Supreme Court of India
RANA PRATAP SINGHversusVITTIYA EVAM LEKHA ADHIKARI, DISTRICT BASIC EDUCATION OFFICER AND ORS.
- Citation
- 2019 INSC 1408
- Decided
- 18 December 2019
- Disposal
- Appeal(s) allowed
Holding
The appellant’s appointment was valid and, despite subsequent orders, his right to continue as Junior Accounts Clerk could not be terminated merely because the senior officer’s promotion was cancelled or his own writ petition was dismissed; the 01‑01‑1993 order was a reinstatement, not a limited re‑appointment.
Summary
The appellant was appointed Junior Accounts Clerk on 21‑12‑1990 after a selection process conducted by a committee under the 1985 Rules and after calling names from the Employment Exchange. The promotion of a senior officer (Shiv Kumar Rai) was later cancelled, leading to the termination of the appellant's appointment, which he challenged by writ petition. The High Court stayed the cancellation, reinstated the appellant, and later dismissed his petition on procedural grounds, while the senior officer's petition was dismissed as infructuous due to efflux of time. The Division Bench held that the appellant’s appointment ended with the senior officer’s dismissal, but the Supreme Court found that the appointment was valid, the re‑appointment order was essentially a reinstatement, and the senior officer’s dismissal did not create a vacancy. Consequently, the appellant’s right to continue in service was upheld and the appeal was allowed.
Issues considered
- Whether the appointment of the appellant as Junior Accounts Clerk on 21‑12‑1990 was made in accordance with the law.
- Whether the dismissal of the appellant’s writ petition on 04‑12‑1992 terminated his right to continue in post.
- Whether the re‑appointment order dated 01‑01‑1993, limited to 27‑02‑1993, ended the appellant’s right to remain in service.
- Whether the dismissal of Shiv Kumar Rai’s writ petition on 15‑09‑2001 terminated the vacancy on the Junior Accounts Clerk post, thereby affecting the appellant’s tenure.
Subjects
service lawappointment validityselection committeeemployment exchangereversionwrit petitionefflux of timereinstatementvacancypromotion
Judgment
[2019] 15 S.C.R. 177 177
RANA PRATAP SINGH A
v.
VITTIYA EVAM LEKHA ADHIKARI,
DISTRICT BASIC EDUCATION OFFICER AND ORS.
(Civil Appeal No. 9220 of 2019) B
DECEMBER 18, 2019
[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
Service Law – Appointment – Validity of – One 'S' was working
as Junior Accounts Clerk - Later, he was promoted as Assistant C
Accountant giving rise to a vacancy in the post of Junior Accounts
Clerk – Thereafter, the Selection Committee interviewed the
candidates for the post of Junior Accounts Clerk – Appellant was
selected by respondent no. 1 for the said post – However, by order
dated 11.11.1992, the promotion of 'S' as Assistant Accountant was
D
cancelled by respondent no. 1 – Consequent to which, the
appointment of the appellant as Junior Accounts Clerk was
terminated – Both 'S' and appellant filed writ petitions against the
order dated 11.11.1992 – In the writ petition filed by 'S', High Court
stayed the order dated 11.11.1992 for 3 months – However, the writ
petition filed by the appellant was dismissed – Pursuant to the order E
of the High Court in writ petition of 'S', respondent no. 1 stayed the
cancellation of promotion of 'S' and re-appointed appellant till
27.02.1993 – On 27.02.1993, appellant was asked to hand over
the charge of his post to another person – Appellant filed writ petition
against the order dated 27.02.1993 and the said order was stayed
F
by the High Court - Appellant was re-appointed – 'S' by virtue of the
interim order passed in his writ petition attained the age of super-
annuation – The writ petition filed 'S' became infructuous due to
efflux of time and was dismissed – Meanwhile, appellant also
continued working and was even promoted – On 02.02.2012, the
writ petition filed by the appellant was dismissed and the Single G
Judge of High Court held that appointment of the appellant was
made without following the procedure of law and his appointment
was limited till 27.02.1993 – Division Bench of High Court further
held that since writ petition filed by 'S' was dismissed, his reversion
had attained finality and consequently there was no vacancy on the
H
177
178 SUPREME COURT REPORTS [2019] 15 S.C.R.
A post of Junior Accounts Clerk hence, the appellant had no right to
continue on his post – On appeal, held : The appointment of the
appellant was made by Selection Committee Constituted under 1985
rules after calling the names from Employment Exchange, the
appointment was not made in disregard to the statutory rules –
Further, no challange was made to the appointment by any candidate
B
nor appointing authority had questioned the appointment – As far
as appointment of appellant till 27.02.1993 is concerned, the order
dated 01.01.1993 refers it as an order of re-appointment but in
essence it was an order reinstatement of appellant – The Single Judge
of the High Court lost sight of the fact that the date 27.02.1993 was
C mentioned in letter dated 01.01.1993 because of the fact that interim
order of 'S' was continued after 3 months, the appellant also had
become entitled to continue – Insofar as dismissal on merits, it was
dismissed as infructuous by efflux of time without determination of
any issue – Also, when 'S' never reverted on his post and continued
on his promotional post till his retirement, it was a too technical view
D
that vacancy of his original post came to an end by dismissal of writ
petition – The dismissal of the writ petition as infructuous cannot
altogether wipe out the right of the appellant to continue on his post
of Junior Accounts Clerk on which 'S' never returned in fact –
Therefore, Judgment of the Single Judge and Divison Bench of High
E Court set aside.
Allowing the appeal, the Court
HELD: Whether appointment of appellant on the post of
Junior Accounts Clerk on 21.12.1990 was not validly made in
accordance with law?
F
1. There is no denial on the part of the respondents that the
names were called from the Employment Exchange by the
appointing authority before conducting the selection and the
Employment Exchange had forwarded the twelve names which
also included the name of appellant. The appointment of the
G appellant having been made by Selection Committee constituted
under Statutory Rules after calling the names from Employment
Exchange, the appointment cannot be said to have been made in
disregard to the Statutory Rules. [Para 23][188-C-D]
H
RANA PRATAP SINGH v. VITTIYA EVAM LEKHA ADHIKARI, 179
DIST. BASIC EDUCATION OFFICER
2. More so in the present case, there was no challenge to A
the appointment by any candidate nor any proceedings were
initiated by the appointing authority questioning the appointment
of the appellant. The first writ petition was filed by the appellant
when consequent to reversion of 'S' on the post of Junior Accounts
Clerk on which appellant was working, his services were
B
terminated by order dated 11.11.1992. [Para 24][188-D-E]
3. Thus, the appointment of the appellant cannot be said to
have been made in disregard to the Rules and further, no
proceedings were initiated either by any candidate or by appointing
authority questioning the appointment of the appellant. [Para
25][188-F] C
Whether by dismissal of Writ Petition on 04.12.1992 filed
against the consequential order dated 11.11.1992 issued to the
petitioner, appellant's right to continue on his post shall come to
an end?
D
4. A writ petition was filed by the appellant challenging the
Order dated 11.11.1992. On 11.11.1992, two orders were passed
by respondent No.1. By first order dated 11.11.1992
appointment(promotion) of 'S' was cancelled and he was directed
to take charge of his original post of Junior Accounts Clerk.
[Para 27][189-A-B] E
5. Both 'S' and petitioner have filed separate writ petitions
challenging order dated 11.11.1992. Thus on 04.12.1992, when
the writ petition of the appellant challenging the order dated
11.11.1992 came for consideration, the Court was not informed
that Order dated 11.11.1992 with regard to 'S' has already been F
stayed by the High Court. When the Main Order dated 11.11.1992
with regard to 'S' was stayed, the consequential order issued with
regard to petitioner shall automatically become inoperative. The
dismissal of writ petition on 04.12.1992 due to above reason shall
not adversely affect the petitioner's right to continue on the basis G
of his appointment dated 21.12.1990. In view of the interim order
passed in writ petition on 27.11.1992, the order impugned in the
writ petition of the appellant was not operative, hence, dismissal
of writ petition on 04.12.1992 shall not have that adverse effect
H
180 SUPREME COURT REPORTS [2019] 15 S.C.R.
A as has been noted by the Single Judge in the impugned judgment
dated 02.02.2012. [Paras 28 and 29][189-G; 190-C-D]
Whether re-appointment of the appellant dated 01.01.1993
been limited only till 27.02.1993 after afflux of the said period,
appellant's right to continue on the post shall come to an end?
B 6. By continuance of interim order in favour of 'S'
automatically the order in favour of the appellant shall continue
and there was no question of his appointment being come to an
end. [Para 33][192-D]
7. Thus, letter dated 01.01.1993 cannot be said to be re-
C appointment of the appellant. The order was in essence re-
instatement of the appellant in consequence of his earlier
appointment dated 21.12.1990. From the materials brought on
record, it is also clear that the Education Authorities has also
treated the appointment of appellant continuing from 22.12.1990,
D which is clear from order of approval of increment dated
30.12.2000, Annexure RA-6 and subsequent order issued by
Finance and Accounts Officer where date of appointment of
appellant has been mentioned as 21.12.1990. [Para 36][192-G-H]
Whether by dismissal of writ petition by 'S' on 15.09.2001
E shall result in terminating the vacancy on the post of Junior
Accounts Clerk on which appellant was appointed and was
working?
8. It is submitted that writ petition of 'S' has been dismissed
as infructuous by efflux of time which is clearly mentioned in the
F order dismissing the writ petition. The writ petition of 'S' was not
dismissed on merits. The writ petition was dismissed as
infructuous by efflux of time without determination of any issue.
'S' continued to work on his promotional post till he retired on
29.02.2008. When 'S' did not revert on post of Junior Accounts
Clerk and continued to work till his retirement, the dismissal of
G writ petition as infructuous cannot altogether wipe out the right
of the appellant to continue on his post of Junior Accounts Clerk
on which post 'S' never returned in fact. [Para 38][193-C-F]
H
RANA PRATAP SINGH v. VITTIYA EVAM LEKHA ADHIKARI, 181
DIST. BASIC EDUCATION OFFICER
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9220 A
of 2019.
From the Judgment and Order dated 06.02.2018 of the High
Court of Judicature at Allahabad in Special Appeal No. 432 of 2012.
C.U. Singh, Sr. Adv., Rohan Thawani, Ms. Pooja Dhar, Ashish
Kumar Ojha, Iqram Govind Singh, Ms. Gunjan Ahuja, Advs. for the B
Appellant.
Sushil K. Tekriwal, Dr. Mamta Tekriwal, Venkateswara Rao
Anumolu, Advs. for the Respondents.
The Judgment of the Court was delivered by C
ASHOK BHUSHAN, J.
1. This appeal has been filed against the Division Bench judgment
of Allahabad High Court dated 06.02.2018 in Special Appeal No.432 of
2012 by which judgment the Special Appeal filed by the appellant
questioning the judgment of learned Single Judge dated 02.02.2012 in D
writ petition No.15408 of 1993 has been dismissed.
2. Brief facts of the case necessary to be noted for deciding this
appeal are: -
One Shiv Kumar Rai was working as Junior Accounts Clerk in
the office of Finance and Accounts Officer, Office of District E
Basic Education Officer, respondent No.1. Shri Shiv Kumar Rai
was promoted as Assistant Accountant giving rise to a vacancy in
the post of Junior Accounts Clerk. The respondent No.1 called
for names from the Employment Exchange, Azamgarh. The
Employment Exchange forwarded the list of twelve candidates to F
the respondent No.1. The Selection Committee was constituted
in accordance with the Statutory Rules namely The Subordinate
Offices Ministerial Staff (Direct Recruitment) Rules, 1985, to hold
the selection on the vacant post of Junior Accounts Clerk. The
name of petitioner was also included in the list of twelve candidates
forwarded by Employment Exchange, Azamgarh. The Selection G
Committee interviewed the candidates on 16.08.1989 but the said
selection was cancelled by the respondent No.1 and fresh process
was initiated for holding selection. An advertisement was published
by District Basic Education Officer, Azamgarh in Daily News
Paper “Dainik Devvrat” dated 05.12.1990 calling for application H
182 SUPREME COURT REPORTS [2019] 15 S.C.R.
A from candidates for a vacant post of Junior Accounts Clerk.
Candidates were called to appear for interview on 20.12.1990.
By letter dated 07.12.1990, the respondent No.1 wrote to District
Employment Officer, Azamgarh requesting the Employment
Officer to intimate at his level the twelve candidates whose names
were forwarded for the vacant post of Junior Accounts Clerk to
B
appear for interview on 20.12.1990. Letter also mentioned that
the twelve candidates who were forwarded by Employment
Exchange have also been intimated by respondent No.1 to present
themselves before Selection Committee on 20.12.1990. On
20.12.1990, petitioner along with other candidates appeared before
C the Selection Committee. The petitioner was selected by the
Selection Committee and recommended for appointment on the
post of Junior Accounts Clerk. Respondent No.1 issued an
appointment Order dated 21.12.1990 to the petitioner appointing
him on the post of Junior Accounts Clerk. Order futher mentioned
that the appointment is temporary. In pursuance of appointment
D
Order dated 21.12.1990, petitioner joined on 22.12.1990. By Order
dated 11.11.1992, the promotion of Shiv Kumar Rai as Assistant
Accountant was cancelled by respondent No.1. On same day,
consequential letter dated 11.11.1992 was also issued terminating
the appointment of the petitioner due to Shiv Kumar Rai having
E been reverted to his Original post of Junior Accounts Clerk. Shiv
Kumar Rai filed a W.P.No.44384 of 1992 challenging order dated
11.11.1992. Learned Single Judge of the High Court vide order
dated 27.11.1992 stayed the Order dated 11.11.1992 for a period
of three months. The petitioner also filed a writ petition challenging
the order dated 11.11.1992. Petitioner being not aware of the order
F
dated 27.11.1992 could not point out to the High Court about the
stay of the Order of reversion passed of Shiv Kumar Rai. Hence,
his writ petition was dismissed by the High Court on 04.12.1992.
While dismissing the writ petition, High Court also observed that
petitioner’s claim may be considered on the post of Junior Accounts
G Clerk which fell due to promotion of Ram Sinhasan at whose
instance the promotion of Shiv Kumar Rai was cancelled.
Respondent No.1 issued order dated 01.01.1993, consequent to
passing of interim order of the High Court staying the reversion
order dated 11.11.1992 of Shiv Kumar Rai re-appointing the
petitioner on the post of Junior Accounts Clerk till 27.02.1993.
H
RANA PRATAP SINGH v. VITTIYA EVAM LEKHA ADHIKARI, 183
DIST. BASIC EDUCATION OFFICER [ASHOK BHUSHAN,J.]
The interim order passed in writ petition No.44384 of 1992 of A
Shiv Kumar Rai was continued by order dated 09.04.1993 which
directed:
“The interim order dated 27.11.1992 is continued and the
petitioner will be paid salary regularly.”
3. An order dated 27.02.1993 was issued by respondent No.1 B
informing that since petitioner’s re-appointment was on the post of Junior
Accounts Clerk was upto 27.02.1993, hence he should hand over his
charge in the afternoon of 27.02.1993 to one Shri Mohd. Vasama Ansari.
4. Writ Petition No.15408 of 1993 was filed by the Petitioner
challenging the letter dated 27.02.1993 which letter was stayed by the C
High Court on 29.04.1993 by passing following order:-
“Until further order the operation of the impugned order dated
27.02.1993 shall remain stayed.”
5. The re-appointment of petitioner was continued by the letter D
dated 18.05.1993. Shiv Kumar Rai by virtue of the interim order passed
in his writ petition continued to work as Assistant Accountant till he
attained the age of Super-Annuation on 29.02.2008. W.P.No.44384 of
1992 filed by Shiv Kumar Rai became infructuous due to efflux of time
and was dismissed on 15.09.2001. The order dated 15.09.2001
dismissing the writ petition of Shiv Kumar Rai is as follows:- E
“15.09.2001
Hon’ble R.P.Misra,J.
This writ petition has been listed in the group of such cases,
which may have become infructuous due to efflux of time. No F
one turns up to press it either.
The writ petition is, accordingly, dismissed but without cost.
Sd/-”
G
6. Shiv Kumar Rai having been promoted as Assistant Accountant,
he never returned to his original post till superannuation. The petitioner
continued to work on the post of Junior Accounts Clerk. The petitioner
was given first promotional increment in the service after completion of
fourteen years on 22.12.2004. Second promotional upgradation was given
H
184 SUPREME COURT REPORTS [2019] 15 S.C.R.
A after completion of eighteen years of service on 22.12.2008 and order
dated 13.01.2011 was issued by respondent No.1 in the above regard.
On 02.02.2012, the writ petition of petitioner being W.P.No.15408 of
1993 was dismissed.
7. Learned Counsel for the appellant submits that learned Single
B Judge while dismissing the writ petition on 02.02.2012 has made
observation that appointment of the appellant was made without following
the procedure known to law which observation was neither correct nor
was based on material on record. Learned counsel for the appellant
submits that his appointment was made by duly constituted Selection
Committee as per 1985 Rules and after calling names from the
C Employment Exchange, Azamgarh, who forwarded twelve names, which
included name of the appellant. There was no challenge to the appointment
of the appellant at any point of time nor appointment was questioned by
anyone.
8. The writ petition was filed challenging the consequential order
D dated 11.11.1992 which was issued in consequence of cancelling the
promotion of Shiv Kumar Rai on the post of Assistant Accountant by
which he was reverted on the post of Junior Accounts Clerk on which
appellant was appointed. The issue in the writ petition was entirely
different and was only with regard to correctness of the Order dated
E 11.11.1992.
9. Learned counsel further submits that learned Single Judge erred
in observing that on dismissal of first writ petition of the appellant on
04.12.1992, his removal became final and subsequent appointment did
not survive for consideration before the Court.
F 10. It is submitted that the writ petition dismissed on 04.12.1992
was against the order dated 11.11.1992 which was a consequential order
and the main order dated 11.11.1992 passed with respect to Shiv Kumar
Rai having been stayed by the High Court on 27.11.1992, the consequential
order with regard to appellant had no meaning, hence, the dismissal of
G the said writ petition on 04.12.1992 shall not prejudice the claim of the
appellant.
11. It is further submitted that observation of learned Single Judge
that subsequent appointment of the appellant dated 01.01.1993 being
limited till 27.03.1993, thereafter appellant cannot continue is also
erroneous. The Order dated 01.01.1993 although mentioned
H
RANA PRATAP SINGH v. VITTIYA EVAM LEKHA ADHIKARI, 185
DIST. BASIC EDUCATION OFFICER [ASHOK BHUSHAN,J.]
re-appointment but in essence the order was only of reinstatement of A
the appellant on the post in pursuance of his earlier appointment dated
21.12.1992. There being no fresh process of appointment, there was no
question of any re-appointment. The learned Single Judge also has not
correctly understood the import of the Order dated 01.01.1993.
12. The Division Bench based its judgment only on the ground B
that writ petition filed by Shiv Kumar Rai against the order dated
11.11.1993 having been dismissed on 15.09.2001, his reversion shall attain
finality, Consequently there will be no vacancy on the post of Junior
Accounts Clerk, hence, the appellant shall have no right to continue on
his post. The Division Bench did not consider the fact that Writ petition
filed by Shiv Kumar Rai was dismissed as infructuous by efflux of time C
and the dismissal of writ petition was not on merits. It is a fact that Shiv
Kumar Rai continued to work on his post of Assistant Accountant and
retired on 29.02.2008 by holding the said promotional post. Shiv Kumar
Rai never came back on his post of Junior Accounts Clerk, hence,
appellant’s continuance on post of Junior Accounts Clerk cannot be taken D
away by dismissal of writ petition of Shiv Kumar Rai.
13. Learned counsel for the appellant submitted that appellant
has been in service for twenty seven years. In the meantime, he received
promotional Pay Scale of Assistant Accountant, Selection Grade. On
the day when writ petition was dismissed by learned Single Judge, he E
was working in the grade of Assistant Accountant. The appellant was
also confirmed on his post of Junior Accountant w.e.f. 22.12.1993 and
Assistant Accountant w.e.f. 22.12.2007 by order dated 01.08.2012. All
these facts were brought on record by means of rejoinder affidavit filed
in Special Appeal which had not been taken into consideration by Division
Bench. F
14. It is further submitted that in the year 2013 and thereafter
complaints were filed against the appellant which were duly enquired by
and reports were submitted to Collector on 27.04.2017 that complaints
were without any basis. Further, on another complaint, report was
submitted by Finance and Accounts Officer, Primary Education, G
Azamgarh dated 02.02.2017 that appointment of the appellant was made
after following due procedure of the law and the appellant’s continuance
on his post was valid and in accordance with law.
15. Against the judgment of learned Single Judge dated 02.02.2012
and Special Appeal No.432 of 2012 was filed by the petitioner. By an H
186 SUPREME COURT REPORTS [2019] 15 S.C.R.
A order dated 01.08.2012, the petitioner’s services were confirmed on the
post of Junior Accounts Clerk w.e.f. 22.12.1993 and on the post of
Assistant Accountant w.e.f. 22.12.2007. The Special Appeal filed by
the petitioner was dismissed by Division Bench on 06.02.2018, aggrieved
against which judgment this appeal has been filed.
B 16. Learned counsel for the respondents refuting the submission
of the learned counsel for the petitioner contends that the petitioner’s
appointment was made against the procedure prescribed by law. No
advertisement was issued on 05.12.1990 in the Daily News Paper ‘Dainik
Devvrat’ as claimed by the petitioner. The writ petition was dismissed
C on 02.02.2012 and there being no interim order in the special Appeal,
how he continued and received salary after 02.02.2012, is not explained.
The petitioner concealed his dismissal of writ petition from the Department
and is not entitled for any relief from this Court. There has been several
complaints received against the petitioner with regard to which enquiries
were held and the respondent No.1 had taken action against the petitioner.
D
17. We have considered the submissions of learned counsel for
the parties and perused the record.
18. From submissions of learned counsel for the parties and
materials on record, following points arise for consideration in this appeal:-
E I) Whether appointment of appellant on the post of Junior
Accounts Clerk on 21.12.1990 was not validly made in accordance with
law?
II) Whether by dismissal of Writ Petition No.Nil of 1992 on
04.12.1992 filed against the consequential order dated 11.11.1992 issued
F to the petitioner, appellant’s right to continue on his post shall come to an
end?
III) Whether re-appointment of the appellant dated 01.01.1993
been limited only till 27.02.1993 after efflux of the said period appellant’s
right to continue on the post shall come to an end?
G
IV) Whether by dismissal of W.P.No.44384 of 1992 - Shiv Kumar
Rai versus Director Basic Education and others on 15.09.2001 shall
result in terminating the vacancy on the post of Junior Accounts Clerk
on which appellant was appointed and was working?
H
RANA PRATAP SINGH v. VITTIYA EVAM LEKHA ADHIKARI, 187
DIST. BASIC EDUCATION OFFICER [ASHOK BHUSHAN,J.]
I) Whether appointment of appellant on the post of Junior A
Accounts Clerk on 21.12.1990 was not validly made in accordance
with law?
19. The copy of the appointment order of the appellant has been
placed on record as Annexure- P1, which mentions that appointment of
the appellant has been made on he being selected by Selection Committee B
constituted as per provisions of “The Subordinate Offices Ministerial
Staff (Direct Recruitment) Rules, 1985”(hereinafter referred to as “1985
Rules”). The appointment letter contains endorsement to the District
Employment Officer. The material has been brought on record that the
respondent No.1 has written to District Employment Officer on C
07.12.1990 in reference to names of twelve candidates forwarded by
the Employment Exchange with respect to the post of Junior Accounts
Clerk which clearly indicate that names were sought from Employment
Exchange before holding selection. Rules 22 and 23 of 1985 Rules provides
for procedure of notification of vacancies to the examination and
procedure of selection. Rule 22 is as follows: - D
“Notification of Vacancies to the Employment Exchange. -
The appointing Authority shall determine the number of vacancies
to be filled during the course of the year as also the vacancies to
reserved under Rule 7. The vacancies shall be notified to the E
Employment Exchange. The Appointing Authority may also invite
application directly from the person who have their names
registered in the Employment Exchange. For this purpose, the
Appointing Authority shall issue an advertisement in a local daily
news paper besides pasting a notice for the same on the Notice
Board. All such application shall be placed before the Selection F
Committee.”
20. The appellant’s case is that apart from calling names from the
Employment Exchange, the respondent No.1 had also published an
Advertisement on 05.12.1990 in the Daily News Paper ‘Dainik Devvrat’.
The learned counsel for the respondents has refuted the claim of appellant G
of publication in the Daily News Paper. He submits that Editor of News
Paper vide his letter dated 21.08.2017 with regard to verification of alleged
advertisement has informed that it is not possible to verify the same, it
being a very old matter.
H
188 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 21. Learned counsel submits that there was no publication in the
newspaper and the claim of publication was only invented for the purpose
of this case.
22. Appellant has refuted the above submission of the respondent
and submits that newspaper has been filed before the High Court and
B further in the reports which were submitted with regard to complaints
against the appellant, it was specifically mentioned that the publication
was made in the News Paper ‘Dainik Devvrat’ on 05.12.1992.
23. There is no denial on the part of the respondents that the
names were called from the Employment Exchange by the appointing
C authority before conducting the selection and the Employment Exchange
had forwarded the twelve names which also included the name of
appellant. The appointment of the appellant having been made by Selection
Committee constituted under Statutory Rules after calling the names
from Employment Exchange, the appointment cannot be said to have
been made in disregard to the Statutory Rules.
D
24. More so in the present case, there was no challenge to the
appointment by any candidate nor any proceedings were initiated by the
appointing authority questioning the appointment of the appellant. The
first writ petition was filed by the appellant when consequent to reversion
of Shiv Kumar Rai on the post of Junior Accounts Clerk on which
E appellant was working, his services were terminated by order dated
11.11.1992.
25. We, thus, conclude that appointment of the appellant cannot
be said to have been made in disregard to the Rules and further, no
proceedings were initiated either by any candidate or by appointing
F authority questioning the appointment of the appellant.
26. Learned Single Judge without taking into consideration the
facts of constitution of Selection Committee, calling the names from
Employment Exchange has made observations that no procedure known
to law namely ‘Publication of Notification’ etc. was adopted which cannot
G be approved. Without having full aspect of the matter, no such
observation ought to have been made by learned Single Judge more so
when the appointment was not questioned either by any candidate or by
appointing authority by initiating any process.
II) Whether by dismissal of Writ Petition No.Nil of 1992 on
H 04.12.1992 filed against the consequential order dated 11.11.1992
RANA PRATAP SINGH v. VITTIYA EVAM LEKHA ADHIKARI, 189
DIST. BASIC EDUCATION OFFICER [ASHOK BHUSHAN,J.]
issued to the petitioner, appellant’s right to continue on his post A
shall come to an end?
27. Writ Petition No.Nil of 1992 was filed by the appellant
challenging the Order dated 11.11.1992. On 11.11.1992, two orders were
passed by respondent No.1. By first order dated 11.11.1992
appointment(promotion) of Shiv Kumar Rai was cancelled and he was B
directed to take charge of his original post of Junior Accounts Clerk. In
consequence to above 11.11.1992 order with regard to petitioner,
following order was issued:-
“Accounts Officer, Office of District Basic Education Officer,
Azamgarh C
Order Number/Le.No./803-809/1992-93
Date: 11.11.1992
Termination of service
Consequent to reversion of Shri Shiv Kumar Rai, Assistant D
Accounts, Lekha Sangathan Office, District Basic Education
Officer, Azamgarh at his original post Junior Accounts Clerk, the
purely temporary services of Shri Rana Pratap Singh, Junior
Accounts Clerk are terminated with immediate effect. He is
ordered to hand over the charge of his post to Shri Shiv Kumar
E
Rai with immediate effect.
Sd/- illegible
Accounts Officer
Office of District Basic
Education Officer, Azamgarh F
Endorsement Number account/803- 809/1992-93"
28. Both Shiv Kumar Rai and petitioner have filed separate writ
petitions challenging order dated 11.11.1992. In writ petition No.44384
of 1992 filed by Shiv Kumar Rai, following interim order was passed on
27.11.1992: - G
“ ..Issue Notice
Learned standing counsel prays for and is granted one month
time to file counter affidavit. Petitioner will have thereafter two
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190 SUPREME COURT REPORTS [2019] 15 S.C.R.
A weeks time for filing rejoinder affidavit. List the stay application
before the appropriate court in the 2nd week of February, 93.
For a period of three months from today the operation of
the order dated 11.11.92 shall remain stayed.
Petitioner is permitted to make the necessary amendment
B in his petition within three days.”
29. Thus on 04.12.1992, when the writ petition of the appellant
challenging the order dated 11.11.1992 came for consideration, the Court
was not informed that Order dated 11.11.1992 with regard to Shiv Kumar
Rai has already been stayed by the High Court. When the Main Order
C dated 11.11.1992 with regard to Shiv Kumar Rai was stayed, the
consequential order issued with regard to petitioner shall automatically
become inoperative. The dismissal of writ petition on 04.12.1992 due to
above reason shall not adversely affect the petitioner’s right to continue
on the basis of his appointment dated 21.12.1990. In view of the interim
D order passed in writ petition on 27.11.1992, the order impugned in the
writ petition of the appellant was not operative, hence, dismissal of writ
petition on 04.12.1992 shall not have that adverse effect as has been
noted by the learned Single Judge in the impugned judgment dated
02.02.2012.
E 30. It is due to the above reason that subsequently the appellant
was reinstated on the post on 01.01.1993 because vacancy on which he
was appointed became available by the interim order obtained by Shiv
Kumar Rai on 27.11.1992.
III) Whether re-appointment of the appellant dated
F 01.01.1993 been limited only till 27.02.1993 after afflux of the
said period, appellant’s right to continue on the post shall come
to an end?
31. On the Interim Order dated 27.11.1992 having been passed in
writ petition of Shiv Kumar Rai as stated above, the consequential order
G issued to the appellant became inoperative and he was entitled to continue
on his post of Junior Accounts Clerk by virtue of his appointment dated
21.12.1990. The Order dated 01.01.1993 was issued by the respondent
No.1 which is to the following effect: -
H
RANA PRATAP SINGH v. VITTIYA EVAM LEKHA ADHIKARI, 191
DIST. BASIC EDUCATION OFFICER [ASHOK BHUSHAN,J.]
“Accounts Officer, Office of District Basic Education officer, A
Azamgarh
Order Number/Accounts/ /1992-93
Date : 01.01.93
Order of re-appointment B
Consequent to passing stay order of the operation of Order
dated 11.11.1992 passed by the Hon’ble High Court at Allahabad
in Writ Petition in Shri Shiv Kumar Rai Versus Director of
Education (Basic) Nishatganj and others, Shri Rana Pratap Singh
son of Shri Suryanath Singh is re-appointed on temporary basis C
from the date of taking charge on the vacant post of Junior
Accounts Clerk till 27.02.1993. This appointment can be terminated
at any time without any prior information.
Shri Rana Pratap Singh is directed to take charge
immediately on receipt of copy of this order. D
Accounts Officer
Office of District Basic
Education Officer, Azamgarh. E
Endorsement Number Accounts/117- 1240/1993-94
Dated : 01.01.1993"
F
32. Although in the order dated 01.01.1993, the order refers it as
an order of re-appointment but in essence the order is not an order of re-
appointment but order of reinstatement of appellant on the post which
became available for the appellant after interim order passed in writ
petition of Shiv Kumar Rai. The appellant was asked to go because of
reversion of Shiv Kumar Rai on his original post by Order dated G
11.11.1992. When the said order was stayed, the appellant became
entitled to continue on his post and no order of re-appointment was
necessary or required. The entitlement of appellant was by virtue of his
H
192 SUPREME COURT REPORTS [2019] 15 S.C.R.
A earlier appointment. The re-appointment order refers to appointment of
the appellant till 27.02.1993. The initial appointment of the appellant dated
21.12.1992 which was made after regular selection was not limited to
any period. The date of 27.02.1993 which was mentioned in the letter
dated 01.01.1993 was only due to the reason that interim order granted
B to Shiv Kumar Rai on 27.11.1993 was only for a period of three months
i.e. only upto the period till 27.02.1993 which date was mentioned in the
order dated 01.01.1993. The interim order passed in the writ petition of
Shiv Kumar Rai was continued by order dated 09.04.1993, which is to
the following effect:-
C “...The interim order dated 27.11.92 is continued and the petitioner
will be paid salary regularly.
Dated/ 09.04.1993"
33. By continuance of interim order in favour of Shiv Kumar Rai
automatically the order in favour of the appellant shall continue and there
D was no question of his appointment being come to an end.
34. Learned Single Judge in the impugned judgment has taken the
view that since the appointment of the appellant was only for limited
duration till 27.02.1993, he has no right to continue. Learned Single Judge
lost sight of the fact that the date 27.02.1993 was mentioned in the letter
E dated 01.01.1993 because of the fact that interim order of Shiv Kumar
Rai was only for the period of three months and when the interim order
with regard to Shiv Kumar Rai by the High Court was continued, the
appellant also had become entitled to continue.
35. Learned Single Judge, thus, committed error in not correctly
F appreciating the consequence of order of the High Court dated 04.12.1992
in the first writ petition and nature of the letter dated 01.01.1993.
36. We, thus, are of the view that letter dated 01.01.1993 cannot
be said to be re-appointment of the appellant. The order was in essence
re- instatement of the appellant in consequence of his earlier appointment
G dated 21.12.1990. From the materials brought on record ,it is also clear
that the Education Authorities has also treated the appointment of appellant
continuing from 22.12.1990, which is clear from order of approval of
increment dated 30.12.2000, Annexure RA-6 and subsequent order issued
by Finance and Accounts Officer where date of appointment of appellant
H has been mentioned as 21.12.1990.
RANA PRATAP SINGH v. VITTIYA EVAM LEKHA ADHIKARI, 193
DIST. BASIC EDUCATION OFFICER [ASHOK BHUSHAN,J.]
IV) Whether by dismissal of W.P.No.44384 of 1992 Shiv A
Kumar Rai Versus Director Basic Education and others on
15.09.2001 shall result in terminating the vacancy on the post of
Junior Accounts Clerk on which appellant was appointed and was
working?
37. The Division Bench has dismissed the special appeal of the B
appellant solely relying on the fact that by dismissal of writ petition of
Shiv Kumar Rai on 15.09.2001, the vacancy of post of Junior Accounts
Clerk shall come to an end.
38. In the writ petition of Shiv Kumar Rai, interim order was
passed on 27.11.1992 which was continued on 09.04.1993. It is submitted C
by the counsel for the appellant that cancellation of promotion of Shiv
Kumar Rai on 11.11.1990 too was on account of claim of promotion
raised by another accounts clerk Mr.Ram Sinhasan Rai. It is submitted
that Ram Sinhasan Rai retired in 1999. Ram Sinhasan Rai was never
promoted and interim order in favour of Shiv Kumar Rai continued till
D
Ram Sinhasan Rai retired in the year 1999. It is submitted that writ
petition of Shiv Kumar Rai has been dismissed as infructuous by efflux
of time which is clearly mentioned in the order dismissing the writ petition.
The writ petition of Shiv Kumar Rai was not dismissed on merits. Writ
petition was dismissed as infructuous by efflux of time without
determination of any issue. Shiv Kumar Rai continued to work on his E
promotional post till he retired on 29.02.2008. When Shiv Kumar Rai did
not revert on post of Junior Accounts Clerk and continued to work till his
retirement, the dismissal of writ petition as infructuous cannot altogether
wipe out the right of the appellant to continue on his post of Junior
Accounts Clerk on which post Shiv Kumar Rai never returned in fact.
F
39. The report dated 27.04.2017 of District Handicapped Public
Development Officer, Azamgarh addressed to Collector, Azamgarh, has
been brought on record with regard to promotion of Shiv Kumar Rai, in
which following facts have been stated:-
“...After inquiry, this fact came to light that the selection of Shri G
Singh has been made by the legally constituted Selection
Committee at the vacant post of Junior Accounts Clerk due to the
promotion of Shri Shiv Kumar Rai at the post of Assistant
Accountant in the department. A representation was submitted
by Shri Ram Sinhasan Singh, Junior Accounts Clerk working in
H
194 SUPREME COURT REPORTS [2019] 15 S.C.R.
A the office of Finance and Accounts Officer of Basic Education,
Azamgarh stating that he is senior to Shri Rai. Therefore, on the
basis of seniority, he be promotied at the post of Assistant
Accountant. Shri Rai was reverted to the post of Junior Accounts
Clerk by order dated 11.11.1992 of Finance and Accounts Officer,
Basic Education Azamgarh. Stay Order was obtained by Shri Rai
B
of the order of reversion by the Hon’ble High Court of Allahabad
by order dated 27.11.1992. The stay order dated 27.11.1992 was
continued by order dated 09.04.1993. Shri Shiv Kumar Rai has
retired from the promoted post of Assistant Accountant on
29.02.2008. Shri Rai and Shri Sinhasan Singh both have retired
C from their posts. After retirement, the case of mutual seniority
has finished. Resultantly the lien/tenure of Shri Rana Pratap Singh
at the post of Junior Accounts Clerk remained as earlier...”
40. In the rejoinder affidavit which was filed in the special Appeal,
the report dated 27.04.2017 has been brought on record as Annexure
D RA-14. High Court dismissed the special Appeal on 06.02.2018 solely
relying on dismissal of writ petition of Shiv Kumar Rai on 15.09.2001.
41. No exception can be taken to the legal position as enumerated
by the Division Bench of the High Court in paragraphs 9 to 13. However,
the Division Bench ought to have looked into the ground realities, facts,
E and subsequent events also. When Shiv Kumar Rai was never reverted
on his post and continued on his promotional post till his retirement, it will
be taking a too technical view that vacancy of his original post shall
come to an end by dismissal of the writ petition. More so, the writ petition
was dismissed as infructuous on efflux of time without an adjudication
on merits and without High Court being made aware of the subsequent
F events. The Division Bench did not advert to the other aspects of the
matter which were adverted to by the learned Single Judge, without
examining the correctness of the view taken by learned Single Judge,
the Division Bench had dismissed the appeal solely relying on dismissal
of above writ petition of Shiv Kumar Rai.
G 42. Learned counsel for the respondents had also submitted that
the conduct of the appellant is not such that he may be entitled for any
relief. It is submitted that when the writ petition was dismissed by learned
Single Judge on 02.02.2012 and special appeal came to be dismissed on
06.02.2018, the appellant was not entitled to continue or receive any
H salary. He submits that he had concealed the dismissal of writ petition
from the department.
RANA PRATAP SINGH v. VITTIYA EVAM LEKHA ADHIKARI, 195
DIST. BASIC EDUCATION OFFICER [ASHOK BHUSHAN,J.]
43. A perusal of the order of the High Court dated 02.02.2012 A
indicates that learned counsel for the parties were heard. The order
dated 02.02.2012 was not an ex parte order and the appellant immediately
filed an special appeal which is numbered as Special Appeal No.432 of
2012. The arguments of the respondents cannot be accepted that the
appellant concealed dismissal of writ petition from learned Single Judge.
B
More so, the appellant was allowed/continued by the respondents on his
post and by order dated 01.08.2012, an order of confirmation was also
passed by the Department confirming him on the post of Junior Accounts
Clerk from 22.12.1990 and on the post of Assistant Accountant w.e.f.
22.12.2004. The appellant was also given promotional scale of Assistant
Accountant w.e.f. 22.12.2004. The Department having continued the C
appellant and granted him promotion and confirmation, It cannot be said
that the appellant committed any concealment or mis-representation.
44. We further notice that appellant has been continuing on his
post for the last twenty six years and even after dismissal of writ petition
of Shiv Kumar Rai on 15.09.2001 more than eighteen years have passed. D
The appellant has been promoted on next higher post and working on
the next higher post as on date.
45. Learned Single Judge has not correctly appreciated the issues
as noticed and discussed above. The Division Bench rested its opinion
on one issue without taking into consideration subsequent events and the E
fact that writ petition was dismissed as infructuous by efflux of time.
46. Taking into consideration entire facts and circumstances, we
are of the view that judgment of learned Single Judge dated 02.02.2012
as well as the Division Bench deserve to be set aside. We Order
accordingly. The appeal is allowed. F
Ankit Gyan Appeal allowed.
G
H
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