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Mahadeo Pandey v. C/M. And Others - WRIT - A No. 18620 of 1985 [2007] RD-AH 7640 (25 April 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).


Hon'ble Rakesh Tiwari, J

  The case of the petitioner is that a post of Assistant Teacher in the L.T. Grade in Shir Moti Lal Nehru Inter College, Basupur in distirct Ghazipur fell vacant.  On coming to know about the said vacancy, the petitioner applied for the same. He was interviewed along with other candidates in November, 1981 by a duly constituted Selection Committee and he was selected.  He was issued appointment letter dated 10.12.1981 appended as Annexure 1 to the writ petition in compliance whereof the petitioner joined as such w.e.f. 10.12.1981. The appointment of the petitioner was under second amendment ot Difficulties Order and was  approved by the District Inspector of Schools vide letter dated 20.2.1982.

Vide order dated 30.11.1985, appended as Annexure 2 to the writ petition, the services of the petitioner have been terminated. It was informed by the Manager to the petitioner that the impugned order of termination was passed on the oral direction of District Inspector of Schools.

Aggrieved by the aforesaid order of termination, the petitioner came up before this Court by filing the instant writ petition and at the time of admission, the following interim order was passed on 5.12.1985:-

"Hon. K.C. Agarwal, J

Hon. R.P.Shukla, J

Issue notice.

        Operation of the order dated 30.11.85 terminating the petitioner shall remain suspended meanwhile."

Dt. 5.12.85                                         Sd/- Illegible

                                                           Sd/- Illegible."

The aforesaid interim order was confirmed vide order dated 13.8.1986 which is as under :-

"Hon. S.D. Agarwala, J

Heard learned counsel for the parties. The interim order dated 5.12.1985 is confirmed.

In my opinion, it is a fit case which should be expeditiously disposed of. It will be open to the parties to move an application for expeditious disposal of the writ petition before the Hon'ble Chief Justice.

Dated August 13, 1986                        Sd/- Illegible"

Counsel for the petitioner contended that the services of the petitioner shall be deemed to have been regularized under Section 33-A of the U.P. Secondary Education Service (Selection Board) Act, 1982 (hereinafter referred to as 'the Act'). He urged that the impugned order has been passed by the Manager of the institution without prior approval as provided under Section 21 of the Act  and without affording opportunity of hearing to the petitioner, as such, the same is liable to be quashed. In support of his contention is placed reliance on the Division Bench decision of this Court in Kumari Nishi Bhargava V. Deputy Director of Education Agra Region, Agra and others- 1987 UPLBEC-415.

Sri K.K. Singh, counsel for the Committee of Management supported the averments contained in the writ petition.

Sri Krishna ji Khare, counsel for the respondent no. 3 contended that one Sri Pyare Lal Tiwari was appointed in L.T. Grade in the aforesaid institution in July 1974.  He went on leave since 1.5.1981 to 31.12.1981.   The petitioner was appointed on the leave vacancy of Sri Pyare Lal Tiwari. His appointment was approved by the District Inspector of Schools only for a period of six months. Sri Pyare Lal Tiwari thereafter did not return to his duties and sent his resignation letter.  It is submitted that there were six sanctioned posts of L.T. Grade teachers in the institution, five of them were filled up by direct recruitment and the last one was filled up by promotion. S/Sri Surendra Deo Pandey, Rama Shankar Misra, Prakash Nath Singh, Mahendra Singh and Pyare Lal Tiwari are the direct recruit teachers whereas Sri Ram Chandra Singh was appointed by promotion. It is further submitted by the counsel for respondent no. 3 that the petitioner was neither a direct recruit nor a promotee, as such, the claim of the petitioner is not sustainable in law.   It has been urged that since appointment of the petitioner was made on a short term vacancy, hence he cannot continue in service.  In support of this conttention, reliance was placed on the Division Bench decision of this Court in Surendra Kumar Srivastava V. State of U.P. And others-2007(1) ESC-118.  In that case, the petitioner was appointed on a short term vacancy. If the contention of counsel for the respondents is accepted that the petitioner was appointed on the leave vacancy of Sri Pyare Lal Tiwari, it is admitted fact that Sri Tiwari did not join his service and sent his resignation letter and thereafter the petitioner continued to hold the post.  After his termination from service,  on the strength of aforesaid interim order of this Court.  In Kumari Nishi Bhargava (supra), it has been held that :

" A bare pursual of Section 33-A makes it clear that an ad hoc appointee must satisfy five conditions before he can be treated to be in substantive capacity. (i) He must have been appointed before commencement of Act 19 of 1985 i.e. prior to 12th June 1985 (ii) The appointment must have been made against substantive vacancy (iii) Under paragraph 2 of Removal of Difficulties Order, as amended from time to time (iv) Possessed the prescribed qualifications ( v) Has been continuously serving the institution from the date of such appointment upto the date the order was issued in 1985..."

In the instant case, admittedly he petitioner was appoitned on 10.12.1981, i.e., before 12th June 1985.  So he fulfills the first condition.  He was appointed under Second Removal of Difficulties Order and after resignation of Sri Pyare Lal Tiwari from the post, the appointment of the petitioner continued till today on substantive post. It is not in dispute that the petitioner is possessed requisite qualifications as such, all the  conditions laid down in the aforesaid judgment areo satisfied.  Since he has been continuously working till today following the ratio laid down in Kumari Nishi Bhargava (supra), the services of the petitioner stand regularized under Section 33-A of the Act.

For the reasons stated above, the writ petition succeeds and is allowed. The impugned order dated 30.11.1985 is quashed.  The petitioner's services shall be treated to have been regularized under Section 33-A of the Act.  No order as to costs.

Dated  25..4.2007



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