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TMI Blog1996 (7) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... e, to join as teachers on July 15 and 16, 1991. When papers were sent on November 2, 1991 to District Inspector of Schools, Ghaziabad for according financial sanction to make payment of their salaries, he made certain queries regarding vacancies and the procedure adopted in making their appointments by proceedings dated December 19, 1991. Thereon the writ petition bearing No. 20128 of 1992 was filed and is stated to have been allowed by the High Court. Thereon, since salaries were not paid, they filed another writ petition bearing No. 26646 of 1992. In the meanwhile, an appeal came to be filed against the order in the first writ petition. The Division Bench dismissed the appeal but on appeal arising out of the Special Leave Petition No. 12338 of 1994, this Court on August 8, 1994 set aside the High Court's order and remitted the matter to ascertain whether appointments had been made properly and in accordance with law. The learned single Judge in an elaborate Judgment dated February 27, 1996 held that the Management claimed to have selected the petitioners and made them to join duty without issuing any letters of appointment before expiry of two months' period required unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed thereunder for selection and appointment of ad hoc teachers would no longer be available nor applicable. The Full Bench of the Allahabad High Court in Radha Raizada and Ors. v. Committee of Management, Vidyawati Darbari Girls College and Ors. (1994) 3 U.P. L.B. E. C. 1551 had not properly considered the effect of the First 1981 Order. The appointments of the petitioners, therefore, were validly made in accordance with the procedure prescribed under Section 18 of the 1982 Act. The learned single Judge and the Division Bench, therefore, were not right in their conclusion that the appointments of the petitioners were not valid in law. We find no force in the contention. 3. It is true that Section 16 of the Act prescribes procedure for appointment of teachers by the Commission. The said section reads as under: 16. Appointments to be made only on recommendations of the Commission or the Board - (1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the Regulations made thereunder but subject to the provision of Sections 18 and 33. (a) every appointment of a teacher specified in the Schedule shall, on or after July 10, 1981, be made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this power, the First 1981 Order came to be made. Para 5 of the First 1981 Order which is relevant for our purpose reads as under: 5. - Ad hoc appointment by direct recruitment. (i) Where any vacancy cannot be filled by promotion under paragraph 4, the same may be filled by direct recruitment in accordance with Clauses (2) to (5). (ii) The Management shall as soon as may be, inform the District Inspector of Schools about the details of the vacancy and such Inspector shall invite applications from the Local Employment Exchange and also through public advertisements in at least two newspapers. (iii) Every application referred to in Clause (2) shall be addressed to the District Inspector of Schools and shall be accompanied (a) by a crossed postal order worth ten rupees payable to such Inspector. (b) by a self addressed envelop bearing postal stamp for purposes of registration. (iv) The Distt. Inspector of Schools shall cause the best candidates selected on the basis of quality points specified in Appendix. The complication of quality points may be done on remunerative basis by retired Gazetted Government servants under the personal supervision of such Inspector. (v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ablishment of the Commission may take long time and even after it is established, it may take long time to make available the required teacher in the institution and as such issue three Removal of Difficulties Order dated 30.1.82 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, it 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. Neither the Act nor the Removal of Difficulties order defined vacancy. However, the vacancy has been defined in Rule 2(11) of U.P. Secondary Education Services Commission Rules 1983. 'Vacancy' means 'a vacancy arising out as a result of death, retirement, resignation, termination, dismissal, creation of new post or appointment prevention of the incumbent to any higher post in substantive capacity. Thus, both under Section 18 of the Act and under the Removal of Difficulties Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 in paragraph 5 of the Removal of Difficulties Order. ...Thus, both under Section 18 of the Act and under the Removal of Difficulties Order the Management of an institution is empowered to make ad hoc appointment by direct recruitment, in the manner laid down in paragraph 5 of the First Removal of Difficulties Order only when such vacancy cannot be filled by promotion and for a period till a candidate duly selected by the Commission joins the post. Both Section 18 of the Act and the provisions of First Removal of Difficulties Order provide for ad hoc appointment of teacher in the institution, later further providing for method and manner of such appointments are part of one scheme. Scheme being provision for ad hoc appointments of teacher in the absence of duly selected teachers by the Commission. The provisions may be two but the power to appoint is one and the same and, therefore, the provisions contained in Section 18 and Removal of Difficulties Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certainly involves a discretion to make suitable changes, but it would be useless to give an authority the power to adapt a law without giving it the power to make suitable, changes. 9. At page 849, this Court had further held thus: Similar instances may be multiplied, but that will serve no useful purpose. The main justification for a provision empowering modifications to be made, is said to be that, but for it, the Bills would take longer to be made ready, and the operation of important and wholesome measures would be delayed, and that once the Act became operative, any defect in its provisions cannot be removed until amending legislation is passed. It is also pointed out that the power to modify within certain circumscribed limits does not go as far as many other powers which are vested by the legislature in high officials and public bodies through whom it decides to act in certain matters. 10. In Mahadeva Upendra Sinai Etc. Etc. v. Union of India and Ors. [1975] 98 ITR 209 (SC) this Court had held thus: To keep pace with the rapidly increasing responsibilities of a Welfare democratic State, the legislature has to turn out a plethora of hurried legislation, the volume of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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