RANA PRATAP SINGH versus VITTIYA EVAM LEKHA ADHIKARI, DISTRICT BASIC EDUCATION OFFICER AND ORS. on 18 December 2019

1. There is no denial on the part of the respondents that thenames were called from the Employment Exchange by theappointing authority before conducting the selection and theEmployment Exchange had forwarded the twelve names whichalso included the name of appellant. The appointment of theGappellant having been made by Selection Committee constitutedunder Statutory Rules after calling the names from EmploymentExchange, the appointment cannot be said to have been made indisregard to the Statutory Rules. [Para 23][188-C-D]

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2. More so in the present case, there was no challenge tothe appointment by any candidate nor any proceedings wereinitiated by the appointing authority questioning the appointmentof the appellant. The first writ petition was filed by the appellantwhen consequent to reversion of 'S' on the post of Junior AccountsClerk on which appellant was working, his services wereterminated by order dated 11.11.1992. [Para 24][188-D-E]

3. Thus, the appointment of the appellant cannot be said tohave been made in disregard to the Rules and further, noproceedings were initiated either by any candidate or by appointingauthority questioning the appointment of the appellant. [Para25][188-F]

Whether by dismissal of Writ Petition on 04.12.1992 filedagainst the consequential order dated 11.11.1992 issued to thepetitioner, appellant's right to continue on his post shall come toan end?

4. A writ petition was filed by the appellant challenging theOrder dated 11.11.1992. On 11.11.1992, two orders were passedby respondent No.1. By first order dated 11.11.1992appointment(promotion) of 'S' was cancelled and he was directedto take charge of his original post of Junior Accounts Clerk.[Para 27][189-A-B]

5. Both 'S' and petitioner have filed separate writ petitionschallenging order dated 11.11.1992. Thus on 04.12.1992, whenthe writ petition of the appellant challenging the order dated11.11.1992 came for consideration, the Court was not informedthat Order dated 11.11.1992 with regard to 'S' has already beenstayed by the High Court. When the Main Order dated 11.11.1992with regard to 'S' was stayed, the consequential order issued withregard to petitioner shall automatically become inoperative. Thedismissal of writ petition on 04.12.1992 due to above reason shallnot adversely affect the petitioner's right to continue on the basisof his appointment dated 21.12.1990. In view of the interim orderpassed in writ petition on 27.11.1992, the order impugned in thewrit petition of the appellant was not operative, hence, dismissalof writ petition on 04.12.1992 shall not have that adverse effect AB

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Aas has been noted by the Single Judge in the impugned judgmentdated 02.02.2012. [Paras 28 and 29][189-G; 190-C-D]

Whether re-appointment of the appellant dated 01.01.1993been 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?

B6. By continuance of interim order in favour of 'S'automatically the order in favour of the appellant shall continueand there was no question of his appointment being come to anend. [Para 33][192-D]

7. Thus, letter dated 01.01.1993 cannot be said to be re-Cappointment of the appellant. The order was in essence re-instatement of the appellant in consequence of his earlierappointment dated 21.12.1990. From the materials brought onrecord, it is also clear that the Education Authorities has alsotreated the appointment of appellant continuing from 22.12.1990,Dwhich is clear from order of approval of increment dated30.12.2000, Annexure RA-6 and subsequent order issued byFinance and Accounts Officer where date of appointment ofappellant has been mentioned as 21.12.1990. [Para 36][192-G-H]

Whether by dismissal of writ petition by 'S' on 15.09.2001Eshall result in terminating the vacancy on the post of JuniorAccounts Clerk on which appellant was appointed and wasworking?

8. It is submitted that writ petition of 'S' has been dismissedas infructuous by efflux of time which is clearly mentioned in theForder dismissing the writ petition. The writ petition of 'S' was notdismissed on merits. The writ petition was dismissed asinfructuous by efflux of time without determination of any issue.'S' continued to work on his promotional post till he retired on29.02.2008. When 'S' did not revert on post of Junior AccountsClerk and continued to work till his retirement, the dismissal ofGwrit petition as infructuous cannot altogether wipe out the rightof the appellant to continue on his post of Junior Accounts Clerkon which post 'S' never returned in fact. [Para 38][193-C-F]

RANA PRATAP SINGH v. VITTIYA EVAM LEKHA ADHIKARI,DIST. BASIC EDUCATION OFFICER

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9220of 2019.

From the Judgment and Order dated 06.02.2018 of the HighCourt of Judicature at Allahabad in Special Appeal No. 432 of 2012.

C.U. Singh, Sr. Adv., Rohan Thawani, Ms. Pooja Dhar, AshishKumar Ojha, Iqram Govind Singh, Ms. Gunjan Ahuja, Advs. for theAppellant.

Sushil K. Tekriwal, Dr. Mamta Tekriwal, Venkateswara RaoAnumolu, Advs. for the Respondents.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J.

1. This appeal has been filed against the Division Bench judgmentof Allahabad High Court dated 06.02.2018 in Special Appeal No.432 of2012 by which judgment the Special Appeal filed by the appellantquestioning the judgment of learned Single Judge dated 02.02.2012 inwrit petition No.15408 of 1993 has been dismissed.

2. Brief facts of the case necessary to be noted for deciding thisappeal are: - One Shiv Kumar Rai was working as Junior Accounts Clerk inthe office of Finance and Accounts Officer, Office of DistrictBasic Education Officer, respondent No.1. Shri Shiv Kumar Raiwas promoted as Assistant Accountant giving rise to a vacancy inthe post of Junior Accounts Clerk. The respondent No.1 calledfor names from the Employment Exchange, Azamgarh. TheEmployment Exchange forwarded the list of twelve candidates tothe respondent No.1. The Selection Committee was constitutedin accordance with the Statutory Rules namely The SubordinateOffices Ministerial Staff (Direct Recruitment) Rules, 1985, to holdthe selection on the vacant post of Junior Accounts Clerk. Thename of petitioner was also included in the list of twelve candidatesforwarded by Employment Exchange, Azamgarh. The SelectionCommittee interviewed the candidates on 16.08.1989 but the saidselection was cancelled by the respondent No.1 and fresh processwas initiated for holding selection. An advertisement was publishedby District Basic Education Officer, Azamgarh in Daily NewsPaper “Dainik Devvrat” dated 05.12.1990 calling for application

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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 DistrictEmployment Officer, Azamgarh requesting the EmploymentOfficer to intimate at his level the twelve candidates whose nameswere forwarded for the vacant post of Junior Accounts Clerk toappear for interview on 20.12.1990. Letter also mentioned thatthe twelve candidates who were forwarded by EmploymentExchange have also been intimated by respondent No.1 to presentthemselves before Selection Committee on 20.12.1990. On20.12.1990, petitioner along with other candidates appeared beforethe Selection Committee. The petitioner was selected by theSelection Committee and recommended for appointment on thepost of Junior Accounts Clerk. Respondent No.1 issued anappointment Order dated 21.12.1990 to the petitioner appointinghim on the post of Junior Accounts Clerk. Order futher mentionedthat the appointment is temporary. In pursuance of appointmentOrder dated 21.12.1990, petitioner joined on 22.12.1990. By Orderdated 11.11.1992, the promotion of Shiv Kumar Rai as AssistantAccountant was cancelled by respondent No.1. On same day,consequential letter dated 11.11.1992 was also issued terminatingthe appointment of the petitioner due to Shiv Kumar Rai havingbeen reverted to his Original post of Junior Accounts Clerk. ShivKumar Rai filed a W.P.No.44384 of 1992 challenging order dated11.11.1992. Learned Single Judge of the High Court vide orderdated 27.11.1992 stayed the Order dated 11.11.1992 for a periodof three months. The petitioner also filed a writ petition challengingthe order dated 11.11.1992. Petitioner being not aware of the orderdated 27.11.1992 could not point out to the High Court about thestay 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 thatpetitioner’s claim may be considered on the post of Junior AccountsClerk which fell due to promotion of Ram Sinhasan at whoseinstance the promotion of Shiv Kumar Rai was cancelled.Respondent No.1 issued order dated 01.01.1993, consequent topassing of interim order of the High Court staying the reversionorder dated 11.11.1992 of Shiv Kumar Rai re-appointing thepetitioner on the post of Junior Accounts Clerk till 27.02.1993.

The interim order passed in writ petition No.44384 of 1992 ofShiv Kumar Rai was continued by order dated 09.04.1993 whichdirected:

“The interim order dated 27.11.1992 is continued and thepetitioner will be paid salary regularly.”

3. An order dated 27.02.1993 was issued by respondent No.1informing that since petitioner’s re-appointment was on the post of JuniorAccounts Clerk was upto 27.02.1993, hence he should hand over hischarge in the afternoon of 27.02.1993 to one Shri Mohd. Vasama Ansari.

4. Writ Petition No.15408 of 1993 was filed by the Petitionerchallenging the letter dated 27.02.1993 which letter was stayed by theHigh Court on 29.04.1993 by passing following order:- “Until further order the operation of the impugned order dated27.02.1993 shall remain stayed.”

5. The re-appointment of petitioner was continued by the letterdated 18.05.1993. Shiv Kumar Rai by virtue of the interim order passedin his writ petition continued to work as Assistant Accountant till heattained the age of Super-Annuation on 29.02.2008. W.P.No.44384 of1992 filed by Shiv Kumar Rai became infructuous due to efflux of timeand was dismissed on 15.09.2001. The order dated 15.09.2001dismissing the writ petition of Shiv Kumar Rai is as follows:- “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. Noone turns up to press it either.

The writ petition is, accordingly, dismissed but without cost.

Sd/-”

6. Shiv Kumar Rai having been promoted as Assistant Accountant,he never returned to his original post till superannuation. The petitionercontinued to work on the post of Junior Accounts Clerk. The petitionerwas given first promotional increment in the service after completion offourteen years on 22.12.2004. Second promotional upgradation was given

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Aafter completion of eighteen years of service on 22.12.2008 and orderdated 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 of1993 was dismissed.

7. Learned Counsel for the appellant submits that learned SingleBJudge while dismissing the writ petition on 02.02.2012 has madeobservation that appointment of the appellant was made without followingthe procedure known to law which observation was neither correct norwas based on material on record. Learned counsel for the appellantsubmits that his appointment was made by duly constituted SelectionCommittee as per 1985 Rules and after calling names from theCEmployment Exchange, Azamgarh, who forwarded twelve names, whichincluded name of the appellant. There was no challenge to the appointmentof the appellant at any point of time nor appointment was questioned byanyone.

8. The writ petition was filed challenging the consequential orderDdated 11.11.1992 which was issued in consequence of cancelling thepromotion of Shiv Kumar Rai on the post of Assistant Accountant bywhich he was reverted on the post of Junior Accounts Clerk on whichappellant was appointed. The issue in the writ petition was entirelydifferent and was only with regard to correctness of the Order datedE11.11.1992.

9. Learned counsel further submits that learned Single Judge erredin observing that on dismissal of first writ petition of the appellant on04.12.1992, his removal became final and subsequent appointment didnot survive for consideration before the Court.F

10. It is submitted that the writ petition dismissed on 04.12.1992was against the order dated 11.11.1992 which was a consequential orderand the main order dated 11.11.1992 passed with respect to Shiv KumarRai having been stayed by the High Court on 27.11.1992, the consequentialorder with regard to appellant had no meaning, hence, the dismissal ofGthe said writ petition on 04.12.1992 shall not prejudice the claim of theappellant.

11. It is further submitted that observation of learned Single Judgethat subsequent appointment of the appellant dated 01.01.1993 beinglimited till 27.03.1993, thereafter appellant cannot continue is alsoerroneous. The Order dated 01.01.1993 although mentionedH

re-appointment but in essence the order was only of reinstatement ofthe appellant on the post in pursuance of his earlier appointment dated21.12.1992. There being no fresh process of appointment, there was noquestion of any re-appointment. The learned Single Judge also has notcorrectly understood the import of the Order dated 01.01.1993.

12. The Division Bench based its judgment only on the groundthat writ petition filed by Shiv Kumar Rai against the order dated11.11.1993 having been dismissed on 15.09.2001, his reversion shall attainfinality, Consequently there will be no vacancy on the post of JuniorAccounts Clerk, hence, the appellant shall have no right to continue onhis post. The Division Bench did not consider the fact that Writ petitionfiled by Shiv Kumar Rai was dismissed as infructuous by efflux of timeand the dismissal of writ petition was not on merits. It is a fact that ShivKumar Rai continued to work on his post of Assistant Accountant andretired on 29.02.2008 by holding the said promotional post. Shiv KumarRai never came back on his post of Junior Accounts Clerk, hence,appellant’s continuance on post of Junior Accounts Clerk cannot be takenaway by dismissal of writ petition of Shiv Kumar Rai.

13. Learned counsel for the appellant submitted that appellanthas been in service for twenty seven years. In the meantime, he receivedpromotional Pay Scale of Assistant Accountant, Selection Grade. Onthe day when writ petition was dismissed by learned Single Judge, hewas working in the grade of Assistant Accountant. The appellant wasalso confirmed on his post of Junior Accountant w.e.f. 22.12.1993 andAssistant Accountant w.e.f. 22.12.2007 by order dated 01.08.2012. Allthese facts were brought on record by means of rejoinder affidavit filedin Special Appeal which had not been taken into consideration by DivisionBench.

14. It is further submitted that in the year 2013 and thereaftercomplaints were filed against the appellant which were duly enquired byand reports were submitted to Collector on 27.04.2017 that complaintswere without any basis. Further, on another complaint, report wassubmitted by Finance and Accounts Officer, Primary Education,Azamgarh dated 02.02.2017 that appointment of the appellant was madeafter following due procedure of the law and the appellant’s continuanceon his post was valid and in accordance with law.

15. Against the judgment of learned Single Judge dated 02.02.2012and Special Appeal No.432 of 2012 was filed by the petitioner. By an A

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Aorder dated 01.08.2012, the petitioner’s services were confirmed on thepost of Junior Accounts Clerk w.e.f. 22.12.1993 and on the post ofAssistant Accountant w.e.f. 22.12.2007. The Special Appeal filed bythe petitioner was dismissed by Division Bench on 06.02.2018, aggrievedagainst which judgment this appeal has been filed.

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B16. Learned counsel for the respondents refuting the submissionof the learned counsel for the petitioner contends that the petitioner’sappointment was made against the procedure prescribed by law. Noadvertisement was issued on 05.12.1990 in the Daily News Paper ‘DainikDevvrat’ as claimed by the petitioner. The writ petition was dismissedCon 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 Departmentand is not entitled for any relief from this Court. There has been severalcomplaints received against the petitioner with regard to which enquirieswere held and the respondent No.1 had taken action against the petitioner.

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17. We have considered the submissions of learned counsel forthe parties and perused the record.

18. From submissions of learned counsel for the parties andmaterials on record, following points arise for consideration in this appeal:- E

I) Whether appointment of appellant on the post of JuniorAccounts Clerk on 21.12.1990 was not validly made in accordance withlaw?

II) Whether by dismissal of Writ Petition No.Nil of 1992 on04.12.1992 filed against the consequential order dated 11.11.1992 issuedFto the petitioner, appellant’s right to continue on his post shall come to anend?

III) Whether re-appointment of the appellant dated 01.01.1993been limited only till 27.02.1993 after efflux of the said period appellant’sright to continue on the post shall come to an end?

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IV) Whether by dismissal of W.P.No.44384 of 1992 - Shiv KumarRai versus Director Basic Education and others on 15.09.2001 shallresult in terminating the vacancy on the post of Junior Accounts Clerkon which appellant was appointed and was working?

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I) Whether appointment of appellant on the post of JuniorAccounts Clerk on 21.12.1990 was not validly made in accordancewith law?

19. The copy of the appointment order of the appellant has beenplaced on record as Annexure- P1, which mentions that appointment ofthe appellant has been made on he being selected by Selection Committeeconstituted as per provisions of “The Subordinate Offices MinisterialStaff (Direct Recruitment) Rules, 1985”(hereinafter referred to as “1985Rules”). The appointment letter contains endorsement to the DistrictEmployment Officer. The material has been brought on record that therespondent No.1 has written to District Employment Officer on07.12.1990 in reference to names of twelve candidates forwarded bythe Employment Exchange with respect to the post of Junior AccountsClerk which clearly indicate that names were sought from EmploymentExchange before holding selection. Rules 22 and 23 of 1985 Rules providesfor procedure of notification of vacancies to the examination andprocedure of selection. Rule 22 is as follows: - “Notification of Vacancies to the Employment Exchange. - The appointing Authority shall determine the number of vacanciesto be filled during the course of the year as also the vacancies toreserved under Rule 7. The vacancies shall be notified to theEmployment Exchange. The Appointing Authority may also inviteapplication directly from the person who have their namesregistered in the Employment Exchange. For this purpose, theAppointing Authority shall issue an advertisement in a local dailynews paper besides pasting a notice for the same on the NoticeBoard. All such application shall be placed before the SelectionCommittee.”

20. The appellant’s case is that apart from calling names from theEmployment Exchange, the respondent No.1 had also published anAdvertisement on 05.12.1990 in the Daily News Paper ‘Dainik Devvrat’.The learned counsel for the respondents has refuted the claim of appellantof publication in the Daily News Paper. He submits that Editor of NewsPaper vide his letter dated 21.08.2017 with regard to verification of allegedadvertisement has informed that it is not possible to verify the same, itbeing a very old matter.

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21. Learned counsel submits that there was no publication in thenewspaper and the claim of publication was only invented for the purposeof this case.

22. Appellant has refuted the above submission of the respondentand submits that newspaper has been filed before the High Court andBfurther in the reports which were submitted with regard to complaintsagainst the appellant, it was specifically mentioned that the publicationwas made in the News Paper ‘Dainik Devvrat’ on 05.12.1992.

23. There is no denial on the part of the respondents that thenames were called from the Employment Exchange by the appointingCauthority before conducting the selection and the Employment Exchangehad forwarded the twelve names which also included the name ofappellant. The appointment of the appellant having been made by SelectionCommittee constituted under Statutory Rules after calling the namesfrom Employment Exchange, the appointment cannot be said to havebeen made in disregard to the Statutory Rules.D

24. More so in the present case, there was no challenge to theappointment by any candidate nor any proceedings were initiated by theappointing authority questioning the appointment of the appellant. Thefirst writ petition was filed by the appellant when consequent to reversionof Shiv Kumar Rai on the post of Junior Accounts Clerk on whichEappellant was working, his services were terminated by order dated11.11.1992.

25. We, thus, conclude that appointment of the appellant cannotbe said to have been made in disregard to the Rules and further, noproceedings were initiated either by any candidate or by appointingFauthority questioning the appointment of the appellant.

26. Learned Single Judge without taking into consideration thefacts of constitution of Selection Committee, calling the names fromEmployment Exchange has made observations that no procedure knownto law namely ‘Publication of Notification’ etc. was adopted which cannotGbe approved. Without having full aspect of the matter, no suchobservation ought to have been made by learned Single Judge more sowhen the appointment was not questioned either by any candidate or byappointing authority by initiating any process.

II) Whether by dismissal of Writ Petition No.Nil of 1992 onH04.12.1992 filed against the consequential order dated 11.11.1992

issued to the petitioner, appellant’s right to continue on his postshall come to an end?

27. Writ Petition No.Nil of 1992 was filed by the appellantchallenging the Order dated 11.11.1992. On 11.11.1992, two orders werepassed by respondent No.1. By first order dated 11.11.1992appointment(promotion) of Shiv Kumar Rai was cancelled and he wasdirected to take charge of his original post of Junior Accounts Clerk. Inconsequence to above 11.11.1992 order with regard to petitioner,following order was issued:- “Accounts Officer, Office of District Basic Education Officer,Azamgarh Order Number/Le.No./803-809/1992-93

Date: 11.11.1992

Termination of service

Consequent to reversion of Shri Shiv Kumar Rai, AssistantAccounts, Lekha Sangathan Office, District Basic EducationOfficer, Azamgarh at his original post Junior Accounts Clerk, thepurely temporary services of Shri Rana Pratap Singh, JuniorAccounts Clerk are terminated with immediate effect. He isordered to hand over the charge of his post to Shri Shiv KumarRai with immediate effect.

Sd/- illegibleAccounts OfficerOffice of District BasicEducation Officer, Azamgarh Endorsement Number account/803- 809/1992-93"

28. Both Shiv Kumar Rai and petitioner have filed separate writpetitions challenging order dated 11.11.1992. In writ petition No.44384of 1992 filed by Shiv Kumar Rai, following interim order was passed on27.11.1992: - “ ..Issue Notice Learned standing counsel prays for and is granted one monthtime to file counter affidavit. Petitioner will have thereafter two B

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Aweeks time for filing rejoinder affidavit. List the stay applicationbefore the appropriate court in the 2[nd] week of February, 93.

For a period of three months from today the operation ofthe order dated 11.11.92 shall remain stayed.

Petitioner is permitted to make the necessary amendmentBin his petition within three days.”

29. Thus on 04.12.1992, when the writ petition of the appellantchallenging the order dated 11.11.1992 came for consideration, the Courtwas not informed that Order dated 11.11.1992 with regard to Shiv KumarRai has already been stayed by the High Court. When the Main OrderCdated 11.11.1992 with regard to Shiv Kumar Rai was stayed, theconsequential order issued with regard to petitioner shall automaticallybecome inoperative. The dismissal of writ petition on 04.12.1992 due toabove reason shall not adversely affect the petitioner’s right to continueon the basis of his appointment dated 21.12.1990. In view of the interimDorder passed in writ petition on 27.11.1992, the order impugned in thewrit petition of the appellant was not operative, hence, dismissal of writpetition on 04.12.1992 shall not have that adverse effect as has beennoted by the learned Single Judge in the impugned judgment dated02.02.2012.

E30. It is due to the above reason that subsequently the appellantwas reinstated on the post on 01.01.1993 because vacancy on which hewas appointed became available by the interim order obtained by ShivKumar Rai on 27.11.1992.

III) Whether re-appointment of the appellant datedF01.01.1993 been limited only till 27.02.1993 after afflux of thesaid period, appellant’s right to continue on the post shall cometo an end?

31. On the Interim Order dated 27.11.1992 having been passed inwrit petition of Shiv Kumar Rai as stated above, the consequential orderGissued to the appellant became inoperative and he was entitled to continueon his post of Junior Accounts Clerk by virtue of his appointment dated21.12.1990. The Order dated 01.01.1993 was issued by the respondentNo.1 which is to the following effect: - H

“Accounts Officer, Office of District Basic Education officer,Azamgarh Order Number/Accounts/ /1992-93

Date : 01.01.93

Order of re-appointment

Consequent to passing stay order of the operation of Orderdated 11.11.1992 passed by the Hon’ble High Court at Allahabadin Writ Petition in Shri Shiv Kumar Rai Versus Director ofEducation (Basic) Nishatganj and others, Shri Rana Pratap Singhson of Shri Suryanath Singh is re-appointed on temporary basisfrom the date of taking charge on the vacant post of JuniorAccounts Clerk till 27.02.1993. This appointment can be terminatedat any time without any prior information.

Shri Rana Pratap Singh is directed to take chargeimmediately on receipt of copy of this order.

Accounts OfficerOffice of District BasicEducation Officer, Azamgarh.

Endorsement Number Accounts/117- 1240/1993-94

Dated : 01.01.1993"

32. Although in the order dated 01.01.1993, the order refers it asan 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 whichbecame available for the appellant after interim order passed in writpetition of Shiv Kumar Rai. The appellant was asked to go because ofreversion of Shiv Kumar Rai on his original post by Order dated11.11.1992. When the said order was stayed, the appellant becameentitled to continue on his post and no order of re-appointment wasnecessary or required. The entitlement of appellant was by virtue of his A

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Aearlier appointment. The re-appointment order refers to appointment ofthe appellant till 27.02.1993. The initial appointment of the appellant dated21.12.1992 which was made after regular selection was not limited toany period. The date of 27.02.1993 which was mentioned in the letterdated 01.01.1993 was only due to the reason that interim order grantedBto Shiv Kumar Rai on 27.11.1993 was only for a period of three monthsi.e. only upto the period till 27.02.1993 which date was mentioned in theorder dated 01.01.1993. The interim order passed in the writ petition ofShiv Kumar Rai was continued by order dated 09.04.1993, which is tothe following effect:- C“...The interim order dated 27.11.92 is continued and the petitionerwill be paid salary regularly.

Dated/ 09.04.1993"

33. By continuance of interim order in favour of Shiv Kumar Raiautomatically the order in favour of the appellant shall continue and thereDwas no question of his appointment being come to an end.

34. Learned Single Judge in the impugned judgment has taken theview that since the appointment of the appellant was only for limitedduration till 27.02.1993, he has no right to continue. Learned Single Judgelost sight of the fact that the date 27.02.1993 was mentioned in the letterEdated 01.01.1993 because of the fact that interim order of Shiv KumarRai was only for the period of three months and when the interim orderwith regard to Shiv Kumar Rai by the High Court was continued, theappellant also had become entitled to continue.

35. Learned Single Judge, thus, committed error in not correctlyFappreciating the consequence of order of the High Court dated 04.12.1992in 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 cannotbe said to be re-appointment of the appellant. The order was in essencere- instatement of the appellant in consequence of his earlier appointmentGdated 21.12.1990. From the materials brought on record ,it is also clearthat the Education Authorities has also treated the appointment of appellantcontinuing from 22.12.1990, which is clear from order of approval ofincrement dated 30.12.2000, Annexure RA-6 and subsequent order issuedby Finance and Accounts Officer where date of appointment of appellanthas been mentioned as 21.12.1990.H

IV) Whether by dismissal of W.P.No.44384 of 1992 ShivKumar Rai Versus Director Basic Education and others on15.09.2001 shall result in terminating the vacancy on the post ofJunior Accounts Clerk on which appellant was appointed and wasworking?

37. The Division Bench has dismissed the special appeal of theappellant solely relying on the fact that by dismissal of writ petition ofShiv Kumar Rai on 15.09.2001, the vacancy of post of Junior AccountsClerk shall come to an end.

38. In the writ petition of Shiv Kumar Rai, interim order waspassed on 27.11.1992 which was continued on 09.04.1993. It is submittedby the counsel for the appellant that cancellation of promotion of ShivKumar Rai on 11.11.1990 too was on account of claim of promotionraised by another accounts clerk Mr.Ram Sinhasan Rai. It is submittedthat Ram Sinhasan Rai retired in 1999. Ram Sinhasan Rai was neverpromoted and interim order in favour of Shiv Kumar Rai continued tillRam Sinhasan Rai retired in the year 1999. It is submitted that writpetition of Shiv Kumar Rai has been dismissed as infructuous by effluxof time which is clearly mentioned in the order dismissing the writ petition.The writ petition of Shiv Kumar Rai was not dismissed on merits. Writpetition was dismissed as infructuous by efflux of time withoutdetermination of any issue. Shiv Kumar Rai continued to work on hispromotional post till he retired on 29.02.2008. When Shiv Kumar Rai didnot revert on post of Junior Accounts Clerk and continued to work till hisretirement, the dismissal of writ petition as infructuous cannot altogetherwipe out the right of the appellant to continue on his post of JuniorAccounts Clerk on which post Shiv Kumar Rai never returned in fact.

39. The report dated 27.04.2017 of District Handicapped PublicDevelopment Officer, Azamgarh addressed to Collector, Azamgarh, hasbeen brought on record with regard to promotion of Shiv Kumar Rai, inwhich following facts have been stated:- “...After inquiry, this fact came to light that the selection of ShriSingh has been made by the legally constituted SelectionCommittee at the vacant post of Junior Accounts Clerk due to thepromotion of Shri Shiv Kumar Rai at the post of AssistantAccountant in the department. A representation was submittedby Shri Ram Sinhasan Singh, Junior Accounts Clerk working in

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Athe office of Finance and Accounts Officer of Basic Education,Azamgarh stating that he is senior to Shri Rai. Therefore, on thebasis of seniority, he be promotied at the post of AssistantAccountant. Shri Rai was reverted to the post of Junior AccountsClerk by order dated 11.11.1992 of Finance and Accounts Officer,Basic Education Azamgarh. Stay Order was obtained by Shri RaiBof the order of reversion by the Hon’ble High Court of Allahabadby order dated 27.11.1992. The stay order dated 27.11.1992 wascontinued by order dated 09.04.1993. Shri Shiv Kumar Rai hasretired from the promoted post of Assistant Accountant on29.02.2008. Shri Rai and Shri Sinhasan Singh both have retiredCfrom their posts. After retirement, the case of mutual seniorityhas finished. Resultantly the lien/tenure of Shri Rana Pratap Singhat 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 AnnexureDRA-14. High Court dismissed the special Appeal on 06.02.2018 solelyrelying on dismissal of writ petition of Shiv Kumar Rai on 15.09.2001.

41. No exception can be taken to the legal position as enumeratedby 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,Eand subsequent events also. When Shiv Kumar Rai was never revertedon his post and continued on his promotional post till his retirement, it willbe taking a too technical view that vacancy of his original post shallcome to an end by dismissal of the writ petition. More so, the writ petitionwas dismissed as infructuous on efflux of time without an adjudicationon merits and without High Court being made aware of the subsequentFevents. The Division Bench did not advert to the other aspects of thematter which were adverted to by the learned Single Judge, withoutexamining the correctness of the view taken by learned Single Judge,the Division Bench had dismissed the appeal solely relying on dismissalof above writ petition of Shiv Kumar Rai.G

42. Learned counsel for the respondents had also submitted thatthe conduct of the appellant is not such that he may be entitled for anyrelief. It is submitted that when the writ petition was dismissed by learnedSingle Judge on 02.02.2012 and special appeal came to be dismissed on06.02.2018, the appellant was not entitled to continue or receive anyHsalary. He submits that he had concealed the dismissal of writ petitionfrom the department.

43. A perusal of the order of the High Court dated 02.02.2012indicates that learned counsel for the parties were heard. The orderdated 02.02.2012 was not an ex parte order and the appellant immediatelyfiled an special appeal which is numbered as Special Appeal No.432 of2012. The arguments of the respondents cannot be accepted that theappellant concealed dismissal of writ petition from learned Single Judge.More so, the appellant was allowed/continued by the respondents on hispost and by order dated 01.08.2012, an order of confirmation was alsopassed by the Department confirming him on the post of Junior AccountsClerk 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 AssistantAccountant w.e.f. 22.12.2004. The Department having continued theappellant and granted him promotion and confirmation, It cannot be saidthat the appellant committed any concealment or mis-representation.

44. We further notice that appellant has been continuing on hispost for the last twenty six years and even after dismissal of writ petitionof Shiv Kumar Rai on 15.09.2001 more than eighteen years have passed.The appellant has been promoted on next higher post and working onthe next higher post as on date.

45. Learned Single Judge has not correctly appreciated the issuesas noticed and discussed above. The Division Bench rested its opinionon one issue without taking into consideration subsequent events and thefact that writ petition was dismissed as infructuous by efflux of time.

46. Taking into consideration entire facts and circumstances, weare of the view that judgment of learned Single Judge dated 02.02.2012as well as the Division Bench deserve to be set aside. We Orderaccordingly. The appeal is allowed.

Ankit Gyan

Appeal allowed.

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