ARUN KUMAR PATHAKversusDIOS AND 2 ORS.

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                   SPECIAL APPEAL No. - 384 of 2014

Arun Kumar Pathak
                                                              .....Appellant(s)
                                   Versus
Dios And 2 Ors.
                                                            .....Respondent(s)

Counsel for Appellant(s)                  :   S.P. Mishra
Counsel for Respondent(s)                 :   C.S.C., Radha Kant Ojha

Court No. - 2
                  HON'BLE ATUL SREEDHARAN, J.
                  HON'BLE SIDDHARTH NANDAN, J.

1. Heard Sri Radha Kant Ojha, learned Senior Counsel assisted by Sri
Manish Mishra and Sri Shivendu Ojha, learned counsel for the petitioner and
Sri Anshul Nigam, learned Standing Counsel for the State.

2. The present intra-court appeal has been filed against the judgment of the
learned Single Judge dated 16.12.2013 passed in Writ-A No.10476 of 1996
by way of which the writ petitioner seeking continuation on the post till
regularly selected candidate comes and joins, was rejected.

3. The brief facts of the case are that the Committee of Management had
advertised vacancy on 03.11.1992 and thereafter selection was made by the
Selection Committee, which was accepted by the Committee of Management
vide its resolution dated 25.11.1992; and the letter of appointment was
issued to the petitioner. Subsequently, the documents were transmitted to the
District Inspector of Schools, Jaunpur by the Committee of Management on
03.12.1992 and who accorded its approval on 14.08.1995. Subsequently, the
vacancy became substantive w.e.f. 01.07.1993 and the petitioner who was
working on the short term vacancy was not permitted to continue and in
view of the aforesaid, the writ petition was filed seeking the extension of the
approval.

4. In view of the aforesaid admitted facts, the petitioner claimed that he was
entitled to continue till a regularly selected candidate is sent by the
Commission.

5. Sri R.K. Ojha, learned Senior Counsel has submitted that the procedure
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which ought to be followed where short term vacancy is to be filled, has
been prescribed in U.P. Secondary Education Service Commission (Removal
of Difficulties) (Second), 1981 read with U.P. Secondary Education
(Services Selection Board) Act, 1982.

6. For ready reference, Para 2 of the Second Order is reproduced
hereinbelow:

     "2. Procedure for filling up short term vacancies. —(1) If short term
     vacancy in the post of a teacher, caused by grant of leave to him or on
     account of his suspension duly approved by the District Inspector of
     Schools or otherwise, shall be filled by the Management of the institution,
     by promotion of the permanent senior most teacher of the institution, in
     the next lower grade. The Management shall immediately inform the
     District Inspector of Schools of such promotion alongwith the particulars
     of the teacher so promoted.

     (2) Where any vacancy referred to in Clause (1) cannot be filled by
     promotion, due to non-availability of a teacher in the next lower grade in
     the institution, possessing the prescribed minimum qualifications, it shall
     be filled by direct recruitment in the manner laid down in Clause (3).

     (3) (i) The management shall intimate the vacancies to the District
     Inspector of Schools and shall also immediately notify the same on the
     notice board of the institution, requiring the candidates to apply to the
     manager of the institution alongwith the particulars given in Appendix
     ‘B’ to this Order. The selection shall be made on the basis of quality point
     marks specified in the Appendix to the Uttar Pradesh Secondary
     Education Services Commission (Removal of Difficulties) Order, 1981,
     issued with Notification No. Ma-4993/XV-7-l(79)-1981, dated July 31,
     1981, hereinafter to be referred to as the First Removal of Difficulties
     Order, 1981. The compilation of quality point marks shall be done under
     the personal supervision of the Head of Institution.

     (ii) The names and particulars of the candidate selected and also of other
     candidates and the quality point marks allotted to them shall be
     forwarded by the manager to the District Inspector of Schools for his
     prior approval.

     (iii) The District Inspector of Schools shall communicate his decision
     within seven days of the date of receipt of particulars by him failing which
     the Inspector will be deemed to have given his approval.

     (iv) On receipt of the approval of the District Inspector of Schools or, as
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     the case may be, on his failure to communicate his decision within seven
     days of the receipt of papers by him from the manager, the management
     shall appoint the selected candidate and an order of appointment shall be
     issued under the signature of the Manager.

     Explanation. — For the purpose of this paragraph—

     (i) the expression ‘senior most’ teacher means the teacher having longest
     continuous service in the institution in the Lecturer's grade or the Trained
     graduate (L.T.) grade, or Trained undergraduate (C.T.) grade or J.T.C.
     or B. T.C. grade, as the case may be;

     (ii) in relation to institutions imparting instructions to women, the
     expression ‘District Inspector of Schools’ shall mean the ‘Regional
     Inspectress of Girls Schools’;

     (iii) ‘short term vacancy’ means a vacancy which is not substantive and is
     of a limited duration.” (Emphasis added)

7. Though the learned Single Judge has taken note of the procedure which
ought to have been followed for appointment in short term vacancy, but
without specifying as to which part of the prescribed procedure, was not
found in the appointment of the petitioner, directly gave the conclusion that
the appointment made was in consistent with the said procedure and is void
ab initio and will not be entitled to hold the post or to claim salary from
State exchequer.

8. At this juncture, a specific query was made to learned Standing Counsel,
as to what procedure, which may have been infringed, in the appointment of
the petitioner, no reply was forthcoming; and on the contrary learned Senior
Counsel has pointed out that after the advertisement and the
recommendation of Selection Committee, resolution was passed by
Committee of Management and the documents were transmitted to the
District Inspector of Schools for approval. It is after the examination of the
procedure and the recommendation of the petitioner, he was appointed and
the approval was granted; and at no point of time, the said approval was
recalled.

9. In view of the aforesaid, we find that learned Single Judge has not
considered or given a finding, as to the nature of the infringement to the
procedure prescribed with the appointment on a sort term vacancy. The
second ground which learned Single Judge has considered, to non-suit the
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relief of the petitioner, was to the effect that the ad-hoc appointment made in
short term vacancy cannot continue after the vacancy has become
substantive.

10. Learned Senior Counsel has relied upon the Full Bench decision in the
case of Jahaj Pal Vs. District Inspector of Schools and another, 2019 (3)
ADJ 424 (FB) to contend that the said issue was referred to a Larger Bench
and it was answered in affirmative. For ready reference, the answer to the
reference by the Full Bench is reproduced hereinbelow:

     "208. We do not propose to expand our observations in respect of
     subsequent provisions made for substantive appointment/absorption
     namely, Sections 21-C, 33-D, 33-E, 33-F and 33-G, since those issues are
     not necessary to examine to answer the questions referred to us.

     209. In view of above discussion, we answer questions referred to this
     Bench as under:

     A. Question (a) is answered in affirmative. We hold that tenure of ad-hoc
     appointed teachers against short-term vacancies, provided in Para 3 of
     Second Order, is mandatory and will continue to hold the field till
     06.08.1993. On and after 07.08.1993, when Section 33-B was enacted
     and enforced, teachers who come within the ambit of Section 33-B and
     entitled to be considered for substantive appointment thereunder, their
     tenure would be governed by sub-section (5) and till such teachers are
     not considered by Selection Committee for substantive appointment, they
     will be entitled to continue even if any contingency, referred to in Para 3
     of Second order, has arisen on and after 07.08.1993. In other words,
     Section 33-B wherever applicable, shall prevail over Para 3 of Second
     Order, but, in cases where Section 33-B is not applicable and ad-hoc
     appointment is made against short term vacancies as per procedure
     prescribed in Second Order, in those cases only, even after 07.08.1993
     tenure provided in Para 3 shall be applicable.

     B. In view of the conclusion noted above and answer to question (a),
     question (b) is answered in negative.

     C. Question (c) is answered in affirmance.

     D. Question (d) is answered as under:

     (i) Decision in District Inspector of Schools, Kanpur Nagar and others
     Vs. Diwakar Lal and others (supra) is overruled to the extent as stated in
     para 180 to 182 above.
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     (ii) Decision in Raj Kumar Verma and others V. District Inspector of
     Schools, Saharanpur and others (supra) is overruled to the extent as
     sated in para 183-188 above.

     (iii) Decision in Smt. Shashi Saxena and others V. Deputy Director of
     Education and others (supra) is overruled to the extent as stated in para
     189 above.

     (iv) Decision in Raghuvendra Babu Misra V. District Inspector of
     Schools, Etah and others (supra) is overruled to the extent as stated in
     para 190 above.

     (v) Decision in Surendra Kumar Srivastava V. State of U.P. and others
     (supra) is overruled to the extent as stated in para 191 to 199 above.

     (vi) The Full Bench judgment in Smt. Pramila Mishra V. Deputy Director
     of Education, Jhansi Division, Jhansi and others (supra) to the extent of
     observation made in para 16 of the said judgment, are clarified in the
     manner as stated in para 206 above.

     E. We reiterate that so far as cases which are within the ambit of Section
     33-B of Act, 1982, to that extent tenure of ad-hoc teachers appointed
     against short term vacancies following procedure prescribed in Para 2 of
     Second Order shall be governed by sub-section (5) of Section 33-B. It
     shall prevail over otherwise inconsistent provision contained in Para 3 of
     Second Order. Further, for interregnum period such teachers so longs as
     are not considered by Selection Committee constituted under sub-section
     (2) of Section 33-B, for that period also such ad-hoc teachers will
     continue and will not stand terminated by taking recourse to Para 3 of
     Second Order on and after 07.08.1993."

11. In view of the aforesaid, it is no longer res-integra that an incumbent
who is appointed against the short term vacancy, provided in Para 3 of the
Second Order, will continue till a regularly selected candidate is sent by the
Commission.

12. In order to buttress his submission, he has further relied upon the
judgment of coordinate Bench of this Court in State of U.P. Thru. Secy.
Secondary Education Civil Secrett. Lko. and Others Vs. Raghvendra
Prasad Pandey and Others in Special Appeal Defective No.103 of 2023
passed on 03.03.2023 wherein it has been held, on the similar lines, that an
incumbent appointed against short term vacancy is entitled to continue till a
regularly selected candidate is sent from the Commission and merely
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                                    because short term vacancy has been converted into the substantive vacancy,
                                    it will not ipso facto amounts to removal of the incumbent appointed against
                                    a short term vacancy. He has further submitted that judgment of coordinate
                                    Bench of this Court has also been affirmed by Apex Court in State of U.P.
                                    & Ors. Vs. Raghvendra Prasad Pandey & Ors. in Special Leave to
                                    Appeal (C) No.13023 of 2023 passed on 17.07.2023.

                                    13. He has further submitted that on the contrary unless the post is converted
                                    into a substantive post and incumbent who is appointed on the short term
                                    vacancy, if otherwise is entitled, he cannot be considered for regularisation.

                                    14. In view of the aforesaid fact also, we find that admittedly the petitioner
                                    has continued till attaining his age of superannuation on 05.02.2021, and
                                    accordingly, he was also entitled to be considered under Section 33-B of the
                                    Act, 1982 for being regularized.

                                    15. In view of the aforesaid facts and circumstances, we find that the
                                    judgment dated 16.12.2013 passed by the learned Single Judge cannot be
                                    sustained and is accordingly set aside.

                                    16. With the aforesaid observation, the writ petition is allowed.

                                    March 18, 2026
                                    R.S. Tiwari
                                                                 (Siddharth Nandan,J.) (Atul Sreedharan,J.)




Digitally signed by :-
RAVI SHANKAR TIWARI
High Court of Judicature at Allahabad