May - High Court of Judicature at Allahabad

2All] Maheshwar Prasad Tiwari V. Joint Director of Education and others 19
(3) A teacher other than a Principal or
Headmaster, who is to be appointed by
promotion, may in the prescribed manner be
appointed by promoting the senior most
teacher possessing prescribed qualifications-
(a) In the trained graduate’s grade as a
lecturer, in the case of a vacancy in the
lecturer’s grade;
(b) In the certificate of Teaching grade, as
teacher in the trained graduates grade, in the
case of a vacancy in the Trained graduate’s
grade.”
8. It would be evident from the provisions
quoted above that ad-hoc appointment by
direct recruitment may be made only on the
recommendation of the Selection Committee
referred to in sub-Section (8) while
appointment by provisions in the Lecturer
grade is required to be made in “prescribed
manner” by promoting the senior most
teacher in the L.T. grade possessing
prescribed qualifications. The manner is
prescribed in the Rules, Rule 15 of the Rules
provides the procedure for ad-hoc
appointment by direct recruitment under
Section 18 of the Act “in respect of vacancies
to be filled in by direct recruitment “Rule 16
provides the procedure for ad-hoc
appointment under Section 18 of the Act by
promotion “in respect of the vacancies to be
filled in by promotion”. It is not disputed that
50% of the posts in the Lecturer’s grade are to
be filled by promotion and 50% by direct
recruitment vide Rule 10 of the Rules. The
expression “in respect of the vacancies to be
filled in by direct recruitment” and “in respect
of the vacancies to be filled in by promotion’
occurring in Rule 15 (1) and 16 (1)
respectively are significant. These expressions
in our opinion have reference to vacancies as
determined and notified in accordance with
Section 10 read with Rules 10 and 11 of the
Rules. The notification of vacancies to the
Board contains statement of vacancies for
each category of posts to be filled in by direct
recruitment or by promotion. Ad –hoc
appointment under Section 18 is permissible
only on fulfilment of the twin conditions
precedent: firstly, the vacancy had been
notified, and secondly; the post remained
vacant for two months. If the vacancy
determined in the aforesaid manner falls in the
quota of promotion and the condition
precedent as visualized in Section 18(1) are
satisfied, it can be filled in on ad hoc basis
only in the manner prescribed by Rule 16 of
the Rules as prescribed in Section 18(3) and
not by direct recruitment under sub-Section
(2) read with sub-Section (8) of Section 18
and Rule 15 of the Rules except on pains of
invalidation of appointment in terms of
Section 16 (2) of the Act. In our opinion
therefore if the vacancy falls in the quota of
direct recruit then the same cannot be filled by
ad-hoc promotion under Rule 16 of the Rules
which provides procedure for ad-hoc
appointment by promotion where such
appointments are to be made under Section 18
of the act “in respect of the vacancies to be
filled in by promotion” it may be observed
that the U.P. Secondary Education Services
Commission (Removal of Difficulties) Order,
1981 has since been rescinded and the
procedure laid down in the Rules holds the
field of ad hoc appointment. The view taken
by the learned Single Judge warrants no
interference.
9. Before parting with the case, it may be
observed that the Act has been amended in
certain respects by U.P. Act No.25 and Rules
have been replaced by the U.P. Secondary
Education Service Selection Board Rules,
1998 but the legal position discussed above
remains unaltered even under the new Rules.
In the instant case the 1995 Rules were very
much in force at the time of the appointment
in question herein. Regular promotion is now
to be made on the recommendation of a
Selection Committee constituted under
Section 12 inserted by U.P. Act No. 25
(preceded by Ordinance No.3 of 1998)