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TMI Blog2013 (4) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to as the "College"). One Ram Awadh Singh Yadav working as Assistant Teacher, L.T. Grade was given promotion in 50% promotional quota on the aforesaid vacancy by Committee of Management of College and he was promoted on 01.07.1994. It resulted another vacancy on the post of Assistant Teacher, L.T. Grade and since no person in promotional quota was found eligible and suitable to fill in aforesaid vacancy, the Committee of Management proceeded to make direct recruitment. The vacancy was advertised in newspaper, interview was held on 10.01,1996, as result whereof the plaintiff-respondent, Anil Kumar Singh Yadav appointed on ad hoc basis under Section 18 of U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the "Act, 1982") for a period till regular selected candidate through Secondary Education Service Selection Board (hereinafter referred to as the "Board") is available or is otherwise directed. The documents were forwarded to District Inspector of Schools, Varanasi (hereinafter referred to as the "DIOS") for his approval but no such approval was received from his office though document was received in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside Trial Court's judgment and decree. The Lower Appellate Court (hereinafter referred to as the "LAC") has directed the defendants to allow plaintiff to continue in service till a regular selected candidate by the Board is available and for the period plaintiff continued to work, his salary should also be paid. 6. Looking to the issue relating to validity of appointment of plaintiff, the LAC has observed that since Sri Ram Awadh Singh Yadav was promoted as Lecturer (English) resulting in vacancy on the post of Assistant Teacher, L.T. Grade, the management found necessity of a Teacher for imparting education in English and in furtherance thereof proceeded to make ad hoc appointment. The vacancy was notified on notice board of College on 20.12.1995 and published in daily newspaper dated 20.12.1995. There was no ban on ad hoc appointment and, therefore, the management could have proceeded for ad hoc appointment. Treating the vacancy as a short-term vacancy, the LAC has referred to U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as the "Second Order") and has observed that entire proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin seven days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval. (iv) On receipt of the approval of the District Inspector of Schools or, as the case may be, on his failure, to communicate his decision within seven days of the receipt of papers by him from the Manager, the Management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager. Explanation-For the purpose of this Paragraph-- (i) the expression "senior-most teacher" means the teacher having longest continuous service in the institution in the Lecturer's grade or the Trained graduate (L.T.) grade or Trained under-graduate (C.T.) grade or J.T.C. or B.T.C. grade as the case may be; (ii) in relation to institution imparting instructions to women, the expression "District Inspector of Schools' shall mean the Regional Inspectress of Girls' Schools; (iii) short-term vacancy which is not substantive and is of a limited duration. 8. A bare perusal of the aforesaid procedure prescribed in Second Order as also the steps taken, as borne out from record, makes it clear tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zed and examined by the DIOS and he has an occasion to convey his approval to the selection prior to appointment. Under clause 2(3) of the Second Order, "prior approval" is required after the selection but before appointment. A well defined and unambiguous procedure for short term appointment has been provided in the Second Order which does not admit of any doubt...where the statute specifically provides "prior approval" before passing any order, what its effects would be has been considered in some other cases which we propose to refer as under. Rule 11 of U.P. Recognized Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975 provides that no service can be terminated without prior permission from the District Basic Officer. A Division Bench of this Court in Ms. Shailja Shah v. Executive Committee, Bharat Varshiya National Association and another, 1995 (25) ALR, 88 held that expression "prior approval" and "approval" connotes different situation. Where a statute uses the term "prior approval" anything done without prior approval is nullity. Where a statute employs expression "approva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission in view of the binding precedent of the Apex Court providing for strict observance of the procedure prescribed under the First and Second Order. ...It is well settled when law requires something to be done in particular manner anything otherwise is prohibited and illegal and would not confer any right upon the person appointed in a manner not provided under the statute. This Court in Special Appeal No. 331 of 1992, District Inspector of Schools v. Naresh Chandra decided on 20.3.2006 (2006 (4) ALJ 633) held as under:-- Thus when the law requires some thing to be done in a particular manner no other way is permissible and any action not in accordance with such procedure would be void and illegal. The provision of statute and the rigor of statutory procedure cannot be diluted by holding the same to be mere irregularity, since it would be very difficult in such case to restrict or define the extent of such irregularity. For illustration, in one case, the management, who has made appointment after 58 days instead of 60 days may claim it to be a mere irregularity and in another matter the management after making appointment even within a week instead of waiting for 60 year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irecting the defendants to commit a blatant breach of statutory provisions. Such an injunction is impermissible and could not have been granted being barred by Section 34 read with Section 41(e) of Act, 1963. 14. The suit for enforcement of contract of personal service is also not maintainable since a contract of personal service cannot be specifically enforced unless the conditions prescribed in certain circumstances are available. In Executive Committee of U.P. State Warehousing Corporation, Lucknow v. C.K. Tyagi AIR 1970 SC 1244 considering the question as to when such a relief is granted the Apex Court observed:-- Under the common law the Court will not ordinarily force an employer to retain the services of an employee whom he no longer wishes to employ. But this rule is subject to certain well-recognised exceptions. It is open to the Courts in an appropriate case to declare that a public servant who is dismissed from service in contravention of Article 311 continues to remain in service, even though by doing so the State is in effect forced to continue to employ the servant whom it does not desire to employ. Similarly under the Industrial Law, jurisdiction of the Labour and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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