COMMIITEE OF MANAGEMENT, ARYA NAGAR INTER A

COLLEGE, ARYA NAGAR, KANPUR THROUGH ITS

MANAGER AND ANR.

SREE KUMAR TIWARY AND ANR.

MARCH 31, 1997

[K. RAMASWAMY AND D.P. WADHWA, JJ.]

U.P. Secondmy Education Se1vices Commission Act, 1982 : Sections

33-B (l)(a)(i) and 33-B(i)(c).

U.P. Secondmy Education Se1vices Commission (Removal of Difficulties (Seco11d) Orde1; 1981 : Para 2.

Se/Vice Law-Adhoc appoi11tme11t-Regularisation-Respondent appoi11ted as ad/we teacher agai11st a slzo1t tenn vacancy-Tenni11ation of D appointment-Wiit challe11ging tenninatio11-Responde11t conti11uing on the basis of interim stay issued by High Court-Dwing pendency of appeal Diviszo11 Be11ch held that subject to an order being passed by competent autho1ity the respondent would continue as a regulmised candidat~Appeal before Supreme Cowt-Held Division Bench was not right in giving direction E that his regulmisation will be subject to the fwther orders since the regularisation order itself means that it was subject to the result of the writ petition.

CIVIL APPELLANT JURISDICTION : Civil Appeal No. 2729 of 1997.

From the Judgment and Order dated 14.8.96 of the Allahabad High Court in S.A. No. 153 of 1996.

Narcsh K. Sharma and S.K. MiRra for the Appellants.

Vijay Hansaria and S.K. Jain for the Respondents:

The following Order of the Court was delivered :

Leave Granted. We have heard learned counsel on both sides.

This appeal by special leave arises from the judgment of the Division H 467

A Bench of the High Court of Allahabad, made on August 14, 1996 in SA No. 153/96.

The first respondent came to be appointed as an ad hoc teacher on July l, 1986 against a short term vacancy caused by promotion of the incumbent on an hoc basis to the next higher post. His appointment came to be terminated on May 30, 1988 w.e.f. June 30, 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.

C 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 D 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.

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 basic till June 30, 1986. The U.P.

Secondary Education Services Commission (Removal of Difficulties) F 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 upto the date of com- G mencement 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 lion to avail of the benefit of the Third Removal of Difficulties Order. On the other hand, Shri Sudhir K. Gupta, learned H counsel for the respondent, contended that pursuant to the recommenda-

COMMfITEEOFMANAGEMENTARYANGR.JNTERCOLLEGE v. S.K TIWARY 469

tion made by the Committee for regularising the services, matter was A 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 candidates. This aspect of the matter has been dealt with in the rejoinder filed by the appellant stating B that it is being adjudicated in another pending case; therefore, the appeal no longer survives.

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 C 33-B (l)(a)(i) of U.P. Secondary Education Services Commission Act, 1982 postulates among others, regulation of a candidate who was appointed by promotion or by direct recruitment in the certificate of teaching grade before May 13, 1989 against a short terms vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 and such vacancy was D subsequently converted into a substantive vacancy. It is seen that the regular incumbent retired from service on June 30, 1988. Consequently, the temporary vacancy was deemed to have been converted into a substantive vacancy w.e.f. June 30, 1988. But the crucial question is: whether the respondent was continuously serving the institution under clause ( c) of E Section 33-B(i)? Admittedly, the service of the respondent came to be terminated w.e.f. June 30, 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 niade before the Selection F 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 30.5.88 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 Hon'ble High G Court. Therefore, appointment is disputed."

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 : H

A 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 May 30, 1988 and the amendment Act has no application. Hence, the Division Bench was not right in giving direction that his regularisation will be subject B to the further order since the regularisation order itself means that it was subject to the result of the writ petition.

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 appropriate- C ly.

T.N.A.

Appeal allowed.