Allahabad High Court
Sunil Kumar Mishra vs State Of U.P. And 5 Others on 2 August, 2019
Bench: Manoj Misra, Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No.42 Case :- SPECIAL APPEAL No. - 743 of 2019 Appellant :- Sunil Kumar Mishra Respondent :- State Of U.P. And 5 Others Counsel for Appellant :- Abhilasha Singh, Shri Ashok Khare, Sr. Counsel Counsel for Respondent :- C.S.C., Indra Raj Singh, Vijay Kumar Singh Connected with Case :- SPECIAL APPEAL No. - 744 of 2019 Appellant :- Sunil Kumar Mishra Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Abhilasha Singh, Ashok Khare,Senior Advocate Counsel for Respondent :- C.S.C., Indra Raj Singh Connected with Case :- SPECIAL APPEAL No. - 745 of 2019 Appellant :- Sunil Kumar Mishra Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Abhilasha Singh, Shri Ashok Khare, Sr, Counsel Counsel for Respondent :- Indra Raj Singh, Vijay Kumar Singh Connected with Case :- SPECIAL APPEAL No. - 595 of 2019 Appellant :- C/M Madan Lal Inter College Respondent :- Sunil Kumar Mishra And Another Counsel for Appellant :- Indra Raj Singh,Adarsh Singh Counsel for Respondent :- C.S.C.,Siddharth Khare connected with Case :- SPECIAL APPEAL No. - 599 of 2019 Appellant :- Committee Of Management, Madan Lal Inter College And Another Respondent :- District Inspector Of Schools And 3 Others Counsel for Appellant :- Indra Raj Singh,Adarsh Singh Counsel for Respondent :- C.S.C.,Siddharth Khare Hon'ble Manoj Misra,J.
Hon'ble Suresh Kumar Gupta,J.
(Delivered By Hon'ble Manoj Misra, J) These five special appeals are against judgment and order dated 02.04.2019 passed by learned Single Judge in four connected writ petitions, namely, Writ A Nos. 52277 of 2014; 48836 of 2016; 57215 of 2016; and 60494 of 2016. As common questions of law and fact are involved in these five appeals, with the consent of learned counsel for the parties, they were heard together and are being decided by a common order.
To have a clear understanding of the controversy, it would be apposite for us to have a glimpse of the facts and the rival contentions in the aforementioned writ petitions which have given rise to these appeals.
Sri Sunil Kumar Mishra (for short Sunil), the writ petitioner in Writ A Nos. 52277 of 2014 and 60494 of 2016, who is the appellant in Special Appeal No. 743 of 2019 (Old Defective No. 493 of 2019), Special Appeal No. 744 of 2019 (Old Defective No. 496 of 2019) and Special Appeal No. 745 of 2019 (Old Defective No. 498 of 2019), was appointed on 29.10.1985 as Lecturer in Chemistry in Madan Lal Inter College, Bisauli, Budaun (for short 'College') for a period of six months. His letter of appointment suggested that he was offered appointment on temporary basis against a leave /short-term vacancy. When his term of appointment was not extended beyond 30th June 1986, he filed Writ A No. 20807 of 1986 in which an interim order was passed on 17.12.1986 thereby providing that till his services are duly terminated or some one on the recommendation of the Commission joins the post held by him, his ad-hoc appointment in the Lecturer Grade shall be deemed to continue and he shall be entitled as such to the emoluments. Under this interim order, he was permitted to continue in service and was paid monthly salary. Thereafter, on 19.05.1992, his services were regularized w.e.f. 06.04.1991 by placing reliance on the provisions of Section 33-A of U.P. Act No. 5 of 1982. On regularization of his service, Writ A No. 20807 of 1986 was rendered infructuous. Consequently, by noticing the regularization order, dated 19.05.1992, Writ A No. 20807 of 1986 was dismissed as infructuous vide order dated 11.09.2006. It is the case of Sunil that since then the college authorities treated him as substantively appointed Lecturer and in the seniority list of Lecturers, published by the College on 08.08.2007, his name finds mention at serial no. 5.
According to Sunil, Ganesh Chandra Goel (for short Ganesh), who is the writ petitioner in Writ A No. 48836 of 2016 and is respondent no. 6 in Special Appeal No. 743 of 2019 (Old Defective No. 493 of 2019) and respondent no.5 in Special Appeal No. 745 of 2019 (Old Defective No. 498 of 2019), was merely an Assistant Teacher in L.T. Grade in the College and his name did not figure in the seniority list published on 08.08.2007 but, later, he was granted promotion on the post of Lecturer in Mathematics in October 2007, therefore Ganesh is junior to him.
Indisputably, the post of Principal in the College was lying substantively vacant. As a consequence whereof, the senior most Lecturer in the College had to officiate as Principal. Initially, one Rajan Sareen, who was the senior most Lecturer, officiated as Principal. He was to retire on 30th June 2014. A dispute arose with regard to the Lecturer entitled to be appointed as officiating Principal post retirement of Rajan Sareen. The management of the college (writ petitioner in Writ A No.57215 of 2016 and appellant in Special Nos.595 of 2019 & 599 of 2019) recommended appointment of Ganesh as officiating Principal of the College. Against the proposal, Sunil, claiming himself to be the senior most lecturer and eligible, filed an application before the District Inspector of Schools, Budaun (for short DIOS) thereby raising his claim for appointment as officiating Principal. On the rival claims, a report was called from the Principal, Government Girls' Inter College, Dataganj, Budaun. On the basis of that report, on 26.06.2014, the proposal to appoint Ganesh was approved by observing that Sunil was appointed ad-hoc on a leave vacancy; that he continued in service pursuant to interim order dated 17.12.1986 passed in Writ A No. 20807 of 1986, which stood dismissed; that his regularization was not legally sustainable as on the date of his regularization there was no substantive vacancy; that substantive vacancy came into existence on 30.06.2006 and, prior to that, on 01.02.2006, requisition for filling up the post had been sent to the Board.
Aggrieved by order of the DIOS, dated 26.06.2014, Sunil filed Writ A No. 35497 of 2014, which was allowed by order dated 15.07.2014 and the order dated 26.06.2014 was set aside and the matter was remitted back to the DIOS to pass a fresh order after giving opportunity of hearing to the parties.
Pursuant to the order dated 15.07.2014, the matter was re-considered by the DIOS. After hearing both sides, the DIOS, by order dated 18.09.2014, canceled the order of regularization of service of Sunil and approved the appointment of Ganesh as officiating Principal. While deciding the issue, the DIOS found that appointment of Sunil was on a leave vacancy which had arisen on account of incumbent, Suraj Prakash Agarwal (for short Suraj), Lecturer, Chemistry, proceeding on leave; that the post fell substantively vacant on 30.06.2006, consequent to retirement of Suraj and, to fill up that post, requisition was sent to the Board on 01.02.2006, therefore, the services of Sunil Kumar Mishra could not have been regularized on 19.05.1992. In addition to above, the DIOS expressed doubts in respect of the genuineness of the regularization order.
Assailing the order dated 18.09.2014 passed by DIOS, Writ A No. 52277 of 2014 was filed. While Writ A No. 52277 of 2014 was pending, on 28.09.2016, the DIOS passed a fresh order, superseding his earlier order, thereby directing that Sunil would be provided charge of officiating Principal of the College, as he was the senior most eligible lecturer in the College. However, this order was made subject to decision of Writ A No. 52277 of 2014.
Ganesh filed Writ A No. 48836 of 2016 against the order dated 28.09.2016 by claiming that the order dated 28.09.2016 amounts to review of the earlier order dated 18.09.2014 which was not permissible and that the issues raised in the earlier order dated 18.09.2014 were not addressed. It was also claimed that no opportunity of hearing was extended to him. On merits, Ganesh claimed that Sunil was appointed on a short-term vacancy therefore the order regularizing his services by taking the aid of Section 33-A of the U.P. Act No. 5 of 1982 was not at all sustainable as regularization of an ad-hoc appointee against a short-term vacancy could only be as per the provisions of Section 33-B of the U.P. Act No. 5 of 1982, as per which, regularization could be upon recommendation of a Selection Committee headed by the Joint Director of Education whereas for Sunil's regularization no recommendation was there.
In the meantime, the Committee of Management of the College (for short Management) passed a resolution, dated 20.11.2016, whereby a decision was taken to terminate the services of Sunil. Pursuant to which, the management terminated the services of Sunil vide letter/ order dated 22.11.2016. However, this resolution dated 20.11.2016 was declared illegal by the DIOS, vide order dated 25.11.2016, on the ground that no decision to terminate the services of a teacher could be given effect to without prior approval of the Board as contemplated by Section 21 of the U.P. Act No. 5 of 1982.
Assailing the orders dated 28.09.2016 and 25.11.2016, the Management filed Writ A No. 57215 of 2016 by claiming that in view of Full Bench decision of this court in Smt. Pramila Mishra v. Deputy Director of Education, Jhansi Division, Jhansi and others : 1997 (2) UPLBEC 1329, the moment short-term vacancy, on account of retirement of Suraj on 30.06.2006, stood converted in to a substantive vacancy, services of Sunil stood automatically terminated by operation of law. Therefore, there was no need to obtain prior approval of the Board.
Writ A No. 60494 of 2016 was filed by Sunil to question the resolution of the Management dated 20.11.2016 and the consequential termination of his service.
As the aforementioned four petitions raised issues that were inter-dependent on each other, the learned single judge decided them by a common judgment and order dated 02.04.2019.
On behalf of Sunil, the submissions made before the learned Single Judge were that the DIOS, while adjudicating a claim for appointment as officiating principal of the college, was not justified in questioning the validity of the regularization order dated 19.05.1992 and re-opening the already determined seniority because it is not permissible for any party to raise a collateral challenge to the appointment /regularization in a dispute relating to seniority/ appointment as officiating principal. To support the above submission, reliance was placed on a single judge decision of this Court in Vijay Narain Sharma v. District Inspector of Schools, Etawah and others : 1986 UPLBEC 44; and another single judge decision dated 22.10.2010 passed in Writ Petition No. 8960 of 2010 (Rama Kant Chaturvedi vs. State of U.P. and others). It was also urged that, admittedly, in the seniority list of lecturers, drawn on 08.08.2007, Sunil's name was there but the name of Ganesh was not even mentioned, hence, there was no occasion for the DIOS to entertain and address a collateral challenge to the initial appointment/ regularization. In respect of his initial appointment, Sunil's case was that the vacancy against which he was appointed was substantive inasmuch as the incumbent Suraj had abandoned his services by not turning up to resume service since the time he went on leave in the year 1980. It was urged that five years of continuous absence from service is more than sufficient to draw an inference that the incumbent has abandoned the service. In support of this plea, reliance was placed on two decisions: (a) Vijay S. Sathaye vs. Indian Airlines Limited and others : (2013) 10 SCC 253; and (b) Deputy Director of Education (Secondary) and others vs. Smt. Jyoti Yadav and another : 2016 (4) ALJ 27. It was urged that as the post on which Sunil was appointed was an abandoned post, his appointment was against a substantive vacancy, consequently, by dint of his continuous service, his claim for regularization was sustainable under Section 33-A of U.P. Act No.5 of 1982 and, therefore, the regularization order was justified. In respect of the procedure adopted while making his initial appointment, it was claimed that prior to the law laid down by Full Bench of this court in Radha Raizada and others vs. Committee of Management, Vidyawati Darbari Girls' Inter College and others : 1994 (3) UPLBEC 1551, the appointments were made under Section 18 of U.P. Act No.5 of 1982 for which the Committee of Management was empowered, as held by a Division Bench of this Court in Km. Nishi Bhargava vs. Deputy Director of Education, Agra Region, Agra and others : 1987 UPLBEC 415. It was urged that the law declared by Full Bench in Radha Raizada's case (supra) was prospective in its application, that is to those appointments which were made after its decision, as was held by a Division Bench in Balveer Singh and others vs. DIOS and another (decision dated 27.09.2018 passed in Special Appeal No. 321 of 2013), following the decision in the case of Ashika Prasad Shukla vs. District Inspector of Schools, Allahabad and another : 1998 (3) UPLBEC 1722.
On behalf of the Management, before the learned Single Judge it was urged that the vacancy against which Sunil was appointed was a short-term vacancy caused by going on leave by the then Chemistry lecturer Suraj. The short-term appointment came to an end, upon expiry of six months, and therefore services of Sunil were rightly terminated. Though Sunil continued to serve under interim order passed in Writ A No. 20807 of 1986, which was dismissed on 11.09.2006. As, Sunil, had not continued in service in his own right, he was not entitled to be regularized either under Section 33-A or under Section 33-B of the U.P. Act No. 5 of 1982. It was urged that if the vacancy against which Sunil was appointed is treated as substantive then his ad-hoc appointment would be a nullity as it was not made by following the procedure prescribed by paragraph 5 of the First Removal of Difficulties Order. Such appointment being void would confer no right irrespective of the length of service. In support of this submission, reliance was placed on decisions of the Apex Court in Prabhat Kumar Sharma and others vs. State of U.P. and others : (1996) 10 SCC 62 (paragraph nos. 7 and 10); and Shesh Mani Shukla Vs. District Inspector of Schools, Deoria : (2009) 15 SCC 436 (paragraph nos. 18 and 19). On the claim of regularization of the services of Sunil it was urged that the benefit of continuity in service was not available to him as that was rendered under an interim order because regularization has to be on the basis of continuous service rendered in one's own right. In that regard, reliance was placed on a decision of the Apex Court in Committee of Management, Arya Nagar Inter College, Arya Nagar, Kanpur Vs. Sree Kumar Tiwari and others : (1997) 4 SCC 388 (paragraph nos. 6 and 7). It was also urged that once Writ A No. 20807 of 1986 filed by Sunil was dismissed there would be automatic revival of his termination order. In that regard, reliance was placed on a Division Bench decision of this Court in R.S. Khan Vs. State of U.P. : 2005 (1) ESC 515. In the alternative, it was claimed that consequent to retirement of Suraj on 30.06.2006, the short-term vacancy got converted into substantive vacancy, as a result, the appointment of Sunil stood automatically terminated by operation of law and therefore there was no requirement to seek approval under Section 21 of U.P. Act No. 5 of 1982.
On behalf of Ganesh, apart from adopting the case pleaded by the management, it was urged that though the view taken in Radha Raizada's case (supra), in respect of the procedure to be adopted for ad hoc appointment against short-term vacancies, is to be applied prospectively, but the law laid therein in respect of ad hoc appointment against substantive vacancy is applicable to all appointments that were to be made during the currency of the First Removal of Difficulties Order. It was urged that the above principle has been accepted by a Division Bench of this Court in Julfiqar Hussain Ansari Vs. State of U.P. and others : 2013 (1) ADJ 80. It was urged that the Division Bench decision of this Court in Balveer Singh's case (supra) had not considered the judgment rendered in the case of Julfiqar Hussain Ansari's case (supra) and it has also not considered the decision rendered by the Apex Court in the case of Prabhat Kumar Sharma's case (supra). Hence, the Division Bench decision rendered in the case of Balveer Singh's case (supra) is per-incuriam.
Upon consideration of the submissions raised by rival parties, the learned Single Judge framed three issues for consideration, which are extracted below:
"(i) Whether in a dispute relating to inter-se seniority of Lecturer, for the purposes of officiating on the post of Principal, the nature of initial vacancy and ad hoc appointment or regularization could be examined for determining the date of substantive appointment?
(ii) Based upon the outcome of aforesaid issue, the nature of vacancy as well as appointment offered to Sunil Kumar Mishra would fall for determination, so as to consider whether he can be treated to have been substantively appointed as Lecturer, w.e.f. 6.4.1991, and be entitled to seniority, as such?
(iii) Whether ad-hoc appointment made against substantive vacancy, without following the procedure laid down in para 5 of the First Removal of Difficulties Order, 1981 could be protected by drawing analogy of the Division Bench Judgement in Ashika Prasad Shukla (supra)?"
On the first issue, the learned Single Judge, on the basis of paragraph 24 of the judgment in Vijai Narain Sharma's case (supra), observed that relevant factors for determining inter se seniority amongst teachers are: the grade in which the teacher is working; whether he is appointed on a substantive post or not; whether the appointment is permanent or temporary; the date of the appointment or promotion; and the age of the teacher. Learned Single Judge observed that as seniority of a teacher in a particular grade has to be determined on the basis of the date of his substantive appointment in that grade and, where, the substantive appointment is dependent on regularization, then question relating to its legality would be a material issue, which would have to be examined to correctly determine the main issue of seniority.
After holding as above, the learned Single Judge proceeded to examine the second and third issues framed by him.
The second and third issues being interconnected, were dealt with by the learned Single Judge step-wise. The learned Single Judge proceeded to first examine the nature of the vacancy against which Sunil was appointed ad-hoc. For that, the claim made by Sunil that a substantive vacancy came into existence consequent to alleged abandonment of service by the incumbent Suraj was examined from two different angles. The first was whether Sunil could raise such a plea when it runs counter to his own admitted document which suggested that he was appointed against a leave vacancy. The second was whether the question of abandonment of service by Suraj could be dealt with and determined in absence of Suraj as a party to the proceedings, particularly, when the management had itself not treated his alleged absence from service as a case of abandonment of service, inasmuch as, the management had sent a requisition to the Board in the year 2006 to fill the vacancy that was to arise on 30.06.2006, consequent to retirement of Suraj.
In addition to above, the learned Single Judge took into consideration the mode of appointment adopted to fill up the vacancy. Because, had it been a substantive vacancy, the procedure for ad hoc appointment had to be as provided in paragraph 5 of First Removal of Difficulties Order, which was, admittedly, not adopted. Thus, after considering all aspects, the learned single judge came to a definite conclusion that Sunil was appointed by treating the vacancy as short term.
While deciding the above issue and issue no.3, noticed above, the learned Single Judge took the view that the procedure prescribed for ad-hoc appointment against substantive vacancy, as held by Full Bench in Radha Raizada's case (supra), which was approved by the apex court in Prabhat Kumar Sharma's case (supra), is laid down in paragraph 5 of the First Removal of Difficulties Order, 1981, which is mandatory and any deviation therefrom would render the appointment void. The learned Single Judge while holding as above observed that in Balveer Singh's case (supra), the true import of the decision of the Full Bench in Radha Raizada's case (supra) with reference to its approval by the Apex Court in Prabhat Kumar Sharma's case was not examined and the earlier Division Bench decision in Julfikar Hussain Ansari's case (supra) also escaped its attention, therefore it cannot be taken to be a binding precedent.
While deciding issue no. 3, the learned Single Judge observed that the view taken in Radha Raizada's case (supra) that the procedure prescribed in paragraph 5 of the First Removal of Difficulties Order for ad hoc appointment against substantive vacancy is mandatory was approved by the Apex Court in Prabhat Kumar Sharma's case (supra), and, subsequently, followed by a Division Bench in Julfikar Hussain Ansari's case (supra) thereby holding that ad hoc appointment made against a substantive vacancy, without following the procedure prescribed by First Removal of Difficulties Order, would be a nullity. The learned Single Judge observed that the view to the contrary in Balveer Singh's case (supra) was not binding as it was rendered without considering binding precedents to the contrary. The learned single judge further observed that the decision in Ashika Prasad Shukla's case (supra) to the extent it held that decision in Radha Razaida's case (supra) is prospective in its operation, that is applicable to appointments made after the decision of the Full Bench, was with regard to the procedure to be adopted for making appointment against short-term vacancy and not in respect of ad hoc appointment against a substantive vacancy for which there already existed a detailed procedure in paragraph 5 of the First Removal of Difficulties Order. Accordingly, all the three issues were decided by the learned Single Judge against Sunil.
After deciding as above, the learned Single Judge dismissed Writ A No. 52277 of 2014 by holding that regularization of the services of Sunil under Section 33-A of U.P. Act No. 5 of 1982 was not permissible because he was appointed against a short-term vacancy. It was observed that if he stakes a claim that his appointment was against a substantive vacancy then the appointment would be void, being de hors the procedure provided by the First Removal of Difficulties Order. Consequently, the learned Single Judge proceeded to allow Writ A No. 48836 of 2016 filed by Ganesh and quashed the order dated 28.09.2016 by which the DIOS had accepted the claim of Sunil to officiate as Principal of the College.
The other Writ A No. 57215 of 2016 filed by the Management was allowed to the extent it was against the order dated 28.09.2016 passed by the DIOS. However, the learned single judge refused to set aside the order dated 25.11.2016 passed by the DIOS disapproving the resolution of the Management terminating the services of Sunil. The learned single judge further proceeded to allow Writ A No. 60494 of 2016 filed by Sunil against the resolution dated 20.11.2016 and the letter dated 22.11.2016 whereby the Management terminated the services of Sunil and directed that his regularization would be considered under the appropriate provisions of U.P. Act No.5 of 1982.
Special Appeal No.743 of 2019 (old Defective No. 493 of 2019) has been filed by Sunil against the judgment and order of the learned Single Judge passed in Writ A No. 52277 of 2014 by claiming / submitting as follows: (a) that the vacancy against which Sunil was appointed was substantive which had come into existence by operation of law on abandonment of service by its incumbent as he had failed to attend the college since the year 1980; (b) that his appointment would be under Section 18 of U.P. Act No. 5 of 1982 and not under the First Removal of Difficulties Order therefore, even in absence of following the procedure prescribed in the First Removal of Difficulties Order, his appointment would not be void as held by a Division Bench in Balveer Singh's case (supra); (c) that the services were rightly regularized with effect from 06.04.1991 by order dated 19.05.1992; (d) that the order of regularization was acted upon and noticed by the High Court while dismissing Writ A No. 20807 of 1986; (e) that the order of regularization dated 19.05.1992 was not challenged or questioned by either the management or by any person and it continued to hold the field for over two decades and, in between, the seniority list also recognized his status as that of lecturer, there was, therefore, no justification for the DIOS to re-visit the regularization order and declare the same illegal while determining a claim for appointment as officiating principal. In addition to above, it was submitted that, admittedly, Ganesh was promoted as Lecturer in the year 2007, hence was junior to the petitioner, therefore the order approving resolution of his appointment as officiating Principal is illegal and liable to be set aside.
Special Appeal Nos.744 of 2019 and 745 of 2019 (old Defective Nos. 496 of 2019 and 498 of 2019) have been filed by Sunil against the judgment and order of the learned Single Judge to the extent it allowed Writ A Nos. 57215 of 2016 and 48836 of 2016 and set aside the order dated 28.09.2016 passed by DIOS by which Sunil was declared senior to Ganesh. These appeals have been filed by him by claiming that the order dated 28.09.2016 rightly proceeded to hold Sunil senior to Ganesh for all the reasons pressed in Special Appeal No.743 of 2019 and, therefore, the order of the DIOS was not liable to be interfered with.
Special Appeal No. 595 of 2019 has been filed by management against the judgment and order of the learned Single Judge dated 02.04.2019 passed in Writ A No. 60494 of 2016 by which the petition of Sunil challenging the resolution of the management, dated 20.11.2016, and the consequential termination letter, dated 22.11.2016, was allowed and the termination was held invalid. Special Appeal No. 599 of 2019 has been filed by the management against the judgment and order dated 02.04.2019 passed by learned Single Judge to the extent the learned Single Judge refused to interfere with the order, dated 25.11.2016, passed by DIOS disapproving the resolution of the Management terminating the services of Sunil. In these two special appeals, the management has claimed / submitted as follows:
(a) that the management had already terminated the appointment of Sunil, which was for a period of six months only, and the writ petition filed by Sunil, in which, initially, interim order was passed, was dismissed, consequently, earlier order of termination stood revived, therefore, there was no requirement to obtain approval as contemplated by Section 21 of U.P. Act No. 5 of 1982; and
(b) that otherwise also, once the court held that the appointment of Sunil was against a short-term vacancy, upon conversion of that short-term vacancy into a substantive vacancy, there was automatic termination of appointment by operation of law, therefore there was no need to seek approval under Section 21 of the U.P. Act No. 5 of 1982.
We have heard Sri Ashok Khare, learned senior counsel, assisted by Sri Abhilasha Singh, for Sunil (the appellant in Special Appeal No.743; 744; and 745 of 2019 - Old Defective Nos. 493 of 2019; 496 of 2019; and 498 of 2019); Sri Indra Raj Singh for the Management (respondent in the aforesaid three appeals and the appellant in Special Appeal Nos. 595 of 2019 and 599 of 2019); Sri V.K. Singh, learned senior counsel, assisted by Sri H.P. Shahi, for Ganesh (the respondent in Special Appeal No. 743 of 2019-Old Defective No.493 of 2019); and the learned Standing Counsel, who has appeared on behalf of State and its officers in all the appeals.
Having scanned through the pleadings and the submissions made, the first issue that arise for our consideration is whether while considering an issue as to who should be appointed as officiating Principal in the College, the management and the educational authorities (in the instant case DIOS) were justified in questioning the correctness of the order regularizing the services of Sunil, which stood recognized and implemented for over two decades. If we proceed to hold that the correctness of the regularization order can be examined, the second issue that would fall for our consideration is whether the order regularizing the services of Sunil was legally sustainable. Incidental to the second issue, following issues would also arise for our consideration: (a) whether the initial ad hoc appointment of Sunil in the year 1985 was against a substantive vacancy or a short-term/leave vacancy; (b) if it was against a substantive vacancy, whether the procedure provided for ad hoc appointment against a substantive vacancy was duly followed, if not, what would be its consequences; and (c) whether in view of dismissal of Writ A No. 20807 of 1986, the continuance of service of Sunil would be of no consequence.
On the first issue, Sri Ashok Khare, learned senior counsel, strenuously urged that in Vijai Narain Sharma's case (supra), which has been followed in Rama Kant Chaturvedi's case (supra), it was held that validity of the initial appointment cannot be collaterally questioned and examined while determining an issue relating to seniority, particularly, where the appointment has been made and has continued for long; and that such appointment should not be disturbed or set aside on technicalities or procedural irregularities.
Sri Khare urged that though Sunil was appointed on 25.10.1985 for a period of six months only but such appointment was against a substantive vacancy and ought to have continued till a regularly selected candidate recommended /selected by the Board joins the post. According to him, Sunil though continued in service, initially, under an interim order passed in Writ A No. 20807 of 1986, but, subsequently, his rights were correctly recognized by the DIOS and his services were regularized with effect from 06th April 1991 in view of the provisions of section 33-A of U.P. Act No. 5 of 1982. Since then Sunil continuously served the institution and was granted the benefits of continuous and regular service and was also placed in the seniority list published in the year 2007. Under the circumstances, reopening such an old/stale issue, to which no challenge was laid either by the management or by any other person, was not legally justified and permissible in a proceeding concerning appointment of officiating Principal. Sri Khare submitted that examining the legality of such an old appointment was not at all permissible and therefore, on that ground alone, the order passed by the learned Single Judge is liable to be set aside.
On the second issue, Sri Khare submitted that the incumbent Suraj by remaining absent for over five years had abandoned his service resulting in a substantive vacancy on the post therefore ad hoc appointment of Sunil would be deemed to have been made against a substantive vacancy and as per the provisions of Section 18 of U.P. Act No. 5 of 1982. Hence, there was no legal infirmity in the appointment.
Per contra, on the first issue, as culled out above, the learned counsel for the Management and Ganesh submitted that while determining an issue as to who is entitled to officiate as Principal of the College, the first and foremost question that arises for consideration is as to who is the senior most teacher in the highest grade in the College. Incidental to that would be determination of the date of substantive appointment of the claimant. Whether a person has been substantively appointed or not would depend on existence of a substantive vacancy and whether procedure provided for substantive appointment has been followed. If not, the appointment would be void, as held by the Apex Court in Prabhat Kumar Sharma's case (supra). Because, if the appointment is void, any length of service rendered by an incumbent would not enure to his benefit. It was submitted that the management had already terminated the service of Sunil upon expiry of six months from the date of his initial appointment. Otherwise also, his appointment was to continue till the end of academic session i.e. 30.06.1986. Hence, continuance in service thereafter, pursuant to an interim order passed in Writ A No. 20807 of 1986 which was discharged with the dismissal of the petition on 11.09.2006, would be of no consequence. It was urged that even though Writ A No. 20807 of 1986 might have been dismissed as infructuous, after noticing the regularization order dated 19.05.1992, but such dismissal of the writ petition would not amount to affirmance of the regularization order dated 19.05.1992. It was submitted that regularization could have lawfully followed only if the initial appointment had been against a substantive vacancy and as per the procedure prescribed by paragraph 5 of the First Removal of Difficulties Order. It was urged by them that since the appointment letter itself suggests that it was against a leave vacancy, the order of regularization was nothing but void, which conferred no right. It has been urged by them that not only in Radha Raizada's case (supra), which was approved by the apex court in Prabhat Kumar Sharma's case (supra), but also in subsequent five-judges Full Bench decision of this Court in Jahaj Pal Vs. District Inspector of Schools and another (Special Appeal No. 280 of 2013, decided on 21.02.2019), it was observed that ad-hoc appointment against a substantive vacancy had to be as per the procedure prescribed under the First Removal of Difficulties Order and regularization of service under Section 33-A of U.P. Act No.5 of 1982 would be permissible only if the procedure as laid down in the First Removal of Difficulties Order has been followed. It was thus urged that since the regularization order was passed without examining as to whether a substantive vacancy had existed, and whether the procedure prescribed for making ad-hoc appointment against substantive vacancy was followed, the same was vulnerable and was rightly declared illegal/void by the subsequent order dated 18.09.2014.
On the issue of abandonment of service by the incumbent Suraj and the resultant substantive vacancy, the learned counsel for the respondents submitted that abandonment or relinquishment of service is dependent on the intention of the post-holder. It has been submitted that Suraj was not a party in the writ proceedings and there is no document to suggest that a substantive vacancy came into existence and notified by the date of initial ad hoc appointment of Sunil. Under the circumstances, it would not be appropriate to draw an inference that on the date of ad hoc appointment of Sunil there existed a substantive vacancy caused by abandonment of service by the incumbent.
It was also submitted on behalf of the management that from the record it appears that substantive vacancy was notified in 2006, just prior to the official date of retirement of Suraj, therefore it could be assumed that earlier the management never treated the post to be substantively vacant. In the alternative, it was submitted that assuming that there existed a substantive vacancy on the date when Sunil was appointed, the procedure relating to such ad hoc appointment was admittedly not followed, therefore the ad-hoc appointment would be void bearing no fruits of regularization, regardless of the length of service.
Apart from the issues and submissions noticed above, another issue that arises for our consideration, particularly, in the Special Appeals preferred by the management, is whether the appointment of Sunil stood automatically terminated by operation of law consequent to conversion of short-term vacancy into substantive vacancy and therefore there was no requirement of approval under Section 21 of U.P. Act No. 5 of 1982.
Having given our thoughtful consideration to the rival submissions as also the authorities cited by the counsels appearing for the parties, on the first issue, we observe that view taken in Vijai Narain Sharma's case (supra) that a collateral challenge to regularity and validity of the appointment should not ordinarily be entertained while considering issues relating to seniority etc. is to avoid litigation and disputes over stale/old issues which are difficult to address owing to loss of records etc., therefore, a collateral challenge to an appointment, which has continued for long and had remained unchallenged, by referring to non-fulfillment of procedural technicalities in the making of the appointment, is held not permissible while considering an issue relating to seniority and its consequences. But, whether the appointment of a claimant is substantive, if so, since what date, are issues which have to be addressed while determining the seniority to maintain a claim for appointment as officiating Principal of the College. Incidental thereto, is the issue with regard to existence of a substantive vacancy. Because, existence of a substantive vacancy is sine qua non for any substantive appointment. Its non existence renders the appointment void. Therefore, the issue as regards existence of substantive vacancy is fundamental and, once raised, ought to be addressed while determining the issue relating to seniority. More so, when it can always be examined with reference to the nature of vacancy that existed at the time of appointment.
In the instant case, the issue before the DIOS was as regards validity of regularization. By regularization an ad hoc appointment gets converted into substantive appointment. This issue was fundamental and has been addressed with reference to the nature of the vacancy that existed and on facts which are borne out from the documents admitted to the parties. It is not a case, at least shown to us, that there was complete loss of records and, therefore, the issue could not have been addressed. Thus, in our considered view, the validity of the order of regularization was open for examination to determine the date of substantive appointment, while addressing the claim for appointment as officiating principal, based on seniority.
We find that the DIOS, while addressing the resolution of the management proposing appointment of Ganesh as officiating Principal, addressed the claim of Sunil with reference to the date of his substantive appointment and in that context he examined the nature of vacancy on which he claimed appointment. Upon finding that Sunil had not been appointed against a substantive vacancy but against a leave vacancy (short-term vacancy), the consequences that followed were automatic, that is, there could be no regularization under Section 33-A of U.P. Act No.5 of 1982, thereby rendering the order of regularization void. Once, it is so, it is of no consequence and can be ignored. The order passed by this court, dated 11.09.2006, dismissing Writ A No. 20807 of 1986 as infructuous after noticing the regularization order would not breathe life into an otherwise void order nor such dismissal of the writ petition would amount to affirmance of the regularization order. Thus, for all the reasons stated above, we are in agreement with the view taken by the learned Single Judge that the issue relating to validity of regularization of the services of Sunil was open to scrutiny while addressing the claim for appointment as an officiating principal on the strength of seniority.
The other issue that arises for our consideration is whether the vacancy against which Sunil was appointed was a substantive vacancy or a short-term vacancy. Adjudication of that would depend upon our decision on the plea whether on account of continuous absence of incumbent Suraj, for a period of about five years, a substantive vacancy came into existence by deemed abandonment of service.
On the aforesaid issue, the thrust of the arguments on behalf of Sunil had been that Rule 18 of Fundamental Rules provides for automatic cessation of service on ground of abandonment of service by remaining continuously absent from duty for five years whether with or without leave. It is urged on behalf of Sunil that Suraj had remained absent since 1980 whereas the appointment of Sunil was made on 29.10.1985, therefore it could be assumed that it had been made on a post which had been abandoned by its incumbent therefore appointment was against a substantive vacancy.
Fundamental Rule 18 reads as follows:-
"18. Unless the Government, in view of the special circumstances of the case, shall otherwise determine, after five years' continuous absence from duty elsewhere than on foreign service in India, whether with or without leave, a Government servant ceases to be in Government employ."
In Vijay S. Sathaye's case (supra), the decision cited on behalf of Sunil, the facts of the case, as noticeable from the judgment, were that the writ petitioner had joined service of Indian Airlines Ltd. on 19.03.1972 as First Officer and was promoted as Captain on 19.12.1975 and was further promoted as Commander on 01.01.1986. In 1989, the Indian Airlines came out with a Voluntary Retirement Scheme for its employee who had completed 25 years of service or who had attained 55 years of age. Subsequently, the condition prescribed in the aforementioned Scheme was reduced to 20 years of service in 1992. Regulation 12 of the Service Regulations provided that if an employee fulfills the aforesaid criteria of eligibility he can give three month's notice for voluntary retirement. It was provided that acceptance of the said resignation would be subject to the approval of the competent authority. The petitioner of that case completed 20 years of service on 19.03.1992. Thereafter, he was promoted as Deputy General Manager (Operations) on 30.08.1994. On 07.11.1994, the petitioner submitted an application seeking VRS with effect from 12.11.1994. The petitioner was informed vide letter dated 11.11.1994 that he should continue in service till the time decision is taken. However, the petitioner did not attend the duty after 12.11.1994. Rather, he joined services of Blue Dart Ltd and he did not go to the respondents to work from 12.11.1994. As there had been no response from the respondents, the petitioner filed writ petition for issuance of a writ of mandamus directing the respondents to accept the petitioner's application for voluntary retirement. During the pendency of the petition, the petitioner was informed by the respondents that his application had been rejected. The writ petition was dismissed as infructuous. Consequently, another writ petition was filed challenging the letter rejecting the request for VRS. The Court dismissed the writ petition against which Special Leave Petition was filed before the Apex Court. The Apex Court found that Regulation 12 had required a three month's notice which was mandatory and as the petitioner had not given that notice, his application was liable to be rejected. After holding as above, the Apex Court, in the alternative, found that since the petitioner was asked to continue in service till a decision is taken on his application and he did not attend the office of the respondents after giving the notice, he had voluntarily abandoned the services of the respondents and therefore there was no requirement on the part of the respondents to pass any order on his application as it was a clear cut case of voluntary abandonment of service. While holding as above, the Apex Court, in paragraph 12 of the judgment, had observed as follows:-
"12. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntary abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer."
The aforesaid decision of the Apex Court has been considered by a Division Bench of this Court in the case of Dy. Director of Education (Secondary) and others Vs. Smt. Jyoti Yadav (supra). The Division Bench although did not on its own express any opinion whether, in the facts of the case before it, there had been an abandonment of service, it remanded the matter back to the learned Single Judge for examining the issue.
Reverting to the facts of the instant case, we find that in Writ A No. 52277 of 2014, which has been filed by Sunil, there is no specific pleading as to since when, in the year 1980, Suraj proceeded on leave. In the counter-affidavits filed on behalf of Management of the College and Ganesh, the exact and specific date as to when Suraj proceeded on leave without pay is not disclosed. However, in the counter-affidavit filed on behalf of DIOS in Writ A No.52277 of 2014, which is at page 160 of the paper book of Special Appeal No. 743 of 2019 (Old Defective No. 493 of 2019), in paragraph 13 it is stated that Suraj had proceeded on leave without pay on 28.08.1985 and continued till 30.06.2006. We also find that the management has not proceeded to fill up the vacancy by treating the same as substantively vacant, either on account of abandonment of service by Suraj or otherwise. The writ petition is silent whether Suraj had joined some other institution or service so that it could be assumed that he abandoned his service. Under the circumstances, in absence of Suraj as party respondent in the proceedings, keeping in mind that the petitioner's own record suggests that he was initially appointed against short term vacancy, it would not be appropriate for us to determine and hold that the post of Lecturer on which Sunil was appointed had been abandoned by its holder and therefore it was substantively vacant since before 29.10.1985, that is the date on which Sunil was appointed. We are thus in agreement with the view taken by the learned Single Judge that it would not be appropriate for the Court to come to a conclusion that the post against which the petitioner had been appointed on 29.10.1985 was substantively vacant since before, consequent to abandonment of service by Suraj.
Even if we assume that there existed a substantive vacancy at the time of ad-hoc appointment of Sunil, it would not come to his rescue as it has come on record that the procedure provided for in paragraph 5 of the First Removal of Difficulties Order relating to ad-hoc appointment against substantive vacancy was not followed. In a recent five-judges Full Bench decision of this Court in Jahaj Pal's case (supra), the Court has observed that the procedure for appointment on ad-hoc basis against a substantively vacant post is what is laid down in paragraph 5 of the First Removal of Difficulties Order and that procedure is mandatory. While holding as above, the Full Bench had taken notice of the majority view rendered in the earlier three-judges Full Bench decision of this Court in Radha Raizada's case (supra), which was approved by the Apex Court in the case of Prabhat Kumar Sharma's case (supra), wherein, it was held that any appointment made in transgression of that procedure is illegal and void. Paragraph 148 of the Full Bench decision in Jahaj Pal's case (supra) is relevant and the same is extracted below:-
"148. First Order was considered by Supreme Court in Prabhat Kumar Sharma and others Vs. State of U.P. and others, (1996) 10 SCC 62 and it was held that any appointment made in transgression thereof is illegal and void. Such an appointment would not confer any right upon the appointee. Therefore, whenever any act or omission contemplated under a Removal of Difficulties Order is to be considered, for example, an appointment made under the provisions of Removal of Difficulties Order, one has to meticulously examine whether all the requirements of Difficulties Order have been followed or not. In other words we can say that the provisions of Removal of Difficulties Order have to be applied mandatorily."
The five-judges Full Bench also notices the legislative intent in drawing distinction between the provisions of Section 33-A and Section 33-B of U.P. Act No. 5 of 1982. It would be useful to reproduce paragraph 162 of the judgment of the Full Bench in that regard:-
"162. We may notice here a marked distinction between philosophy and intention of Legislature in enacting Section 33-A and 33-B in different manner though, broadly, purpose was to give benefit of substantive appointment to ad hoc teachers. Those ad hoc appointments, which were made following procedure under First Order, Legislature treated them as having already undergone a substantially wider procedure of selection and, therefore, found no necessity of reassessment of their suitability by any agency, therefore, declared such ad hoc teachers, who were appointed against substantive vacancies in accordance with Para 2 of First Order, as "deemed to be appointed substantively" and no further selection was required in their cases. However, Second Order deals with short-term vacancies wherein a short and summary method of selection for such short-term vacancies is provided and therefore, this summary selection was not given same status, as was given to cases covered by First Order. For ad hoc appointments under Second Order, Legislature has provided that these ad hoc teachers appointed against short-term vacancies will undergo a process of selection through a Selection Committee constituted under the provisions of Section 33-B and only those, who are recommended by it, would be given substantive appointment. This legislative recognition of distinction in process of appointment of First and Second Order cannot be overlooked. There is no reason to dilute the same particularly when such section has been followed in subsequent amendments in Act, 1982 with regard to substantive appointment of ad hoc teachers. "
From above, it is clear that for ad-hoc appointment against a substantive vacancy, there exists a different procedure of selection as is provided in paragraph 5 of the First Removal of Difficulties Order. The procedure contemplated there requires inviting of applications through public advertisement of vacancy in at least two newspapers having adequate circulation in Uttar Pradesh. After receipt of applications, the DIOS is to cause the best candidate selected on the basis of quality points specified in the Appendix entered in a list on the basis of which appointments are made. It is because of adoption of this detailed procedure in making ad hoc appointment against substantive vacancy, section 33-A of U.P. Act No.5 of 1982, which provides for regularization of such ad hoc appointment, does not provide for reassessment of a candidate's suitability, it simply declares such an ad-hoc teacher, subject to fulfillment of other conditions specified by the section, deemed to be appointed substantively. However, where ad hoc appointment is against short-term vacancy, as the procedure prescribed by Second Removal of Difficulties Order had no such stringent requirements, as found in First Removal of Difficulties Order, those ad-hoc appointees have to undergo a process of selection as is provided in Section 33-B of U.P. Act No.5 of 1982.
Now, we shall deal with the submission of Sri Khare that as Sunil's appointment was under Section 18 of the U.P. Act No.5 of 1982, the stringent procedure provided by paragraph 5 of the First Removal of Difficulties Order was not required to be followed because the appointment was made prior to the three-judges decision in Radha Raizada's case, as held in Balveer Singh's case.
In Radha Raizada's case, the Full Bench had held that the procedure provided in paragraph 5 of the First Removal of Difficulties Order for ad hoc appointment against substantive vacancy had to be strictly followed for making ad hoc appointments under section 18 of U.P. Act No.5 of 1982 as the said procedure supplemented the provisions of Section 18 of the U.P. Act No.5 of 1982 which, on its own, initially, did not prescribe for the procedure for appointment. The decision was upheld by the Apex Court in Prabhat Kumar Sharma's case (supra). The relevant extract from the judgment in Prabhat Kumar Sharma's case is reproduced below:
"6. We are not concerned in this case with the Second Removal of Difficulties Order, 1981 which deals with filling up of short-term vacancies of ad hoc teachers. It is, therefore, not necessary to deal with the procedure prescribed in that behalf. The Full Bench has elaborately considered the legislative history. In paras 26 and 27 it had dealt with the amendments to the U.P. Intermediate Education Act, 1921 and various provisions of Ordinance 8 of 1981. The object was to provide teachers selected through the Commission or the Board with a view to raise the standard of education and in the event of there being delay in allotting the selected teachers, with a view to allow the institution to appoint teachers on ad hoc basis so as to avoid hardship to the students. Procedure under Section 18 was provided for appointment of such teachers in the institutions purely on ad hoc basis in accordance with the procedure prescribed thereunder. The method of recruitment and appointment of such teachers is regulated in para 5 of the First 1981 Order. The appointment, therefore, should be made in accordance with the said procedure. In para 41 of the judgment, it has expressly dealt with ad hoc appointments as under:
"41. It has already been noticed that Section 18 of the Principal Act provides for power to appoint a teacher purely on ad hoc basis either by promotion or by direct recruitment against the substantive vacancy in the institution when the condition precedent for exercise of powers exist namely that the Management has notified the said vacancy to the Commission in accordance with the provisions of the Act and the Commission has failed to recommend the name of any suitable candidate for being appointed as a teacher within one year from the date of such notification and the post of such teacher has actually remained vacant for more than two months. However, since the State Government was alive to the situation that the establishment of the Commission may take a long time and even after it is established, it may take a long time to make available the required teacher in the institution and as such issued the Removal of Difficulties Order dated 30-1-1982 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 the absence of teachers. This power to appoint ad hoc teachers by direct recruitment thus, is available only when preconditions 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, promotion of the incumbent to any higher post in a substantive capacity. 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 para 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. As noticed earlier 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 the scheme. Scheme being provision for ad hoc appointment 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 Order are to be harmonized. It is, therefore, not correct to say that appointment of a teacher on ad hoc basis is either under Section 18 of the Act or under the Removal of Difficulties Order. Thus, if contingency arises for ad hoc appointment of teacher by direct recruitment the procedure provided under the First Removal of Difficulties Order has to be followed. Para 5 of the First Removal of Difficulties Order provides that the management shall, as soon as may be, inform the District Inspector of Schools about the details of vacancy and the District Inspector of Schools shall invite applications from the local Employment Exchange and also through public advertisement in at least two newspapers having adequate circulation in Uttar Pradesh. Sub-para (3) of para 5 further provides that every such application shall be addressed to the District Inspector of Schools. Sub-para (4) of para 5 of the Removal of Difficulties Order provides that the District Inspector of Schools shall cause the best candidate selected on the basis of quality points specified in Appendix. The compilation of quality points may be done by the retired Government Gazetted Officer, in the personal supervision of the Inspector. Para 6 of the First Removal of Difficulties Order further provides for appointment of such teacher under para 5 who shall possess such essential qualification as laid down in Appendix A referred to in Regulation 1 of Chapter II of the Regulations made in the Intermediate Education Act.
42. In view of these provisions the ad hoc appointment of a teacher by direct recruitment can be resorted to only when the conditions precedent for exercise of such powers as stated in Section 18 of the Act are present and only in the manner provided in para 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 para 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 Order are to be harmonized. It is, therefore, not correct to say that appointment of a teacher on ad hoc basis is either under Section 18 of the Act or under the First Removal of Difficulties Order. Thus if contingency arises for ad hoc appointment of teacher by direct recruitment the procedure provided under the First Removal of Difficulties Order has to be followed."
(emphasis supplied)
7. It would thus be clear that any ad hoc appointment of the teachers under Section 18 shall be only transient in nature, pending allotment of the teachers selected by the Commission and recommended for appointment. Such ad hoc appointments should also be made in accordance with the procedure prescribed in para 5 of the First 1981 Order which was later streamlined in the amended Section 18 of the Act with which we are not presently concerned. Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees. The removal of difficulties envisaged under Section 33 was effective not only during the period when the Commission was not constituted but also even thereafter as is evident from the second para of the preamble to the First 1981 Order which reads as under:
"And whereas the establishment of the Commission and the Selection Boards is likely to take some time and even after the establishment of the said Commission and Boards, it is not possible to make selection of the teachers for the first few months."
From the decision of the apex court noticed above, it is clear that the procedure prescribed in the First Removal of Difficulties Order for making ad hoc appointment against a substantive vacancy was to be followed for an appointment contemplated under section 18 of the U.P. Act No.5 of 1982 and any appointment in transgression thereof was void. In Ashika Prasad Shukla's case (supra), the court held that since the Full Bench in Radha Raizada's case had also directed for adoption of certain aspects of the procedure relating to ad hoc appointment against substantive vacancy, which were not provided for in the Second Removal of Difficulties Order governing ad hoc appointment against short term vacancy, the said adoption would be deemed prospective, that is applicable to appointments made after the decision of Radha Raizada's case. This view taken in Ashika Prasad Shukla's case is limited to ad hoc appointments against short term vacancies as has been clarified in a subsequent Division Bench decision in Julfikar Hussain Ansari's case (supra). The view taken in Balveer Singh's case (supra) that the principle laid down in Radha Raizada's case, in respect of applicability of the procedure laid down in the First Removal of Difficulties Order for ad hoc appointment against substantive vacancy, would be applicable prospectively, in view of decision in Ashika Prasad Shukla's case, is in ignorance of the binding precedent of the Apex Court in Prabhat Kumar Sharma's case. Hence in our considered view the decision rendered in Balveer Singh's case can not be treated as a binding precedent. As it has failed to consider binding precedent of the Apex Court, we do not deem it necessary to refer the issue to a larger Bench, particularly, when the said view has been reiterated in a subsequent Full Bench decision in Jahaj Pal's case.
We are, therefore, in agreement with the view taken by the learned Single Judge that even if we assume that there existed a substantive vacancy against which Sunil was appointed on ad-hoc basis, on 29.10.1985, the appointment would have conferred no right on him to seek regularization under Section 33-A as the procedure for ad hoc appointment against substantive vacancy provided in the First Removal of Difficulties Order was not followed.
The learned Single Judge was therefore justified in his conclusion that the order dated 18.09.2014 passed by DIOS was legally correct in declaring the order, dated 19.05.1992, regularizing the services of Sunil, void.
Now, the questions that arise for our consideration are: (a) whether the services of Sunil were liable to be terminated upon conversion of the short-term vacancy into a substantive vacancy, with effect from 30.06.2006; and (b) whether his services were rightly terminated with effect from 30.06.1986. If yes, then whether any prior approval was required under Section 21 of the U.P. Act No. 5 of 1982.
With regard to the above issues, in Special Appeal No. 595 of 2019 and Special Appeal No. 599 of 2019, the learned counsel for the Management submitted that under para 3 of the Second Removal of Difficulties Order, the duration of ad-hoc appointment made against short-term vacancy is provided as follows:
"3. Duration of ad-hoc appointment. - Every appointment of a teacher under Paragraph 2 of this Order shall cease from the earliest of the following dates, namely :
(a) when the teacher, who was on leave or under suspension joins the post; or
(b) when the period of six months from the date of such ad-hoc appointment expires; or
(c) when the short-term vacancy otherwise ceases to exist." "
It was submitted by the learned counsel for the management that upon expiry of six months period of the initial appointment, the management took a decision to terminate the services of Sunil, with effect from 30.06.1986, against which Sunil filed Writ A No. 20807 of 1986 in which, initially, an interim order was passed but, thereafter, the petition was dismissed as infructuous. Consequent to its dismissal, the interim-order stood discharged and merged in the final order. As a result, the services of Sunil stood automatically terminated. Hence, he was not entitled to continue in service any further. In the alternative, it was argued on behalf of the management, that, in any case, once the short-term vacancy got converted into a substantive vacancy, the ad hoc appointment stood automatically terminated by operation of law, as per provision of Second Removal of Difficulties Order, for which no approval was required.
The aforesaid submissions made on behalf of the management, in our view, are liable to be rejected for the following reasons:
With effect from 30.01.1982, paragraph 3 of the Second Removal of Difficulties Order was substituted by U.P. Secondary Education Services Commission (Removal of Difficulties) (Third) Order, 1982 wherein clause (b) in paragraph 3 of the Second Order stood deleted. As a result, the term of six months provided in the letter of appointment, as per unamended provision of paragraph 3 of the Second Order, was not legally justified as such appointment had to continue till the teacher who was on leave or under suspension joins the post; or when short-term vacancy otherwise ceases to exist.
As it is not the case of the management that the teacher who was on leave or under suspension had joined the post, the appointee was entitled to continue till conversion of short-term vacancy into a substantive vacancy. Further, it is not the case of the management that the short-term vacancy got converted into a substantive vacancy prior to insertion of Section 33-B in the U.P. Act No. 5 of 1982, which provides for regularization of ad-hoc appointments made against short-term vacancies upon conversion into a substantive vacancy. Rather, it is the case of the management that the short-term vacancy got converted into a substantive vacancy on 30.06.2006 by which date Section 33-B was inserted in U.P. Act No.5 of 1982. In view of the above, the incumbent Sunil was entitled to continue in service till his regularization was considered under Section 33-B of the U.P. Act No. 5 of 1982 and, thereafter, as per the provisions contained therein.
At this stage, it may be observed that the view taken in earlier three-judges Full Bench decision of this Court in Smt. Pramila Mishra's case (supra) has been clarified in five-judges Full Bench decision in Jahaj Pal's case (supra). The relevant portions of the judgment rendered by five-judges Full Bench in Jahaj Pal's case (supra) is reproduced below:
"70. Section 33-B(1)(a)(i) covered such ad hoc teachers who were appointed by promotion or direct recruitment in Lecturer Grade or Trained Graduate Grade till 14.05.1991 and in CT Grade till 13.05.1989, in accordance with procedure proscribed in Para 2 of Second Order and such short term vacancy was subsequently converted into a substantive vacancy.
71. Section 33-B(1)(a)(ii) covered those ad hoc Teachers who were appointed by direct recruitment on and after 14.07.1981 till 12.06.1985 against substantive vacancies in CT Grade through advertisement and such appointment was approved by DIOS.
72. Section 33-B(1)(a)(iii) brought within its ambit ad hoc teachers, whether appointed by promotion or direct recruitment from 31.07.1988 to 14.05.1991, against substantive vacancies in accordance with Section 18 as it stood before its omission by Amendment Act, 1992 (in fact this is Amendment Act 1 of 1993).
73. All the above three categories of teachers, if possessed requisite qualifications or exempted from such qualification, on the date of such ad hoc appointment, and served continuously the institution, from the date of such ad hoc appointment till 07.08.1993, and not related to Management/ Principal/ Headmaster of Institution concerned, were entitled to be considered by a Selection Committee to determine their suitability for appointment in a substantive capacity. Constitution of Selection Committee is provided in sub-section (2) of Section 33-B and ad hoc teachers who are recommended by Selection Committee, are to be given substantive appointment by Management in order of seniority.
74. Section 33-B(4) declares that all such teachers who are given substantive appointment under sub-section (1) shall be deemed to be on probation from the date of such substantive appointment.
75. Sub-section (5) of Section 33-B provides that teachers who are within the ambit of Section 33-B(1), if not found suitable for substantive appointment by Selection Committee, they shall cease to hold ad hoc appointment on such date as State Government, by order, specifies.
76. Here comes the change in tenure of ad hoc teachers who are within the ambit of sub-section (1) of Section 33-B. Even if they are not found suitable for substantive appointment, sub-section (5) confers a right upon them to continue till the date State Government by order specify for their cessation.
77. In our view, all such teachers who come within the ambit of Section 33-B(1), on and after 07.08.1991, got protection with regard to their right to hold ad hoc appointment till the eventuality contemplated in sub-section (5) happens and such teachers could not have been ceased to work on and after 07.08.1991, when Section 33-B came into force, by taking recourse to the tenure provided in Second Order or any other provision........................
164. Sub-Section (5) of Section 33-B makes provision in respect of such ad-hoc teachers who are not found suitable under sub-section (1) of Section 33-B. It is said that such teachers shall cease to hold appointment on such date as State Government may, by order, specify. This sub-section (5) of Section 33-B, therefore, makes an inroad in the tenure provided in Para 3 of Second Order where an ad-hoc appointee would cease on joining of teacher who has caused short term vacancy; on expiry of 6 months from the date of ad-hoc appointment (this condition was applicable only till 29.01.1982); and when short term vacancy otherwise ceased to exist.
165. We have no hesitation in holding that as soon as Section 33-B came into force, sub-section (5), providing different tenure, will come into play, and would override the provision otherwise contained in Para 3 of Second Order and from that date onwards i.e. 06.08.1993, tenure of ad hoc teachers appointed against short-term vacancies, who are/were considered by Selection Committee constituted under Section 33-B(3) and not found suitable, will not cease to work but would continue till such date as State Government may by order, specify. In order to give effect to Section 33-B, even though it is not clearly said but we have no doubt that ad hoc teachers entitled for consideration for substantive appointment under Section 33-B, so long as Selection Committee has not considered them, they would also be entitled to continue, and on and after 07.8.1993, when Section 33-B came into force, such teachers cannot/shall not be terminated if any eventuality contemplated in Para 3 of Second Order arises or happen.
166. In respect of ad-hoc teachers, who do not get any right to be considered for substantive appointment under Section 33-B(1) by virtue of sub-section (6), their tenure of ad-hoc appointment under Para 3 of Second Order would continue to be governed by Para 3 of Second Order. They would cease when the candidate selected and recommended by Commission/Board joins or when short term vacancy ceases otherwise. In respect of other ad-hoc teachers, who were eligible and entitled to be considered for substantive appointment under Section 33-B but not found suitable by Selection Committee constituted under sub-section (2) of Section 33-B, such teachers will not cease on happening of a condition under Para 3 of Second Order but here sub-section (5) of Section 33-B will come into play and such teachers will cease to hold ad-hoc appointments on such date, as State Government may, by order, specify. Thus, here an order under sub-section 33-B(5) from State Government would be required for. .....................
169. We also reiterate that after Section 33-B came into force, from that day and onwards, even those adhoc teachers who were appointed in short-term vacancies under Second Order and eligible to be considered for substantive appointment by Selection Committee under the said provision, if any contingency, as provided in Para 3 of Second Order, occurs, in the interregnum period when Selection Committee has still to consider such teachers, they will be entitled to continue by virtue of Section 33-B(5) read with sub-section (6) of Section 33-B. For example, on and after 07.08.1993, even an ad hoc teachers, is yet to be considered by Selection Committee for substantive appointment under Section 33-B if he fulfills all the requisite conditions making him eligible and entitled for such consideration, if certain vacancies ceased by becoming a substantive vacancy, such teacher will not cease to work by application of Para 3 of Second Order, but, would be entitled to continue till he is considered by Selection Committee. If found suitable, he will be appointed as such, and, if not found suitable, he will be governed by sub-section (5) of Section 33-B. The only exception is the cases where matter is governed by sub-section(6) of Section 33-B. ...............
206. Full Bench judgment in Smt. Parmila Mishra (supra) therefore, insofar as a bald observation has been made in Para 16 of judgment (as quoted above) is clarified and we hold that cases governed by provisions relating to substantive appointment/regularization like 33-B and 33-F etc., the same wherever applicable, will prevail over otherwise inconsistent provision contained in Removal of Difficulties Order and in particular Second Order. "
From the observations/ ratio, extracted above, it is clear that where the short-term vacancy gets converted into a substantive vacancy after 07.08.1993, the tenure of teacher appointed on ad-hoc basis against a short-term vacancy would be governed by the provisions of Section 33-B and would not be governed by paragraph 3 of the Second Removal of Difficulties Order.
In view of the reasons recorded above, we are of the view that the learned Single Judge was justified in affirming the order of the DIOS disapproving the resolution of the management, terminating the services of Sunil. The learned Single Judge was also justified in issuing a direction to consider regularization of the services of Sunil under the appropriate provisions of U.P. Act No.5 of 1982.
The submission of the learned counsel for the management that consequent to dismissal of Writ A No. 20807 of 1986, Sunil had lost his right to continue in service is misconceived inasmuch as Writ A No. 20807 of 1986 was not dismissed on merits by upholding the order terminating the services of Sunil but was dismissed as the cause to sue did not survive consequent to the intervening regularization order. Under the circumstances, when the regularization order was canceled, a fresh look in respect of regularization of the services of Sunil in accordance with the provisions of Section 33-B of U.P. Act No. 5 of 1982 in the light of the law laid down by five-judges Full Bench in Jahaj Pal's case (supra) is required. For all the above reasons, we are of the view that the learned Single Judge was justified in affirming the order of the DIOS disapproving the resolution of the management terminating the services of Sunil and issuing direction for consideration of regularization of his services under the provisions of U.P. Act No. 5 of 1982.
In view of the discussion made above, all five appeals are liable to be dismissed and are accordingly dismissed. There is no order as to costs.
Order Date :- 02.08.2019 Sunil Kr Tiwari