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REPORTABLE

   IN THE SUPREME COURT OF INDIA      CIVIL APPELLATE JURISDICTION

                         Civil Appeal No(s).  5265  of 2019                             (@ SLP(C) No. 36624 of 2017)

Raman Singh               Appellant(s)

                               Versus

The District Inspector of Schools,  Jalaun at Orai & Ors              Respondent(s)

J U D G M E N T  

Dr Dhananjaya Y Chandrachud, J

1 Leave granted.

2 This appeal arises from a judgment dated 30 October 2017 of the Division Bench of

the  High  Court  of  Judicature  at  Allahabad  dismissing  the  Special  Appeal  filed  by  the

appellant and affirming the judgment of the Single Judge dated 9 October 2013.     

3 The  appellant  was  appointed  by  the  Committee  of  Management  of  the  third

respondent  as  an ad-hoc Lecturer  in  English  on 11 August  1993 against  a  short-term

vacancy which arose upon the grant of three months’ leave to the then incumbent in the

post.  On 1 October 1993, the regularly appointed lecturer who was on leave died. As a

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result, the appellant continued in service. On 30 June 1994, the management sought to

absorb the appellant in the substantive vacancy which arose on the death of the regularly

appointed candidate.

4 The case of the appellant is that the management sought the approval of the District

Inspector of Schools1 on 2 July 1994 and again on 18 March 1996, but no intimation was

received.  Aggrieved, in April 1996, the appellant filed a writ petition before the High Court

seeking a mandamus to treat his ad hoc appointment as an appointment on a permanent

basis and for a direction to the State to release his salary, since the institution is an aided

institution.

5 The High Court issued an interim order on 16 April 1996 to the effect that until the

next date of listing or until a regularly appointed candidate is available, whichever is earlier,

the appellant shall be allowed to continue against the payment of due salary.

6 On 30 June 1997, a candidate by the name of Nem Singh was appointed by the U.P.

Secondary Education Service Selection Board. According to the State, the appellant and

the management colluded to prevent the selected candidate from joining the post, though

this is a matter  of  dispute.  There is on the record a letter from the Deputy Director of

Education dated 30 June 1997 stating that Nem Singh could not take over the charge of the

school since he did not make any contact with the school. The admitted position is that the

selected candidate did not join the post. In consequence, the appellant continued to be

employed in the post. The salary of the appellant was stopped.   

7 The writ petition filed by the appellant was dismissed by a learned Single Judge of

the  High  Court  on  9  October  2013.  The  appellant  filed  a  Special  Appeal  against  the

dismissal of the petition.

1 DIOS

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8 During the pendency of the Special Appeal, there was an interim order in favour of

the appellant in terms similar to the interim protection which was granted earlier on 16 April

1996 by the Single Judge of the High Court. By the impugned order dated 30 October

2017, the Special Appeal was dismissed by the Division Bench. The High Court held that

the  appellant  was  appointed  in  a  leave  vacancy,  in  terms of  the  Second  Removal  of

Difficulties Order 1981. The High Court observed that in the absence of approval to his

appointment by the competent authority,  any further direction for his continuance or for

payment of salary is not permissible in law.  

9 From the order of the High Court, it emerges that a counter affidavit was filed in the

course of the Special Appeal where it was stated on behalf of the DIOS that by a letter

dated 14 July 1994, approval for the appointment of the appellant had been declined since

it was not in conformity with the provisions of Section 18 of the UP Secondary Education

Services Selection Board Act 1982 and the Removal of Difficulties Order. Consequently,

while affirming the judgment of the learned Single Judge, the Division Bench directed that

the salary which was paid over till the date of the judgment shall not be recovered, but the

appellant will not be entitled to any further emoluments.

10 Assailing the decision of the Division Bench in Special Appeal, the appellant moved

this Court under Article 136 of the Constitution of India.   On 10 January 2018, when the

Special  Leave  Petition  was  taken  up,  the  following  statement  made  on  behalf  of  the

appellant was recorded:

“Learned counsel for the petitioner says that he does not claim any right over the post of lecturer in the school, but says that the petitioner may be allowed to continue till regular or other appointment is made.”

11 Subsequently on 13 August 2018, there was a direction that the salary should be

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paid to the appellant for the period for which he has worked.   Admittedly, these directions

have been complied with. The appellant continues to remain in service and his salary has

been paid.

12. Ms. Meenakshi Arora, learned Senior Counsel appearing on behalf of the appellant

submits that the appellant has seriously disputed the stand of the DIOS to the effect that his

services had been disapproved by the issuance of a letter dated 14 July 1994. It has been

urged that there was no reference to this letter before the learned Single Judge and it was

only when a counter affidavit was filed in the Special Appeal before the Division Bench that

the department adverted to the issuance of this letter declining approval. It has been urged

that in consequence, though under the interim orders of the High Court, the appellant has

continued to remain in service and discharged his duties since 1993 and as the senior most

teacher, the management has submitted a proposal for the continuance of the appellant as

an in-charge principal.

13 On the other hand, it has been urged Mr. Tanmaya Agarwal, learned Senior Counsel

appearing on behalf of the first respondent that the High Court has correctly come to the

conclusion  that  the  ad  hoc  appointment  of  the  appellant  could  not  have,  in  any  case

materialised into a substantive appointment, on the death of the then incumbent. It  has

been urged that no procedure was followed in making a regular appointment and the law

has since been settled  in  a  judgment  of  a  Full  Bench of  the  Allahabad High Court  in

Pramila Mishra v  Deputy Director of Education.2 The ad-hoc appointment, necessarily

came to an end upon the ceasing of the short term vacancy on the death of the incumbent.

Hence, it was urged that there was no vested right on the part of the appellant to claim a

regular appointment or, for that matter, to continue in service.

2 1997 (2) ESC 1284, ALL(FB)

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14 The appellant was appointed purely on an ad hoc basis in a leave vacancy which

arose in  the  institution.   On the  death  of  the  regularly  appointed candidate,  the  leave

vacancy ceased to exist. Once a substantive vacancy arose, it was required to be filled up

in  accordance  with  law.  The  appellant  had  no  right  or  entitlement  to  claim  that  his

appointment on an ad-hoc basis in a leave vacancy should be converted into a substantive

appointment. The view which has been taken by the learned Single Judge and in appeal by

the Division Bench, therefore, cannot be faulted.  

15 It is evident that the purported appointment of the appellant to a substantive post

was  without  the  approval  of  the  DIOS.  The  DIOS had  rejected  the  application  of  the

management to absorb the appellant to a substantive post over 24 years ago on the ground

that his appointment would be in violation of the applicable law. No procedure as required

by  law  was  followed  in  making  the  appointment.  The  appellant  however  instituted

proceedings and has continued in service by virtue of the interim orders which were passed

in the writ proceedings by the learned Single Judge and thereafter, during the pendency of

the Special Appeal, by the Division Bench. Even during the pendency of these proceedings,

following the statement which has been made on his behalf on 10 January 2018, there was

a direction on 13 August 2018 for the payment of the salary to him for the period for which

he  has  worked.  Eventually,  the  management  proposed  to  post  him  as  an  in-charge

Principal. Nem Singh, who was appointed in accordance with law in 1997, was allegedly

prevented from joining his post. The method adopted by the appellant and the management

is unsustainable in law.  

16 Hence, we are of the view that the ends of justice would be met if a direction is

issued to the effect that necessary steps be taken to fill up the post on a regular basis as

expeditiously as possible within a period of four months from the receipt of a certified copy

of  this  order.  In  order  to  ensure  that  there  should  be  no  dislocation  of  work  in  the

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educational  institution,  the  appellant,  having  regard  to  facts  and  circumstances  of  the

present case, should be allowed to continue purely on an ad-hoc basis until a regularly

appointed candidate is selected. We also direct, in exercise of our jurisdiction under Article

142 of the Constitution of India, that his salary should be paid over for the period for which

he works until a regular candidate is appointed.    

17 We clarify that disposal of this appeal will not come in the way of the management

pursuing the representation which has been submitted by the management, which shall be

duly considered by the competent authority in accordance with law and in accordance with

the principles enunciated above.

18 The appeal is accordingly disposed of in the above terms. Pending application(s), if

any, shall stand disposed of. There shall be no order as to costs.  

..………..…………................................J.       [Dr. Dhananjaya Y Chandrachud]

.……..…………………………...............J.     [Indira Banerjee]

New Delhi July 8, 2019

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ITEM NO.32               COURT NO.10               SECTION XI

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C)  No(s).  36624/2017

(Arising out of impugned final judgment and order dated  30-10-2017 in SA No. 1873/2013 passed by the High Court of Judicature at Allahabad)

RAMAN SINGH                                        Petitioner(s)

                               VERSUS

THE DISTRICT INSPECTOR OF SCHOOLS,  JALAUN AT ORAI & ORS.            Respondent(s)

(FOR ADMISSION and I.R. and IA No.140540/2017-EXEMPTION FROM FILING O.T.,  IA No. 103809/2018 - EXEMPTION FROM FILING O.T., IA No. 103807/2018 - I/A ON BEFALF OF THE PETITIONER SEEKING COMPLIANCE OF ORDER)

Date : 08-07-2019 This matter was called on for hearing today.

CORAM :           HON'BLE DR. JUSTICE D.Y. CHANDRACHUD          HON'BLE MS. JUSTICE INDIRA BANERJEE

For Petitioner(s) Ms. Meenakshi Arora, Sr. Adv.

                   Mr. Parmatma Singh, AOR Mr. Mayank Jain, Adv. Mr. Madhur Jain, Adv.                    

For Respondent(s)                     Mr. Tanmaya Agarwal, AOR

Mr. Wrick Chatterjee, Adv.                     

         UPON hearing the counsel the Court made the following                              O R D E R

Leave granted.

The appeal is disposed of in terms of the signed reportable

judgment.

Pending application(s), if any, shall stand disposed of.

(MANISH SETHI)                                  (SAROJ KUMARI GAUR) COURT MASTER (SH)                                  BRANCH OFFICER

(Signed reportable judgment is placed on the file)