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PETITIONER: COMMITTEE OF  MANAGEMENT, ARYA  NAGAR  INTER  COLLEGE,  ARYA

       Vs.

RESPONDENT: SREE KUMAR TIWARY & ANR.

DATE OF JUDGMENT:       31/03/1997

BENCH: K. RAMASWAMY, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.  We have  heard learned  counsel on both sides.      This appeal  by special  leave arises from the judgment of the  Division Bench  of the High Court of Allahabad, made on August 14, 1996 in SA No.153/96.      The first  respondent came to be appointed as an ad hoc teacher on July 1 , 1986 against a short term vacancy caused by promotion  of the  incumbent on  ad hoc basis to the next higher post.  His appointment  came to  be terminated on May 30, 1988 w.e.f. June 30, 1988. The respondent challenged the order of  termination  in  a  writ  petition.  Pending  writ petition, an  interim order  of stay  though vacated  by the learned single  Judge, the  same was granted by the Division Bench.      The learned  single Judge  on merits dismissed the writ petition. On  appeal, the  Division Bench  in  the  impugned order has  held  that  since,  pending  writ  petition,  the services of  the first respondent came to be regularised, he would be  entitled  to  continue  in  service.  However,  on consideration of  the entire  matter, we  make it clear that the impugned judgment/order of the learned Single Judge will not stand  on the  continuation in  service of the appellant (respondent  herein)   in  pursuance   of  the  order  dated 27.10.1995 of the District Inspector of Schools regularising his services, till an order to the contrary is passed by the competent authority  in accordance  with law. The said order is now the subject matter of the appeal.      Shri N.K.  Sharma, learned  counsel appearing  for  the appellant, contends  that the  first respondent  came to  be appointed on  ad hoc  basis; the  continued in service on ad hoc basis  till June  30, 1988.  The U.P. Secondary Eduction Service Commission (Removal of Difficulties) Order, 1981, as amended by  Third Order, introducing Section 33-B of the Act has  no  application  for  two  reasons,  namely,  that  the temporary service  of the ad hoc employee should continue in a vacancy in accordance with Section 2 of the U.P. Secondary Education  Services  Commission  (Removal  of  Difficulties) (Second) Order,  1981; and  he has been continuously serving the institution  from the  date of such appointment upto the

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date of  commencement of  the Third  Removal of Difficulties Order. On  the other  hand,  Shri  Sudhir  K.Gupta,  learned counsel for  the respondent,  contended that pursuant to the recommendation made  by the  Committee for  regularising the services, matter  was placed  before a Committee constituted for regularisation  and his name came to be regularised. The High Court,  therefore, was right in stating that subject to an order  being passed  by the  competent authority  in that behalf, the  respondent  would  continue  as  a  regularised candidates. This aspect of the matter has been dealt with in the rejoinder  filed by  the appellant  stating that  it  is being adjudicated  in another  pending case;  therefore, the appeal no longer survives.      In view  of the  respective contentions,  the  question that arises  for consideration is; whether the respondent is entitled to the benefit of the Third Removal of Difficulties Order as  indicated hereinbefore? Section 33-B(1)(i) of U.P. Secondary Education  Service Commission Act, 1982 postulates among others, regulation of a candidate who was appointed by promotion or  by direct  recruitment in  the certificate  of teaching grade  before May  13, 1989  against a  short  term vacancy in  accordance with paragraph 2 of the Uttar Pradesh Secondary   Eduction   Services   Commission   (Removal   of Difficulties) (Second)  Order, 1981  and  such  vacancy  was subsequently converted  into a  substantive vacancy.  It  is seen that the regular incumbent retired from service on June 30, 1988.  Consequently, the temporary vacancy was deemed to have been  converted into  a substantive vacancy w.e.f. June 30,  1988.  But  the  crucial  question  is  :  whether  the respondent was  continuously serving  the institution  under clause (c)  of Section  33-B(1)? Admittedly,  the service of the respondent  came to  be terminated  w.e.f June 30, 1988. Though he had obtained the stay order and continued to be in service, it  was not  by virtue  of his  own right  under an order of  appointment,  he  continued  in  the  office  with permission of the management. In fact, in the recommendation made before  the Selection  Committee, they  have stated  as under:      "Ad hoc  appointment  of  Shri  Sri      Kumar Tiwari  was made  on 1.8.1986      L.T. Grade  and vide  notice  dated      30.5.88    his     services    were      terminated. ON  the  basis  of  the      above order  Shri Sri  Kumar Tiwari      obtained stay  order No.13565 dated      29.7.1988 from  Hon’ble High Court.      Therefore,      appointment      is      disputed."      In  fact,   the  regularisation  order  passed  by  the District Inspector  of Schools also says that it was subject to the  result in  the writ  petition. The  appeal being the continuation of  the writ  petition,  the  question  arises: whether the  respondent is  entitled to claim the benefit of Section  33-B(1)(a)(i)   of  the  U.P.  Secondary  Education Services  Commission  Act,  1982.  We  have  seen  that  his services came  to be  terminated  on  May  30,1988  and  the Amendment Act  has no application. Hence, the Division Bench was right  in giving  direction that his regularisation will be subject  to the  further orders  since the regularisation order itself  means that it was subject to the result of the writ petition.      The appeal  is accordingly  allowed, the  writ petition stands dismissed,  but in  the circumstances, without costs, If there  is provision  for further appointment according to rules, the bar of age may be relaxed appropriately.

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