# Sunil Kumar Mishra v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 1969
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-02
- **Case number:** Special Appeal No. 743 of 2019 connected with 744, 745, 595, 599 of 2019
- **Bench:** Manoj Misra, Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-kumar-mishra-v-state-of-u-p-ors-44690
- **Pages:** 25

## Headnote

Selection Board Act, 1982 (U.P. Act No. 5
of 1982) - Sections 18, 21, 33-A, 33-B - All
the five appeals were dismissed and order
of the Single Judge was upheld-Answering
issue of collateral challenge to regularity
and validity of the appointment while
considering issued related to seniority, it
was held that the issue as regards
existence
of
substantive
vacancy
is
fundamental and, once raised, ought to be
addressed while determining the issue
relating to seniority. (Para 38, 39 & 40)

B. Para 5 of First Removal of Difficulties
Order -the procedure for appointment on
ad hoc basis against a substantively vacant
post is what is laid down in Para 5 of First
Removal of Difficulties Order and that
procedure is mandatory-Any appointment
made in transgression of that procedure is
illegal and void. (Para 46, 47 & 48)

C. U.P. Secondary Education Services
Selection Board Act, 1982 (U.P. Act No. 5
of 1982) - Section 18-The provisions
contained in Section 18 and Removal of
Difficulties Order are to be harmonized -
It is incorrect to say that appointment of
a teacher on ad hoc basis is either u/s 18
or under the First Removal of Difficulties
Order. The procedure prescribed in the
First Removal of Difficulties Order for
making ad hoc appointment against a
substantive vacancy was to be followed
for an appointment contemplated u/s 18
and any appointment intransgression
thereof was void. (Para 50, 51 & 52)

D. U.P. Secondary Education Services
Selection Board Act, 1982 (U.P. Act No. 5 of
1982)-section 33-B-Paragraph 3 of the
Second Removal of Difficulties Order -
Where short-term vacancy gets converted
into
a
substantive
vacancy
after
07.08.1993,
the
tenure
of
teacher
appointed on ad hoc basis against a shortterm vacancy would be governed by the
provisions of Section 33-B and would not be
governed by Para 3 of the Second Removal
of Difficulties Order. (Para 54 to 61)

Appeal against the judgment and order dated
02.04.2019 passed by Ashwani Kumar Mishra,
J. in W.P. No. 52277 of 2014.

Special appeal dismissed. (E-4)
1970 INDIAN LAW REPORTS ALLAHABAD SERIES
Precedent followed: -

## Text

_Characters 0–39,886 of 84,095. This is a partial read: ask again with offset=39886 for what follows._

2 All. Sunil Kumar Mishra Vs State of U.P. & Ors.
1969
learned Single Judge in paragraph no.13
in the case of Satya Narain Mishra Vs.
Praband Nideshak and another (Supra)
and alternatively as to whether the
statement of law in that regard as
explained in the judgment of Satya Narain
Mishra Vs. Praband Nideshak and
another (Supra) should be accepted as the
correct position of law ?"

17. Let the papers be placed before
Hon'ble The Chief Justice for constituting
a Larger Bench in terms of Chapter V
Rule 6 of Allahabad High Court Rules,
1952 at the earliest for being resolved.
----------

(2019)10ILR A
1969
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2019

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SURESH KUMAR GUPTA, J.

Special Appeal No. 743 of 2019 connected
with 744, 745, 595, 599 of 2019

Sunil Kumar Mishra ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Ashok Khare, Abhilasha Singh.

Counsel for the Respondents:
C.S.C., Sri Indra Raj Singh, Sri Vijay
Kumar Singh.

A. U.P. Secondary Education Services
Selection Board Act, 1982 (U.P. Act No. 5
of 1982) - Sections 18, 21, 33-A, 33-B - All
the five appeals were dismissed and order
of the Single Judge was upheld-Answering
issue of collateral challenge to regularity
and validity of the appointment while
considering issued related to seniority, it
was held that the issue as regards
existence
of
substantive
vacancy
is
fundamental and, once raised, ought to be
addressed while determining the issue
relating to seniority. (Para 38, 39 & 40)

B. Para 5 of First Removal of Difficulties
Order -the procedure for appointment on
ad hoc basis against a substantively vacant
post is what is laid down in Para 5 of First
Removal of Difficulties Order and that
procedure is mandatory-Any appointment
made in transgression of that procedure is
illegal and void. (Para 46, 47 & 48)

C. U.P. Secondary Education Services
Selection Board Act, 1982 (U.P. Act No. 5
of 1982) - Section 18-The provisions
contained in Section 18 and Removal of
Difficulties Order are to be harmonized -
It is incorrect to say that appointment of
a teacher on ad hoc basis is either u/s 18
or under the First Removal of Difficulties
Order. The procedure prescribed in the
First Removal of Difficulties Order for
making ad hoc appointment against a
substantive vacancy was to be followed
for an appointment contemplated u/s 18
and any appointment intransgression
thereof was void. (Para 50, 51 & 52)

D. U.P. Secondary Education Services
Selection Board Act, 1982 (U.P. Act No. 5 of
1982)-section 33-B-Paragraph 3 of the
Second Removal of Difficulties Order -
Where short-term vacancy gets converted
into
a
substantive
vacancy
after
07.08.1993,
the
tenure
of
teacher
appointed on ad hoc basis against a shortterm vacancy would be governed by the
provisions of Section 33-B and would not be
governed by Para 3 of the Second Removal
of Difficulties Order. (Para 54 to 61)

Appeal against the judgment and order dated
02.04.2019 passed by Ashwani Kumar Mishra,
J. in W.P. No. 52277 of 2014.

Special appeal dismissed. (E-4)
1970 INDIAN LAW REPORTS ALLAHABAD SERIES
Precedent followed: -

1. Julfikar Hussain Ansari Vs St. of U.P. & ors.,
(2013) (1) ADJ 80 (Para 16, 22, 23, 51)
2. Vijay Narain Sharma Vs Distt. Inspector of
Schools, Etawah & ors., (1986) UPLBEC 44
(Para 14, 18, 31, 38)
3. Radha Raizada & ors. Vs Committee of
Management, Vidyawati Darbari Girls' Inter
College & ors., (1994) (3) UPLBEC 1551 (Para
14, 16, 22, 23, 34, 46, 49, 50, 51)
4. Jahaj Pal Vs Distt. Inspector of Schools &
anr. (Special Appeal No. 280 of 2013, decided
on 21.02.2019) (Para 34, 46, 51, 60, 63)
5. Prabhat Kumar Sharma & ors. Vs St. of U.P.
& ors., (1996) 10 SCC 62 (Para 15, 16, 22, 23,
34, 46, 50, 51)
6. Shesh Mani Shukla Vs Distt. Inspector of
Schools, Deoria, (2009) 15 SCC 436 (Para 15)
7. Rama Kant Chaturvedi Vs St. of U.P. & ors.,
Single
Judge
decision
dated
22.10.2010
passed in Writ Petition No. 8960 of 2010 (Para
14, 18, 31)
Precedent distinguished: -

1. Balveer Singh & ors. Vs DIOS & anr., decision
dated 27.09.2018 passed in Special Appeal No. 321
of 2013 (Para 14, 16, 22, 23, 26, 49, 51)
2. Ashika Prasad Shukla Vs Distt. Inspector of
Schools, Allahabad & anr., (1998) (3) UPLBEC
1722 (Para 14, 23, 51)
3. Vijay S. Sathaye Vs Indian Airlines Ltd. &
ors., (2013) 10 SCC 253 (Para 14, 43)
4. Deputy Director of Education (Secondary) &
ors. Vs Smt. Jyoti Yadav & anr. 2016 (4) ALJ
27 (Para 14, 44)
5. Smt. Pramila Mishra Vs Dy. Dir. Edu., Jhansi
Division, Jhansi & ors 1997 (2) UPLBEC 1329
(Para 11, 60)
6. R.S. Khan Vs St. of U.P., 2005 (1) ESC 515
(Para 15)
Precedent referred: -
1. Committee od Management, Arya Nagar
Inter College, Arya Nagar, Kanpur Vs. Sree
Kumar Tiwari and others, (1997) 4 SCC 388
(Para 15)
2. Km. Nishi Bhargava Vs Dy. Director of
Education, Agra Region, Agra & ors., (1987)
UPLBEC 415 (Para 14)
(Delivered by Hon'ble Manoj Misra, J.)

1. These five special appeals are
against
judgment
and
order
dated
02.04.2019 passed by learned Single
Judge in four connected writ petitions,
namely, Writ A Nos. 52277 of 2014;
48836 of 2016; 57215 of 2016; and 60494
of 2016. As common questions of law and
fact are involved in these five appeals,
with the consent of learned counsel for
the parties, they were heard together and
are being decided by a common order.

2. To have a clear understanding of
the controversy, it would be apposite for
us to have a glimpse of the facts and the
rival contentions in the aforementioned
writ petitions which have given rise to
these appeals.

3. Sri Sunil Kumar Mishra (for short
Sunil), the writ petitioner in Writ A Nos.
52277 of 2014 and 60494 of 2016, who is
the appellant in Special Appeal No. 743
of 2019 (Old Defective No. 493 of 2019),
Special Appeal No. 744 of 2019 (Old
Defective No. 496 of 2019) and Special
Appeal No. 745 of 2019 (Old Defective
No. 498 of 2019), was appointed on
29.10.1985 as Lecturer in Chemistry in
Madan Lal Inter College, Bisauli, Budaun
(for short 'College') for a period of six
months.
His
letter
of
appointment
suggested
that
he
was
offered
appointment on temporary basis against a
leave /short-term vacancy. When his term
of appointment was not extended beyond
2 All. Sunil Kumar Mishra Vs State of U.P. & Ors.
1971
30th June 1986, he filed Writ A No.
20807 of 1986 in which an interim order
was
passed
on
17.12.1986
thereby
providing that till his services are duly
terminated
or
some
one
on
the
recommendation of the Commission joins
the post held by him, his ad-hoc
appointment in the Lecturer Grade shall
be deemed to continue and he shall be
entitled as such to the emoluments. Under
this interim order, he was permitted to
continue in service and was paid monthly
salary. Thereafter, on 19.05.1992, his
services
were
regularized
w.e.f.
06.04.1991 by placing reliance on the
provisions of Section 33-A of U.P. Act
No. 5 of 1982. On regularization of his
service, Writ A No. 20807 of 1986 was
rendered infructuous. Consequently, by
noticing the regularization order, dated
19.05.1992, Writ A No. 20807 of 1986
was dismissed as infructuous vide order
dated 11.09.2006. It is the case of Sunil
that since then the college authorities
treated him as substantively appointed
Lecturer and in the seniority list of
Lecturers, published by the College on
08.08.2007, his name finds mention at
serial no. 5.

4. According to Sunil, Ganesh
Chandra Goel (for short Ganesh), who is
the writ petitioner in Writ A No. 48836 of
2016 and is respondent no. 6 in Special
Appeal No. 743 of 2019 (Old Defective
No. 493 of 2019) and respondent no.5 in
Special Appeal No. 745 of 2019 (Old
Defective No. 498 of 2019), was merely
an Assistant Teacher in L.T. Grade in the
College and his name did not figure in the
seniority list published on 08.08.2007 but,
later, he was granted promotion on the
post of Lecturer in Mathematics in
October 2007, therefore Ganesh is junior
to him.

5. Indisputably, the post of Principal
in the College was lying substantively
vacant. As a consequence whereof, the
senior most Lecturer in the College had to
officiate as Principal. Initially, one Rajan
Sareen, who was the senior most Lecturer,
officiated as Principal. He was to retire on
30th June 2014. A dispute arose with
regard to the Lecturer entitled to be
appointed as officiating Principal post
retirement
of
Rajan
Sareen.
The
management
of
the
college
(writ
petitioner in Writ A No.57215 of 2016
and appellant in Special Nos.595 of 2019
&
599
of
2019)
recommended
appointment of Ganesh as officiating
Principal of the College. Against the
proposal, Sunil, claiming himself to be the
senior most lecturer and eligible, filed an
application before the District Inspector
of Schools, Budaun (for short DIOS)
thereby raising his claim for appointment
as officiating Principal. On the rival
claims, a report was called from the
Principal,
Government
Girls'
Inter
College, Dataganj, Budaun. On the basis
of that report, on 26.06.2014, the proposal
to appoint Ganesh was approved by
observing that Sunil was appointed adhoc on a leave vacancy; that he continued
in service pursuant to interim order dated
17.12.1986 passed in Writ A No. 20807
of 1986, which stood dismissed; that his
regularization was not legally sustainable
as on the date of his regularization there
was
no
substantive
vacancy;
that
substantive vacancy came into existence
on 30.06.2006 and, prior to that, on
01.02.2006, requisition for filling up the
post had been sent to the Board.

6. Aggrieved by order of the DIOS,
dated 26.06.2014, Sunil filed Writ A No.
35497 of 2014, which was allowed by
order dated 15.07.2014 and the order
1972 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 26.06.2014 was set aside and the
matter was remitted back to the DIOS to
pass a fresh order after giving opportunity
of hearing to the parties.

7. Pursuant to the order dated
15.07.2014, the matter was re-considered
by the DIOS. After hearing both sides, the
DIOS,
by
order
dated
18.09.2014,
canceled the order of regularization of
service of Sunil and approved the
appointment of Ganesh as officiating
Principal. While deciding the issue, the
DIOS found that appointment of Sunil
was on a leave vacancy which had arisen
on account of incumbent, Suraj Prakash
Agarwal (for short Suraj), Lecturer,
Chemistry, proceeding on leave; that the
post
fell
substantively
vacant
on
30.06.2006, consequent to retirement of
Suraj and, to fill up that post, requisition
was sent to the Board on 01.02.2006,
therefore, the services of Sunil Kumar
Mishra could not have been regularized
on 19.05.1992. In addition to above, the
DIOS expressed doubts in respect of the
genuineness of the regularization order.

8. Assailing the order dated
18.09.2014 passed by DIOS, Writ A No.
52277 of 2014 was filed. While Writ A
No. 52277 of 2014 was pending, on
28.09.2016, the DIOS passed a fresh
order, superseding his earlier order,
thereby directing that Sunil would be
provided charge of officiating Principal of
the College, as he was the senior most
eligible lecturer in the College. However,
this order was made subject to decision of
Writ A No. 52277 of 2014.

9. Ganesh filed Writ A No. 48836 of
2016 against the order dated 28.09.2016
by
claiming
that
the
order
dated
28.09.2016 amounts to review of the
earlier order dated 18.09.2014 which was
not permissible and that the issues raised
in the earlier order dated 18.09.2014 were
not addressed. It was also claimed that no
opportunity of hearing was extended to
him. On merits, Ganesh claimed that
Sunil was appointed on a short-term
vacancy therefore the order regularizing
his services by taking the aid of Section
33-A of the U.P. Act No. 5 of 1982 was
not at all sustainable as regularization of
an ad-hoc appointee against a short-term
vacancy could only be as per the
provisions of Section 33-B of the U.P.
Act No. 5 of 1982, as per which,
regularization
could
be
upon
recommendation
of
a
Selection
Committee headed by the Joint Director
of
Education
whereas
for
Sunil's
regularization no recommendation was
there.

10. In the meantime, the Committee
of Management of the College (for short
Management) passed a resolution, dated
20.11.2016, whereby a decision was taken
to terminate the services of Sunil.
Pursuant to which, the management
terminated the services of Sunil vide
letter/ order dated 22.11.2016. However,
this resolution dated 20.11.2016 was
declared illegal by the DIOS, vide order
dated 25.11.2016, on the ground that no
decision to terminate the services of a
teacher could be given effect to without
prior
approval
of
the
Board
as
contemplated by Section 21 of the U.P.
Act No. 5 of 1982.

11. Assailing the orders dated
28.09.2016
and
25.11.2016,
the
Management filed Writ A No. 57215 of
2016 by claiming that in view of Full
Bench decision of this court in Smt.
Pramila Mishra v. Deputy Director of
Education, Jhansi Division, Jhansi and
2 All. Sunil Kumar Mishra Vs State of U.P. & Ors.
1973
others : 1997 (2) UPLBEC 1329, the
moment short-term vacancy, on account
of retirement of Suraj on 30.06.2006,
stood converted in to a substantive
vacancy,
services
of
Sunil
stood
automatically terminated by operation of
law. Therefore, there was no need to
obtain prior approval of the Board.

12. Writ A No. 60494 of 2016 was
filed by Sunil to question the resolution of
the Management dated 20.11.2016 and
the consequential termination of his
service.

13. As the aforementioned four
petitions raised issues that were interdependent on each other, the learned
single judge decided them by a common
judgment and order dated 02.04.2019.

14. On behalf of Sunil, the
submissions made before the learned
Single Judge were that the DIOS, while
adjudicating a claim for appointment as
officiating principal of the college, was
not justified in questioning the validity of
the regularization order dated 19.05.1992
and re-opening the already determined
seniority because it is not permissible for
any party to raise a collateral challenge to
the appointment /regularization in a
dispute relating to seniority/ appointment
as officiating principal. To support the
above submission, reliance was placed on
a single judge decision of this Court in
Vijay
Narain
Sharma
v.
District
Inspector of Schools, Etawah and others
: 1986 UPLBEC 44; and another single
judge decision dated 22.10.2010 passed in
Writ Petition No. 8960 of 2010 (Rama
Kant Chaturvedi vs. State of U.P. and
others). It was also urged that, admittedly,
in the seniority list of lecturers, drawn on
08.08.2007, Sunil's name was there but
the name of Ganesh was not even
mentioned, hence, there was no occasion
for the DIOS to entertain and address a
collateral
challenge
to
the
initial
appointment/ regularization. In respect of
his initial appointment, Sunil's case was
that the vacancy against which he was
appointed was substantive inasmuch as
the incumbent Suraj had abandoned his
services by not turning up to resume
service since the time he went on leave in
the year 1980. It was urged that five years
of continuous absence from service is
more than sufficient to draw an inference
that the incumbent has abandoned the
service. In support of this plea, reliance
was placed on two decisions: (a) Vijay S.
Sathaye vs. Indian Airlines Limited and
others : (2013) 10 SCC 253; and (b)
Deputy
Director
of
Education
(Secondary) and others vs. Smt. Jyoti
Yadav and another : 2016 (4) ALJ 27. It
was urged that as the post on which Sunil
was appointed was an abandoned post, his
appointment was against a substantive
vacancy, consequently, by dint of his
continuous
service,
his
claim
for
regularization
was
sustainable
under
Section 33-A of U.P. Act No.5 of 1982
and, therefore, the regularization order
was justified. In respect of the procedure
adopted
while
making
his
initial
appointment, it was claimed that prior to
the law laid down by Full Bench of this
court in Radha Raizada and others vs.
Committee of Management, Vidyawati
Darbari Girls' Inter College and others :
1994
(3)
UPLBEC
1551,
the
appointments were made under Section
18 of U.P. Act No.5 of 1982 for which the
Committee
of
Management
was
empowered, as held by a Division Bench
of this Court in Km. Nishi Bhargava vs.
Deputy Director of Education, Agra
Region,
Agra
and
others
:
1987
1974 INDIAN LAW REPORTS ALLAHABAD SERIES
UPLBEC 415. It was urged that the law
declared by Full Bench in Radha
Raizada's case (supra) was prospective in
its
application,
that
is
to
those
appointments which were made after its
decision, as was held by a Division Bench
in Balveer Singh and others vs. DIOS
and another (decision dated 27.09.2018
passed in Special Appeal No. 321 of
2013), following the decision in the case
of Ashika Prasad Shukla vs. District
Inspector of Schools, Allahabad and
another : 1998 (3) UPLBEC 1722.

15. On behalf of the Management,
before the learned Single Judge it was
urged that the vacancy against which
Sunil was appointed was a short-term
vacancy caused by going on leave by the
then Chemistry lecturer Suraj. The shortterm appointment came to an end, upon
expiry of six months, and therefore
services of Sunil were rightly terminated.
Though Sunil continued to serve under
interim order passed in Writ A No. 20807
of 1986, which was dismissed on
11.09.2006. As, Sunil, had not continued
in service in his own right, he was not
entitled to be regularized either under
Section 33-A or under Section 33-B of the
U.P. Act No. 5 of 1982. It was urged that
if the vacancy against which Sunil was
appointed is treated as substantive then
his ad-hoc appointment would be a nullity
as it was not made by following the
procedure prescribed by paragraph 5 of
the First Removal of Difficulties Order.
Such appointment being void would
confer no right irrespective of the length
of service. In support of this submission,
reliance was placed on decisions of the
Apex Court in Prabhat Kumar Sharma
and others vs. State of U.P. and others :
(1996) 10 SCC 62 (paragraph nos. 7 and
10); and Shesh Mani Shukla Vs. District
Inspector of Schools, Deoria : (2009) 15
SCC 436 (paragraph nos. 18 and 19). On
the claim of regularization of the services
of Sunil it was urged that the benefit of
continuity in service was not available to
him as that was rendered under an interim
order because regularization has to be on
the basis of continuous service rendered
in one's own right. In that regard, reliance
was placed on a decision of the Apex
Court in Committee of Management,
Arya Nagar Inter College, Arya Nagar,
Kanpur Vs. Sree Kumar Tiwari and
others : (1997) 4 SCC 388 (paragraph
nos. 6 and 7). It was also urged that once
Writ A No. 20807 of 1986 filed by Sunil
was dismissed there would be automatic
revival of his termination order. In that
regard, reliance was placed on a Division
Bench decision of this Court in R.S. Khan
Vs. State of U.P. : 2005 (1) ESC 515. In
the alternative, it was claimed that
consequent to retirement of Suraj on
30.06.2006, the short-term vacancy got
converted into substantive vacancy, as a
result, the appointment of Sunil stood
automatically terminated by operation of
law
and
therefore
there
was
no
requirement to seek approval under
Section 21 of U.P. Act No. 5 of 1982.

16. On behalf of Ganesh, apart from
adopting
the
case
pleaded
by
the
management, it was urged that though the
view taken in Radha Raizada's case
(supra), in respect of the procedure to be
adopted for ad hoc appointment against
short-term vacancies, is to be applied
prospectively, but the law laid therein in
respect of ad hoc appointment against
substantive vacancy is applicable to all
appointments that were to be made during
the currency of the First Removal of
Difficulties Order. It was urged that the
above principle has been accepted by a
2 All. Sunil Kumar Mishra Vs State of U.P. & Ors.
1975
Division Bench of this Court in Julfiqar
Hussain Ansari Vs. State of U.P. and
others : 2013 (1) ADJ 80. It was urged
that the Division Bench decision of this
Court in Balveer Singh's case (supra)
had not considered the judgment rendered
in the case of Julfiqar Hussain Ansari's
case (supra) and it has also not
considered the decision rendered by the
Apex Court in the case of Prabhat Kumar
Sharma's case (supra). Hence, the
Division Bench decision rendered in the
case of Balveer Singh's case (supra) is
per-incuriam.

17. Upon consideration of the
submissions raised by rival parties, the
learned Single Judge framed three issues
for consideration, which are extracted
below:

"(i)
Whether
in
a
dispute
relating to inter-se seniority of Lecturer,
for the purposes of officiating on the post
of Principal, the nature of initial vacancy
and ad hoc appointment or regularization
could be examined for determining the
date of substantive appointment?

(ii) Based upon the outcome of
aforesaid issue, the nature of vacancy as
well as appointment offered to Sunil
Kumar
Mishra
would
fall
for
determination, so as to consider whether
he
can
be
treated
to
have
been
substantively appointed as Lecturer, w.e.f.
6.4.1991, and be entitled to seniority, as
such?

(iii)
Whether
ad-hoc
appointment made against substantive
vacancy, without following the procedure
laid down in para 5 of the First Removal
of Difficulties Order, 1981 could be
protected by drawing analogy of the
Division Bench Judgement in Ashika
Prasad Shukla (supra)?"

18. On the first issue, the learned
Single Judge, on the basis of paragraph 24
of the judgment in Vijai Narain Sharma's
case (supra), observed that relevant
factors for determining inter se seniority
amongst teachers are: the grade in which
the teacher is working; whether he is
appointed on a substantive post or not;
whether the appointment is permanent or
temporary; the date of the appointment or
promotion; and the age of the teacher.
Learned Single Judge observed that as
seniority of a teacher in a particular grade
has to be determined on the basis of the
date of his substantive appointment in that
grade
and,
where,
the
substantive
appointment
is
dependent
on
regularization, then question relating to its
legality would be a material issue, which
would have to be examined to correctly
determine the main issue of seniority.

19. After holding as above, the
learned
Single
Judge
proceeded
to
examine the second and third issues
framed by him.

20. The second and third issues
being interconnected, were dealt with by
the learned Single Judge step-wise. The
learned Single Judge proceeded to first
examine the nature of the vacancy against
which Sunil was appointed ad-hoc. For
that, the claim made by Sunil that a
substantive vacancy came into existence
consequent to alleged abandonment of
service by the incumbent Suraj was
examined from two different angles. The
first was whether Sunil could raise such a
plea when it runs counter to his own
admitted document which suggested that
he was appointed against a leave vacancy.
The second was whether the question of
abandonment of service by Suraj could be
dealt with and determined in absence of
1976 INDIAN LAW REPORTS ALLAHABAD SERIES
Suraj as a party to the proceedings,
particularly, when the management had
itself not treated his alleged absence from
service as a case of abandonment of
service, inasmuch as, the management
had sent a requisition to the Board in the
year 2006 to fill the vacancy that was to
arise on 30.06.2006, consequent to
retirement of Suraj.

21. In addition to above, the learned
Single Judge took into consideration the
mode of appointment adopted to fill up
the vacancy. Because, had it been a
substantive vacancy, the procedure for ad
hoc appointment had to be as provided in
paragraph
5
of
First
Removal
of
Difficulties Order, which was, admittedly,
not adopted. Thus, after considering all
aspects, the learned single judge came to a
definite
conclusion
that
Sunil
was
appointed by treating the vacancy as short
term.

22. While deciding the above issue
and issue no.3, noticed above, the learned
Single Judge took the view that the
procedure
prescribed
for
ad-hoc
appointment against substantive vacancy,
as held by Full Bench in Radha Raizada's
case (supra), which was approved by the
apex court in Prabhat Kumar Sharma's
case (supra), is laid down in paragraph 5
of the First Removal of Difficulties Order,
1981, which is mandatory and any
deviation therefrom would render the
appointment void. The learned Single
Judge while holding as above observed
that in Balveer Singh's case (supra), the
true import of the decision of the Full
Bench in Radha Raizada's case (supra)
with reference to its approval by the Apex
Court in Prabhat Kumar Sharma's case
was not examined and the earlier Division
Bench decision in Julfikar Hussain
Ansari's case (supra) also escaped its
attention, therefore it cannot be taken to
be a binding precedent.

23. While deciding issue no. 3, the
learned Single Judge observed that the
view taken in Radha Raizada's case
(supra) that the procedure prescribed in
paragraph 5 of the First Removal of
Difficulties Order for ad hoc appointment
against substantive vacancy is mandatory
was approved by the Apex Court in
Prabhat Kumar Sharma's case (supra),
and, subsequently, followed by a Division
Bench in Julfikar Hussain Ansari's case
(supra) thereby holding that ad hoc
appointment made against a substantive
vacancy, without following the procedure
prescribed
by
First
Removal
of
Difficulties Order, would be a nullity. The
learned Single Judge observed that the
view to the contrary in Balveer Singh's
case (supra) was not binding as it was
rendered without considering binding
precedents to the contrary. The learned
single judge further observed that the
decision in Ashika Prasad Shukla's case
(supra) to the extent it held that decision
in Radha Razaida's case (supra) is
prospective in its operation, that is
applicable to appointments made after the
decision of the Full Bench, was with
regard to the procedure to be adopted for
making appointment against short-term
vacancy and not in respect of ad hoc
appointment
against
a
substantive
vacancy for which there already existed a
detailed procedure in paragraph 5 of the
First Removal of Difficulties Order.
Accordingly, all the three issues were
decided by the learned Single Judge
against Sunil.

24. After deciding as above, the
learned Single Judge dismissed Writ A
2 All. Sunil Kumar Mishra Vs State of U.P. & Ors.
1977
No. 52277 of 2014 by holding that
regularization of the services of Sunil
under Section 33-A of U.P. Act No. 5 of
1982 was not permissible because he was
appointed against a short-term vacancy. It
was observed that if he stakes a claim that
his appointment was against a substantive
vacancy then the appointment would be
void, being de hors the procedure
provided by the First Removal of
Difficulties Order. Consequently, the
learned Single Judge proceeded to allow
Writ A No. 48836 of 2016 filed by
Ganesh and quashed the order dated
28.09.2016 by which the DIOS had
accepted the claim of Sunil to officiate as
Principal of the College.

25. The other Writ A No. 57215 of
2016 filed by the Management was
allowed to the extent it was against the
order dated 28.09.2016 passed by the
DIOS. However, the learned single judge
refused to set aside the order dated
25.11.2016
passed
by
the
DIOS
disapproving
the
resolution
of
the
Management terminating the services of
Sunil. The learned single judge further
proceeded to allow Writ A No. 60494 of
2016 filed by Sunil against the resolution
dated 20.11.2016 and the letter dated
22.11.2016 whereby the Management
terminated the services of Sunil and
directed that his regularization would be
considered
under
the
appropriate
provisions of U.P. Act No.5 of 1982.

26. Special Appeal No.743 of 2019
(old Defective No. 493 of 2019) has been
filed by Sunil against the judgment and
order of the learned Single Judge passed
in Writ A No. 52277 of 2014 by claiming
/ submitting as follows: (a) that the
vacancy
against
which
Sunil
was
appointed was substantive which had
come into existence by operation of law
on abandonment of service by its
incumbent as he had failed to attend the
college since the year 1980; (b) that his
appointment would be under Section 18
of U.P. Act No. 5 of 1982 and not under
the First Removal of Difficulties Order
therefore, even in absence of following
the procedure prescribed in the First
Removal
of
Difficulties
Order,
his
appointment would not be void as held by
a Division Bench in Balveer Singh's case
(supra); (c) that the services were rightly
regularized with effect from 06.04.1991
by order dated 19.05.1992; (d) that the
order of regularization was acted upon
and noticed by the High Court while
dismissing Writ A No. 20807 of 1986; (e)
that the order of regularization dated
19.05.1992
was
not
challenged
or
questioned by either the management or
by any person and it continued to hold the
field for over two decades and, in
between, the seniority list also recognized
his status as that of lecturer, there was,
therefore, no justification for the DIOS to
re-visit the regularization order and
declare the same illegal while determining
a claim for appointment as officiating
principal. In addition to above, it was
submitted that, admittedly, Ganesh was
promoted as Lecturer in the year 2007,
hence was junior to the petitioner,
therefore the order approving resolution
of his appointment as officiating Principal
is illegal and liable to be set aside.

27. Special Appeal Nos.744 of 2019
and 745 of 2019 (old Defective Nos. 496
of 2019 and 498 of 2019) have been filed
by Sunil against the judgment and order
of the learned Single Judge to the extent it
allowed Writ A Nos. 57215 of 2016 and
48836 of 2016 and set aside the order
dated 28.09.2016 passed by DIOS by
1978 INDIAN LAW REPORTS ALLAHABAD SERIES
which Sunil was declared senior to
Ganesh. These appeals have been filed by
him by claiming that the order dated
28.09.2016 rightly proceeded to hold
Sunil senior to Ganesh for all the reasons
pressed in Special Appeal No.743 of 2019
and, therefore, the order of the DIOS was
not liable to be interfered with.

28. Special Appeal No. 595 of 2019
has been filed by management against the
judgment and order of the learned Single
Judge dated 02.04.2019 passed in Writ A
No. 60494 of 2016 by which the petition
of Sunil challenging the resolution of the
management, dated 20.11.2016, and the
consequential termination letter, dated
22.11.2016,
was
allowed
and
the
termination was held invalid. Special
Appeal No. 599 of 2019 has been filed by
the management against the judgment and
order dated 02.04.2019 passed by learned
Single Judge to the extent the learned
Single Judge refused to interfere with the
order, dated 25.11.2016, passed by DIOS
disapproving
the
resolution
of
the
Management terminating the services of
Sunil. In these two special appeals, the
management has claimed / submitted as
follows:

(a) that the management had
already terminated the appointment of
Sunil, which was for a period of six
months only, and the writ petition filed by
Sunil, in which, initially, interim order
was passed, was dismissed, consequently,
earlier order of termination stood revived,
therefore, there was no requirement to
obtain approval as contemplated by
Section 21 of U.P. Act No. 5 of 1982; and

(b) that otherwise also, once the
court held that the appointment of Sunil
was against a short-term vacancy, upon
conversion of that short-term vacancy into
a
substantive
vacancy,
there
was
automatic termination of appointment by
operation of law, therefore there was no
need to seek approval under Section 21 of
the U.P. Act No. 5 of 1982.

29. We have heard Sri Ashok Khare,
learned senior counsel, assisted by Sri
Abhilasha Singh, for Sunil (the appellant
in Special Appeal No.743; 744; and 745
of 2019 - Old Defective Nos. 493 of
2019; 496 of 2019; and 498 of 2019); Sri
Indra Raj Singh for the Management
(respondent in the aforesaid three appeals
and the appellant in Special Appeal Nos.
595 of 2019 and 599 of 2019); Sri V.K.
Singh, learned senior counsel, assisted by
Sri
H.P.
Shahi,
for
Ganesh
(the
respondent in Special Appeal No. 743 of
2019-Old Defective No.493 of 2019); and
the learned Standing Counsel, who has
appeared on behalf of State and its
officers in all the appeals.

30. Having scanned through the
pleadings and the submissions made, the
first issue that arise for our consideration
is whether while considering an issue as
to who should be appointed as officiating
Principal in the College, the management
and the educational authorities (in the
instant case DIOS) were justified in
questioning the correctness of the order
regularizing the services of Sunil, which
stood recognized and implemented for
over two decades. If we proceed to hold
that the correctness of the regularization
order can be examined, the second issue
that would fall for our consideration is
whether
the
order
regularizing
the
services of Sunil was legally sustainable.
Incidental to the second issue, following
issues
would
also
arise
for
our
consideration: (a) whether the initial ad
hoc appointment of Sunil in the year 1985
2 All. Sunil Kumar Mishra Vs State of U.P. & Ors.
1979
was against a substantive vacancy or a
short-term/leave vacancy; (b) if it was
against a substantive vacancy, whether the
procedure
provided
for
ad
hoc
appointment
against
a
substantive
vacancy was duly followed, if not, what
would be its consequences; and (c)
whether in view of dismissal of Writ A
No. 20807 of 1986, the continuance of
service of Sunil would be of no
consequence.

31. On the first issue, Sri Ashok
Khare, learned senior counsel, strenuously
urged that in Vijai Narain Sharma's case
(supra), which has been followed in
Rama Kant Chaturvedi's case (supra), it
was held that validity of the initial
appointment
cannot
be
collaterally
questioned
and
examined
while
determining an issue relating to seniority,
particularly, where the appointment has
been made and has continued for long;
and that such appointment should not be
disturbed or set aside on technicalities or
procedural irregularities.

32. Sri Khare urged that though
Sunil was appointed on 25.10.1985 for a
period of six months only but such
appointment was against a substantive
vacancy and ought to have continued till a
regularly
selected
candidate
recommended /selected by the Board
joins the post. According to him, Sunil
though continued in service, initially,
under an interim order passed in Writ A
No. 20807 of 1986, but, subsequently, his
rights were correctly recognized by the
DIOS and his services were regularized
with effect from 06th April 1991 in view
of the provisions of section 33-A of U.P.
Act No. 5 of 1982. Since then Sunil
continuously served the institution and
was granted the benefits of continuous
and regular service and was also placed in
the seniority list published in the year
2007. Under the circumstances, reopening
such an old/stale issue, to which no
challenge
was
laid
either
by
the
management or by any other person, was
not legally justified and permissible in a
proceeding concerning appointment of
officiating Principal. Sri Khare submitted
that examining the legality of such an old
appointment was not at all permissible
and therefore, on that ground alone, the
order passed by the learned Single Judge
is liable to be set aside.

33. On the second issue, Sri Khare
submitted that the incumbent Suraj by
remaining absent for over five years had
abandoned his service resulting in a
substantive vacancy on the post therefore
ad hoc appointment of Sunil would be
deemed to have been made against a
substantive vacancy and as per the
provisions of Section 18 of U.P. Act No.
5 of 1982. Hence, there was no legal
infirmity in the appointment.

34. Per contra, on the first issue, as
culled out above, the learned counsel for
the Management and Ganesh submitted
that while determining an issue as to who
is entitled to officiate as Principal of the
College, the first and foremost question
that arises for consideration is as to who is
the senior most teacher in the highest
grade in the College. Incidental to that
would be determination of the date of
substantive appointment of the claimant.
Whether a person has been substantively
appointed or not would depend on
existence of a substantive vacancy and
whether
procedure
provided
for
substantive
appointment
has
been
followed. If not, the appointment would
be void, as held by the Apex Court in
1980 INDIAN LAW REPORTS ALLAHABAD SERIES
Prabhat Kumar Sharma's case (supra).
Because, if the appointment is void, any
length
of
service
rendered
by
an
incumbent would not enure to his benefit.
It was submitted that the management had
already terminated the service of Sunil
upon expiry of six months from the date
of his initial appointment. Otherwise also,
his appointment was to continue till the
end of academic session i.e. 30.06.1986.
Hence, continuance in service thereafter,
pursuant to an interim order passed in
Writ A No. 20807 of 1986 which was
discharged with the dismissal of the
petition on 11.09.2006, would be of no
consequence. It was urged that even
though Writ A No. 20807 of 1986 might
have been dismissed as infructuous, after
noticing the regularization order dated
19.05.1992, but such dismissal of the writ
petition would not amount to affirmance
of
the
regularization
order
dated
19.05.1992.
It
was
submitted
that
regularization
could
have
lawfully
followed only if the initial appointment
had been against a substantive vacancy
and as per the procedure prescribed by
paragraph 5 of the First Removal of
Difficulties Order. It was urged by them
that since the appointment letter itself
suggests that it was against a leave
vacancy, the order of regularization was
nothing but void, which conferred no
right. It has been urged by them that not
only in Radha Raizada's case (supra),
which was approved by the apex court in
Prabhat Kumar Sharma's case (supra),
but also in subsequent five-judges Full
Bench decision of this Court in Jahaj Pal
Vs. District Inspector of Schools and
another (Special Appeal No. 280 of 2013,
decided on 21.02.2019), it was observed
that
ad-hoc
appointment
against
a
substantive vacancy had to be as per the
procedure prescribed under the First
Removal
of
Difficulties
Order
and
regularization of service under Section
33-A of U.P. Act No.5 of 1982 would be
permissible only if the procedure as laid
down in the First Removal of Difficulties
Order has been followed. It was thus
urged that since the regularization order
was passed without examining as to
whether a substantive vacancy
had
existed, and whether the procedure
prescribed
for
making
ad-hoc
appointment against substantive vacancy
was followed, the same was vulnerable
and was rightly declared illegal/void by
the subsequent order dated 18.09.2014.

35. On the issue of abandonment of
service by the incumbent Suraj and the
resultant substantive vacancy, the learned
counsel for the respondents submitted that
abandonment or relinquishment of service
is dependent on the intention of the postholder. It has been submitted that Suraj
was not a party in the writ proceedings
and there is no document to suggest that a
substantive vacancy came into existence
and notified by the date of initial ad hoc
appointment
of
Sunil.
Under
the
circumstances, it would not be appropriate
to draw an inference that on the date of ad
hoc appointment of Sunil there existed a
substantive
vacancy
caused
by
abandonment of service by the incumbent.

36.