{"id":176808,"date":"2006-08-25T00:00:00","date_gmt":"2006-08-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/surendra-kumar-srivastava-so-vs-state-of-u-p-through-secretary-on-25-august-2006"},"modified":"2018-04-10T15:11:00","modified_gmt":"2018-04-10T09:41:00","slug":"surendra-kumar-srivastava-so-vs-state-of-u-p-through-secretary-on-25-august-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/surendra-kumar-srivastava-so-vs-state-of-u-p-through-secretary-on-25-august-2006","title":{"rendered":"Surendra Kumar Srivastava S\/O … vs State Of U.P. Through Secretary … on 25 August, 2006"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Surendra Kumar Srivastava S\/O … vs State Of U.P. Through Secretary … on 25 August, 2006<\/div>\n
Bench: S R Alam, S Agarwal<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
S. Rafat Alam and Sudhir Agarwal, JJ.<\/p>\n
1. This intra Court appeal, under the Rules of the Court, arises from the judgment\/order of the Hon’ble Single Judge of this Court dated 28.5.2004 dismissing Civil Misc. Writ Petition No. 21664 of 2004 of the petitioner-appellant.\n<\/p>\n
2. We have heard Mr. Anil Bhushan, learned Counsel for the appellant and learned Standing Counsel for the State-respondents.\n<\/p>\n
3. The facts, which are not in dispute, giving rise to this appeal are that Basent Theosophical Ucchtar Madhyamik Vidyalaya, Varanasi (hereinafter referred to as the “College”) is an aided and recognised Secondary Education Institution and governed by the provisions of Intermediate Education Act, 1921 (in short, ‘1921 Act’), The U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (in short, ‘1971 Act’ and the U.P. Secondary Education (Service Selection Boards) Act, 1982 (in short, ‘1982 Act;) and the rules and regulations framed thereunder.\n<\/p>\n
4. Sri Daya Ram, Assistant Teacher in L.T. Grade working in the College proceeded on leave, sanctioned by the management for a period of two years with effect from 1.11.1993, and in the resultant short term vacancy, the management proceeded to make ad hoc appointment in accordance with 1982 Act read with U.P. Secondary Education Services Commission (Removal of Difficulties) Second Order, 1981 (in short ‘Second Order’).\n<\/p>\n
5. It is contended that the vacancy was advertised in two newspapers besides being pasted on the notice board of the College and also informed to the Employment Exchange. After considering all the applications, on the basis of the quality point marks, the petitioner-appellant was selected and proposal for his appointment was forwarded to the District Inspector of Schools, Varanasi (in short, ‘DIOS’) seeking his prior approval. It is claimed that the DIOS granted financial sanction initially for one year, i.e., 1.7.1994 to 30.6.1995, which was extended upto 30.6.1997. The management thereafter served a notice dated 27.3.1997 informing the petitioner-appellant about cessation of his service on 30.6.1997, since the DIOS has granted financial sanction only upto 30.6.1997. The petitioner-appellant challenged the said notice in Civil Misc. Writ Petition No. 14307 of 1997 claiming right to continue till a candidate regularly selected by the Commission is available. The said writ petition was finally disposed of vide judgment dated 17th September, 1997 directing the petitioner-appellant to submit a representation to the DIOS, Varanasi, who shall examine as to whether Sri Daya Ram was entitled for grant of leave in accordance with rules and if the management has no objection for extension of service of the petitioner-appellant, the DIOS may consider to grant financial sanction for appointment of the petitioner-appellant for the period of leave vacancy of Sri Daya Ram. The petitioner-appellant preferred representation dated 17.11.1997 alongwith judgment dated 17th  September, 1997 whereupon the DIOS passed a detailed order on 3\/4.4.1998 observing that pursuant to sanction of 2 years 8 months leave (from 1.11.1993 to 30.6.1996) to Sri Daya Ram, an Art Teacher of the College, the short term appointment of the petitioner-appellant was approved by the then DIOS vide order dated 16th September, 1995 granting financial sanction from 1.7.1994 to 30.6.1996. Sri Daya Ram further sought extension of his leave upto 30.6.1997 and the appointment of the petitioner-appellant was also approved and extended for a period of one year, i.e. upto 30.6.1997 by the then DIOS vide order dated 5.10.1996. He also noted that Sri Daya Ram, who had proceeded on leave, was actually appointed in Government Service as Block Development Officer vide appointment letter dated 11.11.1993 and under Chapter III Regulation 29(3) and 26 of the Regulation framed under the U.P. Intermediate Education Act, a teacher of a non-government aided institution, if appointed in Government Service, has to resign from the post of teacher, thus leave without pay to such a teacher is impermissible under the Rules and is also contrary to fundamental and subsidiary Rules of the State Government. Consequently, DIOS not only rejected the application of Sri Daya Ram seeking further extension of leave from 1.7.1997 to 30.6.1998 but also rejected representation of the petitioner-appellant for sanctioning extension of his appointment since it was not in accordance with law. He further issued another order dated 9.10.1998 directing management of the College to treat the aforesaid vacancy substantive and take steps in accordance with 1982 Act for making regular appointment on the said post. He also informed the management that under 1982 Act for adhoc\/temporary appointment, power of selection is vested in the Selection Committee presided by the Regional Joint Director of Education and Management has no right to make any selection and in case any appointment is permitted to continue contrary to the aforesaid statutory provisions, the management shall be responsible for the same.\n<\/p>\n
6. Aggrieved by the order dated 9.10.1998, the petitioner-appellant preferred the aforesaid writ petition, which has been dismissed by the Hon’ble Single Judge.\n<\/p>\n
7. Sri Anil Bhushan, learned Counsel for the appellant vehemently contended that initially a short-term vacancy occurred wherein the petitioner-appellant was appointed in accordance with law and it was duly approved by the DIOS. Subsequently, on rejection of leave of Sri Daya Ram, a substantive vacancy occurred and, it would not result in automatic termination of the petitioner-appellant but he is entitled to continue till a candidate selected by the Commission is available or at least till an ad hoc appointment is made under Section 18 of the Act read with U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981 (in short’ First Order). Reliance is placed on a Division Bench judgment of this Court in the case of District Inspector of Schools, Kanpur Nagar and Ors. v. Diwakar Lal and Ors. 2000(3) ESC 1670 and a Single Judge judgment in Smt. Sarita Gupta v. District Inspector of Schools, Firozabad and Ors. 2005(2) ESC 851.\n<\/p>\n
8. Learned Standing Counsel, while opposing the aforesaid submissions, contended that once the substantive vacancy occurred, in view of the facts and circumstances of the case in hand, it cannot be said that the decision of the District Inspector of Schools is in any manner inconsistent with the statutory provision and the Hon’ble Single Judge has rightly dismissed the writ petition.\n<\/p>\n
9. In our view, two questions require consideration in this appeal: (1) Whether the appointment of the petitioner-appellant at all was in accordance with law (2). Whether the appellant was entitled to continue till a regularly selected candidate from Commission is available pursuant to the short term vacancy of the teacher become substantively vacant or at least till an ad hoc appointment is made under Section 18 of the Act read with First Order.\n<\/p>\n
10. The question regarding validity of the appointment of the petitioner-appellant has come up as a consequence of the order dated 17.9.1997 passed by this Court in petitioner-appellant’s earlier writ petition No. 14703 of 1997 where, while disposing the writ petition, this Court specifically directed the DIOS to examine these issues -(1) Whether Daya Ram is entitled for grant of leave in accordance with Rule (2) Whether his leave is sanctioned in accordance with the provisions of law (3) If the committee of management has no objection “for extension of service of the petitioner, he may accord financial sanction for the period of leave vacancy of Daya Ram.\n<\/p>\n
11. It is admitted at the bar that the aforesaid judgment has attained finality. A perusal of the aforesaid order also shows that this Court referred to Regulation 99 Chapter 3 of the Regulations and other provisions pertaining to leave and apparently took the view that correctness of the leave granted to Sri Daya Ram needs to be examined by DIOS. It leads to the conclusion that in the earlier writ petition of the petitioner-appellant, this Court has a doubt on the correctness of the procedure followed in the entire matter, namely, though the vacancy was substantive, but in order to make out a case of short term vacancy and to make ad hoc appointment under Second Order, Sri Daya Ram was firstly granted leave instead of asking him to resign and in the resultant leave vacancy, the petitioner-appellant was appointed. Admittedly, this Court did not record any finding on this aspect, but doubt in the mind of the Court is apparent from the fact that it directed DIOS to examine as to whether Sri Daya Ram was entitled for grant of leave in accordance with Rules. Pursuant to the said direction, the DIOS has considered this issue in the order impugned in the writ petition and with reference to statutory Regulations, namely, Regulation 26 read with 29(3) Chapter III of the Regulations has recorded a finding that Sri Daya Ram was not entitled for grant of leave, but was obliged to tender resignation before joining his assignment as Block Development Officer under the State Government and, therefore, grant of leave to Daya Ram was not in accordance with Rules. Learned Counsel for the appellant has not assailed this part of the order at all either in the writ petition or in this appeal. In order to satisfy ourselves regarding correctness of the order of DIOS on this issue, we ourselves have also examined this issue in the light of relevant provisions.\n<\/p>\n
12. It is not disputed between the parties that Sri Daya Ram was appointed in Government Service as Block Development Officer on 11.11.1993. Regulation 29 Chapter III of the Regulations read with Regular 26 provide that an employee may resign from service by giving three months notice or by taking pay in lieu thereof. However, if an employee is selected for appointment in the State Government or in the service of Local Body, the proviso to Regulation 29 provides that such an employee shall not be required to serve notice but will have to resign within the time allowed for the purpose of joining his duty of his new assignment. Regulation 99 of Chapter III makes provision for leave, empowering the sanctioning authority to grant leave subject to such restriction as may be decided by the State Government for the employees of the same cadre of the Government College and aided college from time to time. The Leave Sanctioning Authority of Principal and Head Master is Manager and for other employees the Principal\/Head Master. In case the leave application is forwarded by the Principal\/Head Master, the same may be sanctioned by the Manager. It is not clear from the record as to whether this fact was disclosed by Sri Daya Ram to the Management or to the Leave Sanctioning Authority when initially the leave of two years and eight months was applied for and sanctioned causing the alleged short term vacancy wherein the petitioner-appellant was appointed. However, subsequently, or as and when this fact came to the notice of the authority, leave under the relevant rules could not have been sanctioned since Sri Daya Ram has to tender resignation and the vacancy has to be treated as substantive vacancy.\n<\/p>\n
13. Though, it is true that short term appointment of the petitioner-appellant was approved by the DIOS for limited period, i.e., upto 30th  June 1996 vide order dated 16.9.1995 and upto 30th  June 1997 vide order dated 5.5.1996, but the petitioner-appellant has not placed anything to show that the DIOS was informed of this fact that the leave vacancy occurred since Sri Daya Ram has joined service under the State Government. It appears that the DIOS has no occasion at that time to examine correctness of the leave granted to Sri Daya Ram and resultant ad hoc appointment of the petitioner-appellant in the alleged short term vacancy. This matter cropped up as a result of the judgment of this Court dated 17.9.1997 passed in the earlier writ petition of the petitioner-appellant and, therefore, has been examined by the DIOS in his order dated 9.10.1998 finding that the leave granted to Sri Daya Ram was not correct and in accordance with Rules, but he ought to have required to resign and if that would have been so, a substantive vacancy would have occurred which could be filled in with the procedure prescribed under Section 18 read with ‘First Order’. Admittedly, the petitioner-appellant was not appointed in accordance with the aforesaid provisions and, therefore, his appointment cannot be said to be in accordance with law. It may be clarified at this stage that our view on this question is only to test the correctness of the order dated 9.10.1998 passed by the DIOS, which was challenged by the petitioner-appellant in the writ petition. Though we uphold the same but our view on this aspect will not entitle respondents to treat de facto appointment of the petitioner-appellant to be illegal in order to deprive him the benefits he has already received and to direct him to refund.\n<\/p>\n
14. Now, coming to the second question, we find that admittedly, the petitioner-appellant was appointed against short term vacancy under Second Order. Clause-3 of Second Order, provides for duration of ad hoc appointment. It reads as under:\n<\/p>\n
3. Duration of ad hoc appointment’ Every appointment of a teacher under Paragraph 2 of this Order shall cease from the earliest of the following dates, namely-\n<\/p>\n
(a) when the teacher, who was on leave or under suspension join the post; or<\/p>\n
(b) when the period of six months from the date of such ad hoc appointment expires; or (deleted by Thied order).\n<\/p>\n
(c) when the short-term vacancy otherwise, ceases to exist.\n<\/p>\n
15. The appointment made under Clause- 2 of the Second Order, therefore shall cease and cannot continue beyond the period prescribed under Clause-3 of Second Order. These provisions came up for consideration before a Full Bench of this Court in Radha Raizada and Ors. v. Committee of Management, Vidyawati Darbari Girls Inter College and Ors. 1994 (3) UPLBEC 1551 and in para-43, it observed, “the duration of such ad hoc appointment is till the teacher who was on leave or under suspension joins the post or when the short term vacancy otherwise ceases to exist, Further In the same paragraph it held:  However, it has come to notice that sometimes the Management resort to unfair practice in case of such appointments. For that contingency there is adequate safeguard provided in the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971.”\n<\/p>\n
16. The question as to whether a teacher appointed on short term basis pursuant to the provisions of Second Order has a right to continue if subsequently the vacancy becomes substantive, specifically came up for consideration before a Full Bench in Smt. Pramila Mishra v. Deputy Director of Education 1997 (2) ESC 1284 (AII)(FB) and on page 1291 the Court held that ” from the provisions of the Acts, Rules, Regulations and Removal of Difficulties Orders discussed above, it is manifest that a clear distinction has been maintained between substantive vacancy and short term vacancy of the post of a teacher. The authority to make the appointment, the procedure to be followed in making the appointments and the considerations to be made in making the appointment in the two cases are distinct and different from each other. In each case the duration of ad hoc appointment is also laid down under the statutory provisions. In the case of ad hoc appointment in a short term vacancy paragraph 3 of the Second Order specifically lays down that the appointment will come to an end if the short term vacancy otherwise ceases to exist. It follows, therefore, that when a vacancy caused due to grant of leave to or suspension of the permanent incumbent becomes a substantive vacancy on account of his death, resignation or termination or removal from service, the short-term vacancy ceases to exist and a substantive vacancy is created in its place. On a perusal of the relevant provisions of the Acts, Rules, and Removal of Difficulties Orders and giving our anxious consideration to the matter, we do not find any provision which directly or even indirectly vests a right in a person appointed an ad hoc teacher in a short-term vacancy to continue even after the said vacancy has ceased to exist and a substantive vacancy has been created in its place. The contention raised on behalf of the respondents that such an appointee (in short-term vacancy) is entitled to continue in the post (substantive vacancy) till a candidate selected by the Commission\/Board joins the post does not get any support from the statutory provisions and, therefore, cannot be accepted. The contention is also not acceptable for the reason that it runs counter to the intendment of the provisions of the Act, Rules and Regulations. We should not be understood to be saying that an ad hoc teacher in a short-term vacancy cannot be appointed in a substantive vacancy. He can be appointed in the substantive vacancy if he is selected in accordance with the procedure and in the manner laid down in the relevant provisions of the Acts, Rules, Regulations and Removal of Difficulties Orders. What we want to stress and which is clear to under section is that he cannot claim as a matter of right that he is entitled to continue in the post till the candidate selected by the Commission\/Board joins even if the short term vacancy has ceased and a substantive vacancy in the post of teacher has been created in its place.\n<\/p>\n
(Emphasis added).\n<\/p>\n
17. A careful reading of the law laid down by the Full Bench in Smt. Pramila Mishra (Supra) makes it clear that the Court specifically rejected the contention that a person has a right to continue when a substantive vacancy is created or occurred if he has been appointed as ad hoc teacher in a short term vacancy and held that there is no provision to support this contention. It has also specifically observed that acceptance of such contention would run counter to the specific provisions of the Act and the Rules framed thereunder. Further in the operative part of the judgment, the Full Bench, while discarding the contention that a teacher appointed by the Management on ad hoc basis in a short term vacancy which is subsequently converted into a substantive vacancy can claim a right to continue further held that however he has a right to be considered along with other eligible candidates for ad hoc appointment in the substantive vacancy, if he possess the requisite qualification. The Full Bench also overruled all the judgments taking contrary view as is apparent from the following: “Summing up our conclusions in the light of the discussions in the foregoing paragraphs, we hold that a teacher appointed by the management of the institution on ad hoc basis in a short term vacancy (leave vacancy suspension vacancy), which is subsequently converted into a substantive vacancy in accordance with the provisions of the Act, Rules and Orders, (on death, resignation, dismissal or removal of the permanent incumbent), cannot claim a right to continue. He has, however, a right to be considered along with other eligible candidates for ad hoc appointment in the substantive vacancy if he possesses the requisite qualifications. Consequent upon the view taken by us, as noticed above, we hold that the decisions of this Court like Km. Meena Singh’s case (supra) and other cases taking contrary view, are declared to be no longer good law.”\n<\/p>\n
18. Now coming to the cases relied upon by the learned Counsel for the appellant. In District Inspector of Schools, Kanpur Nagar and Ors. v. Diwakar Lal and Ors. (supra), four posts of Lecturers in P.N.N. Inter College, Kanpur fell vacant where upon a requisition sent to the Commission but all the vacancies continued for more than two months since Commission failed to select and recommend anyone consequently, four Assistant Teachers in L.T. Grade were promoted as Lecturer in the College purely on ad hoc basis. In the resultant short term vacancy, on the post of Assistant Teacher in L.T. Grade, the Management proceeded to make ad hoc appointment under the Second Order and sent papers to the DIOS for his approval. The approval was declined by DIOS. Thereafter, the aggrieved ad hoc teachers preferred Civil Misc. Writ Petition No. 9767 of 1994 wherein interim order dated 9.3.1994 was passed by this Court directing the respondents to pay salary to the petitioners in accordance with law or to show cause. The writ petition was subsequently disposed of vide judgment dated 16th April, 1999 against which special appeal was preferred. It appears that the DIOS declined approval on the ground that procedure prescribed for filling up substantive vacancy was not followed. However, since the four vacancies were found to be short term resultant vacancies due to ad hoc promotion of 4 Assistant Teachers of the College, the Court did not find the objection of DIOS sustainable. Before the Hon’ble Single Judge, in the counter affidavit, a defence in support of the order of DIOS sought to be taken that the vacancies were not properly advertised. The Court firstly declined to permit to add a new ground by way of affidavit and, thereafter, considered and held that the law with respect to advertisement of short term vacancies was laid down specifically by the Full Bench in Radha Raizada (Supra) decided on 13.1.1994 and in view of Division Bench judgment in Ashika Prasad Shukla v. DIOS Allahabad and Ors 1998 (3) UPLBEC 1722, the short term appointment made prior to the decision of Full Bench in Radha Raizada (Supra) would not be invalidated only on the ground that the vacancy was not advertised in two news papers. Thereafter, it appears that though neither it was considered by the educational authorities, nor pleaded nor any other material was available on record to show whether the short term vacancy has come to an end or not, yet, the learned Standing Counsel sought to argue that the short term vacancies will come to an end automatically when resultant short term vacancies become substantive. The Court did not permit the learned standing counsel to raise this ground in absence of any pleading and material on record, as is apparent from Para-12 and 13 of the of the judgment in Diwakar Lal (supra), which is reproduced as under:\n<\/p>\n
In appeal the learned Standing Counsel has submitted that in view of the decision in the case of Smt Pramila Mishra (1997) 2 UPLBEC 1329 (FB) (Pr.4)the appointment of ad-hoc teachers made against resultant short-term vacancies (Phalit Riktiyan) will come to an end automatically when such a resultant short-term vacancy became substantive. (Para-12)<\/p>\n
We find that learned Standing Counsel has not laid foundation for his argument sought to be developed in Special Appeal as the relevant details regarding vacancies and the specific period of working of the respective incumbents (who were promoted as Lecturers) has not come on record with precision and clarity. In absence of relevant details, the submission of the Appellants could not be property appreciated. A Supplementary Affidavit has been filed on behalf of the Respondents (Petitioners in the Writ Petition) to overcome the shortcoming. Perusal of the Supplementary Affidavit and Supplementary Counter-affidavit go to show that the facts mentioned therein will require this Court to adjudicate on questions of fact. This Court is neither competent nor willing to enter into disputed questions of fact or adjudicate the same at this stage; particularly on the basis of the facts brought before this Court for the first time through Supplementary Affidavit at appellate stage. (Para-13)<\/p>\n
19. In the circumstances, neither there was any occasion before Division Bench to consider the question as to whether a person appointed on short term vacancy under the second order is entitled as a matter of right to continue, if subsequently, the vacancy become substantive nor this issue was argued nor decided and the Court refused to consider this issue in the absence of any pleading or material or record. Hence, it cannot be said to have laid down a law that a person appointed on short term vacancy may continue even after the short term vacancy is converted into a substantive vacancy. No doubt in para-15 of the judgment a direction was issued that the incumbent working on ad hoc basis against short term vacancy would not automatically be thrown out of service in view of Smt. Pramlla Mlshra (supra) when short term vacancy become substantive and in such a situation, ad hoc appointee should normally be allowed to continue till the regularly selected candidate Is available. However, it cannot be said to be a law laid down on the issue since the question was neither raised nor argued nor decided and, therefore, it cannot be said to be a binding precedent on the question.\n<\/p>\n
20. The law of precedent in order to make a judgment binding is now well settled. A decision is an authority for what it actually decides and not what can logically be deduced therefrom. A question, which has not arisen and decided in the case but some observations have come, at the best may constitute obiter dicta and not ratio decidendi. In Director of Settlements, A.P. and Ors. v. M.R. Apparao and Anr.<\/a> , obiter dictum was distinguished from a ratio decidendi by observing Obiter dictum as distinguished from a ratio decidendi is an observation of the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have binding precedent. However, in Diwaker Lal (supra) the direction contained in para-15 cannot be said to be even obiter dictum. Neither on the aforesaid aspect there was any pleading nor the issue was raised and argued nor decided. In order to form an opinion on a question of law decided in a case, there must first be a foundation based on facts laid in the pleadings; the question should emerge from the sustainable findings of facts arrived at by the Court and it would have been necessary to be decided for adjudication of the case for a just and proper decision. As we have observed, in paras-12 and 13 of the judgment in Diwakar Lal (supra), Court declined to permit the learned Standing Counsel to raise the issue regarding the vacancy becoming substantive, for want of pleadings, and hence there was no occasion for the Court to lay down any law on the subject. In any case, what has been stated in para-15 of the judgment without referring to the relevant provisions particularly Clause-3 of the Second Order, at best, can be said to be an observation and direction per Incurium, which cannot be considered to be a binding precedent. A decision without taking into account the relevant statutory provisions, cannot be said to be a binding precedent. In ICICI Bank Ltd. and Anr. v. Municipal Corporation of Greater Bombay and Ors.  the Hon’ble Apex Court<\/a> held that for a case to be a binding precedent, fundamental requirement would be, that the law pronounced should result from the issues raised before the Court between the parties and argued on both sides. We need not to discuss more on this aspect since the law is well settled that a judgment is an authority for the proposition, which was raised, argued and decided, See. Raipur Ruda Meha and Ors. v. State of Gujarat .\n<\/p>\n
21. It is also interesting to notice that in Diwakar Lal (supra), the Court, while giving the aforesaid direction in para-15 of the judgment, referred to a Division Bench judgment in Raj Kumar Verma reported in 1992 (2) UPLBEC 1420 but we find that there is no such judgment in the aforesaid journal. We have further checked and found that there is a judgment Raj Kuamr Verma v. DIOS, Saharanpur reported in 1999 (2) UPLBEC 1420 and probably the Court was referring to this judgment and there is a typing mistake regarding citation in the judgment and instead of 1999, it has wrongly been mentioned as 1992. This view of our finds support from the fact that the same Division Bench which decided Diwakar Lal (supra) on 25th  May 2000 decided another case, that is, Smt Sashi Saxena and Ors. v. Director of Education and Ors 2000(3) ESC 1990 on 26th  July 2000 and therein also similar observation was made in para-21 of the judgment by observing, “the service of Smt. Shashi Saxena shall not come to an end automatically on the post being converted into substantive and if there is no adverse material and circumstance against the working of Smt. Saxena, the Court did not find any justification in depriving her to claim salary on the post and to continue till she is finally regularized or a duly selected candidate from commission joins the post as the came may be.” While forming the said opinion and giving direction, the Division Bench has referred to and relied earlier Division Bench in Raj Kumar Verma (supra) with its citation as 1999(2) UPLBEC 1420.\n<\/p>\n
22. We have also considered Raj Kumar Verma (supra) and find that the same neither actually expresses any opinion contrary to law laid down in Pramlla Mlshra (supra) nor could have done so, but the issue came up for consideration therein was totally different. The appointment in short term vacancy was made on 17th  August 1987 and approved by DIOS on 11.11.1988. The petitioner sought to claim benefit under Section 33-B of the 1982 Act, which was inserted by U.P. Act No. 1 of 1993 with effect from 7th  August 1993, providing that any teacher, who was appointed in C.T. Grade on or before 13th  May 1989 against short term vacancy in accordance with para-2 of Second Order shall on such vacancy being converted in substantive be given substantive appointment by the management if such teacher fulfills the conditions, namely, that he possesses prescribed qualification or is exempted from such qualifications, has been continuously serving the institution from the date of such appointment up to the date of the commencement of U.P. Secondary Education Services Commission and Selection Boards Second (Amendment) Act, 1992, is not related to any member of the management or the Principal or Head Master of the Institution concerned in the manner specified in the explanation to Sub-section (3) of Section 33-A and has been found suitable and eligible for appointment in a substantive capacity by a Selection Committee constituted under Sub-section (2). Therefore, a right conferred under Section 33-B of 1982 Act upon a teacher appointed on a short term vacancy up to a particular period, namely, 13th May 1989, if subsequently vacancy become substantive and its co-relation with para-2 and 3 of the Second Order, 1981 came up for consideration before Division Bench in Raj Kumar Verma (supra), which was not the issue before the Full Bench in Pramila Mishra (Supra). The Division Bench did not consider the question whether a teacher appointed in a short term vacancy is entitled to continue as of right after the vacancy is converted into a substantive vacancy in the cases where Section 33-B of 1982 Act has no application, and, specifically said so as is clear from Para-10 of the judgment, which is reproduced as under:\n<\/p>\n
 The question herein is not whether a teacher appointed in a short term vacancy is entitled to continue as of right even after the vacancy is converted into a substantive vacancy. The question involved in the instant case is whether the appellants are entitled to be considered for being given substantive appointment. The right to be so considered for being given substantive appointment under Section 33-B accrues only upon conversion of the short term vacancy into substantive vacancy as provided in Sub-section (1) of Section 33-B. A teacher appointed in short term vacancy on or before the dates specified in Sub-clause (a)(i) of Sub-section (1) of Section 33-B if not found ‘suitable’ and ‘eligible’ to get substantive appointment would cease to hold the post on such date as the State Government may by order specify. That is how the provisions contained in Section 33-B of U.P. Act No. 5 of 1982 “interact” with those of the U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981 in respect of teachers appointed prior to the date specified in the Section. The question as to how do the two provisions “interact” has not been specifically answered by the Full Bench in Parmila Mishra’s case (supra). In our opinion the right of a teacher appointed in a short term vacancy on or before the date specified in Section 33-B (1) accrues only upon the short term vacancy being converted into a substantive vacancy and a teacher, appointed in short term vacancy on or before the specified dates, who is not found ‘suitable’ and ‘eligible’ for substantive appointment shall cease to hold the appointment on such date as the State Government may be order specify and not on the date the short term vacancy came to be converted into substantive vacancy. The question in our considered opinion, needs to be examined by the duly constituted Selection Committee comprehended by Sub-section (3) of Section 33-B as the appellants were concededly appointed in Certificate of Teaching Grade before the specified date namely, May 13, 1989. Whether they fulfil other conditions of being given substantive appointment Is a question which is to be decided by the Selection Committee. In our opinion, therefore, the judgment of the learned Single Judge needs to be modified accordingly for nothing in Parmila Mishra’s case inhibits substantive appointment being given to a teacher appointed against a short term vacancy prior to the dates specified in Section 33-B of U.P. Act No. 5 of 1982 if the conditions stipulated therein are satisfied and such teacher is found by the Selection Committee ‘suitable’ and ‘eligible’ for being given substantive appointment. As a matter of fact the question as to the “interaction” of Section 33-B of U.P. Act No. 5 of 1982 with the provisions contained in the U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981 though posed by Full Bench in Parmila Mishra has not been answered, perhaps due to inadvertence, if we may say so with utmost respect and humility. The contention of Sri Sabhajeet Yadav, Standing Counsel is, therefore, unacceptable to us.\n<\/p>\n
23 Thus, law laid down in Raj Kumar Verma (supra) has limited application, that is, only to such ad hoc appointees, who were appointed on or before a particular date, namely, by promotion or direct recruitment in lecturer grade or trained graduate grade on or before 14th May 1991 or in C.T. grade on or before 13th May 1989 against a short term vacancy in accordance with para-2 of Second Order and if such vacancy is subsequently converted into a substantive vacancy. It would have no application to the cases, where short term appointment was made subsequent to cut of date prescribed in Sub-section (a)(i) of Section 33-B of 1982 Act and if the incumbent was not continuously working on the date of commencement of the Second Amendment Act, 1992. In Raj Kumar Verma (supra), the Division Bench very categorically said in Para-7 of the judgment that the view we are taking in the light of Section 33-B of the Act is not in conflict with the view of the Full Bench in Pramila Mishra (supra). We find that reference of Raj Kumar Varma (supra) in para 15 of Diwakar Lal (supra), while permitting the petitioner to continue has ignored this fact that short term appointments in Diwakar Lal (supra) were made on 1th  July 1993 and, therefore, Section 33-B was not applicable in that case and, hence, law laid down in Raj Kumar Varma could not have been extended to the case of Diwakar Lal (supra). As we have already said since this issue was neither raised nor argued nor decided as is apparent from Para-12 and 13 of the judgment, we hold that this Court in Diwakar Lal (supra) did not lay down any law that an ad hoc appointment made against a short term vacancy would continue when short term vacancy become substantive, since this would not only be inconsistent with the law laid down by the Full Bench in Pramlla Mlshra (supra) but would also be contrary to the specific provision of Para-3 of the Second Order.\n<\/p>\n
24. Similarly, in the case of Shashi Saxena (supra) also, she having been appointed on ad hoc basis against a short term vacancy pursuant to the management’s resolution dated 16th  July 1993, which was approved by the Regional Inspectoress of Schools on 28th  August 1993, Section 33-B of 1982 Act was not applicant to the case of Smt. Shashi Saxena also, but she was allowed to continue by referring to the decision of Division Bench in Raj Kumar Verma (Supra), though a perusal of judgment of this Court in Smt Shashi Saxena (supra) shows that the issue as to whether such an appointee is entitled as a matter of right to continue was neither raised nor argued nor decided and, therefore, it also cannot be said to lay down a binding precedent on this question. Here we find it useful to refer two subsequent judgments of Hon’ble Single Judges following Pramlla Mlshra(supra) holding that an ad hoc appointee against short term vacancy has no right to continue if subsequently the vacancy becomes substantive and his or her appointment would come to an end under para-3 of Second Order and, thereafter, the appointment has to be made in accordance with Section 18 read with First Order as the case may be. His Lordship V.M. Sahai, J. in Ran Vijay Singh Chauhan v. Joint Director of Education 2001(1) UPLBEC 407 has considered this issue in great detail and after referring to the various judgments held that such an incumbent cannot continue in view of the specific provision of para-3 of Second Order. Similarly, Hon’ble DP. Singh, J in Arvind Kumar Sharma v. District Inspector of Schools and Ors. 2004 (2) UPLBEC 2088. after referring to Full Bench in Radha Raijada (supra), held that since the approval for appointment was limited and was not extended, the incumbent has no right to continue. We are in full agreement with the views expressed in the aforesaid two judgments. Besides, a Division Bench of this Court in Neetu Agarwal v. DIOS and Ors. 2004(3) AWC 2346, after referring to Full Bench in Pramila Mishra (supra), has held as under”\n<\/p>\n
 The entitlement of an ad hoc appointee against a short term vacancy is to continue only so long as the short term vacancy continues to exist.\n<\/p>\n
25. In Smt. Sarita Gupta (supra) the Hon’ble Single Judge though observed in para-15 of the judgment that Full Bench in Pramila Mishra (supra) held that there is no provision which directly or indirectly vests a right in a person appointed as an ad hoc teacher in a short-term vacancy to continue even after the said vacancy has ceased to exist and a substantive vacancy has been created and that such an ad hoc appointee cannot claim as a matter of right that he is entitled to continue in the post till the candidate regularly selected by the Commission joins yet thereafter proceeded to hold that such an appointee can continue in the office only till a regular ad hoc appointment against the substantive vacancy is made under the provisions of Removal of Difficulties Order applicable to such appointment in a substantive vacancy and for that purpose relied on Diwakar Lal (supra). With great respect to His Lordship, we are unable to agree for the reason that reading of statutory provisions in the manner the Hon’ble Single Judge has proceeded, would amount to adding a few words in Clause-3 of Second Order though’ it actually does not provide so. A bare reading of Clause-3 of Second Order provides that an ad hoc appointment against short term vacancy made under Second Order shall cease from the earliest date when the short term vacancy ceases to exist. If we permit an ad hoc appointment against short term vacancy to continue till an ad hoc appointment against substantive vacancy made is available, that would result in adding the condition in Clause-3 of Second Order that even if the short term vacancy has ceased and the incumbent’s short term appointment has also ceased but still he will continue till a person appointed on ad hoc basis against substantive vacancy under the Removal of Difficulties Order or the Act is available. This is neither desirable nor permissible in law.\n<\/p>\n
26. Where the language of statute is clear and unambiguous there is no room for reading or interpreting statute in a manner, which may add a few words therein on the assumption that the legislature has left a vacuum need to be bridged by judicial interpretation. It is not the function of the Court to read something in the provision of law, which is not there, or find out a way of obviating the difficulties in enforcing the law howsoever meritorious the intention of the legislature might be. A Constitution Bench in Behram Khurshed Pesikaka v. State of Bombay<\/a>  rejecting to interpret a law on the supposed difficulty of prosecution in improving the case, observed as under:\n<\/p>\n
 The difficulty in the way of the prosecution proving its case need not deflect the Court from arriving at a correct conclusion. If these difficulties are genuinely felt it would be for the legislature to step in and amend the law. It would not be the function of the Court to read something in the provisions of the law, which is not there, or to find out a way of obviating the difficulties in enforcing the law howsoever meritorious the Intentions of the Legislature might be. (Para-17)<\/p>\n
27. It is settled principle of interpretation, where the words used are clear and unambiguous, the Court is bound to construe them in their ordinary sense and it is not the function of the Court to add words or expression for supposed assumption of what would have been the intention of the legislature. The Court is not entitled to go beyond so as to supply an omission as if to play the role of a political reformer or counsel to the legislature. A Constitution Bench in Dadi Jagannadham v. Jammulu Ramulu and Ors.<\/a>  in para 13 observed as under:\n<\/p>\n
 The settled principles of interpretation are that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The Court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly if there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The Court cannot aid the legislature’s defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there.\n<\/p>\n
28. The Cardinal rule of construction is to find out the intention of the legislature in the words used by the legislature itself. The Court, in order to find out the intention of the statute framing authority must look into the statute itself without any assistance from any other external factor unless there is some doubt or ambiguity in the construction of the statute itself. It would be appropriate to remind in the words of Lord Brougham in Robert Wigram Crawford v. Richard Spooner 4 MIA 179 (187) (PC), ” if the legislature did intend that which it has not expressed clearly; much more, if the Legislature intended some thing very different; if the Legislature intended pretty nearly the opposite of what is said, it is not for judges to invent something, which they do not meet within the words of the text (aiding their construction of the text always, of course, by the context).\n<\/p>\n
29. The Apex Court in S. Gurmej Singh v. sardar Pratap Singh Kairon.  (at page 128) also held that the Courts are not to busy themselves with ‘supposed intention’ or with ‘the policy underlying the statue but must construe the statute from plain meaning of the words used therein. In Aron Soloman v. A. Soloman & Co. Ltd. (1897) AC 22 (38) (HL) 5. Lord Watson observed-” In a court of law or equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication.” The aforesaid passage has been quoted with approval by the Apex Court in R.L. Arora v. State of Uttar Pradesh<\/a> ; Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. v. Workers Union<\/a> ;, Hansraj Gordhandas v. H.H. Dave<\/a> ; Sri Umed v. Raj Singh<\/a> ; Commissioner of Sales Tax, U.P. v. Super Cotton Bowl Refilling Works<\/a> ; State of Madhya Pradesh v. G.S. Bali and Flour Mills  and Harbhajan Singh<\/a> v. Press Council of India .\n<\/p>\n
30. We are aware that the rules of the interpretation are not rules of laws and are not to be followed like rules enacted by legislature in Interpretation Act as observed by the Hon’ble Apex Court in Superintendent and Remembrance of Legal Affairs, West Bengal v. Corporation of Calcutta<\/a> . The principles of interpretation serve only as a guide. The reasons giving by the Hon’ble Single Judge in paras 17 to 20 of the judgment in Smt. Sarita Gupta (supra) for holding that short term appointee can continue till regular ad hoc appointment against substantive vacancy is made would result in supplying casus omissus. A casus omissus cannot be supplied by the Court. There is no presumption that a casus omissus exists and language permitting the Court should avoid creating a casus Omissus where there is none. It would be appropriate to recollect the observations of Devlin, L.J. in Gladstone v. Bower (1960) 3 All ER 353 (CA), ” The Court will always allow the intention of a statute to override the defects of working but the Court’s ability to do so is limited by recognized canons of interpretation. The Court may, for example, prefer an alternative construction, which is less well fitted to the words but better fitted to the intention of the Act. But here, there is no alternative construction; it is simply a case of something being overlooked. We cannot legislate for casus omissus.”\n<\/p>\n
31. The Hon’ble Apex Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors.<\/a>  quoted with approval the following observation of Lord Simonds in the case of Magor & St. Mellons R.D.C. v. Newport Corporation (1951) 2 All ER 839 (841),” The duty of the Court is to interpret the words that the Legislature has used. Those words may be ambiguous, but, even if they are, the power and duty of the Court to travel outside them on a voyage of discovery are strictly limited.”\n<\/p>\n
32. It would be appropriate at this stage to remind another principle that though a Court cannot supply a real casus omissus, it is equally evident that it should not so interpret a statute as to create casus omissus when there is really none. Recently in Vemareddy Kumaraswamy Reddy and Anr. v. State of Andhra Pradesh  the Court reiterated that while interpreting a provision the Court only interprets the law and cannot legislate. If a provision of law is misused and subject to the abuse of process of law, it is for the legislature to amend, modify or repeal it if deemed necessary. The legislative casus omissus cannot be supplied by judicial interpretative process.\n<\/p>\n
33. Here we may also deal with the reasoning as to whether in the absence of power of ad-hoc appointment and non-availability of teacher appointed on regular basis the interest of institution and students at large would suffer. The provisions of the 1921 Act and 1982 Act have undergone various amendments from time to time and even Removal of Difficulties Orders were issued empowering management etc. to make ad-hoc appointments. The legislature in its wisdom and with the experience of widespread misuse of such provisions, thought it appropriate to continue with such provision and simultaneously did not make any provision for continuance of a person appointed on ad-hoc basis against a short term vacancy when the vacancy is converted into a substantive one. Considering the legislative history, it cannot be said that the legislature is unaware of the problem but if in its wisdom it has chosen not to make such a provision it would not be appropriate for the Court to provide such a contingency by process of judicial interpretation.\n<\/p>\n
34. We are also conscious of the fact that Section 33-F inserted by U.P. Act No. 5 of 2001 w.e.f. 30th December, 2000 provides for regularisation of appointments against short term vacancies and says that persons who were appointed by promotion or by direct recruitment in lecturers grade or trained graduate grade on or after 14.4.1991 but not later than 6.8.1993 against a short term vacancy in accordance with para 2 of second order as amended from time to time and such vacancy is subsequently converted into substantive vacancy, if he possess qualification prescribes under the Act, has been continuously serving the institution from the date of such appointment up to the date of commencement of U.P. Act No. 5 of 2001, and found suitable for appointment in substantive capacity by a selection committee referred in Section 33-C (2-A) of 1982 Act in accordance with the procedure prescribed under Clause B of Section 33-C (2) shall be given substantive appointment by the management. The Hon’ble Single Judge has drawn an inference that it shows that the legislature know that after conversion of short term vacancy as substantive, short term appointees would have continued. The Inference drawn by reference to Section 33(F) of 1982 Act though appears to be attractive but does not stand to test on deeper scrutiny. It would be appropriate to refer that similar provision of regularisation was made while Section 33-B was inserted by U.P. Act No. 1 of 1993 w.e.f. 7.8.1993, and thereafter the matter was considered by the Full Bench and it held that Clause-3 of Second Order clearly provides that an ad-hoc appointee against a short term vacancy shall cease as soon as the short term vacancy comes to an end. If some persons appointed on ad hoc basis against short term vacancy have continued and subsequently the vacancy became substantive entitling the incumbent to claim benefit under Section 33-F, that it itself would not have an effect of amendment or alteration of the provisions of Second Order. It would be useful to remind that by virtue of Section 33 an order of removal of Difficulties may be issued which may have the effect of amendment, alteration etc. of the provisions of the Act but not vice-versa. The Removal of Difficulties Orders, were issued with an objective to cope up a situation as obtained on account of implementation and operation of the Act for certain reasons but there is nothing to show or to infer to draw a conclusion that the provisions of Removal of Difficulties Order may be deemed to be amended or altered in the light of the provisions made under 1982 Act. Since the contingencies in which appointments are made under First and Second Order, i.e., on occurrence of substantive or short term vacancy, procedure is different and the rights of the persons appointed for the period they have to continue being different, we do not find any reason to interpret or read Clause-3 of Second Order in a manner which would do violence with otherwise clear and unambiguous procedure. Therefore, in view of the binding pronouncements of law by the Full Bench in Pramila Mishra (supra) are clear and unambiguous provisions contained in para-3 of the Second Order, we are of the considered opinion that an ad hoc appointee against the short term vacancy would seize on cessation of short term vacancy for any reason whatsoever including where vacancy is converted into a substantive one. In such a case, the appointment, therefore, whether ad hoc or regular has to be made in accordance with the provisions contained in 1982 Act read with the Rules and Regulations framed thereunder. We have observed that Section 33-E of 1982 Act inserted by Amendment Act of 1999 came into force on 25th  January 1999 has rescinded First, Second, Third and Fourth Removal of Difficulties Orders issued under 1982 Act and, thereafter, now the ad hoc appointment, if any, can be made only In accordance with the provision of Section 18 of 1982 Act and not otherwise.\n<\/p>\n
35. In the result, we are of the view that the Hon’ble Single judge has rightly dismissed the writ petition and the petitioner-appellant is not entitled for any relief though we have given our own reasons for reaching the same conclusion.\n<\/p>\n
36. The special appeal, therefore, lacks merit and is, accordingly, dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Surendra Kumar Srivastava S\/O … vs State Of U.P. Through Secretary … on 25 August, 2006 Bench: S R Alam, S Agarwal JUDGMENT S. Rafat Alam and Sudhir Agarwal, JJ. 1. This intra Court appeal, under the Rules of the Court, arises from the judgment\/order of the Hon’ble Single Judge of this […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-176808","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nSurendra Kumar Srivastava S\/O ... vs State Of U.P. 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