Case: RAVINDRA SINGH Vs. DISTRICT INSPECTOR OF SCHOOLS

2. Before the High Court, the appellant challenged the decision dated 16.02.2000 of the District Inspector of Schools, Kanpur Nagar whereunder, the appellants representation for financial consent and approval for his service was negated. While rejecting the representation, the authority observed in the speaking order that Government has placed a ban on all types of recruitment by the Management and that the concerned Bilhaur Inter College, (hereinafter, the Institution), was not empowered to make any appointment. Moreover, the appellant was found to be appointed without any financial implication. The District Inspector of Schools passed the impugned speaking order in pursuance to the High Courts earlier direction dated 10.07.1998 in the Writ Petition (C) No.21713 of 1998 and hearing was afforded to the appellant and the Manager of the Institution3. Adverting to the speaking order (16.02.2000) of the Inspector of Schools, which was challenged in the Writ - A No.38790 of 2000, the Learned Judge noted that the appellant was appointed in a substantive vacancy which has occurred after transfer of one Ramesh Chandra Pandey who was serving in the Institution as a LT Grade Teacher. While appointing against a substantive vacancy, the Management according to the High Court, failed to adhere to the procedure contemplated in paragraph 5 of the First Removal of the Difficulties Order, 1981. The Learned Judge in his Judgment dated 12.04.2016 accordingly found no infirmity in the authoritys decision, to refuse financial approval for appellants appointment4. The above decision was challenged in the Special Appeal where the appellant reiterated his argument that Management is competent to appoint even against a substantive vacancy. The full Bench Judgment in Radha Raizada vs. Committee of Management Vidyawati Darbari Girls Inter College and Ors.1994 All.L.J. 1077 , was cited to argue that the Managing Committee is not denuded of its power during the ban period, to make ad hoc appointment under Section 18 of the U.P. Act No.5 of 19825. However those contentions did not impress the Division Bench and the High Court observed in the impugned order dated 20.05.2016 that the procedure prescribed under paragraph 5 of the First Removal of Difficulties Order, was disregarded by the Management, in appointing the appellant. Accordingly, the appeal was found devoid of merit and same was dismissed resulting in the present challenge.

Court's reasoning:
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.