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Committee Of Managem... v. Sree Kumar Tiwary An...
Factual and Procedural Background
The first respondent was appointed on 1 August 1986 as an ad hoc teacher to fill a short-term vacancy created when the regular incumbent was promoted on an ad hoc basis. His appointment was terminated by notice dated 30 May 1988, effective 30 June 1988. He challenged that termination by filing a writ petition in the High Court of Allahabad. A stay of termination granted during the writ proceedings was initially vacated by a Single Judge but was later restored by a Division Bench.
The Single Judge eventually dismissed the writ petition on merits. On appeal, the Division Bench held that the respondent’s services had meanwhile been regularised by an order of the District Inspector of Schools dated 27 October 1995 and, therefore, he was entitled to continue. The appellants obtained special-leave to appeal from the Supreme Court, and the impugned High Court judgment dated 14 August 1996 (Second Appeal No. 153 of 1996) is the subject of the present decision.
Legal Issues Presented
- Whether the first respondent, whose ad hoc service was terminated on 30 June 1988 but who continued only under an interim court stay, satisfied the conditions for regularisation under Section 33-B(1)(a)(i) & (c) of the U.P. Secondary Education Services Commission Act, 1982, as introduced by the Third Removal of Difficulties Order, 1989.
- Consequently, whether the Division Bench of the High Court was correct in directing that the respondent be treated as a regularised employee pending any contrary order by the competent authority.
Arguments of the Parties
Appellant’s Arguments
- The respondent’s appointment was purely ad hoc and ended on 30 June 1988; thereafter he stayed in service only because of an interim court order.
- Section 33-B requires continuous service in the institution from the date of ad hoc appointment until commencement of the Third Removal of Difficulties Order, a condition the respondent did not meet because his service had legally ceased.
- Therefore, the statutory provision for regularisation was inapplicable, and the District Inspector of Schools’ order could not confer regular status.
Respondent’s Arguments
- A duly constituted regularisation committee recommended his name and the District Inspector of Schools issued an order on 27 October 1995 regularising his services.
- The High Court rightly held that, unless the competent authority passed a contrary order, he should be allowed to continue as a regularised teacher.
- Issues raised by the appellant in rejoinder were allegedly being examined in other proceedings, rendering the present appeal infructuous.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court’s Reasoning and Analysis
The Supreme Court identified the pivotal requirement under Section 33-B(1)(a)(i) of the 1982 Act: an ad hoc appointee must have been serving continuously in a short-term vacancy that subsequently became substantive. Although the vacancy did convert to a substantive one upon the regular incumbent’s retirement on 30 June 1988, the Court focused on clause (c) of Section 33-B, which mandates uninterrupted service.
The respondent’s service formally ended on 30 June 1988; his continued presence was attributable solely to a stay order, not to any subsisting right derived from an appointment. The Court noted that both the selection-committee minutes and the District Inspector of Schools’ regularisation order expressly recorded that the respondent’s appointment was “disputed” and that the regularisation was subject to the writ petition’s outcome. Because the writ petition had been dismissed on merits, the statutory conditions for regularisation were not satisfied.
Accordingly, the Division Bench erred in allowing the respondent to continue on the strength of a conditional regularisation order. The Supreme Court concluded that the Amendment Act and the Third Removal of Difficulties Order afforded no benefit to the respondent.
Holding and Implications
Appeal Allowed; Writ Petition Dismissed.
The respondent’s claim to regularisation fails, and his continuation in service ceases. The Court made no cost order. It observed, however, that if the management seeks to fill the post afresh under the applicable rules, the respondent’s age may be suitably relaxed to permit him to apply. The decision turns on the specific statutory language and sets no broader precedent beyond reaffirming the necessity of continuous service for regularisation under Section 33-B.
Order
1. Leave granted. We have heard learned counsel on both sides.
2. This appeal by special leave arises from the judgment of the Division Bench of the High Court of Allahabad, made on 14-8-1996 in SA No. 153 of 1996.
3. The first respondent came to be appointed as an ad hoc teacher on 1-8-1986 against a short-term vacancy caused by promotion of the incumbent on ad hoc basis to the next higher post. His appointment came to be terminated on 30-5-1988 w.e.f 30-6-1988. The respondent challenged the order of termination in a writ petition. Pending writ petition, an interim order of stay though vacated by the learned Single Judge, the same was granted by the Division Bench.
4. The learned Single Judge on merits dismissed the writ petition. On appeal, the Division Bench in the impugned order has held that since, pending writ petition, the services of the first respondent came to be regularised, he would be entitled to continue in service. However, on consideration of the entire matter, we make it clear that the impugned judgment/order of the learned Single Judge will not stand on the continuation in service of the appellant (respondent herein) in pursuance of the order dated 27-10-1995 of the District Inspector of Schools regularising his services, till an order to the contrary is passed by the competent authority in accordance with law. The said order is now the subject-matter of the appeal.
5. Shri N.K Sharma, learned counsel appearing for the appellant, contends that the first respondent came to be appointed on ad hoc basis; he continued in service on ad hoc basis till 30-6-1988. The U.P Secondary Education Services Commission (Removal of Difficulties) Order, 1981, as amended by Third Order, introducing Section 33-B of the Act has no application for two reasons, namely, that the temporary service of the ad hoc employee should continue in a vacancy in accordance with Section 2 of the U.P Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981; and he has been continuously serving the institution from the date of such appointment up to the date of commencement of the Third Removal of Difficulties Order. In view of the fact that he was continuing only on the basis of the interim stay granted by the High Court, it cannot be treated that he has continuously been serving the institution entitling him to avail of the benefit of the Third Removal of Difficulties Order. On the other hand, Shri Sudhir K. Gupta, learned counsel for the respondent, contended that pursuant to the recommendation made by the Committee for regularising the services, the matter was placed before a Committee constituted for regularisation and his name came to be regularised. The High Court, therefore, was right in stating that subject to an order being passed by the competent authority in that behalf, the respondent would continue as a regularised candidate. This aspect of the matter has been dealt with in the rejoinder filed by the appellant stating that it is being adjudicated in another pending case; therefore, the appeal no longer survives.
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 hereinbefore? Section 33-B(1)(a)(i) of the U.P Secondary Education Services 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 Uttar Pradesh Secondary Education Services 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(i)? 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 continued 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 Services 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.
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