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                 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.8068 OF 2009

Sanjay Kumar Upadhyay  ……Appellant(s)

VERSUS

Palak Dhari Yadav & Ors. ……Respondent(s)

WITH CIVIL APPEAL No.8069 OF 2009

Committee of Management, D.A.V. Girls Higher Secondary School, May, U.P.  ……Appellant(s)

VERSUS

Palak Dhari Yadav ……Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) These  appeals  are  filed  against  the  common

judgment and order dated 05.10.2006 passed by the

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High  Court  of  Judicature  at  Allahabad  in  Special

Appeal Nos. 728 and 729 of 1999 whereby the Division

Bench of the High Court allowed both the appeals filed

by  respondent No.1 herein and set aside the order

dated 30.07.1999 passed by the Single Judge of the

High Court in C.M.W.P. No. 19091 of 1990 filed by the

appellant herein and C.M.W.P. No. 6681 of 1990 filed

by respondent No. 1 herein.

2) In order to appreciate the issue involved in this

appeal, which lies in a narrow compass, it is necessary

to set out the relevant facts in brief infra.

3) D.A.V.  Kanya  Uchhatar  Madhyamic  Vidyalaya,

Mau, U.P. (hereinafter referred to as “the institution”)

is an institution recognized by the State Government

and receives grant-in-aid.  The Institution is governed

by the U.P. Intermediate Education Act, 1921 (in short

“the  Act”),  other  allied  laws,  Rules  and  Regulations

framed under the Act.   

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4) On  20/26.06.1989,  the  management  of  the

Institution gave an advertisement in VANDEVI weekly

paper  published  from Mau,  for  the  post  of  a  Clerk

mentioning the last date for submitting the application

as 10.07.1989 and date of interview as 12.07.1989.   

5) Sanjay Kumar Upadhyay-the appellant in C.A.No.

8068 of 2009 applied for the said post of Clerk.  He

appeared for the interview on the date and time fixed

by the Management of the Institution.  He was selected

for  the  abovesaid  post  and  was  accordingly  given

appointment  letter  on 18.08.1989.   Pursuant  to  the

appointment  letter,  he  joined  the  service  on

01.09.1989.  The  said  appointment  was  approved by

the  Regional  Inspector  of  Girls  Schools,  Region

Gorakhpur vide letter dated 07.03.1990.  

6) Palak  Dhari  Yadav-respondent  No.1,  who  was

class  IV  employee  of  the  Institution,  challenged  the

order  of  approval  dated  07.03.1990  by  which  the

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appellant  was given appointment  and filed C.M.W.P.

No. 6681 of 1990 before the High Court. The challenge

was  on  ground  that  as  per  Regulation  2(2)  of

Chapter-III of Regulation framed under the Act, when

only one post of  clerk falls vacant in the Institution

then it should be filled up by way of promotion and not

by  direct  recruitment  by  inviting  applications  from

public as was done in this case.

7) The appellant  also filed C.M.W.P.  No.  19091 of

1990 before the High Court on the ground that despite

appointment given to him and approval accorded, he

was not being paid his monthly salary.

8) The Single Judge of the High Court by a common

order dated 30.07.1999 allowed C.M.W.P. No. 19091 of

1990 filed by the appellant  and dismissed C.M.W.P.

No. 6681 of 1990 filed by respondent No.1.  It was held

that  the appointment  of  the  appellant  on the  single

post of clerk by direct recruitment could be made and

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was  thus  a  valid  appointment  in  law.   It  was

accordingly directed to the Institution that  it  should

make  the  payment  of  salary  along  with  its  arrears

within  two  months  from  the  date  of  order  to  the

appellant.  

9) Against the order dated 30.07.1999 in C.M.W.P.

No. 6681 of 1990, the respondent filed Special Appeal

No. 728 of 1999 whereas against the order in C.M.W.P.

No. 19091 of 1990 the respondent filed Special Appeal

No. 729 of 1999 before the High Court.

10) By  impugned  judgment  dated  05.10.2006,  the

Division  Bench  of  the  High  Court  allowed  both  the

appeals and directed the Management of the Institute

to  consider  filling  up  the  post  of  clerk  by  way  of

promotion from the eligible Class IV employees of the

Institution as per the seniority.  This was held by the

Division Bench by placing reliance upon a judgment of

the  High Court  in  Jai  Bhagwan Singh Vs.  District

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Inspector of Schools & Ors. 2006 (4) All. Law Journal

438(DB).  As a consequence thereof, the appointment

of the appellant herein made by direct recruitment on

the post in question was declared invalid.

11) Challenging  the  said  order,  the  appellant  filed

Civil Appeal No. 8068 of 2009 and the Committee of

Management,  D.A.V.  Girls  Higher  Secondary  School,

Mau, UP filed C.A. No. 8069 of 2009.

12) On 27.11.2009, this Court granted leave to the

appellant.  This Court also noted that the respondent

(writ  petitioner)  is  not  interested in contesting these

appeals  because despite service on him, he has not

appeared  in  these  appeals.   This  Court,  therefore,

stayed the operation of impugned order.  As a result of

the grant of stay, the appellant continued to remain on

the post and has been continuously discharging the

duties.

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13) Shri  P.N.  Mishra  learned  Senior  Counsel

appearing  for  the  appellant  -  (Shri  Sanjay  Kumar

Upadhya) has urged only one submission. According

to  him,  the  first  respondent  (writ  petitioner)  retired

from the service during pendency of these proceedings

and, therefore, he is not now interested in prosecuting

his writ petition out of which these appeals arise and

that  is  perhaps  the  reason,  why  he  has  not  come

forward  to  oppose  these  appeals  despite  service  of

notice  on him.  It  is  submitted that  since the Single

Judge dismissed the respondent's writ petition and in

consequence  held  the  appointment  as  legal  and

proper, the appellant was allowed to continue on the

post uninterruptedly. It was urged that even after the

impugned  decision  was  rendered  declaring  the

appointment of the appellant as bad in law, this Court

by order 27.11.2009 has stayed the operation of the

impugned order  as  a  result  of  which,  the  appellant

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continued to work on the post of   "Clerk" till date and

this  is  how  since  last  26  years  he  has  been

continuously working and drawing regular salary.

14) Learned  counsel,  therefore,  urged  that  the

appellant has now hardly few years left in service and

there being no employee presently available in service

who can be promoted to the post which he is holding

and hence the appellant may be allowed to continue

on the post till his retirement and thereafter the post

can be filled up by promotion from the eligible Class-IV

employees, if in the meantime, no additional posts are

created.  

15) Since there is no one appearing for the contesting

respondent (writ  petitioner)  to  oppose these appeals,

and counter the arguments of the learned counsel for

the appellant mentioned above, we find some force in

the submission of learned counsel for the appellant.  

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16)  In our considered opinion, it is not necessary to

go into the merits of the controversy as to whether the

Division Bench was right in holding that the post in

question could be filled up only by way of promotion

from amongst the in service candidate and it could not

be filled up by direct recruit because we feel that this

appeal  can  be  disposed  of  on  other  grounds  as

mentioned infra.   

17) First,  no  one  has  appeared  on  behalf  of  the

respondent  (writ  petitioner)  to  oppose  these  appeals

and  counter  the  aforementioned  submissions  of  the

appellant's counsel.  

18) Second,  admittedly  the  respondent  (writ

petitioner) has retired from the service and hence his

case for promotion on the post in question cannot be

now considered.

19)  Third,  no  in-service  candidate  other  than  the

respondent  has  come  forward  saying  that  his

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candidature be considered for the post by promoting

him, he being eligible for the post.

20)  Fourth,  the  appellant  has  been  continuously

working on the post for the last 26 years (approx.) on

the basis of selection and then on the basis of order

passed by the Single Judge upholding his appointment

and lastly, on the basis of stay granted by this court

on 27.11.2009.  

21) Fifth, if the appellant is allowed to continue till he

attains the age of retirement, no prejudice is likely to

be  caused  to  anyone  because  nothing  adverse  was

brought  to  our  notice  against  him  in  these

proceedings.  In  addition,  he  was  otherwise  found

qualified for the post in the selection process, but his

appointment was cancelled on technical ground.

22) In the light of foregoing reasons, we are inclined

to  dispose  of  these  appeals  keeping  in  view  the

peculiar facts of the case and accordingly direct that

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the  appellant  (Mr.  Sanjay  Kumar  Upadhaya)  be

allowed to continue on the post of Clerk on which he

was  appointed till  the  date  of  his  retirement  unless

otherwise he is rendered himself unable to continue in

service prior to the date of his retirement due to any

legal reasons. It is further directed that on appellant

demitting the office, the post in question be filled up

by promoting the suitable in-service candidate as per

the rules. If, however, in the meantime, the number of

post is increased then the post be filled up as per the

norms applicable for filling such posts as per rules.

23) With these directions, the impugned order stands

modified to that extent. The appeals stand accordingly

disposed of. No cost.

                                    .……...................................J.                     [J. CHELAMESWAR]

                                     ………..................................J.                      [ABHAY MANOHAR SAPRE]

New Delhi, February 03, 2016.

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