Execution Case No. 72 of 1985 · High Court · 2025

Department of Drawing and Painting in Shri Varshney Degree College, Aligarh made available vide Government Order dated 28.11.1983 and to grant a consequential benefit."

3. Though, initially the writ petition is filed by the petitioner assailing the orders of respondent no.1 dated 2.11.2002 passing an order in favour of respondent no.4.

4. Learned counsel for the petitioner has mainly stressed his argument by saying that the said orders are contrary to the judgment of this Court, but taking into consideration as the respondent no. 4 has continued and payment of salaries were also released. Learned counsel for the petitioner has also not much stressed at the validity of the appointment of respondent no.4. Hence, this Court is also not inclined to look into those aspects.

5. Now, learned counsel for the petitioner focused on the appointment of the petitioner and entitlement of regularization as per Section 31-B (1) of U.P. Higher Education Service Commission (Amendment) Act, 1985 (hereinafter referred to as the Act).

6. To entitlement of such benefit under the Act, one should have continuous service on a post pertaining to regularization of teacher, other than a principal, directly appointed on or before January 3, 1984 on adhoc basis, against a substantive vacancy in accordance with the provisions of the Uttar Pradesh Higher Education Service Commission (Removal of Difficulties) Order, 1983.

7. After subjecting to selection process, the petitioner was appointed on 17.02.1983 and the said appointment was approved by Vice-Chancellor, Agra University, Agra, and appointment letter was issued on 28.02.1983. Simultaneously, the respondents have also appointed fourth respondent herein to the said vacancy. As the petitioner was selected and appointed candidate, hence, she approached the Court to establish her substantial right by Original Suit No. 550 of 1984. Considering the record, Additional Munsif has passed interim order on

13.11.1984 and the said order was confirmed vide order dated

15.03.1985. Operative portion of the said order, is as below: "In view of the above discussion, I am of the opinion that the plaintiff has established her prima facio come. The balance of convenience lies also in favour of the plaintiff. If she is removed from services without an just and lawful accuse. She will suffer an irresponsible loss and injury. Her entire academic career shall be spoiled which involves the question of her bread and butter too. Hence. 6-C is hereby allowed and previous and dated

13.11.1984 is hereby confirmed."

8. Consequently, the said order became final. Though the petitioner has pressed the Execution Case No. 72 of 1985, the respondents have issued appointment to the petitioner on

22.9.2003 and is continuing from the said date, onwards. Hence, the claim of the petitioner is that the petitioner was appointed in a substantial vacancy on adhoc basis on

17.02.1983. Though, certain issues were pending before the petitioner as well respondent no.4 but in view of the observations made by the Civil Court in Original Suit No. 550 of 1984, the appointment of the petitioner ought to be treated from the date of initial appointment. Once that being the date of appointment, automatically the petitioner is entitled to consider her case under Section 31-B (1) of the Act.

9. The respondents have filed the counter affidavit. Initially, they have accepted that the petitioner was legally appointed as per the provisions under the Difficulties Removal Order. It is only stated that as against the vacancies, one Mahesh Chandra Varshney and the fourth respondent are working, hence, there is no substantial vacancy as the fourth respondent was senior in the selection, accordingly, she was appointed in February, 1983 and continuing, the petitioner is not eligible for regularization under Section 31-B (1) of the Act.

10. Considering the submission made by learned counsel for the parties and perused the record, in fact the appointment of the petitioner dated 17.02.1983 was protected by the orders of the Civil Court in Original Suit No. 550 of 1984 and the said orders were not interdicted by any Court, hence, the same are final. Though, the appointment of the fourth respondent was subjected to certain litigation by taking the fact that the fourth respondent has continued and retired, hence, this Court is not inclined to go into the validity of the appointment of the fourth respondent, that does not mean that the respondents cannot deny the benefit for regularization under Section 31-B (1) of the Act as the said appointment was already protected by the competent Civil Court in favour of the petitioner.

11. In the said circumstances, the respondents have no option except to consider the case of the petitioner by taking the appointment prescribed within Section 31-B (1) of the Act and accordingly, pass orders and regularized the services of the petitioner. It is needless to say that release all consequential pensionary benefits to the petitioner.

12. By taking the benefits granted to respondent no.4 on

2.11.2002, the retiral benefits may be released to her also within two months.

13. The writ petition is, accordingly, disposed of. Order Date :- 1.8.2025 Noman (Donadi Ramesh, J.) NOMAN AHMAD High Court of Judicature at Allahabad

Department of Drawing and Painting in Shri Varshney Degree College, Aligarh made available vide Government Order dated 28.11.1983 and to grant a consequential benefit."

3. Though, initially the writ petition is filed by the petitioner assailing the orders of respondent no.1 dated 2.11.2002 passing an order in favour of respondent no.4.

4. Learned counsel for the petitioner has mainly stressed his argument by saying that the said orders are contrary to the judgment of this Court, but taking into consideration as the respondent no. 4 has continued and payment of salaries were also released. Learned counsel for the petitioner has also not much stressed at the validity of the appointment of respondent no.4. Hence, this Court is also not inclined to look into those aspects.

5. Now, learned counsel for the petitioner focused on the appointment of the petitioner and entitlement of regularization as per Section 31-B (1) of U.P. Higher Education Service Commission (Amendment) Act, 1985 (hereinafter referred to as the Act).

6. To entitlement of such benefit under the Act, one should have continuous service on a post pertaining to regularization of teacher, other than a principal, directly appointed on or before January 3, 1984 on adhoc basis, against a substantive vacancy in accordance with the provisions of the Uttar Pradesh Higher Education Service Commission (Removal of Difficulties) Order, 1983.

7. After subjecting to selection process, the petitioner was appointed on 17.02.1983 and the said appointment was approved by Vice-Chancellor, Agra University, Agra, and appointment letter was issued on 28.02.1983. Simultaneously, the respondents have also appointed fourth respondent herein to the said vacancy. As the petitioner was selected and appointed candidate, hence, she approached the Court to establish her substantial right by Original Suit No. 550 of 1984. Considering the record, Additional Munsif has passed interim order on

13.11.1984 and the said order was confirmed vide order dated

15.03.1985. Operative portion of the said order, is as below: "In view of the above discussion, I am of the opinion that the plaintiff has established her prima facio come. The balance of convenience lies also in favour of the plaintiff. If she is removed from services without an just and lawful accuse. She will suffer an irresponsible loss and injury. Her entire academic career shall be spoiled which involves the question of her bread and butter too. Hence. 6-C is hereby allowed and previous and dated

13.11.1984 is hereby confirmed."

8. Consequently, the said order became final. Though the petitioner has pressed the Execution Case No. 72 of 1985, the respondents have issued appointment to the petitioner on

22.9.2003 and is continuing from the said date, onwards. Hence, the claim of the petitioner is that the petitioner was appointed in a substantial vacancy on adhoc basis on

17.02.1983. Though, certain issues were pending before the petitioner as well respondent no.4 but in view of the observations made by the Civil Court in Original Suit No. 550 of 1984, the appointment of the petitioner ought to be treated from the date of initial appointment. Once that being the date of appointment, automatically the petitioner is entitled to consider her case under Section 31-B (1) of the Act.

9. The respondents have filed the counter affidavit. Initially, they have accepted that the petitioner was legally appointed as per the provisions under the Difficulties Removal Order. It is only stated that as against the vacancies, one Mahesh Chandra Varshney and the fourth respondent are working, hence, there is no substantial vacancy as the fourth respondent was senior in the selection, accordingly, she was appointed in February, 1983 and continuing, the petitioner is not eligible for regularization under Section 31-B (1) of the Act.

10. Considering the submission made by learned counsel for the parties and perused the record, in fact the appointment of the petitioner dated 17.02.1983 was protected by the orders of the Civil Court in Original Suit No. 550 of 1984 and the said orders were not interdicted by any Court, hence, the same are final. Though, the appointment of the fourth respondent was subjected to certain litigation by taking the fact that the fourth respondent has continued and retired, hence, this Court is not inclined to go into the validity of the appointment of the fourth respondent, that does not mean that the respondents cannot deny the benefit for regularization under Section 31-B (1) of the Act as the said appointment was already protected by the competent Civil Court in favour of the petitioner.

11. In the said circumstances, the respondents have no option except to consider the case of the petitioner by taking the appointment prescribed within Section 31-B (1) of the Act and accordingly, pass orders and regularized the services of the petitioner. It is needless to say that release all consequential pensionary benefits to the petitioner.

12. By taking the benefits granted to respondent no.4 on

2.11.2002, the retiral benefits may be released to her also within two months.

13. The writ petition is, accordingly, disposed of. Order Date :- 1.8.2025 Noman (Donadi Ramesh, J.) NOMAN AHMAD High Court of Judicature at Allahabad