Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) No. 12469 of 2010

  Guru Charan Singh                                   ……      Petitioner

Versus

State of U. P. & Ors.                                  …… Respondents

O R D E R

A. K. PATNAIK, J.

This is a special leave petition under Article 136 of the  

Constitution against the impugned order dated 27.01.2010  

of  the  Division  Bench  of  the  Allahabad  High  Court  

dismissing Special Appeal No.115 of 2010 of the petitioner  

against  the  order  dated  21.12.2009 of  the  learned Single  

Judge in Civil Misc. Writ Petition No.11400 of 2005.

2. The relevant facts very briefly are that one Gajendra  

Singh Rathi was working as an Assistant Teacher in  

the Department of Hindi in L.T. Grade in Kisan Inter  

College, Mohiuddinpur, Meerut, in the State of Uttar

Pradesh (hereinafter referred to as ‘the Institution’).  In  

the Institution, a new section in Class XII of the Arts  

Faculty was opened in 1973 and in this new section of  

Class  XII  Gajendra  Singh Rathi  was appointed  as  a  

Lecturer in Hindi.  The District Inspector of Schools,  

Meerut,  however,  cancelled  the  appointment  of  

Gajendra Singh Rathi as a Lecturer in Hindi in Class  

XII of the Institution.  Gajendra Singh Rathi filed Suit  

No.795 of 1969 and the Court of  the Vth Additional  

Civil  Judge,  Meerut,  decreed  the  suit  declaring  

Gajendra Singh Rathi as a Lecturer in the Department  

of  Hindi  in  the  Institution  by  judgment  and  decree  

dated 03.01.1991.  Consequently, there was a vacancy  

in  the  post  of  Hindi  Teacher  in  L.T.  Grade  in  the  

Institution.  On 10.06.1993, the Principal/Manager of  

Institution  notified  several  vacancies  in  the  post  of  

Assistant  Teachers  in  the  Institution  on  the  Notice  

Board  of  the  Institution  inviting  competent  and  

qualified  teachers  possessing  educational  

qualifications  of  BA/B.Ed./LT  to  appear  in  the  

interview in the office of the Institution on 27.06.1993  

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for  appointment  to  the  vacancies.   The  petitioner  

appeared  in  the  interview  and  was  selected  as  an  

Assistant Teacher in L.T. Grade by the Committee of  

the  Institution  on  27.06.1993.   The  Prabandh  

Sanchalak,  who  was  managing  the  affairs  of  the  

Institution, sent the papers to the District Inspector of  

Schools,  Meerut,  along  with  a  covering  letter  dated  

29.06.1993 stating therein that consequent upon the  

promotion  of  Gajendra  Singh  Rathi  to  the  post  of  

Lecturer in Hindi in the Institution, the petitioner was  

given  appointment  after  selection  till  duly  selected  

candidate joins the post.  By a communication dated  

24.12.1994,  the  District  Inspector  of  Schools  

provisionally fixed the salary of Gajendra Singh Rathi  

in the post of Lecturer in the Hindi Department of the  

Institution  and  by  another  communication  dated  

04.03.1995 the District Inspector of Schools approved  

the  temporary  appointment  of  the  petitioner  in  the  

original  post  of  Assistant  Teacher  up to  the  time of  

joining  duties  by  a  candidate  duly  selected  by  the  

Commission or up to the time of demotion of Gajendra  

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Singh Rathi from the post of Lecturer to his original  

post  of  Assistant  Teacher,  whichever  of  the  two  

occurred  earlier  in  time.   The  petitioner  accordingly  

worked as an Assistant Teacher in the Institution until  

his  services  were  terminated  pursuant  to  the  order  

dated 13.01.1005 of the District Inspector of Schools.

3. Aggrieved, the petitioner filed Civil Misc. Writ Petition  

No.11400 of 2005 in the Allahabad High Court and on  

28.02.2005 a learned Single Judge of the High Court  

hearing  the  writ  petition  stayed  the  order  of  

termination.  After counter affidavit was filed on behalf  

of respondent nos. 1 to 4, learned Single Judge of the  

High Court heard the writ petition and dismissed the  

same  by  order  dated  21.12.2009.   Learned  Single  

Judge of the High Court held that after 14.07.1992 the  

vacancy which occurred on account  of  promotion  of  

Gajendra  Singh  Rathi  to  the  post  of  Lecturer  was  

actually a substantive vacancy and the Committee of  

the Institution had no authority to make any selection  

and appointment to this vacancy of Assistant Teacher  

in  Hindi  in  the  Institution  and  it  was  only  the  

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Committee  constituted  under  the  U.P.  Secondary  

Education Services Commission and Selection Boards  

Act,1982  which  could  make  the  selection  and  

appointment to this substantive vacancy.  The learned  

Single  Judge  further  held  that  the  Prabandh  

Sanchalak  of  the  Institution  without  advertising  the  

vacancy in any newspaper took recourse to the notice  

board proceedings and based on the same proceeded  

to pass an order for appointment by holding interview  

by  treating  the  vacancy  in  question  as  resultant  

vacancy and not a substantive vacancy.  The learned  

Single  Judge  further  held  that  even  selection  and  

appointment  under  the  Uttar  Pradesh  Secondary  

Education  Services  Commission  (Removal  of  

Difficulties) (Second) Order, 1981, the selection was to  

be made by the Committee of the Institution on the  

basis of quality point marks and not on the basis of  

interview.  The learned Single Judge also held that as  

Gajendra Singh Rathi had been an Assistant Teacher  

in Hindi,  the vacancy which occurred on account of  

promotion  of  Gajendra  Singh  Rathi  to  the  post  of  

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Lecturer in the Institution was in the post of Assistant  

Teacher  in  Hindi  and  not  in  any  general  post  of  

Assistant Teacher and as the petitioner had not opted  

Sanskrit as one of the subjects at the graduation, he  

was  disqualified  to  be  appointed  as  an  Assistant  

Teacher in Hindi in L.T. Grade.  For these reasons, the  

learned  Single  Judge  refused  to  grant  relief  and  

dismissed the Writ Petition.  Aggrieved by the order of  

learned  Single  Judge,  the  petitioner  filed  Special  

Appeal No.115 of 2010 before the Division Bench of the  

High Court and, by the impugned order, the Division  

Bench dismissed the appeal  after  observing that the  

learned Single Judge had come to the conclusion that  

the appointment of the petitioner was dehors the rules  

and, therefore, he was not entitled to any relief.

4. At  the  hearing,  learned  counsel  for  the  petitioner  

submitted  that  it  will  be  clear  from  the  Resolution  

dated 27.06.1993 of the Committee of the Institution  

as well as the papers sent to the District Inspector of  

Schools and the order dated 04.03.1995 of the District  

Inspector of Schools approving the appointment of the  

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petitioner  as  an Assistant  Teacher  in  the  Institution  

that the appointment of the petitioner to the post of  

Assistant Teacher in the Institution was for a limited  

duration,  i.e.  up  to  the  time  of  joining  duties  by  a  

candidate duly selected by the Commission or up to  

the time of demotion of Gajendra Singh Rathi from the  

post  of  Lecturer  to  his  original  post  of  Assistant  

Teacher, whichever of the two occurred earlier in time.  

He submitted that  the  appointment  of  the  petitioner  

was, therefore, to a short-term vacancy and not to a  

substantive  vacancy.   He  submitted  that  the  

appointment to a short-term vacancy could be made  

under  Clause  2  of  the  Uttar  Pradesh  Secondary  

Education  Services  Commission  (Removal  of  

Difficulties) (Second) Order, 1981.  He submitted that  

this was, therefore, not a case where the petitioner was  

appointed to a substantive vacancy as has been held  

by  the  High  Court.   He  further  submitted  that  a  

Division Bench of the Allahabad High Court has held  

in  judgment  dated  18.08.1998  in  Special  Appeal  

No.948 of 1995 [(1988) 3 UPLBEC 1722] that in K. N.  

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Dwivedi v.  District  Inspector  of  Schools (1994  (1)  

UPLBEC 461) a learned Single Judge of the Allahabad  

High Court  for  the  first  time held  that  notifying  the  

vacancy on the notice board of the Institution would be  

repugnant to the fundamental right under Article 16 of  

the  Constitution  and  this  judgment  of  the  learned  

Single Judge in K. N. Dwivedi which was delivered on  

13.01.1994 will not apply to the appointment to short-

term vacancies prior to 13.01.1994.  He submitted that  

in  the  present  case  the  petitioner  was  selected  and  

appointed on 27.06.1993 and he had joined in the post  

prior to 13.01.1994 and the notification of the vacancy  

only  in  the  notice  board  of  the  Institution  was  not  

invalid.   He  finally  submitted  that  until  the  regular  

appointment is made to the post of Assistant Teacher  

in the Institution after selection by the Commission,  

the  petitioner  should  be  allowed  to  continue  as  an  

Assistant Teacher in the Institution.

5. We need not deal with these contentions of the counsel  

for the petitioner because we find from the paragraph  

2.9 of the Counter Affidavit of respondent no.5 filed in  

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this  Court  that  as  against  the  requisition  of  the  

Committee  of  the  Institution,  the  Uttar  Pradesh  

Secondary  Education  Services  Selection  Board  after  

conducting selection has selected one Ambrish Kumar  

for the Institution and Ambrish Kumar had assumed  

his duty against the vacant post of Assistant Teacher  

on 14.10.2006.  As the appointment of the petitioner to  

the  post  of  Assistant  Teacher  in  the  Institution was  

made  by  the  Committee  of  the  Institution  and  

approved by the District Inspector of Schools for the  

limited period up to the date of joining by a candidate  

duly selected by the Commission and such candidate  

duly selected by the Selection Board has already joined  

his duty on 14.10.2006, the petitioner’s appointment,  

even if valid, has come to an end on 14.10.2006.  We  

further find from a copy of the letter dated 26.07.2008  

of  the  Principal  of  the  Institution  to  the  District  

Inspector of Schools annexed to the counter affidavit of  

respondent no. 5 as Annexure R-2 that the petitioner  

has  drawn  salary  as  an  Assistant  Teacher  up  to  

14.10.2006  and  thereafter.   Hence,  the  question  of  

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granting  any  monetary  relief  to  the  petitioner  up  to  

14.10.2006 also does not arise.

6. For these reasons, we are not inclined to grant leave  

and  instead  dismiss  the  Special  Leave  Petition.   No  

costs.           

……………………..J.                                                                (R.V. Raveendran)

……………………..J.                                                                (A. K. Patnaik) New Delhi, June 24, 2011.     

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