State Of U.P. Thru Secy. Sec. Education And Ors v. Ajay Kumar Singh S

Single Bench of this Court in Sanjay Singh v. State of U.P. and others, reported in 2013 (1) UPLBEC 758 is not a good law in the light of the Division Bench judgment of this Court dated 17.12.2015 passed in Abhishek Tripathi Vs. State of U.P. and others and further that merely grant of any interim relief against that judgment by the Supreme Court anyone in Special Leave Petition would not make the respondent-petitioner entitled to get his case examined as per the law laid down in the case of Sanjay Singh (supra). Having considered the arguments advanced, we it appropriate to admit the appeal. Accordingly, the same is admitted for hearing. Let this appeal be listed for final disposal in the month of October, 2019. Till then, the effect and operation of the directions given under the order dated 11.10.2006 passed by Learned Single Bench in Service Single No. 6447 of 2000 shall remain stayed." 3 SPLA No. 730 of 2009

4. The respondent no. -1 filed a writ petition as referred hereinabove seeking quashing of an order dated 25.10.2000 by which the District Inspector of Schools, Unnao had declined to approve his selection and appointment as LT Grade Teacher in the respondent no. 2- Institution. Apart from it, other reliefs were also sought. The relief clauses are quoted herein below:- "(a) issue a writ, order or direction in the nature of certiorari quashing impugned order, dated

25.10.2000, contained in annexure no. 15, passed by the opposite party no. 3; (b) issue a writ, order or direction in the nature of mandamus commanding the opposite parties no. 2 to 5 and specifically the opposite party no. 3 to accord the approval to the post and salary of the petitioner w.e.f. 21.10.2000 and to pay the petitioner his salary along with his arrears of salary from the aforestated date till date alongwith the admissible allowances and increments as and when they fall due for the post of Assistant Teacher L.T. Grade in the college of the opposite party no.1 (c) issue a further writ, order or direction in the nature of mandamus commanding the opposite party no. 3 to give assent to the salary of the petitioner ceasing the appointment of the petitioner to be approved as per the provisions of clauses 2 (3) (iii) and 2(3)(iv) of the removal of difficulties order, 1981 with the specific direction to the opposite parties no. 2, 3, 4 and 5 to accord their respective approval to the salary of the petitioner (specifically the opposite party no. 3) and to release the same forthwith after treating the petitioner in continuance service w.e.f. 21.10.2000 till date and continue to pay the same to the petitioner 4 SPLA No. 730 of 2009 in the form his current salary as and when it falls due along with admissible allowance. (d) issue a writ, order or direction in the appropriate nature and manner declaring Section 18 and Section 33-E of the Uttar Pradesh Secondary Education (Services Selection Boards) Act, 1982 as ultravires."

5. During pendency of the writ petition out of which this appeal arises, an interim order was passed in favour of the respondent no. 1 on 14.11.2000, however, on a challenge being made by the State by means of Special Appeal No. 150 of 2001 the said order was quashed on 27.04.2004.

6. The respondent no. 1-petitioner, though, as accepted by his counsel, is working in the institution, but, is not getting salary from the State Exchequer since 2019 i.e. after passing of the stay order.

7. The facts of the case in brief are that one Jagdev Singh, Assistant Teacher was said to have been promoted as Lecturer (Hindi) and approval of his promotion was sought which was declined by the same order dated

25.10.2000 passed by the D.I.O.S. which was impugned before the writ Court on the ground that requisition had not been sent for the said post in time, therefore, a requisition for filling up the said post by direct recruitment had been sent to the Board. By the same order it was held that, consequently, as the proposal for approval of appointment of the respondent no. 1- Ajay Kumar Singh had been sent against the vacancy which had occurred on account of the alleged promotion of Jagdev Singh which had been disapproved, therefore, there is no question of approving the appointment of respondent no. -1 herein.

8. It is not in dispute that the Removal of Difficulties Orders issued under 5 SPLA No. 730 of 2009 the U.P. Intermediate Education Act, 1921 were rescinded vide notification dated 25.03.2019 w.e.f. 25.01.2019. The respondent no. -1, as claimed, was selected and appointed as LT Grade Teacher on 18.10.2000, meaning thereby, after the rescission of the aforesaid Removal of Difficulties Order, therefore, there is no question of his appointment under the said Removal Difficulties Order, a fact which was admitted by Ms. Harsha Yadav, his counsel. In fact, the impugned judgment itself speaks of appointment of the respondent no. 1 under Section 16-E(11) of the Intermediate Education Act, 1921 (hereinafter referred to as 'the Act, 1921').

9. The writ Court has quashed the aforesaid order dated 25.10.2000. The writ Court had ordered that the respondent no. -1- petitioner shall be allowed to continue in service and be paid salary for the post of Assistant Teacher L.T. Grade with effect from 21.10.2000 with all consequential benefits. In doing so, the learned Single Judge relied upon a decision of Hon'ble the Supreme Court rendered in the case of Brahmo Samaj Education Society and Ors. Vs. State of West Bengal and Ors. reported in (2004) 6 SCC 224 and a Division Bench Judgement of this Court rendered in the case of Rakesh Chandra Misra Vs. State of U.P. and Ors. reported in 2004 LCD 1604.

10. Nothing has been said by the writ Court as regards the challenge to vires of the provisions before it nor any appeal has been filed in this regard by the respondent no. 1, therefore, obviously the respondent no. 1 has not pressed the said relief.

11. The scope of appointment/engagement under Section 16-E(11) of the Act, 1921 fell for consideration before a Full Bench of this Court in the 6 SPLA No. 730 of 2009 case of Santosh Kumar Vs. State of U.P. and Ors. reported in 2015 (33) LCD 2402. The relevant extracts of the Full Bench decision in Santosh Kumar are quoted herein below:- "19. Sub-section (11) of Section 16-E has thus made a specific provision in regard to appointments in the case of temporary vacancies caused by (i) the grant of leave to an incumbent for a period not exceeding six months; or (ii) by death, termination or otherwise of an incumbent occurring during an educational session. The object of the provision is to ensure that where a temporary vacancy arises as a result of fortuitous circumstances, such as leave, death, termination or otherwise, the educational needs of students should not be disturbed. The purpose of making an arrangement in the case of a temporary vacancy is to protect the interest of education so that students are not left in the lurch by the absence of a teacher in the midst of an academic session. The proviso to sub-section (11), however, stipulates that an appointment which is made under the provisions of sub-section (11) shall, in no case, continue beyond the end of the educational session during which the appointment was made. The proviso is intended to ensure that the purpose of appointment against a temporary vacancy caused due to the absence of a teacher in the midst of an academic session is met by continuing the appointment during and until the end of the academic session but not further. This is a the state provision which has been made by legislature in its legislating wisdom. The statutory provision provides both for the circumstances in which a temporary vacancy can be filled up and the length of an appointment made against a temporary vacancy. The difficulty which arises is because the Board, which has been constituted under the Act, 7 SPLA No. 730 of 2009 does not fulfill its mandate of promptly selecting teachers for regular appointment. The District Inspector of Schools is in possession of necessary factual data in regard to the dates of appointment and retirement of teachers of aided institutions. This can be summoned by the Board even if the management does not comply with its duty to intimate vacancies. There can be no justification for the Board not to discharge its duties with dispatch and expedition. This is liable to result in a situation where the educational needs of students are seriously disturbed due to the unavailability of duly selected teachers. Ad hoc appointments in temporary vacancies also cause a state of uncertainty for teachers and lay them open to grave exploitation at the hands of certain managements of educational institutions. Thus, considering the matter both from the perspective of the interest of education as well as the welfare of teachers, it is necessary that the Board must take due and proper steps well in advance of an anticipated vacancy to initiate the process of selection. Similarly, the State Government would do well to streamline the procedure for making appointments in respect of temporary vacancies consistent with the mandate of Section 16-E (11) so that, while the interest of students is protected, the teachers are not exposed to exploitation.

20. We consequently answer the reference in the following terms: (a) Despite the rescission of the Removal of Difficulties Orders by Section 33-E of U P Act No 13 of 1999 with effect from 25 January 1999, the power the Committee of Management to make appointments against short term vacancies, where the process of appointment had been initiated prior to 25 8 SPLA No. 730 of 2009 January 1999 by the publication of an advertisement, would continue to be preserved; (b) On the enforcement of the provisions of Section 33-E, the power of a Committee of Management to make ad hoc appointments against short vacancies would not stand abrogated in a case where the process of selection had been initiated prior to 25 January 1999; (c) Under Section 16-E of the Intermediate Education Act, 1921, the Committee of Management empowered to make an appointment against a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or in the case of death, termination or otherwise, of an incumbent occurring during an educational session. An appointment made under sub-section (11) of Section 16-E as provided in the proviso thereto shall, in any case, not continue beyond the end of educational session during which the appointment was made; and (d) The judgment of the Division Bench in Subhash Chandra Tripathi (supra) is affirmed as laying down a correct interpretation of the judgment in A A Calton (supra)."

12. The Full Bench, while answering the reference, consideration various earlier decisions including those rendered in Rakesh Chandra Misra (supra) and Daya Shankar Mishra Vs. District Inspector of Shcools and Ors. reported in 2010 (28) LCD 1375.

13. As per Full Bench decision in Santosh Kumar (supra) an appointment made under Sub-section 11 of Section 16-E of the Act, 1921 as provided in the proviso thereto shall, in any case, not continue beyond the end of 9 SPLA No. 730 of 2009 the educational session during which such appointment was made. The Full Bench decision was followed by one of us (Rajan Roy, J.) sitting singly in the case of Shailendra Kumar Vs. State of U.P. and Ors. and other connected matters leading writ petition being Writ Petition No. 6978 (S/S) of 2015 which was decided on 08.02.2016, wherein also the purport and scope of Section 16-E(11) of the Act, 1921 was considered. In the said decision of Shailendra Kumar (supra) the Division Bench judgment in Abhishek Tripathi Vs. State of U.P. rendered on 17.12.2015 in Writ Petition No. 655 (S/S) of 2014 and the judgment of Rakesh Chandra Misra (supra) and Daya Shankar Mishra (supra) were also considered in the context of applicability of Section 16-E (11). In view of the law discussed by the Full Bench in Santosh Kumar (supra) and the judgment in Shailendra Kumar (supra) relying upon the Full Bench aforesaid and the Division Bench judgment in Abhishek Tripathi (supra), it has been held therein in Para 7 as under:- "7. In view of the above pronouncement, appointment against temporary vacancy in terms of Section 16-E (11) of the Uttar Pradesh Intermediate Education Act, 1921 (For short 'the Intermediate Act, 1921') can be made only till the end of academic session meaning thereby such appointments can be made in the academic session in which the vacancy arises thereby creating a corresponding need for such appointment till the end of the academic session and not beyond that. Thus, appointment under Section 16-E (11) of the U.P. Intermediate Act, 1921 can not be made in a subsequent academic session."

14. The Management does not have any authority to make a substantive appointment against a substantive vacancy. It can make an appointment 10 SPLA No. 730 of 2009 only in terms of Section 16-E(11) of the Act, 1921 in respect of the vacancies referred therein as discussed and elucidated by the Full Bench in Santosh Kumar (supra) and by the Single Judge Bench decision in Shailendra Kumar (supra).

15. Ms. Harsha Yadav, learned counsel for the respondent no.- 1 submitted that as per the policy of the Government the respondent no.- 1 is entitled to regularization of his services. Firstly, we are not concerned with regularization rather we are concerned with the validity of the initial appointment of the respondent no.- 1 and his right to continue on the post in question and receive salary from the State Exchequer and the validity of the judgment of the writ court impugned before us. It is only if that is sustained and if it is held that the respondent no.- 1 was validly appointed and is entitled to continue in service, then, the question of regularization will arise. Moreover, we do not find any such provision under which a person appointed under Section 16-E(11) of the Act, 1921 can be considered for regularization. Only such persons, who were appointed under the Removal of Difficulties Orders or under the unamended Section 18 of the Uttar Pradesh Secondary Education (Services Selection Boards) Act, 1982, could be considered for regularization of their services under Section 33-E of the Act, 1982, which is not the case here. She also admitted that the appointment in fact was under Section 16-E(11) of the Act, 1921 and not under the Removal of Difficulties Orders.

16. As per the records the proposal sent by the Committee of Management to D.I.O.S. for approving appointment of respondent no. 1 on the post in question was on account of vacancy which had arisen due to promotion of Jagdev Singh. If the promotion of Jagdev Singh was a 11 SPLA No. 730 of 2009 substantive one against a substantive vacancy, then, the vacancy created by such promotion on the feeder post, on which the respondent no. 1 was appointed, would be a substantive vacancy and there is no provision under the Act, 1921 and the Uttar Pradesh Secondary Education (Services Selection Boards) Act, 1982 or the regulations/rules made thereunder under which the Committee of Management could appoint the respondent no. 1 against such substantive vacancy on the relevant date. However, if promotion of Jagdev Singh was only officiating or temporary or the vacancy which occurred resultantly was one referable to Section 16- E(11), even then, the respondent no. 1, who was appointed against such vacancy could not continue on the resultant vacancy after the end of academic session.

17. In view of the aforesaid elucidation of law, considering the facts of this case, the appointment of the respondent no.- 1 being under Section 16-E(11) of the Act, 1921, it could not have continued beyond the academic session nor could he paid salary beyond the said academic session. The reliance placed by the learned Single Judge upon the judgment of Rakesh Chandra Misra (supra) is misplaced and is not sustainable in view of the Full Bench decision in Santosh Kumar (supra) and the Division Bench judgment in Abhishek Tripathi (supra). We may also point out at this stage that the judgment in Abhishek Tripathi (supra) was challenged before Hon'ble the Supreme Court in a bunch of writ petitions which was ultimately decided on 26.08.2020 leading Civil Appeal No. 8300 of 2016, wherein, implidily the decision of Abhishek Tripathi (supra) stood affirmed and it was held that appointees such as those under Section 16-E(11) do not have any right to claim regular appointment except by participating in a regular direct recruitment and an 12 SPLA No. 730 of 2009 opportunity was given accordingly to them. It is not the case of respondent no.- 1 that he participated in any such recruitment. For these reasons, we can not sustain the impugned judgment and it is accordingly quashed. The writ petition filed by the respondent no. 1 is dismissed.

18. The special appeal is allowed.

19. We, however, made it clear that salary paid to the respondent no. 1 from for the State Exchequer, if any, shall not be recovered. December 11, 2025 R.K.P. (Indrajeet Shukla,J.) (Rajan Roy,J.) RAJ KUMAR PATEL High Court of Judicature at Allahabad, Lucknow Bench

Single Bench of this Court in Sanjay Singh v. State of U.P. and others, reported in 2013 (1) UPLBEC 758 is not a good law in the light of the Division Bench judgment of this Court dated 17.12.2015 passed in Abhishek Tripathi Vs. State of U.P. and others and further that merely grant of any interim relief against that judgment by the Supreme Court anyone in Special Leave Petition would not make the respondent-petitioner entitled to get his case examined as per the law laid down in the case of Sanjay Singh (supra). Having considered the arguments advanced, we it appropriate to admit the appeal. Accordingly, the same is admitted for hearing. Let this appeal be listed for final disposal in the month of October, 2019. Till then, the effect and operation of the directions given under the order dated 11.10.2006 passed by Learned Single Bench in Service Single No. 6447 of 2000 shall remain stayed." 3 SPLA No. 730 of 2009

4. The respondent no. -1 filed a writ petition as referred hereinabove seeking quashing of an order dated 25.10.2000 by which the District Inspector of Schools, Unnao had declined to approve his selection and appointment as LT Grade Teacher in the respondent no. 2- Institution. Apart from it, other reliefs were also sought. The relief clauses are quoted herein below:- "(a) issue a writ, order or direction in the nature of certiorari quashing impugned order, dated

25.10.2000, contained in annexure no. 15, passed by the opposite party no. 3; (b) issue a writ, order or direction in the nature of mandamus commanding the opposite parties no. 2 to 5 and specifically the opposite party no. 3 to accord the approval to the post and salary of the petitioner w.e.f. 21.10.2000 and to pay the petitioner his salary along with his arrears of salary from the aforestated date till date alongwith the admissible allowances and increments as and when they fall due for the post of Assistant Teacher L.T. Grade in the college of the opposite party no.1 (c) issue a further writ, order or direction in the nature of mandamus commanding the opposite party no. 3 to give assent to the salary of the petitioner ceasing the appointment of the petitioner to be approved as per the provisions of clauses 2 (3) (iii) and 2(3)(iv) of the removal of difficulties order, 1981 with the specific direction to the opposite parties no. 2, 3, 4 and 5 to accord their respective approval to the salary of the petitioner (specifically the opposite party no. 3) and to release the same forthwith after treating the petitioner in continuance service w.e.f. 21.10.2000 till date and continue to pay the same to the petitioner 4 SPLA No. 730 of 2009 in the form his current salary as and when it falls due along with admissible allowance. (d) issue a writ, order or direction in the appropriate nature and manner declaring Section 18 and Section 33-E of the Uttar Pradesh Secondary Education (Services Selection Boards) Act, 1982 as ultravires."

5. During pendency of the writ petition out of which this appeal arises, an interim order was passed in favour of the respondent no. 1 on 14.11.2000, however, on a challenge being made by the State by means of Special Appeal No. 150 of 2001 the said order was quashed on 27.04.2004.

6. The respondent no. 1-petitioner, though, as accepted by his counsel, is working in the institution, but, is not getting salary from the State Exchequer since 2019 i.e. after passing of the stay order.

7. The facts of the case in brief are that one Jagdev Singh, Assistant Teacher was said to have been promoted as Lecturer (Hindi) and approval of his promotion was sought which was declined by the same order dated

25.10.2000 passed by the D.I.O.S. which was impugned before the writ Court on the ground that requisition had not been sent for the said post in time, therefore, a requisition for filling up the said post by direct recruitment had been sent to the Board. By the same order it was held that, consequently, as the proposal for approval of appointment of the respondent no. 1- Ajay Kumar Singh had been sent against the vacancy which had occurred on account of the alleged promotion of Jagdev Singh which had been disapproved, therefore, there is no question of approving the appointment of respondent no. -1 herein.

8. It is not in dispute that the Removal of Difficulties Orders issued under 5 SPLA No. 730 of 2009 the U.P. Intermediate Education Act, 1921 were rescinded vide notification dated 25.03.2019 w.e.f. 25.01.2019. The respondent no. -1, as claimed, was selected and appointed as LT Grade Teacher on 18.10.2000, meaning thereby, after the rescission of the aforesaid Removal of Difficulties Order, therefore, there is no question of his appointment under the said Removal Difficulties Order, a fact which was admitted by Ms. Harsha Yadav, his counsel. In fact, the impugned judgment itself speaks of appointment of the respondent no. 1 under Section 16-E(11) of the Intermediate Education Act, 1921 (hereinafter referred to as 'the Act, 1921').

9. The writ Court has quashed the aforesaid order dated 25.10.2000. The writ Court had ordered that the respondent no. -1- petitioner shall be allowed to continue in service and be paid salary for the post of Assistant Teacher L.T. Grade with effect from 21.10.2000 with all consequential benefits. In doing so, the learned Single Judge relied upon a decision of Hon'ble the Supreme Court rendered in the case of Brahmo Samaj Education Society and Ors. Vs. State of West Bengal and Ors. reported in (2004) 6 SCC 224 and a Division Bench Judgement of this Court rendered in the case of Rakesh Chandra Misra Vs. State of U.P. and Ors. reported in 2004 LCD 1604.

10. Nothing has been said by the writ Court as regards the challenge to vires of the provisions before it nor any appeal has been filed in this regard by the respondent no. 1, therefore, obviously the respondent no. 1 has not pressed the said relief.

11. The scope of appointment/engagement under Section 16-E(11) of the Act, 1921 fell for consideration before a Full Bench of this Court in the 6 SPLA No. 730 of 2009 case of Santosh Kumar Vs. State of U.P. and Ors. reported in 2015 (33) LCD 2402. The relevant extracts of the Full Bench decision in Santosh Kumar are quoted herein below:- "19. Sub-section (11) of Section 16-E has thus made a specific provision in regard to appointments in the case of temporary vacancies caused by (i) the grant of leave to an incumbent for a period not exceeding six months; or (ii) by death, termination or otherwise of an incumbent occurring during an educational session. The object of the provision is to ensure that where a temporary vacancy arises as a result of fortuitous circumstances, such as leave, death, termination or otherwise, the educational needs of students should not be disturbed. The purpose of making an arrangement in the case of a temporary vacancy is to protect the interest of education so that students are not left in the lurch by the absence of a teacher in the midst of an academic session. The proviso to sub-section (11), however, stipulates that an appointment which is made under the provisions of sub-section (11) shall, in no case, continue beyond the end of the educational session during which the appointment was made. The proviso is intended to ensure that the purpose of appointment against a temporary vacancy caused due to the absence of a teacher in the midst of an academic session is met by continuing the appointment during and until the end of the academic session but not further. This is a the state provision which has been made by legislature in its legislating wisdom. The statutory provision provides both for the circumstances in which a temporary vacancy can be filled up and the length of an appointment made against a temporary vacancy. The difficulty which arises is because the Board, which has been constituted under the Act, 7 SPLA No. 730 of 2009 does not fulfill its mandate of promptly selecting teachers for regular appointment. The District Inspector of Schools is in possession of necessary factual data in regard to the dates of appointment and retirement of teachers of aided institutions. This can be summoned by the Board even if the management does not comply with its duty to intimate vacancies. There can be no justification for the Board not to discharge its duties with dispatch and expedition. This is liable to result in a situation where the educational needs of students are seriously disturbed due to the unavailability of duly selected teachers. Ad hoc appointments in temporary vacancies also cause a state of uncertainty for teachers and lay them open to grave exploitation at the hands of certain managements of educational institutions. Thus, considering the matter both from the perspective of the interest of education as well as the welfare of teachers, it is necessary that the Board must take due and proper steps well in advance of an anticipated vacancy to initiate the process of selection. Similarly, the State Government would do well to streamline the procedure for making appointments in respect of temporary vacancies consistent with the mandate of Section 16-E (11) so that, while the interest of students is protected, the teachers are not exposed to exploitation.

20. We consequently answer the reference in the following terms: (a) Despite the rescission of the Removal of Difficulties Orders by Section 33-E of U P Act No 13 of 1999 with effect from 25 January 1999, the power the Committee of Management to make appointments against short term vacancies, where the process of appointment had been initiated prior to 25 8 SPLA No. 730 of 2009 January 1999 by the publication of an advertisement, would continue to be preserved; (b) On the enforcement of the provisions of Section 33-E, the power of a Committee of Management to make ad hoc appointments against short vacancies would not stand abrogated in a case where the process of selection had been initiated prior to 25 January 1999; (c) Under Section 16-E of the Intermediate Education Act, 1921, the Committee of Management empowered to make an appointment against a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or in the case of death, termination or otherwise, of an incumbent occurring during an educational session. An appointment made under sub-section (11) of Section 16-E as provided in the proviso thereto shall, in any case, not continue beyond the end of educational session during which the appointment was made; and (d) The judgment of the Division Bench in Subhash Chandra Tripathi (supra) is affirmed as laying down a correct interpretation of the judgment in A A Calton (supra)."

12. The Full Bench, while answering the reference, consideration various earlier decisions including those rendered in Rakesh Chandra Misra (supra) and Daya Shankar Mishra Vs. District Inspector of Shcools and Ors. reported in 2010 (28) LCD 1375.

13. As per Full Bench decision in Santosh Kumar (supra) an appointment made under Sub-section 11 of Section 16-E of the Act, 1921 as provided in the proviso thereto shall, in any case, not continue beyond the end of 9 SPLA No. 730 of 2009 the educational session during which such appointment was made. The Full Bench decision was followed by one of us (Rajan Roy, J.) sitting singly in the case of Shailendra Kumar Vs. State of U.P. and Ors. and other connected matters leading writ petition being Writ Petition No. 6978 (S/S) of 2015 which was decided on 08.02.2016, wherein also the purport and scope of Section 16-E(11) of the Act, 1921 was considered. In the said decision of Shailendra Kumar (supra) the Division Bench judgment in Abhishek Tripathi Vs. State of U.P. rendered on 17.12.2015 in Writ Petition No. 655 (S/S) of 2014 and the judgment of Rakesh Chandra Misra (supra) and Daya Shankar Mishra (supra) were also considered in the context of applicability of Section 16-E (11). In view of the law discussed by the Full Bench in Santosh Kumar (supra) and the judgment in Shailendra Kumar (supra) relying upon the Full Bench aforesaid and the Division Bench judgment in Abhishek Tripathi (supra), it has been held therein in Para 7 as under:- "7. In view of the above pronouncement, appointment against temporary vacancy in terms of Section 16-E (11) of the Uttar Pradesh Intermediate Education Act, 1921 (For short 'the Intermediate Act, 1921') can be made only till the end of academic session meaning thereby such appointments can be made in the academic session in which the vacancy arises thereby creating a corresponding need for such appointment till the end of the academic session and not beyond that. Thus, appointment under Section 16-E (11) of the U.P. Intermediate Act, 1921 can not be made in a subsequent academic session."

14. The Management does not have any authority to make a substantive appointment against a substantive vacancy. It can make an appointment 10 SPLA No. 730 of 2009 only in terms of Section 16-E(11) of the Act, 1921 in respect of the vacancies referred therein as discussed and elucidated by the Full Bench in Santosh Kumar (supra) and by the Single Judge Bench decision in Shailendra Kumar (supra).

15. Ms. Harsha Yadav, learned counsel for the respondent no.- 1 submitted that as per the policy of the Government the respondent no.- 1 is entitled to regularization of his services. Firstly, we are not concerned with regularization rather we are concerned with the validity of the initial appointment of the respondent no.- 1 and his right to continue on the post in question and receive salary from the State Exchequer and the validity of the judgment of the writ court impugned before us. It is only if that is sustained and if it is held that the respondent no.- 1 was validly appointed and is entitled to continue in service, then, the question of regularization will arise. Moreover, we do not find any such provision under which a person appointed under Section 16-E(11) of the Act, 1921 can be considered for regularization. Only such persons, who were appointed under the Removal of Difficulties Orders or under the unamended Section 18 of the Uttar Pradesh Secondary Education (Services Selection Boards) Act, 1982, could be considered for regularization of their services under Section 33-E of the Act, 1982, which is not the case here. She also admitted that the appointment in fact was under Section 16-E(11) of the Act, 1921 and not under the Removal of Difficulties Orders.

16. As per the records the proposal sent by the Committee of Management to D.I.O.S. for approving appointment of respondent no. 1 on the post in question was on account of vacancy which had arisen due to promotion of Jagdev Singh. If the promotion of Jagdev Singh was a 11 SPLA No. 730 of 2009 substantive one against a substantive vacancy, then, the vacancy created by such promotion on the feeder post, on which the respondent no. 1 was appointed, would be a substantive vacancy and there is no provision under the Act, 1921 and the Uttar Pradesh Secondary Education (Services Selection Boards) Act, 1982 or the regulations/rules made thereunder under which the Committee of Management could appoint the respondent no. 1 against such substantive vacancy on the relevant date. However, if promotion of Jagdev Singh was only officiating or temporary or the vacancy which occurred resultantly was one referable to Section 16- E(11), even then, the respondent no. 1, who was appointed against such vacancy could not continue on the resultant vacancy after the end of academic session.

17. In view of the aforesaid elucidation of law, considering the facts of this case, the appointment of the respondent no.- 1 being under Section 16-E(11) of the Act, 1921, it could not have continued beyond the academic session nor could he paid salary beyond the said academic session. The reliance placed by the learned Single Judge upon the judgment of Rakesh Chandra Misra (supra) is misplaced and is not sustainable in view of the Full Bench decision in Santosh Kumar (supra) and the Division Bench judgment in Abhishek Tripathi (supra). We may also point out at this stage that the judgment in Abhishek Tripathi (supra) was challenged before Hon'ble the Supreme Court in a bunch of writ petitions which was ultimately decided on 26.08.2020 leading Civil Appeal No. 8300 of 2016, wherein, implidily the decision of Abhishek Tripathi (supra) stood affirmed and it was held that appointees such as those under Section 16-E(11) do not have any right to claim regular appointment except by participating in a regular direct recruitment and an 12 SPLA No. 730 of 2009 opportunity was given accordingly to them. It is not the case of respondent no.- 1 that he participated in any such recruitment. For these reasons, we can not sustain the impugned judgment and it is accordingly quashed. The writ petition filed by the respondent no. 1 is dismissed.

18. The special appeal is allowed.

19. We, however, made it clear that salary paid to the respondent no. 1 from for the State Exchequer, if any, shall not be recovered. December 11, 2025 R.K.P. (Indrajeet Shukla,J.) (Rajan Roy,J.) RAJ KUMAR PATEL High Court of Judicature at Allahabad, Lucknow Bench