Allahabad High Court
Sachchida Nand Rai vs The D.I.O.S. And Another on 13 March, 2015
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 23.04.2014 Delivered on 13.03.2015 Court No. - 34 Case :- WRIT - A No. - 8475 of 1996 Petitioner :- Sachchida Nand Rai Respondent :- The D.I.O.S. And Another Counsel for Petitioner :- Rajendra Rai Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal,J.
1. Heard Sri Ashok Khare, learned Senior Advocate, assisted by Sri Rajendra Rai, Advocate, for petitioner. On behalf of respondent no. 1, learned Standing Counsel has advanced his submissions.
2. Petitioner is seeking a mandamus commanding the respondents to pay him salary in the Grade of Lecturer. A further mandamus has been sought to the District Inspector of Schools, Azamgarh (hereinafter referred to as "DIOS") to treat the appointment of petitioner as duly approved by operation of law since he failed to communicate his approval within a period of seven days as provided in the Statute.
3. The facts in brief, as borne out from record, are as under.
4. Rashtriya Inter College, Tahabarpur, District Azamgarh (hereinafter referred to as "College") is a secondary educational institution imparting education upto Intermediate classes. It is duly recognized by Board of High Schools and Intermediate, U.P. Allahabad and is governed by the provisions of "U.P. Intermediate Education Act, 1921" (hereinafter referred to as "Act, 1921"). The College, being in grant-in-aid, the payment of salary to teaching and non-teaching staff is governed by the provisions of "U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971" (hereinafter referred to as "Act, 1971"). The recruitment of teaching staff is governed by "U.P. Secondary Education Service Selection Board Act, 1982" (hereinafter referred to as "Act, 1982").
5. The post of Principal fell vacant due to retirement of Sri Rambali Rai, erstwhile incumbent holding the office of Principal on 30.6.1994. One Sri Shesh Nath Rai, Lecturer (Mathematics), who was senior most Lecturer, became ad-hoc Principal on 1.7.1994. This caused a short term vacancy on the post of Lecturer (Mathematics) on 1.7.1994 due to ad-hoc promotion of Sri Shesh Nath Rai. The short term vacancy of Lecturer (Mathematics) was intimated to DIOS by the Management. When it received no candidate recommended for appointment on the said post and vacancy continued for more than 2 months, Committee of Management resolved in its meeting dated 6.11.1994 to take steps for making ad-hoc appointment on the post of Lecturer (Mathematics). The vacancy was advertised in two daily news papers "Santosh Varata" and "Dewal Dainik" in the issues published on 20.11.1994. The applications were invited by 5.12.1994 and the candidates were directed to appear for interview on 18.12.1994. Petitioner and other candidates appeared in interview on 18.12.1994 wherein petitioner secured highest quality point marks and was selected by Selection Committee.
6. The Management forwarded all the documents of selection to DIOS along with its letter dated 4.1.1995, received in the Office of DIOS on 9.1.1995. Since DIOS failed to communicate his decision of approval or disapproval within seven days, as per para 2 of U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as "Second Order"), approval of DIOS was deemed, whereafter the Management issued letter of appointment to petitioner on 20.1.1995. Pursuant thereto petitioner joined on 21.1.1995. The Manager, Committee of Management of College then sent several reminders to DIOS requesting for grant of financial approval for payment of salary to petitioner on the post of Lecture (Mathematics). Petitioner also made representation but having failed to receive any response, this writ petition has been filed.
7. Sri Ashok Khare, learned Senior Advocate, vehemently contended that since appointment of petitioner on ad-hoc basis as Lecturer (Mathematics) has been made after following provisions of Second Order, petitioner is entitled for payment of salary and respondent no. 1 has illegally denied the same. He also drew attention to this Court's interim order dated 12.3.1996 passed at the time when this writ petition was initially entertained which is to the following effect:
"In the meanwhile, I direct the respondents to make payment of salary of the petitioner as admissible to a teacher in the Lecturer grade and continue to pay the same till the regularly selected candidate is appointed on the recommendation made by the Commission within three weeks from the date of a certified copy of this order is produced before them or to show cause within the same time."
8. It is urged that pursuant to the aforesaid interim order, petitioner is continuously receiving salary, and, thus, it was argued that the said order be made absolute.
9. The questions up for consideration are (i) whether there actually occurred any short term vacancy of Lecturer (Mathematics) on 1.7.1994 or thereafter; and, (ii) whether ad-hoc appointment of petitioner against the aforesaid short term vacancy of Lecturer (Mathematics) was made validly and in accordance with the procedure provided in the statute or not.
10. It is admitted that erstwhile Principal of College, Sri Ram Bali Rai, after attaining the age of superannuation retired on 30.6.1994. Since Sri Rai retired on 30.6.1994, substantive vacancy of Principal occurred on 1.7.1994. There is nothing on record to show that the aforesaid substantive vacancy of Principal was requisitioned to Commission and remained vacant for a period of more than two months. The power to make ad-hoc appointment, under Section 18 of Act, 1982 could have been available to Committee of Management only when the vacancy has been informed to Commission and thereafter has remained vacant for a period of more than two months.
11. As on 7.8.1993, Section 18 of Act, 1982 read as under:
"18. Ad hoc teachers.--(1) Where the management has notified a vacancy to the Commission in accordance with the provisions of this Act, and the post of such teacher has actually remained vacant for more that two months, then, the management may appoint, by direct recruitment or promotion, a teacher on purely ad hoc basis, in the manner hereinafter provided in this section.
(2) A teacher, other than a Principal or Headmaster, who is to be appointed by direct recruitment, may be appointed on the recommendation of the Selection Committee referred to in sub-section (9).
(3) A teacher, other than a Principal or Headmaster, who is to be appointed by promotion, may in the manner prescribed be appointed by promoting the senior most teacher, possessing prescribed qualifications-
(a) in the trained graduate's grade, as a lecturer, in the case of a vacancy in the lecturer's grade;
(b) in the Certificate of Teaching grade, as teacher in the trained graduate's Grade, in the case of a vacancy in the Trained graduate's grade.
(4) A vacancy in the post of a Principal may be filled by promoting the senior most teacher in the lecturer's grade.
(5) A vacancy in the post of a Headmaster may be filled by promoting the senior most teacher in the trained graduate's grade.
(6) For the purposes of making appointments under sub-sections (2) and (3), the Management shall determine the number of vacancies, as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories of persons in accordance with the rules or orders issued by the State Government in this behalf. If in determining the vacancies it is found that persons belonging to such categories are not holding such number of posts as should have been held by them in accordance with such rules or orders, then the vacancy shall be so determined that first and every alternate vacancy shall be reserved for the persons of such categories until the required percentage of posts is held by them.
(7) After determining the number of vacancies as provided in sub-section (6) the Management shall within fifteen days from the date of the commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Board (Second Amendment) Act, 1992 intimate the vacancies to be filled by direct recruitment to the District Inspector of Schools. If the management fails to intimate such vacancies within the said period of fifteen days, the District Inspector of Schools may, after verification from such institution or form his own records, determine such vacancies himself.
(8) The District Inspector of Schools shall, on receipt of intimation of vacancies or as the case may be, after determining the vacancies under sub-section (7), invite applications, from the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations, made thereunder, for ad hoc appointment to be post of teachers, other than Principal or Headmaster in such manner as may be prescribed.
(9) (a) For each district, there shall be a Selection Committee for selection of candidates for ad hoc appointment by direct recruitment comprising-
(i) District Inspector of Schools, who shall be the Chairman;
(ii) Basic Shiksha Adhikari;
(iii) District Inspectress of Girls' Schools, and where there it no such Inspectress, the Principal of the Government Girls' Intermediate College and where there are more than one such college, the seniormost Principal of such Colleges and where there is no such College, the Principal of the Government Girls' Intermediate College as nominated by the State Government.
(b) The Selection Committee constituted under clause (a) shall make selection of the candidates, prepare a list of the selected candidates, allocate them to the institutions and recommend their names to the Management for appointment under sub-section (2).
(c) The criteria and procedure for selection of candidates and the manner of preparation of list of selected candidates and their allocation to the institutions shall be such as may be prescribed.
(10) Every appointment of an ad hoc teacher under sub-section (1) shall cease to have effect from the date when the candidate recommended by the Commission or the Board joins the post.
(11) The provisions of sections 21-D shall, mutatis mutandis, apply to the teachers who are to be appointed under the provisions of this section."
12. In the present case, however, I find that even power to make ad hoc appointment was not available with Management inasmuch vide U.P. Secondary Education Services Commission and Selection Boards (Amendment) Act, 1992 (hereinafter referred to as "Amendment Act, 1992") which received assent of President on 17.12.1992 and published in U.P. Gazette (Extraordinary) dated 6.1.1993, a large number of amendments were made in Act, 1982. Vide Section 1 (2), the State Government notified 7.8.1993, a date on which the aforesaid Amendment Act came into force. Vide Section 13 of the Amendment Act, 1992, Section 18 of Act, 1982 was omitted and Section 16 was substituted vide Section 11 as under:
"16. Appointment to be made only on the recommendation of the Board.- (1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the regulations made thereunder but subject to the provisions of Sections 21-B, 21-C, 21-D, 33, 33-A and 33-B, every appointment of a teacher, shall, on or after the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1992, be made by the Management only on the recommendation of the Board:
Provided that in respect of retrenched employees, the provisions of Section 16-EE of the Intermediate Education Act, 1921 shall mutatis mutandis apply.
Provided further that the appointment of a teacher by transfer from one Institution to another, may be made in accordance with the regulations made under clause (c) of sub-section (2) of Section 16-G of the Intermediate Education Act, 1921.
(2) Any appointment made in contravention of the provisions of sub-section (1) shall be void."
13. Section 18 stood restored vide U.P. Secondary Education Services Selection Boards (Amendment) Act, 1995 (hereinafter referred to as "Amendment Act, 1995") which came into force on 28.12.1994. Therefore, neither on the date i.e. 1.7.1994 when vacancy occurred, nor on the date i.e. 6.11.1994 when selection process for vacancy in question commenced by Management, there existed any power of appointment on ad-hoc basis conferred upon Management under Act, 1982. It is true that Section 18 again was restored with effect from 28.12.1994, therefore, technically it can be said that the date on which petitioner was actually appointed by Management, i.e. 20.1.1995, the Management possessed power for making ad-hoc appointment under Section 18, but I find that this Section 18 prescribed a different procedure for making ad-hoc appointment than what has been followed by Management in the present case. The power of making selection for ad-hoc appointment under Section 18 (7), which came into force on 28.12.1994, vested in a Selection Committee constituted as per Section 18 (8) which comprised of various educational authorities, and, it is on the recommendation of such Committee, the Management could have made ad-hoc appointment, which is not in the case in hand.
14. It would be appropriate to reproduce Section 18, as was restored in Act, 1982 vide Amendment Act, 1995, with effect from 28.12.1994, as under:
"18. Ad hoc teachers.--(1) Where the Management has notified a vacancy to the Commission in accordance with sub-section (1) of Section 10 and the post of a teacher actually remained vacant for more that two months, the management may appoint by direct recruitment or promotion a teacher on purely ad hoc basis, in the manner hereinafter provided in this section.
(2) A teacher, other than a Principal or Headmaster, who is to be appointed by direct recruitment may be appointed on the recommendation of the Selection Committee referred to in sub-section (8).
(3) A teacher other than a Principal or Headmaster, who is to be appointed by promotion, may in the prescribed manner be appointed by promoting the senior most teacher, possessing prescribed qualifications-
(a) in the trained graduate's grade, as a lecturer, in the case of a vacancy in the lecturer's grade;
(b) in the Certificate of Teaching grade, as teacher in the trained graduate's Grade, in the case of a vacancy in the Trained graduate's grade.
(4) A vacancy in the post of a Principal may be filled by promoting the senior most teacher in the lecturer's grade.
(5) A vacancy in the post of a Headmaster may be filled by promoting the senior most teacher in the trained graduate's grade.
(6) For the purposes of making appointment under sub-sections (2) and (3), the Management shall determine the number of vacancies, as also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, the Scheduled Tribes and Other Backward Classes of citizen in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and, as soon as may be thereafter, intimate the vacancies to be filled by direct recruitment to the District Inspector of Schools and if the Management fails to intimate the vacancies and the post of a teacher has actually remained vacant for more than three months, the District Inspector of Schools may, subject to such directions as may be issued by the Director and after verification from such institution or from his own record, determine such vacancies himself.
(7) The District Inspector of Schools shall, on receipt of intimation of vacancies or as the case may be, after determining the vacancies under sub-section (6), forward the same to the Deputy Director of Education in charge of Region, who shall invite applications from the persons possessing qualifications prescribed under the Intermediate Education Act, 1921 or the regulations made thereunder, for ad hoc appointment to the post of teachers other than Principal or Headmaster in such manner as may be prescribed.
(8) (a) For each region there shall be a Selection Committee for selection of candidates for ad hoc appointment by direct recruitment comprising-
(i) Regional Deputy Director of Education;
(ii) Regional Deputy Director of Education (Second);
(iii) Regional Assistant Director of Education (Basic).
The Regional Deputy Director of Education who is senior shall be the Chairman.
(b) The Selection Committee constituted under clause (a) shall make selection of the candidates, prepare a list of the selected candidates, allocate them to the Institutions and recommend their names to the Management for appointment under sub-section (2).
(c) The criteria and procedure for selection of candidates and the manner of preparation of list of selected candidates and their allocation to the Institution shall be such as may be prescribed.
(9) Every appointment of an ad hoc teacher under sub-section (1) shall cease to have effect from the date when the candidate recommended by the Commission joins the post.
(10). The provisions of Section 21-D shall mutatis mutandis apply to the teachers who are to be appointed under the provisions of this section."
15. Thus under the restored Section 18, the selection could not have been made by the management or the Committee constituted by it. Even otherwise, it cannot said that the ad-hoc appointment on the post in question could have been made with reference to Section 18 of Act, 1982 as it stood prior to its omission by Amendment Act, 1992 or as it was restored vide Amendment Act, 1995. From a perusal of Section 18 as it stood on different occasions, it is very clear that Committee of Management had no authority even to make ad-hoc appointment on the very date on which the vacancy occurred. Admittedly, the vacancy on the post of Principal occurred on 1.7.1994. Section 18 would not and could not have attracted at that time to the vacancy of Principal which occurred on 1.7.1994 unless it is shown that the vacancy was notified to the Board and had remained vacant for a period of two months. There is nothing to show or even suggest that on or before 1.7.1994, the vacancy of Principal was ever requisitioned to the Board.
16. Even if it is assumed that vacancy of Principal was informed to Commission in anticipation, i.e. before 30.6.1994 or on 1.7.1994 itself, at least the Committee of Management could not have made ad-hoc appointment before 1.9.1994. This Court as well as Apex court, while considering provisions of Act, 1982 and Removal of Difficulties Orders issued thereunder, have clearly said that any infraction thereof would make the promotion/appointment void-ab-initio. The incumbent so appointed would neither have any right to hold the post or to claim salary from the State Exchequer.
17. An appointment made without sending any requisition and in violation of Section 18 is patently illegal and void. This has been held in Prabhat Kumar Sharma & Ors. Vs. State of U.p. & Ors., AIR 1996 SC 2638. The question up for consideration was the validity of appointment made before expiry of a period of two months when a valid requisition was sent to the Board and its effect was considered by Apex Court and in paras 7 and 11, it held:
"Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees." (para 7) "It is seen that when intimation was given by the college to the Commission for allotment of the teachers, the Act envisaged that within one year the recommendation would be made by the Commission for appointment; but within two months from the date of the intimation if the allotment of the selected candidates is not made to obviate the difficulty of the Management in imparting education to the students, Section 18 gives power to the Management to make ad hoc appointments. Section 16 is mandatory, any appointment in violation thereof is void." (para 11) (emphasis added)
18. Similar is the view taken by this Court in Dr. R.K. Pandey Vs. Sukh Ram Pal Singh Sahravat, 1995 (1) ESC 74 and in para 7 this Court has held as under:
"As the appointment of Dr. Raman Kumar Pandey was made before two months from the date of vacancy could expire, it was wholly illegal, having been made in contravention of Section 18 of the Act" (para 7) (emphasis added)
19. Again a Division Bench in Anilesh Pratap Singh Vs. State of U.P., 2003 (5) ALR 674 held, in para 15 of the judgment, as under:
"Applying the principles laid down in the aforementioned cases we are of the considered opinion that the provisions of Section 18 of the 1982 Act is mandatory and unless and until the period of two months expires from the date of notifying the vacancy to the Commission, the Committee of Management does not get any power to fill up the vacancy on ad hoc basis." (para 15) (emphasis added)
20. Following Prabhat Kumar Sharma (supra), a Division Bench of this Court in Lalta Prasad Goswami Vs. State of U.P. & Ors. (Special Appeal No. 32 of 2006), decided on 12.01.2006, took the same view. The Division Bench upheld judgment of Single Judge and dismissed intra Court Appeal. The appellate judgment dated 12.1.2006 was confirmed in Special Leave Petition No. 6948 of 2006 by Apex Court vide order dated 28.4.2006 in the following terms:
"The petitioner having not been appointed as a Principal in terms of the provision under section 18 of the Act, we are of the opinion that the question of his being regularized in the same post does not arise. The Special leave petition is dismissed accordingly."
(emphasis added)
21. The decision in Prabhat Kumar Sharma & Ors. (supra), has also been followed in Shesh Mani Shukla Vs. DIOS, Deoria & Ors., JT 2009 (10) SC 309, where the Court has held that an appointment made in violation of Section 18 and Removal of Difficulties Orders is patently illegal and void ab initio and such an appointment would not confer any right upon the incumbent either to hold the post or claim salary.
22. When ad-hoc appointment of senior most Lecturer could not have been made validly on 1.7.1994 in the vacancy of Principal, the question of occurrence of a resultant short term vacancy on the post of Lecturer (Mathematics) could not have arisen. In fact, no letter of appointment/ promotion of Sri Shesh Nath Rai has been placed on record to show whether he was given charge of the office of Principal or actually appointed by promotion on ad-hoc basis as Principal. There is no pleading as to when Committee of Management passed resolution and when letter of appointment by promotion on ad-hoc basis was issued to Sri Shesh Nath Rai, appointing him on ad-hoc basis as Principal of College. The vacancy itself occurred on 1.7.1994. Sri Shesh Nath Rai assumed Office on that very date. It appears that there was no appointment but a mere handing over charge by outgoing Principal to senior most Teacher. Mere handing over charge to senior most Lecturer does not amount to appointment to the said post. Unless a person is appointed by promotion, the question of occurrence of vacancy on the post held by him cannot arise.
23. The distinction between "appointment" and "handing over charge of the office" has been considered in Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools Region- I, Meerut & others 2007 (2) ESC 987, wherein it was held:
" .. a course of mere handing over charge would not result in promotion of such senior most teacher as officiating Principal unless and until an order to this effect is passed. Taking charge of a higher office and discharge its function; and to discharge function of a higher office after promotion pursuant to an order of promotion, whether on regular or ad-hoc or officiating basis, are two different things. In the former, the incumbent continue to possess the status and position of the office in which he/she is appointed substantively but look after the duties of the higher office of which charge has been handed over in addition to her substantive duties, but it does not result in a vacancy of any kind to the post/office, the incumbent is substantively holding, but, in the later case, the incumbent vacates his substantive office and discharge function of higher office by occupying the higher post. If the promotion is officiating or ad hoc such occupancy may be temporary, but the fact remain that it result in a vacancy in the lower post, may be short term and temporary. ... Petitioner-Appellant was given only current duty charge in addition to her substantive post and this arrangement did not result in promotion to the post of which, the current duty charge was handed over. In State of Haryana Vs. S.M. Sharma AIR 1993 SC 2273, the Chief Administrator of the Board entrusted Sri S.M. Sharma, with the current duty charge of the post of Executive Engineer, which was subsequently withdrawn as a result of his transfer to other post. He challenged the said order stating that it amounts to reversion. The Apex Court held that Sri Sharma was only having current duty charge of the Executive Engineer and was never promoted or appointed to the aforesaid post and therefore, on transfer to some other post, it did not result in reversion from the post of Executive Engineer.
A somewhat similar situation occurred in Ramakant Shripad Sinai Advalpalkar Vs. Union of India and others, 1991 Supple (2) SCC 733 and the Apex Court observed as under:-
"The distinction between a situation where a government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion."
(emphasis added)
24. In the present case, it is not shown that Sri Shesh Nath Rai was ever appointed by Committee of Management by promotion on ad-hoc basis to the post of Principal. The mere assumption of office and function as Principal since 1.7.1994 cannot be deemed to be an ad-hoc promotion on the said post. It is patently erroneous and misconceived. That being so, there did not occur any short term or otherwise vacancy on the post of Lecturer (Mathematics).
25. There is one more aspect which is very interesting to be noticed hereat. Annexure-7 to the writ petition, which is letter dated 5.12.1995, sent by Manager, Committee of Management of College shows that Sri Shesh Nath Rai was appointed as ad-hoc Principal on 30.6.1994. The relevant extract of the letter reads as under:
^^Jh lfPpnkuUn jk; dh fu;qfDr Jh 'ks"k ukFk jk; LFkkbZ izoDrk xf.kr dh rnFkZ :i ls iz/kkukpk;Z ij in fnukad 30&6&94 dks fu;qfDr ds QyLo:i fjDr in ij gqbZ gS^^ English Translation by the Court:
"Shri Sachchidanand Rai has been appointed to the post fallen vacant due to appointment of Shri Sheshnath Rai, permanent lecturer in Mathematics, on the post of principal on adhoc basis on 30.06.1994"
26. 30.6.1994 was the last working day of erstwhile Principal Sri Rambali Rai, hence, question of ad-hoc appointment of Sri Shesh Nath Rai on 30.6.1994 would not arise.
27. Same thing has been repeated in Annexure 8 of the writ petition which is representation of petitioner, where he has said as under:
^^fo|ky; ds LFkkbZ izoDrk xf.kr Jh 'ks"k ukFk jk; dh izksUufr rnFkZ :i ls fnukad 30&6&94 ls iz/kkukpk;Z in ij gksus ds dkj.k fjDr in ij izkFkhZ dh fu;qfDr fnukad 20&1&95 dks gqbZ Fkh^^ English Translation by the Court:
"The applicant was appointed on 20.01.1995 to the vacant post arising from promotion of Shri Sheshnath Rai, permanent lecturer in Mathematics at the college, on the post of principal on adhoc basis on 30.06.1994."
28. What appears to this Court is that on last working day, i.e., 30.6.1994, the outgoing Principal handed over charge of his office to the senior most Lecturer. Committee of Management treated it as an ad-hoc appointment by promotion on the post of Principal and claimed that a short term vacancy on the post of Lecturer (Mathematics) has occurred on the following date, i.e., 1.7.1994. This assumption is patently erroneous and illegal. Since in the eyes of law, no short term vacancy on the post of Lecturer (Mathematics) had occurred throughout, it cannot be said that Management could have made any ad-hoc appointment on the said post and that being so, the claim of petitioner that he has been validly appointed as ad-hoc Lecturer in the College and is entitled for salary is wholly unsustainable in law.
29. The last submission is that pursuant to interim order passed by this Court, petitioner is continuously receiving salary for the last almost one and half decade and if this writ petition is dismissed now, that would cause serious hardship and prejudice to petitioner. Therefore, in equity also, petitioner's appointment made on ad-hoc basis be deemed to be valid with all consequential benefits and this Court may take a sympathetic and considerate view in the matter.
30. I am afraid to accept this desperate argument which is more in the nature of mercy. A sympathy and compassion in the teeth of law is neither permissible nor a Court of law, which is under obligation to maintain rule of law, should do something, which will have the effect of a direct infringement of law.
31. This contention can be examined from two angles. Firstly, long continuance pursuant to an interim order does not confer any benefit, and, secondly, a sympathetic view, which is directly in the teeth of statute, is wholly illegal and unconstitutional.
32. Mere fact that an interim order was passed and incumbent was continuing on the post, that would not confer any benefit or cause of action to petitioner if ultimately he does not succeed in the writ petition.
33. A Division Bench of this Court presided by Hon'ble C.K. Prasad, C.J. (as His Lordship then was), while rejecting claim of appellant to continue in service, on the basis of long continuance, pursuant to an interim order passed by this Court, in Special Appeal No. 1818 of 2009 (Farhat Jahan Vs. State of U.P. and others) decided on 26.11.2009, observed:
"She had continued in service by virtue of an interim order passed by this Court. This continuance of the petitioner during the pendency of the writ petition is a litigious continuance in service, which will not enure to her benefit. The Division Bench of this Court had the occasion to consider this question in Special Appeal No.926 of 2002 (Sunil Kumar Vs. The Regional Assistant Director of Education (Basic), 12 Circle, Moradabad), which reads as follows "Having appreciated the rival submission, we do not find any substance in the submission of Mr. Saxena and the decision relied on shall have no bearing in the facts of the present case. As stated earlier, the petitioner was appointed by order dated 22.4.1987 on temporary basis and the order of appointment clearly indicated that his service can be terminated without any notice or prior information. His service was terminated in exercise of power under Rule 3 of the Rules 1975 by order dated 5.9.1988. Petitioner has, nowhere, averred as to the process of appointment, which was followed while giving him temporary appointment. True it is that by virtue of interim orders passed by this court, he continued in service but such continuance is nothing but a "litigious employment". Once it is held so, mere continuance in service for a long period would not clothe him with any right. The view, which we have taken, finds support from the judgement of the Supreme Court in the case of Umadevi (supra) as also Surindra Prasad Tiwari (supra)."
In view of aforesaid, we are of the opinion that the litigious continuance in service shall not enure to her benefit."
(emphasis added)
34. It is well established that act of court shall prejudice none. The service rendered pursuant to an interim order would not give any benefit to petitioner. This issue has been considered by a Division Bench of this Court (in which I was also a member) in Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools, Region-1, Meerut and others, 2007(2) ESC 987 and the Court held as under:
"An interim order passed by the Court merges with the final order and, therefore, the result brought by dismissal of the writ petition is that the interim order becomes non est. A Division Bench of this court in Shyam Lal Vs. State of U.P. AIR 1968 Allahabad 139, while considering the effect of dismissal of writ petition on interim order passed by the court has laid down as under:
"It is well settled that an interim order merges in the final order and does not exist by itself. So the result brought about by an interim order would be non est in the eye of law if the final order grants no relief. The grant of interim relief when the petition was ultimately dismissed could not have the effect to postponing implementation of the order of compulsory retirement. It must in the circumstances take effect as if there was no interim order."
35. The same principle has been reiterated in the following cases:
(A) AIR 1975 Allahabad 280 Sri Ram Charan Das V. Pyare Lal.
"In Shyam Lal Vs. State of U.P., AIR 1968 All 139 a Bench of this Court has held that orders of stay of injunction are interim orders that merge in final orders passed in the proceedings. The result brought about by the interim order becomes non est in the eye of law in final order grants no relief. In this view of the matter it seems to us that the interim stay became non est and lost all the efficacy, the commissioner having upheld the permission which became effective from the date it was passed."
(B) 1986 (4) LCD 196 Shyam Manohar Shukla V. State of U.P. "It is settled law that an interim order passed in a case which is ultimately dismissed is to be treated as not having been passed at all (see Shyam Lal V. State of Uttar Pradesh) Lucknow, AIR 1968 Allahabad 139 and Sri Ram Charan Das v. Pyare Lal, AIR 1975 Allahabad 280 (DB)."
(C) AIR 1994 Allahabad 273 Kanoria Chemicals & Industries Ltd. v. U.P. State Electricity Board.
"After the dismissal of the writ petitions wherein notification dated 21.4.1990 was stayed, the result brought about by the interim orders staying the notification, became non est in the eye of law and lost all its efficacy and the notification became effective from the beginning."
36. Recently also in Raghvendra Rao etc. Vs. State of Karnataka and others, JT 2009 (2) SC 520 the Apex Court has observed:
"It is now a well-settled principle of law that merely because an employee had continued under cover of an order of Court, he would not be entitled to any right to be absorbed or made permanent in the service. ............."
37. So far as the service rendered by petitioner for long time is concerned, it is well settled that long continuance, if the appointment has not been made strictly in accordance with law, would not confer any right upon incumbent to hold the post. The Apex Court in Shesh Mani Shukla (supra) held:
"It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State."
38. So far as question of taking sympathetic and considerate view in the matter, the maxim dura lex, sed lex, which means "law is hard but it is the law", in my view, aptly applies in the cases where incumbents have come to an office, not following procedure consistent with constitutional requirement of Article 16 (1) but otherwise, and thereafter claim equitable and other consideration for sustaining their entry and occupancy of the office for all times to come.
39. In Raghunath Rai Bareja and another Vs. Punjab National Bank and others, 2007(2) SCC 230 it is said:
"When there is a conflict between law and equity, it is the law which has to prevail . . . . . Equity can only supplement the law, but it cannot supplant or override it."
40. It has been followed in State of Uttaranchal and Anr. Vs. Rajendra Singh Kandwal 2011 (5) AWC 5075 (SC).
41. The Constitution Bench in Secretary, State of Karnataka Vs. Uma Devi 2006 (4) SCC 1 has held that such illegal appointments cannot be asked to be regularized as that would amount to violating the fundamental right of equal opportunity of employment to those who have been denied such opportunity. The Constitution Bench decision has overruled dozens of earlier decisions taking a view otherwise so as to show sympathy in favour of those who got or managed their appointments illegally, i.e., without complying the requirement of equal opportunity of employment to all others, came to the office on account of their individual resources and managing continuance for quite some time or long time, claim a substantive right on the basis of long tenure. In other words, the incumbent comes to the office by virtue of a pick and choose method, usurps office by back door or whatever other term one may use, despite obviously it being short of compliance of requirement of Article 16 (1) of the Constitution, but having maintained such benefit to continue for quite some time, which normally has the support of appointing authorities also, the beneficiary comes to claim a sense of sympathy on the basis of such long continued usurpation of office. In other words, a violator of law claims a substantive right for having violated law continuously for quite a long time with regard to a public office.
42. In the matter of appointment there is no principle of adverse possession but a plea somewhat similar thereto many a times is raised that since he has continued to work for quite long time, now he should be allowed to stay in the office for rest of tenure otherwise his family would suffer. A situation is created where sympathy is sought not in favour of victims, i.e., those who were denied right of equal opportunity of employment but in favour of those who have violated law, contravened it, breached it with impunity, and, have continued to do so for quite some time, and now, boldly and blatantly claiming a kind of right to retain such benefit of breach of law for all times to come and for that purpose various pleas in the name of equity, sympathy, compassion etc. are raised and pleaded and many a times find favour in the Courts of Law. Fortunately, the Constitution Bench, after having a retrospect of all earlier authorities, took a clear stand against such kind of favour shown to those who have come in public office, by denying right of equal opportunity to others. The Court in unequivocal terms observed that any favour shown to such violators would be a misplaced sympathy.
43. In view of the discussion made hereinabove, I have no hesitation in holding that petitioner is not entitled for any relief, as sought for.
44. The writ petition thus fails and is dismissed accordingly.
45. There shall be no order as to costs.
Dt. 13.03.2015 PS