Case: RANA PRATAP SINGH Vs. VITTIYA EVAM LEKHA ADHIKARI DIST. BASIC EDUCATION OFFICER

2. Brief facts of the case necessary to be noted for deciding this appeal are:One Shiv Kumar Rai was working as Junior Accounts Clerk in the office of Finance and Accounts Officer, Office of District Basic Education Officer, respondent No.1. Shri Shiv Kumar Rai was promoted as Assistant Accountant giving rise to a vacancy in the post of Junior Accounts Clerk. The respondent No.1 called for names from the Employment Exchange, Azamgarh. The Employment Exchange forwarded the list of twelve candidates to the respondent No.1. The Selection Committee was constituted in accordance with the Statutory Rules namely The Subordinate Offices Ministerial Staff(Direct Recruitment) Rules, 1985, to hold the selection on the vacant post of Junior Accounts Clerk. The name of petitioner was also included in the list of twelve candidates forwarded by Employment Exchange, Azamgarh. The Selection Committee interviewed the candidates on 16.08.1989 but the said selection was cancelled by the respondent No.1 and fresh process was initiated for holding selection. An advertisement was published by District Basic Education Officer, Azamgarh in Daily News Paper Dainik Devvrat dated 05.12.1990 calling for application from candidates for a vacant post of Junior Accounts Clerk. Candidates were called to appear for interview on 20.12.1990. By letter dated 07.12.1990, the respondent No.1 wrote to District Employment Officer, Azamgarh requesting the Employment Officer to intimate at his level the twelve candidates whose names were forwarded for the vacant post of Junior Accounts Clerk to appear for interview on 20.12.1990. Letter also mentioned that the twelve candidates who were forwarded by Employment Exchange have also been intimated by respondent No.1 to present themselves before Selection Committee on 20.12.1990. On 20.12.1990, petitioner along with other candidates appeared before the Selection Committee. The petitioner was selected by the Selection Committee and recommended for appointment on the post of Junior Accounts Clerk. Respondent No.1 issued an appointment Order dated 21.12.1990 to the petitioner appointing him on the post of Junior Accounts Clerk. Order futher mentioned that the appointment is temporary. In pursuance of appointment Order dated 21.12.1990, petitioner joined on 22.12.1990. By Order dated 11.11.1992, the promotion of Shiv Kumar Rai as Assistant Accountant was cancelled by respondent No.1. On same day, consequential letter dated 11.11.1992 was also issued terminating the appointment of the petitioner due to Shiv Kumar Rai having been reverted to his Original post of Junior Accounts Clerk. Shiv Kumar Rai filed a W.P.No.44384 of 1992 challenging order dated 11.11.1992. Learned Single Judge of the High Court vide order dated 27.11.1992 stayed the Order dated 11.11.1992 for a period of three months. The petitioner also filed a writ petition challenging the order dated 11.11.1992. Petitioner being not aware of the order dated 27.11.1992 could not point out to the High Court about the stay of the Order of reversion passed of Shiv Kumar Rai. Hence, his writ petition was dismissed by the High Court on 04.12.1992. While dismissing the writ petition, High Court also observed that petitioners claim may be considered on the post of Junior Accounts Clerk which fell due to promotion of Ram Sinhasan at whose instance the promotion of Shiv Kumar Rai was cancelled. Respondent No.1 issued order dated 01.01.1993, consequent to passing of interim order of the High Court staying the reversion order dated 11.11.1992 of Shiv Kumar Rai re¬appointing the petitioner on the post of Junior Accounts Clerk till 27.02.1993. The interim order passed in writ petition No.44384 of 1992 of Shiv Kumar Rai was continued by order dated 09.04.1993 which directed:The interim order dated 27.11.1992 is continued and the petitioner will be paid salary regularly3. An order dated 27.02.1993 was issued by respondent No.1 informing that since petitioners re¬appointment was on the post of Junior Accounts Clerk was upto 27.02.1993, hence he should hand over his charge in the afternoon of 27.02.1993 to one Shri Mohd. Vasama Ansari4. Writ Petition No.15408 of 1993 was filed by the Petitioner challenging the letter dated 27.02.1993 which letter was stayed by the High Court on 29.04.1993 by passing following order:¬Until further order the operation of the impugned order dated 27.02.1993 shall remain stayedThis writ petition has been listed in the group of such cases, which may have become infructuous due to efflux of time. No one turns up to press it either6. Shiv Kumar Rai having been promoted as Assistant Accountant, he never returned to his original post till superannuation. The petitioner continued to work on the post of Junior Accounts Clerk. The petitioner was given first promotional increment in the service after completion of fourteen years on 22.12.2004. Second promotional upgradation was given after completion of eighteen years of service on 22.12.2008 and order dated 13.01.2011 was issued by respondent No.1 in the above regard. On 02.02.2012, the writ petition of petitioner being W.P.No.15408 of 1993 was dismissed.

Reasoning:
23. There is no denial on the part of the respondents that the names were called from the Employment Exchange by the appointing authority before conducting the selection and the Employment Exchange had forwarded the twelve names which also included the name of appellant. The appointment of the appellant having been made by Selection Committee constituted under Statutory Rules after calling the names from Employment Exchange, the appointment cannot be said to have been made in disregard to the Statutory Rules24. More so in the present case, there was no challenge to the appointment by any candidate nor any proceedings were initiated by the appointing authority questioning the appointment of the appellant. The first writ petition was filed by the appellant when consequent to reversion of Shiv Kumar Rai on the post of Junior Accounts Clerk on which appellant was working, his services were terminated by order dated 11.11.199225. We, thus, conclude that appointment of the appellant cannot be said to have been made in disregard to the Rules and further, no proceedings were initiated either by any candidate or by appointing authority questioning the appointment of the appellant26. Learned Single Judge without taking into consideration the facts of constitution of Selection Committee, calling the names from Employment Exchange has made observations that no procedure known to law namely Publication of Notification etc. was adopted which cannot be approved. Without having full aspect of the matter, no such observation ought to have been made by learned Single Judge more so when the appointment was not questioned either by any candidate or by appointing authority by initiating any process29. Thus on 04.12.1992, when the writ petition of the appellant challenging the order dated 11.11.1992 came for consideration, the Court was not informed that Order dated 11.11.1992 with regard to Shiv Kumar Rai has already been stayed by the High Court. When the Main Order dated 11.11.1992 with regard to Shiv Kumar Rai was stayed, the consequential order issued with regard to petitioner shall automatically become inoperative. The dismissal of writ petition on 04.12.1992 due to above reason shall not adversely affect the petitioners right to continue on the basis of his appointment dated 21.12.1990. In view of the interim order passed in writ petition on 27.11.1992, the order impugned in the writ petition of the appellant was not operative, hence, dismissal of writ petition on 04.12.1992 shall not have that adverse effect as has been noted by the learned Single Judge in the impugned judgment dated 02.02.201230. It is due to the above reason that subsequently the appellant was reinstated on the post on 01.01.1993 because vacancy on which he was appointed became available by the interim order obtained by Shiv Kumar Rai on 27.11.199232. Although in the order dated 01.01.1993, the order refers it as an order of re¬appointment but in essence the order is not an order of re¬ appointment but order of reinstatement of appellant on the post which became available for the appellant after interim order passed in writ petition of Shiv Kumar Rai. The appellant was asked to go because of reversion of Shiv Kumar Rai on his original post by Order dated 11.11.1992. When the said order was stayed, the appellant became entitled to continue on his post and no order of re¬appointment was necessary or required. The entitlement of appellant was by virtue of his earlier appointment. The re¬appointment order refers to appointment of the appellant till 27.02.1993. The initial appointment of the appellant dated 21.12.1992 which was made after regular selection was not limited to any period. The date of 27.02.1993 which was mentioned in the letter dated 01.01.1993 was only due to the reason that interim order granted to Shiv Kumar Rai on 27.11.1993 was only for a period of three months i.e. only upto the period till 27.02.1993 which date was mentioned in the order dated 01.01.1993. The interim order passed in the writ petition of Shiv Kumar Rai was continued by order dated 09.04.1993, which is to the following effect:¬he interim order dated 27.11.92 is continued and the petitioner will be paid salary regularly. Dated/ 09.04.199333. By continuance of interim order in favour of Shiv Kumar Rai automatically the order in favour of the appellant shall continue and there was no question of his appointment being come to an end34. Learned Single Judge in the impugned judgment has taken the view that since the appointment of the appellant was only for limited duration till 27.02.1993, he has no right to continue. Learned Single Judge lost sight of the fact that the date 27.02.1993 was mentioned in the letter dated 01.01.1993 because of the fact that interim order of Shiv Kumar Rai was only for the period of three months and when the interim order with regard to Shiv Kumar Rai by the High Court was continued, the appellant also had become entitled to continue35. Learned Single Judge, thus, committed error in not correctly appreciating the consequence of order of the High Court dated 04.12.1992 in the first writ petition and nature of the letter dated 01.01.199336. We, thus, are of the view that letter dated 01.01.1993 cannot be said to be re¬appointment of the appellant. The order was in essence re¬ instatement of the appellant in consequence of his earlier appointment dated 21.12.1990. From the materials brought on record ,it is also clear that the Education Authorities has also treated the appointment of appellant continuing from 22.12.1990, which is clear from order of approval of increment dated 30.12.2000, Annexure RA¬6 and subsequent order issued by Finance and Accounts Officer where date of appointment of appellant has been mentioned as 21.12.199041. No exception can be taken to the legal position as enumerated by the Division Bench of the High Court in paragraphs 9 to 13. However, the Division Bench ought to have looked into the ground realities, facts, and subsequent events also. When Shiv Kumar Rai was never reverted on his post and continued on his promotional post till his retirement, it will be taking a too technical view that vacancy of his original post shall come to an end by dismissal of the writ petition. More so, the writ petition was dismissed as infructuous on efflux of time without an adjudication on merits and without High Court being made aware of the subsequent events. The Division Bench did not advert to the other aspects of the matter which were adverted to by the learned Single Judge, without examining the correctness of the view taken by learned Single Judge, the Division Bench had dismissed the appeal solely relying on dismissal of above writ petition of Shiv Kumar Rai43. A perusal of the order of the High Court dated 02.02.2012 indicates that learned counsel for the parties were heard. The order dated 02.02.2012 was not an ex parte order and the appellant immediately filed an special appeal which is numbered as Special Appeal No.432 of 2012. The arguments of the respondents cannot be accepted that the appellant concealed dismissal of writ petition from learned Single Judge. More so, the appellant was allowed/continued by the respondents on his post and by order dated 01.08.2012, an order of confirmation was also passed by the Department confirming him on the post of Junior Accounts Clerk from 22.12.1990 and on the post of Assistant Accountant w.e.f. 22.12.2004. The appellant was also given promotional scale of Assistant Accountant w.e.f. 22.12.2004. The Department having continued the appellant and granted him promotion and confirmation, It cannot be said that the appellant committed any concealment or mis¬representation44. We further notice that appellant has been continuing on his post for the last twenty six years and even after dismissal of writ petition of Shiv Kumar Rai on 15.09.2001 more than eighteen years have passed. The appellant has been promoted on next higher post and working on the next higher post as on date.45. Learned Single Judge has not correctly appreciated the issues as noticed and discussed above. The Division Bench rested its opinion on one issue without taking into consideration subsequent events and the fact that writ petition was dismissed as infructuous by efflux of time.