REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9220 OF 2019
(ARISING OUT OF SLP(CIVIL) NO. 7505 OF 2018)
RANA PRATAP SINGH … APPELLANT(S)
VERSUS
VITTIYA EVAM LEKHA ADHIKARI,
DISTRICT BASIC EDUCATION
OFFICER AND ORS. … RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
1. This appeal has been filed against the
Division Bench judgment of Allahabad High Court
dated 06.02.2018 in Special Appeal No.432 of 2012
by which judgment the Special Appeal filed by the
appellant questioning the judgment of learned
1 of 39
Single Judge dated 02.02.2012 in writ petition
No.15408 of 1993 has been dismissed.
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
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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
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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
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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
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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:
"The interim order dated
27.11.1992 is continued and the
petitioner will be paid salary
regularly."
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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
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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.
This 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
either.
The writ petition is,
accordingly, dismissed but
without cost.
Sd/”
6. 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
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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.
7. Learned Counsel for the appellant submits that
learned Single Judge while dismissing the writ
petition on 02.02.2012 has made observation that
appointment of the appellant was made without
following the procedure known to law which
observation was neither correct nor was based on
material on record. Learned counsel for the
appellant submits that his appointment was made by
duly constituted Selection Committee as per 1985
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Rules and after calling names from the Employment
Exchange, Azamgarh, who forwarded twelve names,
which included name of the appellant. There was no
challenge to the appointment of the appellant at
any point of time nor appointment was questioned
by anyone.
8. The writ petition was filed challenging the
consequential order dated 11.11.1992 which was
issued in consequence of cancelling the promotion
of Shiv Kumar Rai on the post of Assistant
Accountant by which he was reverted on the post of
Junior Accounts Clerk on which appellant was
appointed. The issue in the writ petition was
entirely different and was only with regard to
correctness of the Order dated 11.11.1992.
9. Learned counsel further submits that learned
Single Judge erred in observing that on dismissal
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of first writ petition of the appellant on
04.12.1992, his removal became final and
subsequent appointment did not survive for
consideration before the Court.
10. It is submitted that the writ petition
dismissed on 04.12.1992 was against the order
dated 11.11.1992 which was a consequential order
and the main order dated 11.11.1992 passed with
respect to Shiv Kumar Rai having been stayed by
the High Court on 27.11.1992, the consequential
order with regard to appellant had no meaning,
hence, the dismissal of the said writ petition on
04.12.1992 shall not prejudice the claim of the
appellant.
11. It is further submitted that observation of
learned Single Judge that subsequent appointment
of the appellant dated 01.01.1993 being limited
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till 27.03.1993, thereafter appellant cannot
continue is also erroneous. The Order dated
01.01.1993 although mentioned reappointment but
in essence the order was only of reinstatement of
the appellant on the post in pursuance of his
earlier appointment dated 21.12.1992. There being
no fresh process of appointment, there was no
question of any reappointment. The learned Single
Judge also has not correctly understood the import
of the Order dated 01.01.1993.
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
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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.
13. Learned counsel for the appellant submitted
that appellant has been in service for twenty
seven years. In the meantime, he received
promotional Pay Scale of Assistant Accountant,
Selection Grade. On the day when writ petition was
dismissed by learned Single Judge, he was working
in the grade of Assistant Accountant. The
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appellant was also confirmed on his post of Junior
Accountant w.e.f. 22.12.1993 and Assistant
Accountant w.e.f. 22.12.2007 by order dated
01.08.2012. All these facts were brought on record
by means of rejoinder affidavit filed in Special
Appeal which had not been taken into consideration
by Division Bench.
14. It is further submitted that in the year 2013
and thereafter complaints were filed against the
appellant which were duly enquired by and reports
were submitted to Collector on 27.04.2017 that
complaints were without any basis. Further, on
another complaint, report was submitted by Finance
and Accounts Officer, Primary Education, Azamgarh
dated 02.02.2017 that appointment of the appellant
was made after following due procedure of the law
and the appellant's continuance on his post was
valid and in accordance with law.
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15. Against the judgment of learned Single Judge
dated 02.02.2012 and Special Appeal No.432 of 2012
was filed by the petitioner. By an order dated
01.08.2012, the petitioner's services were
confirmed on the post of Junior Accounts Clerk
w.e.f. 22.12.1993 and on the post of Assistant
Accountant w.e.f. 22.12.2007. The Special Appeal
filed by the petitioner was dismissed by Division
Bench on 06.02.2018, aggrieved against which
judgment this appeal has been filed.
16. Learned counsel for the respondents refuting
the submission of the learned counsel for the
petitioner contends that the petitioner's
appointment was made against the procedure
prescribed by law. No advertisement was issued on
05.12.1990 in the Daily News Paper 'Dainik
Devvrat' as claimed by the petitioner. The writ
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petition was dismissed on 02.02.2012 and there
being no interim order in the special Appeal, how
he continued and received salary after 02.02.2012,
is not explained. The petitioner concealed his
dismissal of writ petition from the Department and
is not entitled for any relief from this Court.
There has been several complaints received against
the petitioner with regard to which enquiries were
held and the respondent No.1 had taken action
against the petitioner.
17. We have considered the submissions of learned
counsel for the parties and perused the record.
18. From submissions of learned counsel for the
parties and materials on record, following points
arise for consideration in this appeal:
I) Whether appointment of appellant on the
post of Junior Accounts Clerk on 21.12.1990
was not validly made in accordance with law?
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II) Whether by dismissal of Writ Petition
No.Nil of 1992 on 04.12.1992 filed against the
consequential order dated 11.11.1992 issued to
the petitioner, appellant's right to continue
on his post shall come to an end?
III) Whether reappointment of the appellant
dated 01.01.1993 been limited only till
27.02.1993 after efflux of the said period
appellant's right to continue on the post
shall come to an end?
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?
I) Whether appointment of appellant on the post of
Junior Accounts Clerk on 21.12.1990 was not
validly made in accordance with law?
19. The copy of the appointment order of the
appellant has been placed on record as AnnexureP1, which mentions that appointment of the
appellant has been made on he being selected by
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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
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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.”
20. The appellant's case is that apart from
calling names from the Employment Exchange, the
respondent No.1 had also published an
Advertisement on 05.12.1990 in the Daily News
Paper 'Dainik Devvrat'. The learned counsel for
the respondents has refuted the claim of appellant
of publication in the Daily News Paper. He submits
that Editor of News Paper vide his letter dated
21.08.2017 with regard to verification of alleged
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advertisement has informed that it is not possible
to verify the same, it being a very old matter.
21. Learned counsel submits that there was no
publication in the newspaper and the claim of
publication was only invented for the purpose of
this case.
22. Appellant has refuted the above submission of
the respondent and submits that newspaper has been
filed before the High Court and further in the
reports which were submitted with regard to
complaints against the appellant, it was
specifically mentioned that the publication was
made in the News Paper 'Dainik Devvrat' on
05.12.1992.
23. There is no denial on the part of the
respondents that the names were called from the
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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.
24. 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 11.11.1992.
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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.
26. 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 process.
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II) Whether by dismissal of Writ Petition No.Nil
of 1992 on 04.12.1992 filed against the
consequential order dated 11.11.1992 issued to the
petitioner, appellant's right to continue on his
post shall come to an end?
27. Writ Petition No.Nil of 1992 was filed by the
appellant challenging the Order dated 11.11.1992.
On 11.11.1992, two orders were passed by
respondent No.1. By first order dated 11.11.1992
appointment(promotion) of Shiv Kumar Rai was
cancelled and he was directed to take charge of
his original post of Junior Accounts Clerk. In
consequence to above 11.11.1992 order with regard
to petitioner, following order was issued:
" Accounts Officer, Office of
District Basic Education Officer,
Azamgarh
Order Number/Le.No./803809/199293
Date: 11.11.1992
Termination of service
Consequent to reversion of Shri
Shiv Kumar Rai, Assistant Accounts,
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Lekha Sangathan Office, District
Basic Education Officer, Azamgarh at
his original post Junior Accounts
Clerk, the purely temporary services
of Shri Rana Pratap Singh, Junior
Accounts Clerk are terminated with
immediate effect. He is ordered to
hand over the charge of his post to
Shri Shiv Kumar Rai with immediate
effect.
Sd/ illegible
Accounts Officer
Office of District Basic
Education Officer, Azamgarh
Endorsement Number account/803
809/199293"
28. Both Shiv Kumar Rai and petitioner have filed
separate writ petitions challenging order dated
11.11.1992. In writ petition No.44384 of 1992
filed by Shiv Kumar Rai, following interim order
was passed on 27.11.1992:
" ..Issue Notice
Learned standing counsel prays
for and is granted one month time to
file counter affidavit. Petitioner
will have thereafter two weeks time
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for filing rejoinder affidavit. List
the stay application before the
appropriate court in the 2nd 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.”
29. 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
25 of 39
affect the petitioner's 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 02.02.2012.
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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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
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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.
Accounts Officer
Office of District Basic
Education Officer, Azamgarh.
Endorsement Number Accounts/117
1240/199394
Dated : 01.01.1993”
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 reappointment 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
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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.
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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.
34. 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
continue.
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35. 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
01.01.1993.
36. We, thus, are of the view that letter dated
01.01.1993 cannot be said to be reappointment of
the appellant. The order was in essence reinstatement 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 RA6 and
subsequent order issued by Finance and Accounts
Officer where date of appointment of appellant has
been mentioned as 21.12.1990.
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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
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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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39. The report dated 27.04.2017 of District
Handicapped Public Development Officer, Azamgarh
addressed to Collector, Azamgarh, has been brought
on record with regard to promotion of Shiv Kumar
Rai, in which following facts have been stated:
" ...After inquiry, this fact came to
light that the selection of Shri
Singh has been made by the legally
constituted Selection Committee at
the vacant post of Junior Accounts
Clerk due to the promotion of Shri
Shiv Kumar Rai at the post of
Assistant Accountant in the
department. A representation was
submitted by Shri Ram Sinhasan Singh,
Junior Accounts Clerk working in the
office of Finance and Accounts
Officer of Basic Education, Azamgarh
stating that he is senior to Shri
Rai. Therefore, on the basis of
seniority, he be promotied at the
post of Assistant Accountant. Shri
Rai was reverted to the post of
Junior Accounts Clerk by order dated
11.11.1992 of Finance and Accounts
Officer, Basic Education Azamgarh.
Stay Order was obtained by Shri Rai
of the order of reversion by the
Hon'ble High Court of Allahabad by
order dated 27.11.1992. The stay
order dated 27.11.1992 was continued
by order dated 09.04.1993. Shri Shiv
Kumar Rai has retired from the
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promoted post of Assistant Accountant
on 29.02.2008. Shri Rai and Shri
Sinhasan Singh both have retired from
their posts. After retirement, the
case of mutual seniority has
finished. Resultantly the lien/tenure
of Shri Rana Pratap Singh at the post
of Junior Accounts Clerk remained as
earlier...”
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.
41. 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
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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 Rai.
42. Learned counsel for the respondents had also
submitted that the conduct of the appellant is not
such that he may be entitled for any relief. It is
36 of 39
submitted that when the writ petition was
dismissed by learned Single Judge on 02.02.2012
and special appeal came to be dismissed on
06.02.2018, the appellant was not entitled to
continue or receive any salary. He submits that he
had concealed the dismissal of writ petition from
the department.
43. 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
37 of 39
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 misrepresentation.
44. 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.
38 of 39
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.
...................J.
(ASHOK BHUSHAN)
...................J.
(NAVIN SINHA)
NEW DELHI,
DECEMBER 18, 2019.
39 of 39
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9220 OF 2019
(ARISING OUT OF SLP(CIVIL) NO. 7505 OF 2018)
RANA PRATAP SINGH … APPELLANT(S)
VERSUS
VITTIYA EVAM LEKHA ADHIKARI,
DISTRICT BASIC EDUCATION
OFFICER AND ORS. … RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
1. This appeal has been filed against the
Division Bench judgment of Allahabad High Court
dated 06.02.2018 in Special Appeal No.432 of 2012
by which judgment the Special Appeal filed by the
appellant questioning the judgment of learned
1 of 39
Single Judge dated 02.02.2012 in writ petition
No.15408 of 1993 has been dismissed.
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:
"The interim order dated
27.11.1992 is continued and the
petitioner will be paid salary
regularly."
6 of 39
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.
This 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
either.
The writ petition is,
accordingly, dismissed but
without cost.
Sd/”
6. 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
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.
7. Learned Counsel for the appellant submits that
learned Single Judge while dismissing the writ
petition on 02.02.2012 has made observation that
appointment of the appellant was made without
following the procedure known to law which
observation was neither correct nor was based on
material on record. Learned counsel for the
appellant submits that his appointment was made by
duly constituted Selection Committee as per 1985
9 of 39
Rules and after calling names from the Employment
Exchange, Azamgarh, who forwarded twelve names,
which included name of the appellant. There was no
challenge to the appointment of the appellant at
any point of time nor appointment was questioned
by anyone.
8. The writ petition was filed challenging the
consequential order dated 11.11.1992 which was
issued in consequence of cancelling the promotion
of Shiv Kumar Rai on the post of Assistant
Accountant by which he was reverted on the post of
Junior Accounts Clerk on which appellant was
appointed. The issue in the writ petition was
entirely different and was only with regard to
correctness of the Order dated 11.11.1992.
9. Learned counsel further submits that learned
Single Judge erred in observing that on dismissal
10 of 39
of first writ petition of the appellant on
04.12.1992, his removal became final and
subsequent appointment did not survive for
consideration before the Court.
10. It is submitted that the writ petition
dismissed on 04.12.1992 was against the order
dated 11.11.1992 which was a consequential order
and the main order dated 11.11.1992 passed with
respect to Shiv Kumar Rai having been stayed by
the High Court on 27.11.1992, the consequential
order with regard to appellant had no meaning,
hence, the dismissal of the said writ petition on
04.12.1992 shall not prejudice the claim of the
appellant.
11. It is further submitted that observation of
learned Single Judge that subsequent appointment
of the appellant dated 01.01.1993 being limited
11 of 39
till 27.03.1993, thereafter appellant cannot
continue is also erroneous. The Order dated
01.01.1993 although mentioned reappointment but
in essence the order was only of reinstatement of
the appellant on the post in pursuance of his
earlier appointment dated 21.12.1992. There being
no fresh process of appointment, there was no
question of any reappointment. The learned Single
Judge also has not correctly understood the import
of the Order dated 01.01.1993.
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.
13. Learned counsel for the appellant submitted
that appellant has been in service for twenty
seven years. In the meantime, he received
promotional Pay Scale of Assistant Accountant,
Selection Grade. On the day when writ petition was
dismissed by learned Single Judge, he was working
in the grade of Assistant Accountant. The
13 of 39
appellant was also confirmed on his post of Junior
Accountant w.e.f. 22.12.1993 and Assistant
Accountant w.e.f. 22.12.2007 by order dated
01.08.2012. All these facts were brought on record
by means of rejoinder affidavit filed in Special
Appeal which had not been taken into consideration
by Division Bench.
14. It is further submitted that in the year 2013
and thereafter complaints were filed against the
appellant which were duly enquired by and reports
were submitted to Collector on 27.04.2017 that
complaints were without any basis. Further, on
another complaint, report was submitted by Finance
and Accounts Officer, Primary Education, Azamgarh
dated 02.02.2017 that appointment of the appellant
was made after following due procedure of the law
and the appellant's continuance on his post was
valid and in accordance with law.
14 of 39
15. Against the judgment of learned Single Judge
dated 02.02.2012 and Special Appeal No.432 of 2012
was filed by the petitioner. By an order dated
01.08.2012, the petitioner's services were
confirmed on the post of Junior Accounts Clerk
w.e.f. 22.12.1993 and on the post of Assistant
Accountant w.e.f. 22.12.2007. The Special Appeal
filed by the petitioner was dismissed by Division
Bench on 06.02.2018, aggrieved against which
judgment this appeal has been filed.
16. Learned counsel for the respondents refuting
the submission of the learned counsel for the
petitioner contends that the petitioner's
appointment was made against the procedure
prescribed by law. No advertisement was issued on
05.12.1990 in the Daily News Paper 'Dainik
Devvrat' as claimed by the petitioner. The writ
15 of 39
petition was dismissed on 02.02.2012 and there
being no interim order in the special Appeal, how
he continued and received salary after 02.02.2012,
is not explained. The petitioner concealed his
dismissal of writ petition from the Department and
is not entitled for any relief from this Court.
There has been several complaints received against
the petitioner with regard to which enquiries were
held and the respondent No.1 had taken action
against the petitioner.
17. We have considered the submissions of learned
counsel for the parties and perused the record.
18. From submissions of learned counsel for the
parties and materials on record, following points
arise for consideration in this appeal:
I) Whether appointment of appellant on the
post of Junior Accounts Clerk on 21.12.1990
was not validly made in accordance with law?
16 of 39
II) Whether by dismissal of Writ Petition
No.Nil of 1992 on 04.12.1992 filed against the
consequential order dated 11.11.1992 issued to
the petitioner, appellant's right to continue
on his post shall come to an end?
III) Whether reappointment of the appellant
dated 01.01.1993 been limited only till
27.02.1993 after efflux of the said period
appellant's right to continue on the post
shall come to an end?
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?
I) Whether appointment of appellant on the post of
Junior Accounts Clerk on 21.12.1990 was not
validly made in accordance with law?
19. The copy of the appointment order of the
appellant has been placed on record as AnnexureP1, 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.”
20. The appellant's case is that apart from
calling names from the Employment Exchange, the
respondent No.1 had also published an
Advertisement on 05.12.1990 in the Daily News
Paper 'Dainik Devvrat'. The learned counsel for
the respondents has refuted the claim of appellant
of publication in the Daily News Paper. He submits
that Editor of News Paper vide his letter dated
21.08.2017 with regard to verification of alleged
19 of 39
advertisement has informed that it is not possible
to verify the same, it being a very old matter.
21. Learned counsel submits that there was no
publication in the newspaper and the claim of
publication was only invented for the purpose of
this case.
22. Appellant has refuted the above submission of
the respondent and submits that newspaper has been
filed before the High Court and further in the
reports which were submitted with regard to
complaints against the appellant, it was
specifically mentioned that the publication was
made in the News Paper 'Dainik Devvrat' on
05.12.1992.
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.
24. 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 11.11.1992.
21 of 39
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.
26. 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 process.
22 of 39
II) Whether by dismissal of Writ Petition No.Nil
of 1992 on 04.12.1992 filed against the
consequential order dated 11.11.1992 issued to the
petitioner, appellant's right to continue on his
post shall come to an end?
27. Writ Petition No.Nil of 1992 was filed by the
appellant challenging the Order dated 11.11.1992.
On 11.11.1992, two orders were passed by
respondent No.1. By first order dated 11.11.1992
appointment(promotion) of Shiv Kumar Rai was
cancelled and he was directed to take charge of
his original post of Junior Accounts Clerk. In
consequence to above 11.11.1992 order with regard
to petitioner, following order was issued:
" Accounts Officer, Office of
District Basic Education Officer,
Azamgarh
Order Number/Le.No./803809/199293
Date: 11.11.1992
Termination of service
Consequent to reversion of Shri
Shiv Kumar Rai, Assistant Accounts,
23 of 39
Lekha Sangathan Office, District
Basic Education Officer, Azamgarh at
his original post Junior Accounts
Clerk, the purely temporary services
of Shri Rana Pratap Singh, Junior
Accounts Clerk are terminated with
immediate effect. He is ordered to
hand over the charge of his post to
Shri Shiv Kumar Rai with immediate
effect.
Sd/ illegible
Accounts Officer
Office of District Basic
Education Officer, Azamgarh
Endorsement Number account/803
809/199293"
28. Both Shiv Kumar Rai and petitioner have filed
separate writ petitions challenging order dated
11.11.1992. In writ petition No.44384 of 1992
filed by Shiv Kumar Rai, following interim order
was passed on 27.11.1992:
" ..Issue Notice
Learned standing counsel prays
for and is granted one month time to
file counter affidavit. Petitioner
will have thereafter two weeks time
24 of 39
for filing rejoinder affidavit. List
the stay application before the
appropriate court in the 2nd 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.”
29. 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
25 of 39
affect the petitioner's 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 02.02.2012.
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?
26 of 39
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.
Accounts Officer
Office of District Basic
Education Officer, Azamgarh.
Endorsement Number Accounts/117
1240/199394
Dated : 01.01.1993”
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 reappointment 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.
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.
34. 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
continue.
30 of 39
35. 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
01.01.1993.
36. We, thus, are of the view that letter dated
01.01.1993 cannot be said to be reappointment of
the appellant. The order was in essence reinstatement 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 RA6 and
subsequent order issued by Finance and Accounts
Officer where date of appointment of appellant has
been mentioned as 21.12.1990.
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.
33 of 39
39. The report dated 27.04.2017 of District
Handicapped Public Development Officer, Azamgarh
addressed to Collector, Azamgarh, has been brought
on record with regard to promotion of Shiv Kumar
Rai, in which following facts have been stated:
" ...After inquiry, this fact came to
light that the selection of Shri
Singh has been made by the legally
constituted Selection Committee at
the vacant post of Junior Accounts
Clerk due to the promotion of Shri
Shiv Kumar Rai at the post of
Assistant Accountant in the
department. A representation was
submitted by Shri Ram Sinhasan Singh,
Junior Accounts Clerk working in the
office of Finance and Accounts
Officer of Basic Education, Azamgarh
stating that he is senior to Shri
Rai. Therefore, on the basis of
seniority, he be promotied at the
post of Assistant Accountant. Shri
Rai was reverted to the post of
Junior Accounts Clerk by order dated
11.11.1992 of Finance and Accounts
Officer, Basic Education Azamgarh.
Stay Order was obtained by Shri Rai
of the order of reversion by the
Hon'ble High Court of Allahabad by
order dated 27.11.1992. The stay
order dated 27.11.1992 was continued
by order dated 09.04.1993. Shri Shiv
Kumar Rai has retired from the
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promoted post of Assistant Accountant
on 29.02.2008. Shri Rai and Shri
Sinhasan Singh both have retired from
their posts. After retirement, the
case of mutual seniority has
finished. Resultantly the lien/tenure
of Shri Rana Pratap Singh at the post
of Junior Accounts Clerk remained as
earlier...”
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.
41. 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
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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 Rai.
42. Learned counsel for the respondents had also
submitted that the conduct of the appellant is not
such that he may be entitled for any relief. It is
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submitted that when the writ petition was
dismissed by learned Single Judge on 02.02.2012
and special appeal came to be dismissed on
06.02.2018, the appellant was not entitled to
continue or receive any salary. He submits that he
had concealed the dismissal of writ petition from
the department.
43. 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
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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 misrepresentation.
44. 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.
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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.
...................J.
(ASHOK BHUSHAN)
...................J.
(NAVIN SINHA)
NEW DELHI,
DECEMBER 18, 2019.
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