Rana Pratap Singh vs Vittiya Evam Lekha Adhikari Dist. Basic ...

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 2 of 39 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 3 of 39 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 4 of 39 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 5 of 39 04.12.1992. While dismissing the writ petition, High Court also observed that petitioner's 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 re­appointing 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:

3. An order dated 27.02.1993 was issued by respondent No.1 informing that since petitioner's re­appointment 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 Ansari.

4. 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 stayed."

5. The re­appointment of petitioner was continued by the letter dated 18.05.1993. Shiv Kumar Rai by virtue of the interim order passed in his writ petition continued to work as Assistant Accountant till he attained the age of Super­Annuation on 7 of 39 29.02.2008. W.P.No.44384 of 1992 filed by Shiv Kumar Rai became infructuous due to efflux of time and was dismissed on 15.09.2001. The order dated 15.09.2001 dismissing the writ petition of Shiv Kumar Rai is as follows:­ "15.09.2001 Hon'ble R.P.Misra,J.

original post till superannuation. The petitioner continued to work on the post of Junior Accounts 8 of 39 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.

19. The copy of the appointment order of the appellant has been placed on record as Annexure­ P1, which mentions that appointment of the appellant has been made on he being selected by 17 of 39 Selection Committee constituted as per provisions of “The Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985”(hereinafter referred to as “1985 Rules”). The appointment letter contains endorsement to the District Employment Officer. The material has been brought on record that the respondent No.1 has written to District Employment Officer on 07.12.1990 in reference to names of twelve candidates forwarded by the Employment Exchange with respect to the post of Junior Accounts Clerk which clearly indicate that names were sought from Employment Exchange before holding selection. Rules 22 and 23 of 1985 Rules provides for procedure of notification of vacancies to the examination and procedure of selection. Rule 22 is as follows: ­ "Notification of Vacancies to the Employment Exchange. ­ The appointing Authority shall determine the number of vacancies to be filled during the course of the year as also the vacancies to 18 of 39 reserved under Rule 7. The vacancies shall be notified to the Employment Exchange. The Appointing Authority may also invite application directly from the person who have their names registered in the Employment Exchange. For this purpose, the Appointing Authority shall issue an advertisement in a local daily news paper besides pasting a notice for the same on the Notice Board. All such application shall be placed before the Selection Committee.”

23. There is no denial on the part of the respondents that the names were called from the 20 of 39 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 Rules.

31. On the Interim Order dated 27.11.1992 having been passed in writ petition of Shiv Kumar Rai as stated above, the consequential order issued to the appellant became inoperative and he was entitled to continue on his post of Junior Accounts Clerk by virtue of his appointment dated 21.12.1990. The Order dated 01.01.1993 was issued by the respondent No.1 which is to the following effect: ­ "Accounts Officer, Office of District Basic Education officer, Azamgarh Order Number/Accounts/ /1992­93 Date : 01.01.93 Order of re­appointment Consequent to passing stay order of the operation of Order dated 11.11.1992 passed by the Hon'ble High Court at Allahabad in Writ Petition in Shri Shiv Kumar Rai Versus Director of Education (Basic) Nishatganj and others, Shri Rana Pratap Singh son of Shri Suryanath Singh is re­appointed on temporary basis from the date of taking charge on the vacant post of Junior Accounts 27 of 39 Clerk till 27.02.1993. This appointment can be terminated at any time without any prior information. Shri Rana Pratap Singh is directed to take charge immediately on receipt of copy of this order.

32. Although in the order dated 01.01.1993, the order refers it as an order of re­appointment 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 28 of 39 became entitled to continue on his post and no order of re­appointment was necessary or required. The entitlement of appellant was by virtue of his earlier appointment. The re­appointment 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:­ " ...The interim order dated 27.11.92 is continued and the petitioner will be paid salary regularly.

12. The Division Bench based its judgment only on the ground that writ petition filed by Shiv Kumar Rai against the order dated 11.11.1993 having been dismissed on 15.09.2001, his reversion shall attain finality, Consequently there will be no vacancy on the post of Junior Accounts Clerk, hence, the appellant shall have no right to continue on his post. The Division Bench did not 12 of 39 consider the fact that Writ petition filed by Shiv Kumar Rai was dismissed as infructuous by efflux of time and the dismissal of writ petition was not on merits. It is a fact that Shiv Kumar Rai continued to work on his post of Assistant Accountant and retired on 29.02.2008 by holding the said promotional post. Shiv Kumar Rai never came back on his post of Junior Accounts Clerk, hence, appellant's continuance on post of Junior Accounts Clerk cannot be taken away by dismissal of writ petition of Shiv Kumar Rai.

25. 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 appellant.

24 of 39 for filing rejoinder affidavit. List the stay application before the nd appropriate court in the 2 week of February, 93.

For a period of three months from today the operation of the order dated 11.11.92 shall remain stayed. Petitioner is permitted to make the necessary amendment in his petition within three days.”

30. 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 27.11.1992. III) Whether re­appointment of the appellant dated 01.01.1993 been limited only till 27.02.1993 after afflux of the said period, appellant's right to continue on the post shall come to an end?

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Endorsement Number Accounts/117­ 1240/1993­94 Dated : 01.01.1993”

29 of 39 Dated/ 09.04.1993”

33. 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 end.

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31 of 39 IV) Whether by dismissal of W.P.No.44384 of 1992 Shiv Kumar Rai Versus Director Basic Education and others on 15.09.2001 shall result in terminating the vacancy on the post of Junior Accounts Clerk on which appellant was appointed and was working?

37. The Division Bench has dismissed the special appeal of the appellant solely relying on the fact that by dismissal of writ petition of Shiv Kumar Rai on 15.09.2001, the vacancy of post of Junior Accounts Clerk shall come to an end.

38. In the writ petition of Shiv Kumar Rai, interim order was passed on 27.11.1992 which was continued on 09.04.1993. It is submitted by the counsel for the appellant that cancellation of promotion of Shiv Kumar Rai on 11.11.1990 too was on account of claim of promotion raised by another accounts clerk Mr.Ram Sinhasan Rai. It is submitted that Ram Sinhasan Rai retired in 1999. Ram Sinhasan Rai was never promoted and interim order in favour of Shiv Kumar Rai continued till 32 of 39 Ram Sinhasan Rai retired in the year 1999. It is submitted that writ petition of Shiv Kumar Rai has been dismissed as infructuous by efflux of time which is clearly mentioned in the order dismissing the writ petition. The writ petition of Shiv Kumar Rai was not dismissed on merits. Writ petition was dismissed as infructuous by efflux of time without determination of any issue. Shiv Kumar Rai continued to work on his promotional post till he retired on 29.02.2008. When Shiv Kumar Rai did not revert on post of Junior Accounts Clerk and continued to work till his retirement, the dismissal of writ petition as infructuous cannot altogether wipe out the right of the appellant to continue on his post of Junior Accounts Clerk on which post Shiv Kumar Rai never returned in fact.

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40. In the rejoinder affidavit which was filed in the special Appeal, the report dated 27.04.2017 has been brought on record as Annexure RA­14. High Court dismissed the special Appeal on 06.02.2018 solely relying on dismissal of writ petition of Shiv Kumar Rai on 15.09.2001.

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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.

46. Taking into consideration entire facts and circumstances, we are of the view that judgment of learned Single Judge dated 02.02.2012 as well as the Division Bench deserve to be set aside. We Order accordingly. The appeal is allowed.

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