Allahabad High Court
Shashi Pal Rao vs C/M Manas Inter College, Fatehpur, ... on 12 July, 2010
Bench: Ferdino Inacio Rebello, A.P. Sahi
1
Chief Justice's Court
Special Appeal No.970 of 2010
Shashi Pal Rao Vs. Committee of Management, Manas Inter College,
Fatehpur, Deoria and others
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Hon'ble Ferdino Inacio Rebello, C.J.
Hon'ble A.P. Sahi, J The appellant in this appeal questions the correctness of an interim direction issued by a learned single Judge of this Court dated 23.4.2010 and has also challenged the consequential orders dated 28.4.2010 and 29.4.2010 passed by the District Inspector of Schools in relation to the claim of continuance of the appellant as an ad hoc Lecturer and payment of salary in the institution known as Manas Inter College, Fatehpur, District Deoria, which is an institution established and governed by the provisions of the Intermediate Education Act, 1921. The service conditions of the teachers are governed by the aforesaid provisions and selection and appointment on such posts are governed by the provisions of the U.P. Secondary Education Services Selection Board Act 1982 and the Regulations and Rules framed thereunder.
The undisputed facts are that the post of Lecturer in Economics which, is at the centre of the dispute, was occupied by one Sri Krishna Rao on a substantive basis. According to the hierarchy of teachers, the lecturers grade is the senior most grade and whenever the office of the Head of the institution namely the Principal, falls vacant, the senior most teacher in the said grade is entitled to officiate on the post for which the appointment can be made on ad hoc basis. The post of principal fell vacant in the year 1998 and Sri Krishna Rao came to be given an ad hoc promotion on the post of officiating Principal on 6.12.1998. As a result of this ad hoc promotion, the post of Lecturer in Economics become available as a short-term vacancy.
The appellant Shashi Pal Rao contends that against this short term vacancy, the Committee of Management appointed him on ad hoc basis. No approval was granted to the said alleged proposal of the appointment of the appellant. The appellant thereafter appears to have 2 applied for and appointed as a Postal Assistant in a Post-office in Deoria Postal Division and continued to function and receive salary, as such, from 24.7.1999 to 29.5.2007. The respondents - petitioners have filed an information received under the Right to Information Act to that effect as Anneuxre-6 to the writ petition. It may be noted that the said facts had been noticed in the order of the District Inspector of Schools dated 15.5.2007 which is the basis of the claim of the appellant. The said order also notices that no approval or financial sanction had been granted to the claim of the appellant.
Sri Krishna Rao, who was holding the substantive post of Lecturer of Economics and working on the post of officiating Principal, retired on 30.6.2002. The aforesaid vacancy, therefore, came to be converted as a substantive vacancy. According to rules applicable, any appointment made on ad hoc basis against a short term vacancy would cease upon the vacancy being converted into a substantive vacancy as per rules and as held in several decisions of this Court which shall be referred to herein after. On the retirement of Krishna Rao, one Sukhlal was promoted on ad hoc basis as Lecturer in Economics on 14.7.2002. The authority competent to deal with such matters, namely the Regional Level Committee headed by the Joint Director of education of the region, granted approval on 22.11.2004 to the said ad hoc appointment of Sri Sukhlal.
The claim of the appellant - Shashi Pal Rao was rejected by the District Inspector of Schools on 17.8.2004. He filed writ petition No. 53428 of 2004 praying for a mandamus for payment of salary. This writ petition was filed by the appellant without any reference to the post of Lecturer in Economics already held by Sukhlal and approved on 22.11.2004. It appears that the said writ petition filed by the appellant was disposed of on 4.11.2006 by a learned single Judge of this Court and from a perusal of the said judgment, it is evident that the Court was not informed or apprised of the order dated 22.11.2004 passed by the Regional Level Committee, inasmuch as, the said order dated 22.11.2004 has not been noticed therein. The direction was to consider the claim of the appellant on the ground that prior to the issuance of the 3 Government Order dated 25.1.1999, there was a provision for deemed approval of ad hoc appointments against short term vacancies, if there is no disapproval within a week. Accordingly, this Court quashed the order of the District Inspector of Schools which was founded on another ground relating to a ban imposed and remitted the matter back to the District Inspector of Schools to decide as to whether the appellant would be entitled to the benefit of the deemed approval clause or not.
As noticed above, and which fact remains undisputed, the appellant was throughout working in the Postal Department and receiving salary when all this litigation was being fought before this Court. The District Inspector of Schools on 15.5.2007 passed an order which appears to be granting financial sanction to the alleged claim of the appellant against an ad hoc appointment on the post of Lecturer in Sociology. This twist of such a claim is reflected in the said order even though the claim had been made in respect of the post of Lecturer in Economics. It is to be noted that there is a clear allegation against the respondents - petitioners that the appellant does not have a post- graduate Degree in Economics which is the minimum eligible educational qualification required for the said post. It is in this context that the respondents - petitioners have alleged that the claim of the appellant was manipulated in collusion with the then District Inspector of Schools against the post of Lecturer in Sociology. This also stands reflected as there was already an approval in favour of Sukhlal, who was occupying the post of Lecturer (Economics), for which approval had been granted by the Regional Level Committee on 22.11.2004 and the same was continuing. The District Inspector of Schools, for reasons best known to him, proceeded to grant this financial sanction and it is evident that the same could not have been an approval against the post of Lecturer (Economics) as it stood occupied by Sukhlal.
It appears that this may have given rise to a difficulty with regard to payment of salary, as Sukhlal was already occupying the post of Lecturer (Economics) and receiving salary. The payment, therefore, to the appellant would not have been possible without knocking off the appointment and approval of Sukhlal. To obviate this obstacle, the 4 District Inspector of Schools, therefore, appears to have made some recommendation to the Regional Level Committee in relation to the claim of regularisation of Sukhlal. The Regional Level Committee passed an order on 26.5.2007 recalling the order dated 22.11.2004 in favour of Sukhlal. It is to be noted that the same District Inspector of Schools was also a Member of the Regional Level Committee. This order of recall was put to challenge in a writ petition being Writ Petition No. 45066 of 2007 and a counter-affidavit was filed on behalf of the District Inspector of Schools in the said writ petition admitting that the appellant Shashi Pal Rao had been appointed as Lecturer in Sociology and not a Lecturer in Economics. This writ petition was allowed on 21.7.2008. However, the order had been passed without serving notice on the Committee of Management as a result whereof a Special Appeal was preferred before a Division Bench against the said judgment dated 21.7.2008 and the same was set aside. The said writ petition is, however, still pending consideration and has been connected along with the petition giving rise to this appeal.
The appellant - Shashi Pal Rao appears to have succeeded in receiving payment of salary in June and July 2007 after passing of the order dated 26.5.2007. It is, therefore, clear that the said payment was an outcome of the order dated 26.5.2007.
All this matter was also brought to the notice of the State Government and a report has been submitted on 15.12.2009 after orders were passed in Writ Petition 17477 of 2010 giving rise to the present appeal. At this juncture, it would be relevant to mention that the writ petition has been filed by a body claiming itself to be the validly elected Committee of Management whereas the appellant alleges that they are not the validly elected Committee of Management and there is a rival Committee which is in control of the institution. The appellant, therefore, submits that this proceeding on behalf of the said Committee would not be maintainable and the learned single Judge has committed an error by proceeding to issue directions which has resulted in recovery of salary from the appellant that was paid to him.
5Upon filing of the writ petition, this Court noticing all the aforesaid facts directed the matter to be taken up along with the writ petition No.45066 of 2007 and also called for the records of the claim of the appellant and his appointment. The matter was next taken up on 23.4.2010 on which date the learned single Judge passed the following order:-
"Put up on Monday i. e. 26.04.2010 along with Writ Petition Nos. 45066 of 2007, 5120 of 2007 and 61605 of 2007.
On behalf of the petitioner it is pointed out that appointment of respondent no. 4 is alleged to have been made in the year 1998 against a short-term vacancy, which stood converted into substantive vacancy in the year 2002. For six years he did not approach this Court for payment of salary. In the year 2006 he set filed a writ petition for payment of salary.
Counsel for the petitioner submits that in no case any salary subsequent to the year 2002 can be released when the short term vacancy stood converted into substantive vacancy in view of the Division Bench judgment of this Court in the case of Surendra Kumar Srivastava vs. State of U.P. & others, reported in 2007(1) ESC 188(All)(DB), wherein it has been held that adhoc appointment against a short term vacancy will come to an end automatically on the date the vacancy stands converted into substantive vacancy.
The District Inspector of Schools as well as the Secretary, Secondary Education have completely ignored the aforesaid aspect of the matter while directing payment of salary to the petitioner in the year 2009.
Counsel for the respondent faced with the aforesaid contention submits that he was appointed against the post of Lecturer Economics. However, absolutely no details qua such appointment have been furnished to the Court today.
Let Secretary, Secondary Education, U.P. Government Lucknow and the District Inspector of Schools, Deoria file their respective affidavit by the next date fixed categorically stating as to against which post the respondent no. 4 has been appointed and after following what procedure. The original papers pertaining to the appointment of respondent no. 4 shall also be produced. Both the authorities are further directed to explain as to why this Court may not direct that the entire salary paid to respondent no. 4 be recovered from the salary of the District Inspector of Schools and the Secretary, if it is found that the vacancy stood converted into substantive vacancy in the year 2002 and even then the authorities have directed payment from State Exchequer. "6
The learned Standing Counsel had not filed the Affidavit as desired by the aforesaid order. Consequently, the learned single Judge passed the following order on 26.4.2010:-
"As last opportunity, on the request of learned Standing Counsel, put up this matter on 3rd May, 2010 as unlisted in order to enable him to comply with the order passed earlier.
The authorities are required to take similar decision in this matter as well as in connected matter being writ petition no. 61605 of 2007, inasmuch as it is alleged by the learned counsels present in the Court that in both matters, the vacancy in question was initially short term, when the appointment on ad hoc basis was offered, the vacancy became substantive thereafter, and therefore, as per the law laid down by the Division Bench of this Court in the case of Surendra Kumar Srivastava vs. State of U.P. & others, reported in 2007 (1) ESC 188 (Alld.) (DB), the appointment made against the short term vacancy came to automatically end on the vacancy being converted into substantive."
The learned Standing Counsel advanced his submissions accepting that the appellant could not have continued even otherwise after the vacancy was converted into a substantive vacancy w.e.f. 30.6.2002 and, therefore, taking notice of the said fact, the Court expressed its dismay over the report dated 17.12.2009 submitted indicating payment of salary to the appellant. The matter was adjourned for the learned Standing Counsel to study the matter further and, as such, the Court passed the following order on 3.5.2010:-
"Standing Counsel has made a statement that once the vacancy on the post of Lecturer Economics, which was caused in the institution due to grant of adhoc promotion to Sri Krishna Rao as Principal, became substantive with the retirement of Sri Rao on 30th June, 2002, the appointment made against short term vacancy would cease to be operative in the eyes of law in view of the Division Bench judgment of this Court in the case of Surendra Kumar Srivastava vs. State of U.P. & others, reported in 2007(1) ESC 188(All)(DB).
Therefore, after 30th June, 2002 the appointment of respondent no. 4 would come to an automatic end by operation of law, yet the Secretary, Secondary Education U.P. has chosen to pass an order dated 17.12.2009 directing 7 payment of salary to respondent no. 4 as adhoc Lecturer Economics.
The Court is surprised that the highest officer of the education department of the State has not even cared to examine the factual position and the law as explained by the Division Bench of this Court in the case of Surendra Kumar Srivastava (supra) before issuing such a direction.
At this stage standing counsel seeks time till tomorrow.
Put up tomorrow i. e. 04.05.2010."
The matter was taken up on 6.5.2010 when the Court was informed that the orders had been issued for recovery of the payment of more than 2 and a half lac of rupees to the appellant. The Secretary was further called upon to give explanation as to how all this appointment, approval and regularisation had been manipulated giving rise to several litigations. The learned Standing Counsel took time on 20.5.2010 for complying with the orders passed by the learned single Judge.
The appellant thereafter during vacations preferred the instant Appeal and on 16.6.2010 a Division Bench of this Court stayed the operation of the order dated 23.4.2010 as well as the consequential orders in relation to the recovery of the amount which was paid as salary. The interim order dated 16.6.2010 is quoted below:-
"Heard learned counsel for the parties.
Admit.
Issue notices to respondents 4 and 5 by R.P.A.D. at an early date. Steps be taken within a week.
List on the date fixed by the office on the notice. Learned Standing Counsel has accepted notice on behalf of respondents no.1 to 3 and Sri R.C. Dwivedi, Advocate, has accepted notice on behalf of respondent no.6. One month's time is allowed to the respondents to file counter affidavit. Three weeks' time is allowed thereafter to the petitioner to file rejoinder affidavit.
It is stated in paras 5 and 6 of the appeal that without issuing any notice to the appellant the learned Single Judge had directed the Secretary and DIOS for recovery of the salary. The appellant was working as lecturer in Economics and on the said basis he was paid the salary. In view of this, the appellant is entitled to interim relief.
Until further orders of this court, the effect and operation of the order dated 23.04.2010 passed in Writ Petition 8 No.17477 of 2010 by the learned Single Judge, as well as orders dated 28.04.2010 and 29.04.2010 (Annexure No.8 to the writ petition ) passed by D.I.O.S., Deoria, shall remain stayed."
Thereafter, it appears that a clarification application was filed by the respondents - petitioners in the writ petition before the learned single Judge praying for implementation of the Government Order dated 8.5.2010 which had been issued for the purpose of calling upon the educational authorities to take appropriate action in all such matters in view of the judgment of the Division Bench in the case of Surendra Kumar Srivastava (supra). Faced with this and the order of the Division Bench in the present appeal, the learned single Judge passed the following order on 6.7.2010:-
"This application has been filed for modification of the order passed by this Court on 26.4.2010. Respondent no.4 Shashi Pal Rao was admittedly appointed against a short term vacancy on ad-hoc basis in 1998, the vacancy stood converted into substantive vacancy in the year 2002. A Division Bench of this Court had examined the issue in detail as to what would be the implication of such conversion of the vacancy from short term to substantive qua ad-hoc teachers appointed in Intermediate Colleges under the U.P. Secondary Education Services Commissions Act, 1982 in the case of Surendra Kumar Srivastava vs. State of U.P. & others, reported in 2007(1) ESC 188 (All)(DB). It has been held that the ad-hoc appointment against short term vacancy will come to an automatic end with the vacancy being converted into substantive vacancy. It is needless to emphasize that all earlier judgments on the subject have been considered and examined by the Division Bench.
Despite the legal position as explained by the Division Bench, the Secretary of the Secondary Education Department and the Director of Education directed payment of salary to the petitioner in the year 2009. This Court, therefore, on 23.4.2010 required the Secretary and Director to file their affidavits explaining as to how such orders have been passed. They were also required to explain as why this Court may not direct that the salary paid to respondent no.4, be not recovered from the salary of Secretary and Director themselves if it was found that the short term vacancy stood converted into substantive vacancy in the year 2002.
The authorities took time to submit their reply as is reflected in the orders dated 26.4.2010 and dated 3.5.2010.9
On 6.5.2010, this Court passed a detailed order having regard to the facts brought on record by the Secretary of the department.
The State Government having regard to the judgment in the case of Surendra Kumar Srivastava (supra) and the order passed by this Court issued a circular on 8.5.2010 informing the District Inspector of Schools of all the Districts of U.P. that once the short term vacancy stood converted into substantive vacancy, the ad hoc appointment against the short term vacancy would come to automatic end. By means of a subsequent news items, it has been informed that the circular of the Secretary has been kept in abeyance in view of the order passed by the Division Bench in Special Appeal No.970 of 2010. It is in this background that the present clarification application has been filed.
This Court finds that on 16.6.2010 Special Appeal No.970 of 2010 was filed by the ad-hoc teacher Shashi Pal Rao and the Division Bench of this Court has granted interim order which is being quoted herein below:-
"Heard learned counsel for the parties. Admit.
Issue notices to respondents 4 and 5 by R.P.A.D. at an early date. Steps be taken within a week.
List on the date fixed by the office on the notice. Learned Standing Counsel has accepted notice on behalf of respondents no.1 to 3 and Sri R.C.Dwivedi, Advocate, has accepted notice on behalf of respondent no.6. One month's time is allowed to the respondents to file counter affidavit. Three weeks' time is allowed thereafter to the petitioner to file rejoinder affidavit. It is stated in paras 5 and 6 of the appeal that without issuing any notice to the appellant the learned Single Judge had directed the Secretary and DIOS for recovery of the salary. The appellant was working as lecturer in Economics and on the said basis he was paid the salary. In view of this, the appellant is entitled to interim relief.
Until further orders of this court, the effect and operation of the order dated 23.04.2010 passed in Writ Petition No.17477 of 2010? by the learned Single Judge, as well as orders dated 28.04.2010 and 29.04.2010 (Annexure No.8 to the writ petition ) passed by D.I.O.S., Deoria, shall remain stayed."
Counsel for the petitioner submits that there was no direction of the writ Court to recover the money from the teacher and that order of District Inspector of Schools dated 29.4.2010 could not be stayed in the Special Appeal as it was not a subject matter of challenge. The circular which was issued on 8.5.2010 was not stayed by Division Bench, therefore, it should not have been kept in abeyance.
10This Court feels that any clarification at this stage by this Court may not be inconsonance with judicial propriety, as it may encroach upon the order of the Division Bench.
However, this Court is of the firm opinion that the issue with regards to the right of ad-hoc teacher appointed against a short term vacancy to continue and to get salary after the vacancy is converted into substantive vacancy must be settled finally and the law laid down in the case of Surendra Kumar Srivastava (supra) by the Division Bench be enforced in letter and spirit so that the public money is not wasted/misutilized with the connivance of education authority for payment to person legally not entitled to it.
This Court finds it just and proper to direct that the present modification application with previous papers alongwith the record of the Special Appeal No.970 of 2010 be placed before the Division Bench hearing Special Appeals which may consider the hearing of both the matters.
Put up on Friday i.e. 9.7.2010, as unlisted before the appropriate Division Bench hearing Special Appeals. "
It is in this context that the appeal has now been placed before us along with the record of writ petition and we have heard Sri Ashok Khare, learned Senior Counsel for the appellant, Sri R.C. Dwivedi, learned counsel for the respondents - petitioner No.1 and 2 and learned Standing Counsel for respondent Nos. 3 to 6.
On the request of the learned counsel for the parties and under the Rules of the Court, we are proceeding to hear and dispose of the matter finally.
Sri Ashok Khare, learned senior Counsel for the appellant advancing his submissions, contended that the respondent - petitioner claiming itself to be the valid Committee of Management, had no locus to maintain the petition and the learned single Judge committed a manifest error by proceeding to issue the directions and monitoring the case under its order by travelling beyond the scope of the writ petition. He submits that the appellant's claim could not have been examined at the instance of the respondent - petitioner and even otherwise the claim of the respondent - petitioner is still dependent on the orders passed in his favour on 26.5.2007 which holds the field. He, therefore, submits that the learned single Judge ought to have considered these 11 aspects and there is no occasion for issuing direction for either recovery of salary or any general direction to deal with such matters by the educational authorities.
Sri Khare, however, concentrated his arguments more on the issue of an ad hoc appointee initially appointed against a short term vacancy to be entitled to continue against the same vacancy once it is converted into a substantive vacancy. For this, Sri Khare explained that the Full Bench decision in the case of Smt. Pramila Mishra Vs. District Inspector of Schools and others, 1997 (2) ESC 1284, does not in any way meet the arguments that deserve to be considered herein and, therefore, the same is not obstruction for this Court to proceed to decide the said issued. Turning towards the decision in the case of Surendra Kumar Srivastava Vs. State of U.P. and others, 2007 (1) ESC 118, submits that the said Division Bench judgment does not lay down the law correctly and the same requires a reconsideration in the light of the provisions relating to regularisation introduced by the legislature, the clear intendment whereof is to continue all such appointments against the short term vacancies even if the same has been converted into substantive vacancy.
Sri R.C. Dwivedi, learned counsel for the private respondent Nos. 1 and 2, submits that the petitioner in the writ petition is the validly constituted Committee and, therefore, it has rightly brought to the notice of this Court the illegalities committed by the educational authorities in connivance with the appellant to perpetuate his unauthorized existence in the institution. Sri Dwivedi submits that it is the Committee of Management, which is the authority competent to appoint and, therefore, the aforesaid plea of locus as raised by the appellant is of no consequence. He further submits that the Special Appeal even otherwise is against the direction and, therefore, there is no occasion at this stage for the appellant to prefer this appeal. He further submits that on the facts as on record, it is axiomatic that the appellant has tried to manipulate documents in his favour with the assistance of the then District Inspector of Schools in spite of the fact that he was working as a Postal Assistant in a Post-office. It is 12 submitted that the date of resignation of the appellant from the postal department would indicate that he claimed continuance on the basis of an alleged appointment which was during the period when Sukhlal was already functioning in the institution and his approval was valid. He, therefore, submits that the very factual foundation of the claim of the appellant is without any basis. He has further submitted that the short term vacancies stood converted into a substantive vacancy on
30.6.2002 itself and, therefore, there was no occasion for any appointment to be made by the Committee of Management against the said post. Even otherwise, it is submitted that the appellant is not M.A. in Economics and, therefore, he does not hold the minimum qualification for the said post. Sri Dwivedi further submits that it is for this reason that the District Inspector of Schools started reflecting the alleged claim of the appellant as Lecturer in Sociology which was also a proper manipulation and all this was done when the appellant was continuously continuing as a Postal Assistant in the Post-office. On the issue in relation to the conversion of the post from a short term vacancy into a substantive vacancy, Sri Dwivedi submits that once the appellant claims himself to have been appointed much after 1993, the argument of Sri Khare that a question of regularisation would necessarily require a pronouncement in relation to the continuance of the short term vacancy would be an academic exercise as the appellant is not to benefit on account of any such legal semantics. Even otherwise, he submits that the decision in the case of Pramila Mishra (supra) and Surendra Kumar Srivastava (supra) answers the question raised against the appellant and the fine distinction sought to be drawn by Sri Khare does not hold water.
Learned Standing Counsel submits that the matter is still engaging the attention of the learned single Judge and, therefore, the stand of the State has been appropriately taken before the learned single Judge to resolve the controversy. He submits that this appeal being against an interim direction, the matter should be left to be decided by the learned single Judge finally. Learned Standing Counsel further points out that the Management has no authority to make any appointment on ad hoc basis once any vacancy has been converted into 13 a substantive vacancy in view of the provisions of U.P. Secondary Education Services Selection Board Act 1982.
Coming to the legal issue raised by Sri Khare as to the continuance of an appointee against a short term vacancy, the Full Bench decision in the case of Smt. Pramila Mishra, in the penultimate paragraph of the said judgment, rules as follows:-
"Summing up our conclusions in the light of the discussions in the foregoing paragraphs, we hold that a teacher appointed by the Management of the institution on ad hoc basis in a short term vacancy (leave vacancy suspension vacancy), which is subsequently converted into a substantive vacancy in accordance with the provisions of the Act, Rules and Orders, (on death, resignation, dismissal or removal of the permanent incumbent), cannot claim a right to continue. He has, however, a right to be considered along with other eligible candidates for ad hoc appointment in the substantive vacancy if he possesses the requisite qualifications. Consequent upon the view taken by us, as noted above, we hold that the decisions of this Court like Km. Meena Singh's case (supra) and other cases taking contrary view, are declared to be no longer good law.
There would be no order as to costs."
It is true that the aforesaid decision did not travel up to examining the question, which has been raised by Sri Khare. Sri Khare submits that Section 33-F of the 1982 Act clearly envisages the continuance of the appointment of a candidate against a short term vacancy inasmuch as if the said continuance is to snap, the provision for Regularisation under Section 33-F would be meaningless. He, therefore, submits that the reasoning as suggested by Sri Khare should be accepted and this vacuum upon the conversion of a short term vacancy into a substantive vacancy should be interpreted in a way that it makes the said section workable without complicating the status of such a teacher to the detriment of the institution and the students at large. In essence, Sri Khare contends that even if the vacancy has been converted into a substantive vacancy, keeping in view the provisions of Section 33-F and the arguments raised in respect thereof, the appellant and such similarly situated teachers should be allowed to continue.
14The aforesaid argument was advanced before a Division Bench of this Court in the case of Surendra Kumar Srivastava Vs. State of U.P. and others (supra) and after noticing the other decisions namely the decision in the case of Raj Kumar Verma Vs. District Inspector of Schools and others, 1999 (3) ESC 1951 and the decision in the case of Smt. Shashi Saxena, reported in 2000 (3) ESC 1990 as well as the other learned single Judge decisions, came to the conclusion that the intention of the legislature to continue such short term vacancy appointments even beyond the date of its conversion into a substantive vacancy cannot be read into the Rules. Reverting back to the decision in the case of Smt. Pramila Mishra (supra) it was held that once the vacancy has been converted into a substantive vacancy, the candidate has to bow out as the law does not permit his further continuance. The argument, which has been advanced before us, were also considered by the said Division Bench.
We agree with the submission of Sri Dwivedi that any probe into the matter further would be an academic exercise inasmuch as not only does the appellant have any case for consideration of regularisation but also on facts found the very ad-hoc appointment of the appellant is under a serious cloud.
The issue in relation to the alleged claim of appointment of the appellant need not detain us for long as the facts traversed by us and noted in the previous part of the judgment clearly points out that the appellant was in fact not entitled to be considered for the post of Lecturer in Economics if he did not hold the minimum qualification as prescribed for the post. Secondly, the fact that he was working in the postal department all through out till 2007 since 1999 remains undisputed. Further the admission of the District Inspector of Schools in his counter-affidavit in writ petition No.45066 of 2007 tells a different story altogether where the appellant is described to have been appointed against the post of Lecturer in Sociology. In such a situation and in view of the aforesaid facts, we are unable to subscribe to the submission raised by Sri Khare that the appellant has any semblance of 15 claim against the post of Lecturer in Economics. The learned single Judge was, therefore, well within his jurisdiction to proceed to deal with the matter where the writ petitions are still pending. The claim of the appellant for payment of salary, therefore, has to await the outcome of the decision of the authorities and the decision by the learned single Judge in the writ petition giving rise to this appeal and the connected writ petitions. The question as to whether the respondent - Committee has locus or not can always be canvassed before the learned single Judge when the matter is heard finally but in view of the facts found as pleaded before us it is difficult for us to say at this stage that the learned single Judge had no jurisdiction to proceed with the matter.
In view of our conclusions drawn herein above, we are not inclined to interfere with the proceedings before the learned single Judge, who shall be at liberty to proceed with the same. The appeal is, accordingly, dismissed and the order passed by this Court on 16.6.2010 stands vacated. No order as to costs.
Dt. July 12th , 2010 Irshad