Protection Against Termination Under Section 21 UP Secondary Education Act Not Available To Ad Hoc Teachers: Allahabad High Court

The Allahabad High Court has held that the protection of prior approval of the Board under Section 21 of the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982 is not available to a teacher appointed on ad hoc basis.

It held that the safeguard operates in favour of teachers regularly appointed on the recommendation of the Board, or at least regularised by following the due procedure of law, and that ad hoc teachers appointed under the First Removal of Difficulties Order, 1981 stand as a separate class.

Section 21 of the Act bars the management from dismissing a teacher, removing him from service, serving him a notice of removal, reducing him in rank or in emoluments, or withholding his increment, except with the prior approval of the Board, and declares anything done without such approval to be void.

The bench of Justice J.J. Munir and Justice Indrajeet Shukla held,

“The learned Counsel for the appellant-petitioner endeavoured to rely upon Section 21 of the Act, 1982 as a sword in place of a shield, by urging that the impugned termination order passed by the Committee of Management could not have been passed in absence of prior approval of the District Inspector of Schools. The argument advanced, ex facie, appears to be palpably flawed, as the protection enumerated in the aforesaid Act is not for ad hoc teachers.”

The Court further held that an appointment made without the essential qualification prescribed by statute is void from inception, and a later order of regularisation under Section 33-A of the 1982 Act cannot ratify it.

A substantive vacancy for Lecturer (Biology) arose at Kalyankari Shakubhara Inter College, Kuralsi, Muzaffarnagar on the resignation of a permanent lecturer. Appellant, who held an M.Sc. in Agriculture in the Botany discipline, was appointed on ad hoc basis by letter dated 21.10.1986. The appointment was approved by the District Inspector of Schools on 23.12.1986. The resolution of the Committee of Management dated 12.10.1986 recorded that Zoology had not been among his B.Sc. subjects, and appointed him anyway on the plea of the students' interest.

The Committee terminated his services on 31.07.1989. He challenged the termination by writ petition, contending that prior approval under Section 21 had not been taken. A single judge stayed the termination on 20.09.1989, and he remained in service under that interim order.

He was regularised on 04.09.1995 by the Deputy Director (Education), Meerut, under Section 33-A of the 1982 Act, and was appointed Principal on 02.02.1999. He worked as Lecturer till 01.02.1999 and as Principal till 31.03.2023, a span the Court put at almost 37 years.

The writ petition was dismissed in default in 2003 and restored by a Division Bench in 2010. On 21.01.2011, the single judge dismissed it afresh, holding the appellant unqualified on the date of appointment, and directed recovery of the entire salary drawn under the interim order. That judgment was challenged in special appeal.

Appellant argued that the unchallenged regularisation ratified his initial appointment, that no fraud had been practised by him, and after 37 years of service the want of qualification at the threshold ought to be overlooked.

The State argued that there can be no estoppel against a statute and an administrative approval cannot legalise an appointment made contrary to law.

Though the appellant had not been heard by the single judge, the Court declined to remand, holding that in an intra-court appeal under Chapter VIII of the Allahabad High Court Rules, 1952 it exercises the same jurisdiction and could itself examine the validity of the initial appointment.

The Court noted that Appendix 'A' to the Regulations framed under the Intermediate Education Act, 1921 carries no entry for Biology, and the parties took the post to answer entry 29, prescribing the qualification for a Zoology teacher. It observed that Paragraph 6 of the First Removal of Difficulties Order, 1981 made compliance with Appendix 'A' a condition of eligibility, which the appellant admittedly did not meet.

On Section 21 of the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982, the Court held that the approving authority named is the Board, so the provision protects teachers appointed on the Board's recommendation. It also relied on the Full Bench decision in Kumari Radha Raizada v. Committee of Management Vidyawati Darwari Girls Inter College to hold that no approval of the District Inspector of Schools is required for ad hoc appointments at all.

“..the impugned termination order passed in the year 1989 by the Management did not require any approval, as the appellant was not a teacher selected by the Board; more so, the appointment itself being void due to ineligibility of not having the requisite qualification does not confer any right. If on a hyper-technical ground the impugned termination order is quashed for want of approval by the Board it would lead to revival of an illegality, which is impermissible under the law, particularly in the writ jurisdiction of this Court.”

The Court read Section 33-A of the Act as requiring that the teacher possess the prescribed qualification or be exempted from it, and treated that as non-negotiable. It observed that the order of 04.09.1995 recorded the qualification only as 'M.Sc.' without naming the subject, and held the omission deliberate rather than accidental, given that the termination was then before the Court.

“Regularization can cure procedural defect of appointment but certainly cannot be a substitute for supplementing the statutorily mandated essential qualifications.”

Relying on Delhi Technological University v. B.S. Rawat, the Court held that ratification cures a defect of authority but cannot make good an act that the law itself renders void or forbids. Relying on Secretary, State of Karnataka v. Uma Devi and on the Full Bench decision in Jahaj Pal v. District Inspector of Schools, it held that continuance under an interim order confers no substantive right.

The Court set aside the direction for recovery, holding that ordering recovery of salary is not the writ court's task in the first instance but that of the administrative authorities, who answer for public funds. It held that continuance under the Court's own interim order could not be put on a par with fraud, misrepresentation or concealment.

“..an employee who has actually discharged his duties, even in absence of basic qualification qua the subject for the post in question, cannot be subjected to oppression of recovery and that too in the writ jurisdiction of this Court.”

Recovery of decades of salary after service actually rendered would, it held, operate harshly and disproportionately and would fall foul of the bar on forced labour in Article 23 of the Constitution.

Accordingly, the Court affirmed the dismissal of the writ petition, set aside the direction for recovery, and partly allowed the special appeal.

Before parting, the Court recorded what it called a disturbing and sorry state of affairs, noting that the ultimate sufferers were the students.

“The salary drawn by the appellant-petitioner for a pretty long term by itself is a bonus as the appointment being void ought not to have been permitted for the fraction of a second. The continuance of such a teacher, who later on became Principal of the institution without having requisite qualification in the subject/discipline, which the students, en masse, were forced to be taught, raises doubts and points a finger at the functioning of the education system as a whole.”

The Court suggested that the Director of Secondary Education be apprised, since this may not be an isolated instance in the State.

Case Title: Yogendra Singh v. District Inspector of Schools Muzaffarnagar and others

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