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Dharam Deo Singh Yadav v. District Inspector Of Schools, Varanasi & Others - SPECIAL APPEAL DEFECTIVE No. - 848 of 2007 [2007] RD-AH 16424 (8 October 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


CJ's Court



Special Appeal (Defective) No.848 of 2007

Dharam Deo Singh Yadav, son of Nanku Singh Yadav, Assistant Teacher in C.T. Grade Sri Khojawa Rashtriya Uchchattar Madhyamik Vidyalaya, Khojawa Bazar, Varanasi ......Appellant


District Inspector of Schools, Varanasi & Others ....Respondents

Present: Sri G.K. Singh, for the appellant.

Sri G.C. Upadhyay, Standing Counsel, for the respondents.

Coram: Hon'ble H.L. Gokhale, CJ.

Hon'ble Anjani Kumar, J.

Date: 8th October, 2007.

Oral Judgement (Per: H.L. Gokhale, CJ.)

1. Heard Mr. G.K. Singh, in support of this appeal and Mr. G.C. Upadhyay, learned Standing Counsel for the State, who appears for Respondents 1 and 2.

2. The appellant claimed to be working as a Teacher in a Secondary School run by Respondent no.3-Committee of Management at Varanasi. He claimed that he was working since about 1983 when he was appointed in the leave vacancy of one Ram Prakash Singh Yadav. In view of his continuance in that vacancy, the authorities of the School wrote to the District Inspector of Schools on 25.5.1988, asking for payment of his salary during the Summer Vacation. The letter also asked that he may be continued until a candidate regularly selected by the U.P. Secondary Education Service Selection Board becomes available.

3. This letter was replied by the District Inspector of Schools on 1.6.1988 stating that the permission was granted to continue the appellant until 30.6.1988. No such extension was granted thereafter and the services of the appellant were expected to come to an end. The appellant filed a writ petition in this Court. Under the Rules, existing at that time, such petition was heard by a Division Bench. The Division Bench granted an interim order on 12.7.1988, which is as follows:-

"One month time is granted to the Standing Counsel for filing counter affidavit in this case. Thereafter one week time is granted to the petitioner to file rejoinder affidavit.

List the case for admission and further orders just after the expiry of the aforesaid period.

The services of the petitioner will not be deemed to have come to an end on 30.6.1988. His services shall continue till regular appointment is made. The petitioner shall be entitled to his salary month to month."

4. As is apparent from the records, no counter affidavit was filed by the State Government nor by the Committee of Management. The petition merely lingered on. In the meanwhile, the rules were changed and ultimately, the writ petition, as per the present rules, reached for final hearing before the learned Single Judge on 5.4.2007. The learned Single Judge observed that the petitioner cannot take advantage of the stay order. Inasmuch as it was canvassed on behalf of the appellant/petitioner that in the meanwhile Section 33-B has been introduced in the U.P. Secondary Education (Services Selection Boards) Act, 1982, sub-section (1) (a) (i) of this Section 33-B is relevant for our purpose. It reads as follows:-

"[(1)] Any teacher, other than the Principal or Headmaster, who--

(a) (i) was appointed by promotion or by direct recruitment in the Lecturer grade or Trained Graduate grade on or before May 14, 1991 or in the Certificate of Teaching grade on or before May 13, 1989 against a short term vacancy in accordance with Paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 and such vacancy was subsequently converted into a substantive vacancy; or."

5. It was canvassed on behalf of the petitioner/appellant that inasmuch as this beneficial provision had protected those who were in service on 14.5.1991, the petitioner be deemed to be protected. The argument was turned down by the learned Single Judge and the writ petition was dismissed. Hence this appeal.

6. A case similar to one in hand came to be considered by the Apex Court in the case of Committee of Management, Arya Nagar Inter College, Arya Nagar, Kanpur Vs. Sree Kumar Tiwary and another, reported at AIR 1997 SC 3071. In that matter also, the respondent was appointed as an ad-hoc teacher on 12.7.1986 against a short term vacancy caused by promotion of an incumbent on a next higher post. His appointment came to be terminated on 30.5.1988 w.e.f. 30.6.1988. The respondent challenged that order of termination, and by virtue of an interim order, he continued in service. This very section and the orders providing for removal of difficulties were placed into service.

7. The Apex Court in paragraph 6 of its judgement observed that though the respondent had obtained the stay order and continued to be in service (on the relevant date), it was not by virtue of his own right under an order of appointment. He continued in the office with the permission of the Management. In paragraph 7 of the judgement, the Apex Court has observed that his services came to be terminated on 30.5.1988 and the Amendment Act had no application.

8. In the present case also, the Amendment Act has come into force much later and it cannot have any application. The learned Single Judge was right in dismissing the writ petition. The appeal is, therefore, dismissed.


RKK/- (Chief Justice)

(Anjani Kumar, J.)


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