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Allahabad High Court · body

2012 DIGILAW 87 (ALL)

MATA BARAN v. STATE OF U. P.

2012-01-10

SUDHIR AGARWAL

body2012
JUDGMENT Hon’ble Sudhir Agarwal, J.—Petitioner has sought a mandamus commanding the respondents to treat his ad hoc appointment as deemed approved by District Inspector of Schools under the provisions of U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as “Second Order”) and to hold that he is entitled for payment of salary as Assistant Teacher (C.T. Grade) with effect from 9.7.1985. 2. Jan Sewa Uchchatar Madhyamik Vidyalaya, Muhiuddinpur, District Allahabad is an institution recognized by Board of High Schools and Intermediate and is governed by 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) and U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the “Act, 1982”). It is stated that one Manik Chand Yadav, a confirmed C.T. Grade Teacher in the College was promoted in L.T. Grade on ad hoc basis with effect from 8.7.1985. In para 3 of the writ petition, the date of promotion is mentioned as 8.7.1975. Learned counsel for petitioner during the course of argument stated that the said date is wrongly typed and it is actually 8.7.1985. On the very next date i.e. 9.7.1985 the Committee of Management passed resolution for ad hoc appointment of petitioner on the same date pursuant whereto he claims to have joined. However, no letter of appointed issued to petitioner has been placed on record. 3. Be that as it may, it is not in dispute that appointment of petitioner could have been made only after following the procedure prescribed in para 2 of Second Order, which reads as under: “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. 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-1993/XV-7(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 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 under-graduate (C.T.) grade or JTC. 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 under-graduate (C.T.) grade or JTC. or B.T.C. grade as the case may be; (ii) in relation to institution imparting instructions to women, the expression ’District Inspector of Schools’ shall mean the Regional Inspectress of Girls’ Schools; (iii) short-term vacancy which is not substantive and is of a limited duration.” 4. The fact that the incumbent Sri Manik Chand Yadav against whose vacancy the petitioner claims to have been appointed himself was promoted with effect from 8.7.1985 resulting in creation of vacancy on 9.7.1985 and hence there could not have been any occasion for the Management to follow procedure prescribed in para 2 of Second Order since the petitioner claims appointment on the very next date itself that is 9.7.1985. Any appointment, if not made strictly in accordance with the procedure prescribed in Second Order is non-est and does not confer any right upon the incumbent to hold the post or to claim salary. 5. Apex Court in Prabhat Kumar Sharma and others v. State of U.P. and others, (1996) 10 SCC 62 , held that procedure laid down in Removal of Difficulties Order is mandatory and has to be observed in words and spirit. An appointment made inconsistent with the said procedure is void ab-initio and will not confer either any right upon the incumbent to hold the post or to continue in service or to claim salary from State exchequer. The relevant observations made by the Apex Court in Prabhat Kumar Sharma (supra) is as under: “Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees.” 6. This decision has been followed and reiterated recently by the Apex Court in Shesh Mani Shukla v. District Inspector of Schools Deoria and others, JT 2009 (10) SC 309, wherein the Apex Court has held as under: “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. 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.” 7. In view of above, it is clear that petitioner’s appointment having been made in utter violation of procedure prescribed in Second order does not confer any right upon him to hold to the post or to claim salary. 8. At this stage, learned counsel for petitioner submitted that pursuant to interim order dated 16.12.1985 passed by this Court, petitioner is continuing in service and getting salary. The following interim order was passed on 16.12.1985: “Issue notice. In case the petitioner is actually working, he shall be allowed to work and will be entitled to receive salary for the period during which he has actually worked and also in future for the period that he actually works. This order will be operative either till the regular incumbent comes back and joins the post held by him or a regular selection by the Board takes place for filling the post.” 9. 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. 10. It is well established that act of the Court shall prejudice none. The services 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 v. 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 v. State of U.P., AIR 1968 All 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.” 11. The same principal has been reiterated in the following cases: (A) Sri Ram Charan Das v. Pyare Lal, AIR 1975 All 280 . “In Shyam Lal v. 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) Shyam Manohar Shukla v. State of U.P., 1986 (4) LCD 196. “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 All 139 and Sri Ram Charan Das v. Pyare Lal, AIR 1975 All 280 (DB).” (C) Kanoria Chemicals & Industries Ltd. v. U.P. State Electricity Board, AIR 1994 All 273 . “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.” 12. Recently also in Raghvendra Rao etc. “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.” 12. Recently also in Raghvendra Rao etc. v. 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. .............” 13. 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) JT 2009 (10) SC 309, 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.” 14. In the result, I find no merit in the writ petition. 15. Dismissed. ——————