Ram Govind Rai vs D.I.O.S.,Ballia And 2 Others
2017 Latest Caselaw 7696 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 18.8.2017
 
Delivered on 06.12.2017
 

 
Case :- WRIT - A No. - 39215 of 2014
 
Petitioner :- Ram Govind Rai
 
Respondent :- D.I.O.S.,Ballia And 2 Others
 
Counsel for Petitioner :- D.K.Singh,H.K. Srivastava,K Shahi,Rishi Kant Rai,Vivek Rai
 
Counsel for Respondent :- C.S.C.,Alok Mishra
 
Hon'ble Mrs. Sangeeta Chandra,J.

1. This writ petition has been filed by the petitioner praying for a writ in the nature of mandamus commanding the District Inspector of Schools to make payment of salary to the petitioner w.e.f. November 2013 till date along with arrears forthwith.

2. It is the case of the petitioner that one post of C.T. Grade Teacher was available in Bhadaonh Inter College Balaipur, District Ballia (now Mau), which is a duly recognised Institution governed by the Intermediate Education Act, 1921, and governed by the Payment of Salaries Act, 1971 and the U.P. Secondary Education Services Selection Boards Act, 1982.

3. The petitioner was appointed on an adhoc basis by the Committee of Management under the Second Removal of Difficulties Order, 1981, which appointment was approved by the District Inspector of Schools under paragraph 4(i) of the Second Removal of Difficulties Order, by an order dated 19.12.1983 for the period w.e.f. 12.1.1983 to 20.5.1984 and again approval was given on 23.9.1984 for the period 9.7.1984 to 20.9.1985. Again the District Inspector of Schools by order dated 8.8.1985 granted financial approval upto 30.6.1986.

4. Aggrieved by approval limited for a definite period of time, the petitioner preferred a Writ Petition No. 6330 of 1986 for a direction to the District Inspector of Schools to treat the petitioner to be in continuous service till a regularly selected candidate from Secondary Education Services Commission becomes available and to pay salary to the petitioner regularly from month to month. In the said writ petition, an interim order was granted by this Court on 15.5.1986 that till the services of the petitioner are terminated in accordance with law, or a person recommended by the Commission joins the post held by the petitioner, the District Inspector of Schools shall treat the appointment of the petitioner as continuing, and as if the same did not automatically cease either under clause-A or clause-C of Section 18(iii) of the U.P. Secondary Education Service Commission and Selection Board Act.

5. On the basis of interim order dated 15.5.1986 granted by this Court, the petitioner continued to work in the institution concerned and was given salary. The petitioner was also later promoted on 21.9.1992 w.e.f. 1.9.1992 as L.T. Grade Teacher by the Committee of Management. A conditional approval was given by the District Inspector of Schools, Mau that in case regularly selected candidate becomes available, the petitioner shall be reverted to his original post of C.T. Grade Teacher.

6. The petitioner was regularised under the provisions of U.P. Act No. 5 of 1992 by order dated 16.7.1998 w.e.f. 6.4.1991 as Teacher in C.T. Grade. The order of regularisation dated 16.7.1998 was not brought to the notice of this Court in Writ Petition No. 6330 of 1986, which remained pending and was dismissed ultimately for want of prosecution on 1.12.2001.

7. The petitioner filed a recall / restoration application in September 2013, which was rejected on 12.9.2013 holding that the delay in making such an application was unexplained and therefore not liable to be condoned.

8. The petitioner filed an appeal, namely Special Appeal No. 1166 of 2013 against the said order of rejection of his restoration application on 12.9.2013. The Special Appeal was disposed of by order dated 4.5.2015. This Court did not interfere in the order rejecting the application for condonation of delay and hence restoration application also, but at the same time observed that in the said writ petition, the petitioner had only sought a mandamus and had not prayed for quashing of any order, therefore the observation of the Writ-Court that if the writ petition has been dismissed as having become infructuous for want of prosecution, the interim order passed by this Court in writ petition would stand lapsed and the order under challenge would stand revived, was inappropriate and thus liable to be set aside.

9. It is the case of the petitioner that after clarification was made by this Court sitting in Special Appeal jurisdiction by the order dated 4.5.2015, it is evident that the petitioner had not sought for quashing of any order passed by the State respondents. The prayer in the said writ petition no. 6330 of 1986 was only for issuance of a direction in the nature of mandamus to the District Inspector of Schools to treat the petitioner to be in continuous service till a regularly selected candidate from the Commission joins and to pay him salary regularly along with arrears.

10. In pursuance of the interim order granted by this Court on 15.5.1986, the petitioner had continued teaching and was being paid salary. All of a sudden, after rejection of his restoration / recall application, the District Inspector of Schools had stopped payment of salary to the petitioner, even though the petitioner had been regularised under Section 33-A(1-A) of the U.P. Secondary Education Service Selection Board Act by order dated 16.7.1998 w.e.f. 6.4.1991.

11. It is the case of the petitioner that the petitioner's services came to be regularised by operation of law and independently of the pendency of Writ Petition No. 6330 of 1986 and without taking into consideration the interim order passed therein.

12. The order of regularisation has been filed by the petitioner as Annexure to this writ petition to show that there is no mention in it that such regularisation shall be subject to decision in Writ Petition No. 6330 of 1986. Hence his regularisation cannot be ignored by the District Inspector of Schools and his salary cannot be stopped.

13. Learned counsel for the petitioner has pointed out during the course of arguments that his initial appointment was made under Removal of Difficulties (Second Order), 1981, where in Clause-b of paragraph 3, it is said that in short term vacancy, an appointment can be made by the Committee of Management, which appointment shall continue for a period of six months from the date of such appointment. Later on by the Third Removal of Difficulties Order, 1981 sub clause b of paragraph 3 was deleted and on the basis thereof the petitioner should have been allowed to continue.

14. Learned counsel for the petitioner has also referred to the judgment and order dated 5.4.1985 filed along with his earlier writ petition, a copy of which has been filed through supplementary affidavit before this Court. This Court in similar circumstances in Writ Petition No. 4326 of 1985 (Ram Raj Chauhan Vs. District Inspector of Schools, Ballia & others) decided on 5.4.1985 had taken cognizance of a Government Order issued in July 1984 to the effect that the Boards for selection of Teachers in C.T. Grade have not been constituted as yet and held that appointment of Teachers made under Removal of Difficulties Orders may be continued till regular appointments are made through the Commission. The writ petition no. 4326 of 1985 was allowed by this Court and a direction was issued that the petitioner shall be continued and his salary be paid till regular appointment to the post held by the petitioner is made under the Selection Boards Act, 1982.

15. In the writ petition filed by the petitioner earlier, this Court had granted an interim order. It was directed that the respondents shall not limit the appointment of the petitioner to any particular period and shall treat the petitioner as continuing in service till a regular appointment is made.

16. Learned standing counsel has pointed out the letter dated 24.2.2013 issued by the District Inspector of Schools, Mau to the Principal of the College concerned mentioning therein that the petitioner continued to function on the basis of interim order in Writ Petition No. 6330 of 1986, which writ petition had been dismissed for want of prosecution in 2001 itself. In the Special Appeal Defective No. 1166 of 2013, the petitioner has stated that the District Inspector of Schools, Mau had stopped payment of salary since March 2013 and not since November 2013 as has been alleged in this writ petition. It was because of stoppage of salary of the petitioner w.e.f. March 2013 that the petitioner filed recall application in the aforesaid Writ Petition No. 6330 of 1986, which was rejected by this Court on 12.9.2013 as aforesaid.

17. The learned counsel for the State-Respondents has pointed out that as per the petitioner's own averments the District Inspector of Schools is still seized of the matter as he has asked the Principal of Bhadaon Inter College, Balipur, District Ballia to produce all relevant papers, so that he can decide the question of payment of salary to the petitioner. As such, it is not necessary for this Court to show interference in this writ petition but the case of the petitioner may be sent to the District Inspector of Schools who shall consider all aspects of the matter and decide in accordance with law.

18. The question for consideration which arises in this writ petition before this Court is whether the petitioner who admittedly was allowed to continue as C.T. Grade Teacher on the basis of interim order dated 15.5.1986 in Writ Petition No. 6330 of 1986, which was ultimately dismissed, can be said to have been validly regularised under Section 33-A(1-A) of the Selection Board Act, 1982 w.e.f. 16.4.1991.

19. The relevant extract Section 33-A(1-A) is being quoted herein below:-

"33-A. Regularisation of certain appointment.-(1) Every teacher directly appointed before the commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Ordinance, 1986, on ad-hoc basis against a substantive vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) order, 1981, as amended from time to time, who possesses the qualifications prescribed under, or is exempted from such qualification in accordance with the provisions of the Intermediate Education Act, 1921, shall, with effect from the date of such commencement, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the Institution from the date of such appointment up to the date of such commencement.

[(1-A) Every teacher appointed by promotion on adhoc basis against a substantive vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, as amended from time to time, who possesses the qualifications prescribed under or, is exempted from such qualifications in accordance with the provisions of the Intermediate Education Act, 1921 shall, with effect from the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1991, be deemed to have been appointed in a substantive capacity, provided such teacher has been continuously serving the institution from the date of such adhoc appointment to the date of such commencement."

20. Certain conditions have been mentioned under sub sections 2 & 3 of Section 33-A, which are irrelevant for the purpose of the controversy involved in this writ petition and are therefore are not being referred to at all.

21. It is evident from a bare perusal of Section

33-A(1-A) that the Teacher directly appointed before 1985 on an adhoc basis against the substantive vacancy in accordance with paragraph 2 of the U.P. Secondary Education Services Commission (Removal of Difficulties Order) 1981, who possesses the qualification prescribed shall w.e.f. the date of commencement of the amendment Act of 1981 i.e. w.e.f. 6.4.1991 be deemed to have been appointed in a substantive capacity, provided such Teacher has been continuously serving the institution from the date of such adhoc appointment till the date of such commencement. The petitioner by his own admission was appointed in short term vacancy created out of adhoc promotion of Shri Subhash Chandra Singh w.e.f. 19.12.1983 under paragraph 2(1)(iii) of the Second Removal of Difficulties Order.

22. "Short term vacancy" has been defined in Explanation (ii) to sub-para (iv) of paragraph 3 of the Second Removal of Difficulties Order thus:-

"3(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(i)-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 undergraduate (C.T.) grade or J.T.C. or B.T.C. grade, as the case may be;

(ii) in relation to institutions imparting instructions to women, the expressed 'District Inspector of Schools' shall mean the 'Regional Inspectress of Girls Schools';

(iii) 'short term vacancy' means a vacancy which is not substantive and is of a limited duration."

23. Paragraph 3 of the Second Removal of Difficulties Order is relevant for determining the duration of such adhoc appointment and it is being quoted herein below

"Duration of adhoc appointment-Every appointment of a teacher under paragraph 2 of this order shall cease from the earliest of the following dates, namely:

(a) when the teacher, who was on leave or under suspension joins the post; or

(b) when the period of six months from the date of such adhoc appointment expires, or

(c) when the short-term vacancy otherwise ceases to exit."

24. As per the Third Removal of Difficulties order issued on 30.1.1982 Clause (b) of paragraph 3 alone stands deleted, which says that adhoc appointment shall cease when the period of six months from the date of such adhoc appointment expires. Such an amendment does not exclude the other two limitations mentioned in Clauses (a) and (c) thereof.

25. The petitioner was appointed on short term vacancy resulting on adhoc promotion of Shri Subhash Chandra Singh. It has not come on record whether the adhoc promotion of Shri Subhash Chandra Singh was approved by the District Inspector of Schools. If such adhoc promotion was approved, then from the date of approval of adhoc promotion of Shri Subhash Chandra Singh, the short term vacancy resulting from such promotion would be converted into a substantive vacancy that had to be filled up under the provisions of Section 18 of the Selection Boards Act, 1982 only as it then existed.

26. It is the admitted case of the petitioner that he was not appointed in a substantive vacancy and therefore he could not have been given the benefit of Section

33-A(1-A) of the Selection Boards Act, 1982.

27. However, these facts, which have come to the notice of this Court on careful perusal of all documents filed by the petitioner in his writ petition, and the subsequent affidavits filed by him, have not been considered by the District Inspector of Schools, nor by any competent Officer of the Education Department till date.

28. It is the case of the petitioner that he was not working on the basis of interim order at the time of dismissal of the Writ Petition No. 6330 of 1986 on 1.12.2001, which order was confirmed after his restoration application was rejected and Special Appeal was dismissed.

29. It is the case of the petitioner that he was regularised by operation of law i.e. by Amendment of the Selection Boards Act by U.P. Act No. 26 of 1991 w.e.f. 6.4.1991.

30. With respect to the continuance of the petitioner independently of the interim order passed by this Court, it would be fruitful to refer to the judgment rendered by the Hon'ble Supreme Court in Committee of Management, Arya Nagar Inter College, Kanpur Vs. Sree Kumar Tiwari 1997 (4) SCC 388. The Supreme Court was considering the case of a teacher appointed on an adhoc basis against a short term vacancy caused by promotion of the incumbent on adhoc basis to the next higher post. His appointment came to be terminated vide order dated 30.5.1988 w.e.f. 30.6.1988. The respondent challenged the termination order and during pendency of the writ petition an interim order was granted, the High Court had held that only because the respondent was continuing on basis of interim order, his regularization under Section 33-B of the Act of 1982 introduced by the Third Removal of Difficulties Order, 1982 cannot be stopped. The appellants had argued before the Supreme Court that only because the respondent was continuing on the basis of interim order granted in his writ petition, it cannot be said that he was continuously serving the Institution, entitled him to the benefit of Third Removal of Difficulties Order.

31. The Counsel for the respondents in Sree Kumar Tiwari (supra) had contended that pursuant to the recommendation of the Regularization Committee the respondents had been regularised him and this objection could not now be raised by the appellants. The Hon'ble Supreme Court had rejected the argument of the respondent's counsel and observed in paras 6 to 8 thus:-

"6. In view of the respective contentions, the question that arises for consideration is whether the respondent is entitled to the benefit of the Third Removal of Difficulties Order as indicated herein before. Section 33-B (1) (a) (i) of the U. P. Secondary Education Service Commission Act, 1982, postulates among others, regularisation of a candidate who was appointed by promotion or by direct recruitment in the certificate of teaching grade before 13.5.1989 against a short-term vacancy in accordance with para 2 of the U. P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981 and such vacancy was subsequently converted into a substantive vacancy. It is seen that the regular incumbent retired from service on 30.6.1988. Consequently, the temporary vacancy was deemed to have been converted into a substantive vacancy w.e.f. 30.6.1988. But the crucial question is whether the respondent was continuously serving the institution under Clause (c) of Section 33-B (1)? Admittedly, the service of the respondent came to be terminated w.e.f. 30.6.1988. Though he had obtained the stay order and continued to be in service, it was not by virtue of his own right under an order of appointment, he ontinued in the office with permission of the management. In fact, in the recommendation made before the Selection Committee, they have stated as under :

"Ad hoc appointment of Shri Sri Kumar Tiwari was made on 1.8.1986 L.T. grade and vide notice dated 30.5.1988 his services were terminated. On the basis of the above order Shri Sri Kumar Tiwari obtained stay order No. 13565, dated 29.7.1988 from the Hon'ble High Court. Therefore, appointment is disputed."

"7. In fact, the regularisation order passed by the District Inspector of Schools also says that it was subject to the result in the writ petition. The appeal being the continuation of the writ petition, the question arises whether the respondent is entitled to claim the benefit of Section 33-B (1) (a) (i) of the U. P. Secondary Education Service Commission Act, 1982. We have seen that his services came to be terminated on 30.5.1988 and the Amendment Act has no application. Hence, the Division Bench was not right in giving direction that his regularisation will be subject to the further orders since the regularisation order itself means that it was subject to the result of the writ petition."

"8. The appeal is accordingly allowed, the writ petition stands dismissed, but in the circumstances, without costs. If there is provision for further appointment according to rules, the bar of age may be relaxed appropriately.

32. The writ petitioner herein, Ram Govind Rai, had been given adhoc appointment against short term vacancy arising out of promotion of Subhash Chandra Singh. His appointment was extended by separate orders passed by District Inspector of Schools for each academic session the last such order passed by District Inspector of Schools on 8.8.1985 giving extension to petitioner upto 30.6.1986. Before 30.6.1986 petitioner filed Writ Petition No. 6330 of 1986 and was granted an interim order on 15.5.1986.

33. Had the petitioner not been continued by this Court by an interim order dated 15.5.1986, he would not have been in continuous service when U.P. Act No. 26 of 1991 was introduced w.e.f. 6.4.1991, and his case could not have been considered at all by the District Inspector of Schools for regularisation.

34. With regard to long and continuous service rendered by a person on the basis of interim order, the Hon'ble Supreme Court has made certain observations in Surinder Prasad Tiwari Vs. U.P. Rajya Krishi Utpadan Mandi Parishad 2006 (7) SCC 684 in paragraphs 24 & 25 which are as follows:-

"24. In the instant case, the appellant has continued in service for 14 years because of the interim order granted by the High Court on 15.9.1992. In the aforesaid case, the Constitution Bench has observed that merely because an employee had continued under cover of an order of the court, which the court described as "litigious employment", he would not be entitled to any right to be absorbed or made permanent in the service.

25. In the instant case, the appellant submitted that he has been continued in service for 14 years and is entitled for regularization. This aspect of the matter has also been specifically dealt with by the said Constitution Bench in para 45 of the judgment and it was observed as under:

"45. While directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargainnot at arms lengthsince he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible..."

35 With regard to the Second Removal of Difficulties Order, this Court in a Full Bench decision rendered in Smt. Pramila Mishra Vs. Deputy Director of Education, Jhansi Division, Jhansi 1997 (2) UPLBEC 1329 has made certain observations which are relevant and are being quoted herein below:-

"The core question that arises for determination in these appeals is whether a teacher appointed on ad hoc basis in a short-term vacancy, like leave vacancy, is entitled as of right to continue in the said post even after the short term vacancy has been converted to a permanent vacancy due to death, resignation or retirement of the permanent incumbent ? The answer to this question depends on the interpretation of Section 33-B of the U. P. Secondary Education Services and Selection Boards Act, 1982 (U. P. Act No. 5 of 1982) (hereinafter referred to as the Act) and its interaction with the provisions of the U. P. Secondary Services Commission (Removal of Difficulties) (Second) Order, 1981 -------------------. In the cases referred to in the reference order quoted above this Court took the view that an ad hoc teacher appointed in a short term vacancy, which is subsequently con verted into a permanent vacancy, is en titled to continue in the post till a can didate duly selected by the U. P. Secondary Education Services Commission joins the post. It is relevant to note here that in both the cases the main question for con sideration of this Court was the claim of salary by the ad hoc teacher."

14. The Second Order deals with filling up of certain short-term vacancies caused by grant of leave to or on account of suspen­sion of a teacher or otherwise. Paragraph 2 of the Second Order, which lays down the procedure for filling up short-term vacan­cies, provides, inter alia, that if short-term vacancy in the post to 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, 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. In Clause (2) of the said Paragraph it is provided that 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). In Clause (3) it is mandated that 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' of this Order ; that 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 dated 31st July, 1981 and that the compilation of quality point marks shall be done under the personal su­pervision of the Head of institution. The District Inspector of Schools shall com­municate his decision within 7 days of the date of receipt of particulars by him failing which the Inspector will be deemed to have given his approval. On receipt of 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. Paragraph 3 of the Second Order makes provision regarding duration of ad hoc ap­pointment. In the said paragraph it is laid down that every appointment of a teacher under paragraph 2 of this Order shall cease from the earliest of the following dates, namely, (a) when the teacher, who was on leave or under suspension joins the post;

(b) when the period of six months from the date of such ad hoc appointment expires; or

(c) when the short-term vacancy otherwise, ceases to exist.

(Emphasis supplied)

16. From the provisions of the Acts, Rules, Regulations and Removal of Dif­ficulties Orders discussed above, it is manifest that a clear distinction has been maintained between substantive vacancy and short-term vacancy of the post of teacher. The authority to make the appoint­ment, the procedure to be followed in making the appointment and the considera­tions to be made in making the appoint­ments in the two cases are distinct and dif­ferent from each other. In each case the duration of ad hoc appointment is also laid down under the statutory provisions. In the case of ad hoc appointment in a short-term vacancy Paragraph 3 of the Second Order specifically lays down that the appointment will come to an end if the short-term vacan­cy otherwise ceases to exist. It follows, therefore, that when a vacancy caused due to grant of leave to or suspension of the per­manent incumbent becomes a substantive vacancy on account of his death, resignation or termination or removal from service, the short-term vacancy ceases to exist and a substantive vacancy is created in its place. On a perusal of the relevant provisions of the Acts, Rules and Removal of Difficulties Orders and giving our anxious considera­tion to the matter, we do not find any provision which directly or even indirectly vests a right in a person appointed as an ad hoc teacher in a short-term vacancy to con­tinue even after the said vacancy has ceased to exist and a substantive vacancy has been created in its place. The contention raised on behalf of the respondents that such an appointee (in short term vacancy) is entitled to continue in the post (substantive vacan­cy) till a candidate selected by the Commis­sion/Board joins the post does not get any support from the statutory provisions and, therefore, cannot be accepted. The conten­tion is also not acceptable for the reason that it runs counter to the intendment of the provisions of the Acts, Rules and Regula­tions. We should not be understood to be saying that an ad hoc teacher in a short term vacancy cannot be appointed in a substan­tive vacancy. He can be appointed in the substantive vacancy if he is selected in ac­cordance with the procedure and in the manner laid down in the relevant provisions of the Acts, Rules, Regulations and Removal of Difficulties Orders. What we want to stress and which is clear to us is that he cannot claim as a matter of right that he is entitled to continue in the post till the can­didate selected by the Commission/Board joins even if the short-term vacancy has ceased and a substantive vacancy in the post of teacher has been created in its place.

24. Summing up our conclusions in the light of the discussions in the foregoing paragraphs, we hold that a teacher ap­pointed by the management of the institu­tion on ad hoc basis in a short-term vacancy (leave vacancy/suspension vacancy), which is subsequently converted into a substantive vacancy in accordance with the provisions of the Act, Rules and Orders (On death, resig­nation, dismissal or removal of the per­manent incumbent), cannot claim a right to continue. He has, however, a right to be considered alongwith other eligible can­didates for ad hoc appointment in the sub­stantive vacancy if he possesses the requisite qualifications. Consequent upon the view taken by us, as noted above, we hold that the decisions of this Court like Km. Meena Singh's case (supra) and other cases taking contrary view, are declared to be no longer good law.

36. Since a Full Bench of this Court in Parmila Mishra (supra) has held that an adhoc teacher appointed in a short term vacancy has no right to continue after the short term vacancy is converted into a substantive vacancy, it cannot be said that the petitioner had any right to continue as adhoc teacher. The petitioner was allowed to continue on the basis of interim order dated 15.5.1986.

37. The writ petition no. 6330 of 1986 was eventually dismissed. The petitioner however had been regularised in the meantime due to mistake in interpretation of Section 33(1-A). The petitioner having been regularised cannot now be denied his salary as his regularization was not dependent on the outcome of Writ Petition No. 6330 of 1986 as was in the case of Sree Kumar Tiwari (supra). Moreso, when the order of regularization has not been passed as conditional to the outcome of the writ petition no. 6330 of 1986 and the Regularization order itself has not been set aside by any Competent Authority.

38. In view of the discussion made herein above regarding relevant provisions of the Act of 1982 and the Removal of Difficulties Orders 1981-1982 and the settled position in law, this writ petition is allowed. The respondents are directed to pay salary and allowances to the petitioner as admissible in law within a period of three months from the date a certified copy of the order is produced before them.

Order Date :- 06.12.2017

Arif