Jahaj Pal v. District Inspector of Schools and Another). In the said judgment the Court has fo

1. Heard Shri Shiv Govind Kumar, learned Senior Advocate assisted by Shri Naveen Pandey, learned counsel for the petitioner and learned Standing Counsel for the respondent.

2. The petitioner was appointed on a short term vacancy on 27.10.1990 and his appointment was approved by the competent authority vide order dated 27.08.1992. Despite approval, the respondents have not paid the salary to the petitioner, hence, the petitioner approached this Court by filing Writ Petition No.16990 of 1992. Considering the material placed on record this Court has passed the interim order dated 13.05.1992 for payment of salaries and subsequent to the said directions the respondents have considered the case of the petitioner and his appointment was approved vide order dated 27.08.1992. Accordingly, the writ petition became infructuous and is dismissed. Subsequent to the dismissal of the writ petition, the respondents have stopped payment of salary to the petitioner. Left with no option the petitioner has filed recall of the earlier order and same was considered and disposed of vide order dated 30.06.2009, with the following directions:- "In view of the order dated 27.08.1992 this writ petition has become infructuous and is dismissed as such. However, it is clarified that in case, the order dated 27.08.1992 is otherwise in accordance with law then the same shall not be questioned or set aside, merely on the ground of dismissal of this writ petition as infructuous."

3. Subsequently based on the complaint made by the third party the respondents once again stopped payment of salary to the petitioner vide order dated 26.07.2011. The said orders are assailed before this Court in Writ A No.59681 of 2011 and considering the entire facts an elaborate order was passed, which reads as follows:- "9. It is contended on behalf of the petitioner that the petitioner was validly appointed on ad hoc basis against a short term vacancy which occurred on account of promotion of Sri Bajrang Bahadur, as ad hoc Principal of the Institution, with the approval of the DIOS dated 27 August 1992.

10. As regards the dismissal of the writ petition, it is submitted that while restoring the case on 30 June 2009 the DIOS has failed to consider that this Court on 30 June 2009 has clarified that the order dated 27 August 1992, if has been passed in accordance with law, then the same shall not be questioned or set aside merely on the ground of dismissal of the writ petition.

11. Learned counsel for the petitioner has drawn the attention of the Court to the educational certificates/ statement of marks right from High School to Post Graduation, which have been collectively brought on record as annuxure-1 to the writ petition.

12. Lastly, he urged that the recital in the order of the DIOS that the petitioner has failed to produce his educational certificates, is incorrect as the petitioner possesses essential qualification and he has never been asked by the DIOS to produce the same before him.

13. Learned Standing Counsel has drawn the attention of the Court to various paragraphs of the counter affidavit and submitted that in spite of the opportunity given to the petitioner he has failed to produce his educational certificates before the DIOS.

14. I have heard learned counsel for the parties, considered the rival submissions and perused the record.

15. The appointment of the petitioner appears to have been made on a short term vacancy and his appointment was approved by the DIOS on 27 August 1992. There is nothing on the record to indicate that the order of the approval of the petitioner dated 27 August 1992 has either been recalled or set aside by the competent authority.

16. Indisputably, the petitioner is working in the Institution and his writ petition was dismissed on 30 January 2009. The said writ petition was recalled on 30 June 2009. It appears that the observation made by this Court in its order dated 30 June 2009 has escaped the notice of the DIOS. Moreover, as noticed above, the petitioner has brought on the record his educational certificates."

4. While remitting the matter to the District Inspector of Schools for fresh consideration, it is categorically stated that the petitioner is working in the institution and also petitioner has brought on record his educational certificates. But surprisingly the respondents once again have passed the impugned order rejecting the claim of the petitioner for release of salary from 26.07.2011 to 31.03.2016, till his retirement, on the sole ground that the appointment of the petitioner Shri Lalta Prasad Mishra was made against short term vacancy that arose in the post of Lecturer (English) following the promotion of Shri Bajrang Bahadur Singh Lecturer (English). The said short term vacancy was transformed into substantive vacancy on 01.07.2003. The services of the Shri Lalta Prasad Mishra- petitioner herein should have terminated by then itself. Further stating that as the appointment of the petitioner is in irregularity as the vacancy was converted into substantive vacancy, the petitioner services should have been terminated but contrary to that he continued and he is not entitled to any salary and also for any retiremental benefits.

5. Based on the above facts, learned Senior Counsel appearing for the petitioner has contended that on earlier occasion this Court has passed order dated 30.06.2009 with specific finding that in view of the order passed by the competent authority on 27.08.1992 i.e. the approval of the appointment of the petitioner, is otherwise in accordance with law and the same shall not be questioned or set aside. In the said circumstances, as once the Court has considered the approval order while disposing of the earlier writ petitions, the writ petition are restored owing to the validity or irregularity of the appointment which were made on 27.10.1990. Further, as the present rejection orders were passed by the DIOS in compliance of the order of this Court dated 06.04.2015, it is contrary to the law laid down by the larger bench of this Court in Special Appeal No.280 of 2013 (Jahaj Pal Vs. District Inspector of Schools and Another). In the said judgment the Court has formulated the following questions:- "(a) Whether an ad hoc appointee, appointed against a short term vacancy, would automatically cease to be in employment upon conversion of the vacancy into a substantive vacancy? (b) Whether the ad hoc appointee against a short term vacancy is entitled to continue to serve, even though the vacancy is converted into a substantive vacancy, until appointment of either an ad hoc teacher in accordance with the provisions of the U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 or till appointment of a regularly selected teacher recommended by the Commission/ Board whichever is earlier? (c) Whether the benefit of regularization as provided under Section 33-B of the UP Act No.5 of 1982 is available only where the short term vacancy gets converted into a substantive vacancy after the commencement of U.P. Act No.1 of 1993 i.e. 7.8.1993 and not before?"

6. The said questions were answered with the following observations:- "A. Question (a) is answered in affirmative. We hold that tenure of ad hoc appointed teachers against short-term vacancies, provided in Para 3 of Second Order, is mandatory and will continue to hold the field till 06.08.1993. On and after 07.08.1993, when Section 33-B was enacted and enforced, teachers who come within the ambit of Section 33-B and entitled to be considered for substantive appointment thereunder, their tenure would be governed by sub-section (5) and till such teachers are not considered by Selection Committee for substantive appointment, they will be entitled to continue even if any contingency, referred to in Para 3 of Second order, has arisen on and after 07.08.1993. In other words, Section 33-B wherever applicable, shall prevail over Para 3 of Second Order, but, in cases where Section 33-B is not applicable and ad hoc appointment is made against short term vacancies as per procedure prescribed in Second Order, in those cases only, even after 07.08.1993, tenure provided in Para 3 shall be applicable. B. In view of the conclusion noted above and answer to question (a), question (b) is answered in negative. C. Question (c) is answered in affirmance. D. Question (d) is answered as under: (i) Decision in District Inspector of Schools, Kanpur Nagar and others vs. Diwakar Lal and others (supra) is overruled to the extent as stated in para 180 to 182 above. (ii) Decision in Raj Kumar Verma and others vs. District Inspector of Schools, Saharanpur and others (supra) is overruled to the extent as stated in para 183-188 above. (iii) Decision in Smt. Shashi Saxena and others vs. Deputy Director of Education and others (supra) is overruled to the extent as stated in para 189 above. (iv) Decision in Raghuvendra Babu Misra vs. District Inspector of Schools, Etah and others (supra) is overruled to the extent as stated in para 190 above. (v) Decision in Surendra Kumar Srivastava vs. State of U.P. and others (supra) is overruled to the extent as stated in para 191 to 199 above. (vi) The Full Bench judgment in Smt. Pramila Mishra vs. Deputy Director of Education, Jhansi Division, Jhansi and others (supra) to the extent of observation made in para 16 of the said judgment, are clarified in the manner as stated in para 206 above. E. We reiterate that so far as cases which are within the ambit of Section 33-B of Act, 1982, to that extent tenure of ad hoc teachers appointed against short term vacancies following procedure prescribed in Para 2 of Second Order shall be governed by sub-section (5) of Section 33-B. It shall prevail over otherwise inconsistent provision contained in Para 3 of Second Order. Further, for interregnum period such teachers so long as are not considered by Selection Committee constituted under sub-section (2) of Section 33-B, for that period also such ad hoc teachers will continue and will not stand terminated by taking recourse to Para 3 of Second Order on and after 07.08.1993."

7. Specifically this Court has formulated a question with regard to ad hoc appointment against short term vacancy. Whether it would automatically cease after short term vacancy converted into substantive vacancy. The said question was answered in negative saying that the appointment of teacher against the short term vacancy is mandatory and continue to hold the field till 06.08.1993. From 07.08.1993 onwards consideration of claims under Section 33-B would come into operation. In the said circumstances, the objection taken in the impugned order is contrary to the observations made by the larger bench in the above referred matter.

8. In reply to the said submissions, learned Standing Counsel appearing on behalf of State has made submissions based on the averments made in the counter affidavit that initially he wants to hold the validity and procedure adopted while appointing the petitioner. As he has contended that very appointment of the petitioner is contrary to the regulations, hence, it is irregular. Once it is not a regular appointment he is not entitled to any salary or benefits. Further, he contended that he has not worked from 2011 to 2015 and he is also not entitled to any salary for particular period for no work no pay and further has submitted that his case was not considered under 33-B. Hence, he is not entitled to any benefits.

9. Considering the submissions of learned counsel for the parties and perusal of record, as the other factual aspects are not in dispute initially when the payment was not made, the petitioner has approached this Court and based on the interim order passed by this Court on 13.05.1992 the salaries were released and subsequently on the proposals sent by the Management his appointment was approved vide order dated 27.08.1992. While disposing of the said writ petition this Court has categorically held that the order dated 27.08.1992 is otherwise, in accordance with law and should not be set aside. The fact remains so far the said orders were not interdicted by any authority. Further, when the payment of salaries for particular period was not accorded, the petitioner has approached this Court in Writ Petition No.59681 of 2011, this writ petition is also disposed of considering the entire facts and by taking note of continuous service of petitioner. Surprisingly, contrary to both the orders, now the respondent has rejected the claim of the petitioner once again on the ground that the petitioner was appointed on a short term vacancy and subsequent to transforming the said vacancy to regular vacancy he is not entitled for any relief.

10. Perusal of the observations made by this Court in larger bench in Special Appeal No.280 of 2013 (Jahaj Pal Vs. District Inspector of Schools and Another), this issue has been clarified that any appointment made to the short term vacancy, they are entitle to continue till 06.08.1993 and further clarified from 07.08.1993, they are entitle to protection under Section 33-B.

11. In view of the said circumstances, as the ground raised in the impugned order is contrary to the observations made in the above judgment and accordingly, is quashed. It is needless to mention that as observed by this Court in earlier judgments there is no liberty given to the authorities to go into validity of the appointment. Hence, the respondents ought to have released the salaries to the petitioner and also all the consequential retiremental benefits within a period of two months from the date it is due.

12. Accordingly, the present writ petition is disposed of. Order Date :- 8.5.2025 AdityaG (Donadi Ramesh,J.) ADITYA GAUTAM High Court of Judicature at Allahabad

1. Heard Shri Shiv Govind Kumar, learned Senior Advocate assisted by Shri Naveen Pandey, learned counsel for the petitioner and learned Standing Counsel for the respondent.

2. The petitioner was appointed on a short term vacancy on 27.10.1990 and his appointment was approved by the competent authority vide order dated 27.08.1992. Despite approval, the respondents have not paid the salary to the petitioner, hence, the petitioner approached this Court by filing Writ Petition No.16990 of 1992. Considering the material placed on record this Court has passed the interim order dated 13.05.1992 for payment of salaries and subsequent to the said directions the respondents have considered the case of the petitioner and his appointment was approved vide order dated 27.08.1992. Accordingly, the writ petition became infructuous and is dismissed. Subsequent to the dismissal of the writ petition, the respondents have stopped payment of salary to the petitioner. Left with no option the petitioner has filed recall of the earlier order and same was considered and disposed of vide order dated 30.06.2009, with the following directions:- "In view of the order dated 27.08.1992 this writ petition has become infructuous and is dismissed as such. However, it is clarified that in case, the order dated 27.08.1992 is otherwise in accordance with law then the same shall not be questioned or set aside, merely on the ground of dismissal of this writ petition as infructuous."

3. Subsequently based on the complaint made by the third party the respondents once again stopped payment of salary to the petitioner vide order dated 26.07.2011. The said orders are assailed before this Court in Writ A No.59681 of 2011 and considering the entire facts an elaborate order was passed, which reads as follows:- "9. It is contended on behalf of the petitioner that the petitioner was validly appointed on ad hoc basis against a short term vacancy which occurred on account of promotion of Sri Bajrang Bahadur, as ad hoc Principal of the Institution, with the approval of the DIOS dated 27 August 1992.

10. As regards the dismissal of the writ petition, it is submitted that while restoring the case on 30 June 2009 the DIOS has failed to consider that this Court on 30 June 2009 has clarified that the order dated 27 August 1992, if has been passed in accordance with law, then the same shall not be questioned or set aside merely on the ground of dismissal of the writ petition.

11. Learned counsel for the petitioner has drawn the attention of the Court to the educational certificates/ statement of marks right from High School to Post Graduation, which have been collectively brought on record as annuxure-1 to the writ petition.

12. Lastly, he urged that the recital in the order of the DIOS that the petitioner has failed to produce his educational certificates, is incorrect as the petitioner possesses essential qualification and he has never been asked by the DIOS to produce the same before him.

13. Learned Standing Counsel has drawn the attention of the Court to various paragraphs of the counter affidavit and submitted that in spite of the opportunity given to the petitioner he has failed to produce his educational certificates before the DIOS.

14. I have heard learned counsel for the parties, considered the rival submissions and perused the record.

15. The appointment of the petitioner appears to have been made on a short term vacancy and his appointment was approved by the DIOS on 27 August 1992. There is nothing on the record to indicate that the order of the approval of the petitioner dated 27 August 1992 has either been recalled or set aside by the competent authority.

16. Indisputably, the petitioner is working in the Institution and his writ petition was dismissed on 30 January 2009. The said writ petition was recalled on 30 June 2009. It appears that the observation made by this Court in its order dated 30 June 2009 has escaped the notice of the DIOS. Moreover, as noticed above, the petitioner has brought on the record his educational certificates."

4. While remitting the matter to the District Inspector of Schools for fresh consideration, it is categorically stated that the petitioner is working in the institution and also petitioner has brought on record his educational certificates. But surprisingly the respondents once again have passed the impugned order rejecting the claim of the petitioner for release of salary from 26.07.2011 to 31.03.2016, till his retirement, on the sole ground that the appointment of the petitioner Shri Lalta Prasad Mishra was made against short term vacancy that arose in the post of Lecturer (English) following the promotion of Shri Bajrang Bahadur Singh Lecturer (English). The said short term vacancy was transformed into substantive vacancy on 01.07.2003. The services of the Shri Lalta Prasad Mishra- petitioner herein should have terminated by then itself. Further stating that as the appointment of the petitioner is in irregularity as the vacancy was converted into substantive vacancy, the petitioner services should have been terminated but contrary to that he continued and he is not entitled to any salary and also for any retiremental benefits.

5. Based on the above facts, learned Senior Counsel appearing for the petitioner has contended that on earlier occasion this Court has passed order dated 30.06.2009 with specific finding that in view of the order passed by the competent authority on 27.08.1992 i.e. the approval of the appointment of the petitioner, is otherwise in accordance with law and the same shall not be questioned or set aside. In the said circumstances, as once the Court has considered the approval order while disposing of the earlier writ petitions, the writ petition are restored owing to the validity or irregularity of the appointment which were made on 27.10.1990. Further, as the present rejection orders were passed by the DIOS in compliance of the order of this Court dated 06.04.2015, it is contrary to the law laid down by the larger bench of this Court in Special Appeal No.280 of 2013 (Jahaj Pal Vs. District Inspector of Schools and Another). In the said judgment the Court has formulated the following questions:- "(a) Whether an ad hoc appointee, appointed against a short term vacancy, would automatically cease to be in employment upon conversion of the vacancy into a substantive vacancy? (b) Whether the ad hoc appointee against a short term vacancy is entitled to continue to serve, even though the vacancy is converted into a substantive vacancy, until appointment of either an ad hoc teacher in accordance with the provisions of the U.P. Secondary Education Services Commission (Removal of Difficulties) Order, 1981 or till appointment of a regularly selected teacher recommended by the Commission/ Board whichever is earlier? (c) Whether the benefit of regularization as provided under Section 33-B of the UP Act No.5 of 1982 is available only where the short term vacancy gets converted into a substantive vacancy after the commencement of U.P. Act No.1 of 1993 i.e. 7.8.1993 and not before?"

6. The said questions were answered with the following observations:- "A. Question (a) is answered in affirmative. We hold that tenure of ad hoc appointed teachers against short-term vacancies, provided in Para 3 of Second Order, is mandatory and will continue to hold the field till 06.08.1993. On and after 07.08.1993, when Section 33-B was enacted and enforced, teachers who come within the ambit of Section 33-B and entitled to be considered for substantive appointment thereunder, their tenure would be governed by sub-section (5) and till such teachers are not considered by Selection Committee for substantive appointment, they will be entitled to continue even if any contingency, referred to in Para 3 of Second order, has arisen on and after 07.08.1993. In other words, Section 33-B wherever applicable, shall prevail over Para 3 of Second Order, but, in cases where Section 33-B is not applicable and ad hoc appointment is made against short term vacancies as per procedure prescribed in Second Order, in those cases only, even after 07.08.1993, tenure provided in Para 3 shall be applicable. B. In view of the conclusion noted above and answer to question (a), question (b) is answered in negative. C. Question (c) is answered in affirmance. D. Question (d) is answered as under: (i) Decision in District Inspector of Schools, Kanpur Nagar and others vs. Diwakar Lal and others (supra) is overruled to the extent as stated in para 180 to 182 above. (ii) Decision in Raj Kumar Verma and others vs. District Inspector of Schools, Saharanpur and others (supra) is overruled to the extent as stated in para 183-188 above. (iii) Decision in Smt. Shashi Saxena and others vs. Deputy Director of Education and others (supra) is overruled to the extent as stated in para 189 above. (iv) Decision in Raghuvendra Babu Misra vs. District Inspector of Schools, Etah and others (supra) is overruled to the extent as stated in para 190 above. (v) Decision in Surendra Kumar Srivastava vs. State of U.P. and others (supra) is overruled to the extent as stated in para 191 to 199 above. (vi) The Full Bench judgment in Smt. Pramila Mishra vs. Deputy Director of Education, Jhansi Division, Jhansi and others (supra) to the extent of observation made in para 16 of the said judgment, are clarified in the manner as stated in para 206 above. E. We reiterate that so far as cases which are within the ambit of Section 33-B of Act, 1982, to that extent tenure of ad hoc teachers appointed against short term vacancies following procedure prescribed in Para 2 of Second Order shall be governed by sub-section (5) of Section 33-B. It shall prevail over otherwise inconsistent provision contained in Para 3 of Second Order. Further, for interregnum period such teachers so long as are not considered by Selection Committee constituted under sub-section (2) of Section 33-B, for that period also such ad hoc teachers will continue and will not stand terminated by taking recourse to Para 3 of Second Order on and after 07.08.1993."

7. Specifically this Court has formulated a question with regard to ad hoc appointment against short term vacancy. Whether it would automatically cease after short term vacancy converted into substantive vacancy. The said question was answered in negative saying that the appointment of teacher against the short term vacancy is mandatory and continue to hold the field till 06.08.1993. From 07.08.1993 onwards consideration of claims under Section 33-B would come into operation. In the said circumstances, the objection taken in the impugned order is contrary to the observations made by the larger bench in the above referred matter.

8. In reply to the said submissions, learned Standing Counsel appearing on behalf of State has made submissions based on the averments made in the counter affidavit that initially he wants to hold the validity and procedure adopted while appointing the petitioner. As he has contended that very appointment of the petitioner is contrary to the regulations, hence, it is irregular. Once it is not a regular appointment he is not entitled to any salary or benefits. Further, he contended that he has not worked from 2011 to 2015 and he is also not entitled to any salary for particular period for no work no pay and further has submitted that his case was not considered under 33-B. Hence, he is not entitled to any benefits.

9. Considering the submissions of learned counsel for the parties and perusal of record, as the other factual aspects are not in dispute initially when the payment was not made, the petitioner has approached this Court and based on the interim order passed by this Court on 13.05.1992 the salaries were released and subsequently on the proposals sent by the Management his appointment was approved vide order dated 27.08.1992. While disposing of the said writ petition this Court has categorically held that the order dated 27.08.1992 is otherwise, in accordance with law and should not be set aside. The fact remains so far the said orders were not interdicted by any authority. Further, when the payment of salaries for particular period was not accorded, the petitioner has approached this Court in Writ Petition No.59681 of 2011, this writ petition is also disposed of considering the entire facts and by taking note of continuous service of petitioner. Surprisingly, contrary to both the orders, now the respondent has rejected the claim of the petitioner once again on the ground that the petitioner was appointed on a short term vacancy and subsequent to transforming the said vacancy to regular vacancy he is not entitled for any relief.

10. Perusal of the observations made by this Court in larger bench in Special Appeal No.280 of 2013 (Jahaj Pal Vs. District Inspector of Schools and Another), this issue has been clarified that any appointment made to the short term vacancy, they are entitle to continue till 06.08.1993 and further clarified from 07.08.1993, they are entitle to protection under Section 33-B.

11. In view of the said circumstances, as the ground raised in the impugned order is contrary to the observations made in the above judgment and accordingly, is quashed. It is needless to mention that as observed by this Court in earlier judgments there is no liberty given to the authorities to go into validity of the appointment. Hence, the respondents ought to have released the salaries to the petitioner and also all the consequential retiremental benefits within a period of two months from the date it is due.

12. Accordingly, the present writ petition is disposed of. Order Date :- 8.5.2025 AdityaG (Donadi Ramesh,J.) ADITYA GAUTAM High Court of Judicature at Allahabad