vacancy either by promotion or by direct recruitment. In the present matter, it was not the District Inspector of Schools but the Management, which resolved to appoint the appellant. But as earlier discussed, this is contrary to the prescribed process in paragraph 5(4) of the First Removal of Difficulties Order. The learned Single Judge in the High Court specifically noted that there was no adherence to the procedure prescribed under paragraph 5 of the First Removal of Difficulties Order. There was concurrence of views of the learned Single Judge and the Division Bench to the effect that the State authorities rightly denied financial approval to the illegal appointment of the appellant. 14. When the impugned judgment is analysed in light of the applicable norms, there is no escape from the conclusion that the appellants appointment by the Management, was not in accordance with paragraph 5 of the Removal of Difficulties Order. We are also of the view that the ratio in Radha Raizada (supra) of the Allahabad High Court (approved by the Supreme Court in Prabhat Kumar Sharma (supra)) was correctly applied to the present facts. The State coffer should not according to us, be burdened with salary obligation for an appointment, not made by them. The decision repudiating the salary claim for the appellant is also found to be in order since the Management failed to adhere to the due process in filling up the substantive vacancy. Moreover, the State had imposed a ban on appointment during the relevant period. Therefore, the appellant cannot enforce a claim for salary against the State.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]11. The above analysis would suggest that the Management has very limited scope to make appointment to the substantive vacancy in their Institution. Adverting to the ratio in Radha Raizada, the Division Bench observed in the present impugned order that the Management of the Institution failed to adhere to the procedure under paragraph 5 of the First Removal of Difficulties Order, in appointing the appellant, against a substantive vacancy. On this basis, the High Court declined to interfere with the salary disapproval decision of the District Inspector of Schools, Kanpur Nagar12. Section 18 of the Act of 1982, lays down the process for direct appointment of ad hoc teachers but before the Management takes any step to fill up vacancy, the conditions laid therein must be peremptorily satisfied. The Management is required to firstly notify the vacancy to the Commission and in turn, the Selection Commission is expected to recommend a suitable candidate within one year of such notification. Secondly, the post should have remained vacant for more than 2 months. Only if these two conditions are satisfied, the Management can take short term measures. Further stipulations to this process are provided in paragraphs 4 and 5 of the First Removal of Difficulties Order. As can be seen, only when the vacancy cannot be filled by promotion under paragraph 4, the paragraph 5 permits ad hoc appointment by direct recruitment. Besides, recourse to direct appointment is visualized only in accordance under sub-clauses 2 to 5 of paragraph 5. It is also important to bear in mind that when ad hoc appointments are made under paragraph 2 of the First Removal of Difficulties Order, the duration of such ad hoc appointment automatically expires after six months, under paragraph 3(b) of the OrderThe paragraph 2 of the Removal of Difficulties Order, was substituted by the 2 nd Removal of the Difficulties Order, which enabled the Management to make appointment against substantive vacancy either by promotion or by direct recruitment. In the present matter, it was not the District Inspector of Schools but the Management, which resolved to appoint the appellant. But as earlier discussed, this is contrary to the prescribed process in paragraph 5(4) of the First Removal of Difficulties Order. The learned Single Judge in the High Court specifically noted that there was no adherence to the procedure prescribed under paragraph 5 of the First Removal of Difficulties Order. There was concurrence of views of the learned Single Judge and the Division Bench to the effect that the State authorities rightly denied financial approval to the illegal appointment of the appellant14. When the impugned judgment is analysed in light of the applicable norms, there is no escape from the conclusion that the appellants appointment by the Management, was not in accordance with paragraph 5 of the Removal of Difficulties Order. We are also of the view that the ratio in Radha Raizada (supra) of the Allahabad High Court (approved by the Supreme Court in Prabhat Kumar Sharma (supra)) was correctly applied to the present facts. The State coffer should not according to us, be burdened with salary obligation for an appointment, not made by them. The decision repudiating the salary claim for the appellant is also found to be in order since the Management failed to adhere to the due process in filling up the substantive vacancy. Moreover, the State had imposed a ban on appointment during the relevant period. Therefore, the appellant cannot enforce a claim for salary against the State.