RAMAN SINGH versus THE DISTRICT INSPECTOR OF SCHOOLS, JALAUN AT ORAI & ORS. on 8 July 2019

RAMAN SINGH

v.

THE DISTRICT INSPECTOR OF SCHOOLS,JALAUN AT ORAI & ORS.

(Civil Appeal No.5265 of 2019)

JULY 08, 2019

[DR. DHANANJAYA Y. CHANDRACHUD ANDINDIRA BANERJEE, JJ.]

Appointment– Adhoc appointment of Teacher – On the basisof leave vacancy – After the leave vacancy ceased to exist, ad hocappointee absorbed in the substantive vacancy by schoolmanagement – Writ petition seeking direction to State to release hissalary treating his ad hoc appointment as an appointment onpermanent basis – Dismissal of writ petition by Single Judge ofHigh Court – Special appeal dismissed by Division Bench of HighCourt – On appeal, held: The purported appointment of the ad hocappointee to the substantive post was without approval of DistrictInspector of Schools – No procedure as required by law was followedin making the appointment to the substantive post – The appellanthad continued in service by virtue of interim orders – Appellanthad no right to claim conversion of his ad hoc appointment into asubstantive appointment – It is directed that steps be taken to fillup the post on a regular basis – However, in the facts of the case,appellant is allowed to continue on the post on purely ad hoc basisuntil a regularly appointed candidate is selected.

Disposing of the appeal, the Court

HELD: 1. The appellant was appointed purely on anad hoc basis in a leave vacancy which arose in the institution. Onthe death of the regularly appointed candidate, the leave vacancyceased to exist. Once a substantive vacancy arose, it was requiredto be filled up in accordance with law. The appellant had no rightor entitlement to claim that his appointment on an ad-hoc basis ina leave vacancy should be converted into a substantiveappointment. [Para 14] [277-F-G]

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A2. The purported appointment of the appellant to asubstantive post was without the approval of the District Inspectorof Schools (DIOS). The DIOS had rejected the application of themanagement to absorb the appellant to a substantive post over24 years ago on the ground that his appointment would be inviolation of the applicable law. No procedure as required by lawBwas followed in making the appointment. The appellant howeverinstituted proceedings and has continued in service by virtue ofthe interim orders. The person who was appointed on the postin accordance with law in 1997, was allegedly prevented fromjoining his post. The method adopted by the appellant and theCmanagement is unsustainable in law. [Para 15] [278-A-D]

3. The ends of justice would be met if a direction is issuedto the effect that necessary steps be taken to fill up the post on aregular basis as expeditiously as possible within a period of fourmonths. In order to ensure that there should be no dislocation Dof work in the educational institution, the appellant, having regardto facts and circumstances of the present case, should be allowedto continue purely on an ad-hoc basis until a regularly appointedcandidate is selected. In exercise of jurisdiction under Article142 of the Constitution of India it is also directed that his salaryshould be paid over for the period for which he works until aEregular candidate is appointed. [Para 16] [278-D-F]

Pramila Mishra v Deputy Director of Education1997 (2) ESC 1284 ALL (FB) – referred to.

Case Law Reference

F1997 (2) ESC 1284 ALL(FB) referred to Para 13

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5265of 2019GFrom the Judgment and Order dated 30.10.2017 of the High Courtof Judicature at Allahabad in Special Appeal No. 1873 of 2013

Ms. Meenakshi Arora, Sr. Adv., Parmatma Singh, Mayank Jain,Madhur Jain, Advs. for the Appellant.

Tanmaya Agarwal, Wrick Chatterjee, Advs. for the Respondents.

The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J. 1. Leavegranted.

2. This appeal arises from a judgment dated 30 October 2017 ofthe Division Bench of the High Court of Judicature at Allahabad dismissingthe Special Appeal filed by the appellant and affirming the judgment ofthe Single Judge dated 9 October 2013.

3. The appellant was appointed by the Committee of Managementof the third respondent as an ad-hoc Lecturer in English on 11 August1993 against a short-term vacancy which arose upon the grant of threemonths’ leave to the then incumbent in the post. On 1 October 1993, theregularly appointed lecturer who was on leave died. As a result, theappellant continued in service. On 30 June 1994, the management soughtto absorb the appellant in the substantive vacancy which arose on thedeath of the regularly appointed candidate.

4. The case of the appellant is that the management sought theapproval of the District Inspector of Schools[1] on 2 July 1994 and againon 18 March 1996, but no intimation was received. Aggrieved, in April1996, the appellant filed a writ petition before the High Court seeking amandamus to treat his ad hoc appointment as an appointment on apermanent basis and for a direction to the State to release his salary,since the institution is an aided institution.

5. The High Court issued an interim order on 16 April 1996 to theeffect that until the next date of listing or until a regularly appointedcandidate is available, whichever is earlier, the appellant shall be allowedto continue against the payment of due salary.

6. On 30 June 1997, a candidate by the name of Nem Singh wasappointed by the U.P. Secondary Education Service Selection Board.According to the State, the appellant and the management colluded toprevent the selected candidate from joining the post, though this is amatter of dispute. There is on the record a letter from the Deputy Directorof Education dated 30 June 1997 stating that Nem Singh could not takeover the charge of the school since he did not make any contact with the 1 DIOS

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Aschool. The admitted position is that the selected candidate did not jointhe post. In consequence, the appellant continued to be employed in thepost. The salary of the appellant was stopped.

7. The writ petition filed by the appellant was dismissed by alearned Single Judge of the High Court on 9 October 2013. The appellantBfiled a Special Appeal against the dismissal of the petition.

8. During the pendency of the Special Appeal, there was an interimorder in favour of the appellant in terms similar to the interim protectionwhich was granted earlier on 16 April 1996 by the Single Judge of theHigh Court. By the impugned order dated 30 October 2017, the SpecialCAppeal was dismissed by the Division Bench. The High Court held thatthe appellant was appointed in a leave vacancy, in terms of the SecondRemoval of Difficulties Order 1981. The High Court observed that inthe absence of approval to his appointment by the competent authority,any further direction for his continuance or for payment of salary is notpermissible in law.D

9. From the order of the High Court, it emerges that a counteraffidavit was filed in the course of the Special Appeal where it wasstated on behalf of the DIOS that by a letter dated 14 July 1994, approvalfor the appointment of the appellant had been declined since it was notin conformity with the provisions of Section 18 of the UP SecondaryEEducation Services Selection Board Act 1982 and the Removal ofDifficulties Order. Consequently, while affirming the judgment of thelearned Single Judge, the Division Bench directed that the salary whichwas paid over till the date of the judgment shall not be recovered, but theappellant will not be entitled to any further emoluments.

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10. Assailing the decision of the Division Bench in Special Appeal,the appellant moved this Court under Article 136 of the Constitution ofIndia. On 10 January 2018, when the Special Leave Petition was takenup, the following statement made on behalf of the appellant was recorded:

“Learned counsel for the petitioner says that he does not claimGany right over the post of lecturer in the school, but says that thepetitioner may be allowed to continue till regular or otherappointment is made.”

11. Subsequently on 13 August 2018, there was a direction thatthe salary should be paid to the appellant for the period for which he has H

worked. Admittedly, these directions have been complied with. Theappellant continues to remain in service and his salary has been paid.

12. Ms. Meenakshi Arora, learned Senior Counsel appearing onbehalf of the appellant submits that the appellant has seriously disputedthe stand of the DIOS to the effect that his services had been disapprovedby the issuance of a letter dated 14 July 1994. It has been urged thatthere was no reference to this letter before the learned Single Judge andit was only when a counter affidavit was filed in the Special Appealbefore the Division Bench that the department adverted to the issuanceof this letter declining approval. It has been urged that in consequence,though under the interim orders of the High Court, the appellant hascontinued to remain in service and discharged his duties since 1993 andas the senior most teacher, the management has submitted a proposalfor the continuance of the appellant as an in-charge principal.

13. On the other hand, it has been urged Mr. Tanmaya Agarwal,learned Senior Counsel appearing on behalf of the first respondent thatthe High Court has correctly come to the conclusion that the ad hocappointment of the appellant could not have, in any case materialisedinto a substantive appointment, on the death of the then incumbent. Ithas been urged that no procedure was followed in making a regularappointment and the law has since been settled in a judgment of a FullBench of the Allahabad High Court in Pramila Mishra v DeputyDirector of Education.[2] The ad-hoc appointment, necessarily came toan end upon the ceasing of the short term vacancy on the death of theincumbent. Hence, it was urged that there was no vested right on thepart of the appellant to claim a regular appointment or, for that matter, tocontinue in service.

14. The appellant was appointed purely on an ad hoc basis in aleave vacancy which arose in the institution. On the death of the regularlyappointed candidate, the leave vacancy ceased to exist. Once asubstantive vacancy arose, it was required to be filled up in accordancewith law. The appellant had no right or entitlement to claim that hisappointment on an ad-hoc basis in a leave vacancy should be convertedinto a substantive appointment. The view which has been taken by thelearned Single Judge and in appeal by the Division Bench, therefore,cannot be faulted.

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A15. It is evident that the purported appointment of the appellant toa substantive post was without the approval of the DIOS. The DIOShad rejected the application of the management to absorb the appellantto a substantive post over 24 years ago on the ground that his appointmentwould be in violation of the applicable law. No procedure as required bylaw was followed in making the appointment. The appellant howeverBinstituted proceedings and has continued in service by virtue of the interimorders which were passed in the writ proceedings by the learned SingleJudge and thereafter, during the pendency of the Special Appeal, by theDivision Bench. Even during the pendency of these proceedings, followingthe statement which has been made on his behalf on 10 January 2018,Cthere was a direction on 13 August 2018 for the payment of the salary tohim for the period for which he has worked. Eventually, the managementproposed to post him as an in-charge Principal. Nem Singh, who wasappointed in accordance with law in 1997, was allegedly prevented fromjoining his post. The method adopted by the appellant and the managementis unsustainable in law.D

16. Hence, we are of the view that the ends of justice would bemet if a direction is issued to the effect that necessary steps be taken tofill up the post on a regular basis as expeditiously as possible within aperiod of four months from the receipt of a certified copy of this order.In order to ensure that there should be no dislocation of work in theEeducational institution, the appellant, having regard to facts andcircumstances of the present case, should be allowed to continue purelyon an ad-hoc basis until a regularly appointed candidate is selected. Wealso direct, in exercise of our jurisdiction under Article 142 of theConstitution of India, that his salary should be paid over for the periodFfor which he works until a regular candidate is appointed.

17. We clarify that disposal of this appeal will not come in theway of the management pursuing the representation which has beensubmitted by the management, which shall be duly considered by thecompetent authority in accordance with law and in accordance with theGprinciples enunciated above.

18. The appeal is accordingly disposed of in the above terms.Pending application(s), if any, shall stand disposed of. There shall be noorder as to costs.

HKalpana K. Tripathy

Appeal disposed of.