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

- **Citation:** (2024) 4 ILRA 214
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-22
- **Case number:** Writ A No. 1247 of 2023
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-kumar-mishra-v-state-of-u-p-ors-51760
- **Pages:** 13

## Headnote

A. Service Law - Regularisation of Ad-Hoc
Appointment - Eligibility Under Section
33-B - Petitioner, appointed as an ad-hoc
Lecturer in 1985 against a short-term vacancy,
challenged the Regional Selection Committee's
order
dated
02.05.2022
rejecting
his
regularisation claim - Held, under Section 33-B
of the U.P. Secondary Education Service
Selection Board Act, 1982, teachers appointed
before 14.05.1991 against short-term vacancies
that later converted to substantive vacancies are
eligible
for
regularisation
-
The
original
Lecturer's continuous absence beyond five years
from 1985 deemed the vacancy substantive by
1990, per Fundamental Rule 18 and Jyoti Yadav
Vs Deputy Director of Education, making the
petitioner eligible for regularisation - The
Committee's finding that the vacancy arose only
in 2006 was unsustainable. (Paras 8, 9, 11, 20,
21, 22, 24, 25, 26, 27, 37)

B. Service Law - Deemed Abandonment of
Service - The Lecturer (Suraj Prakash Agrawal)
who proceeded on leave in 1985 never
returned, and his absence exceeded five years -
Held, under Fundamental Rule 18, applicable via
Regulation
99
of
the
U.P.
Intermediate
Education Act, 1921, continuous absence for
five years results in deemed abandonment of
service, converting the short-term vacancy into
a substantive one by October 1990 - The
Regional Selection Committee erred in holding
the vacancy arose only upon the Lecturer's
retirement in 2006, as per Jyoti Yadav Vs
Deputy Director of Education. (Paras 9, 11, 12,
19, 23, 24, 25, 26, 27)

C. Statutory Interpretation - Harmonious
Construction of Regularisation Provisions
- Petitioner argued that Sections 33-A to 33-G
of the Act, 1982, reflect the legislature's intent
to
regularise
ad-hoc
teachers
appointed
between 1985 and 1999 - Held, applying the
rule of harmonious construction, as elucidated in
Kalyan Dombivali Municipal Corporation Vs
Sanjay Gajanan Gharat and Jahaj Pal Vs District
Inspector of Schools, these provisions aim to
protect
validly
appointed
ad-hoc
teachers
against short-term or substantive vacancies -
The petitioner, appointed validly in 1985 and
continuing until superannuation, was entitled to
regularisation under Section 33-B, and denial
was contrary to the legislative intent. (Paras 9,
13, 14, 28, 29, 32, 33, 34, 35)

D. Service Law - Consequential Benefits
and Post-Retirement Dues - Petitioner
4 All. Sunil Kumar Mishra Vs. State of U.P. & Ors.
215
sought salary arrears for 2016-2019 and postretirement benefits, including pension, after
wrongful
termination
attempts
by
the
committee of management were quashed -
Held, as the petitioner's termination was
deemed illegal and his regularisation was
upheld, he was entitled to salary for the
period
2016-2019
when
interim
orders
prevented his service, and to post-retirement
benefits, including pension, consistent with
his continuous service, as per Jahaj Pal Vs
District Inspector of Schools. (Paras 5, 6, 16,
17, 38)

E. Judicial Review - Erroneous Rejection
of Regularisation - The Regional Selection
Committee
rejected
the
petitioner's
regularisation claim, citing the absence of a
substantive vacancy in 1993 when Section 33B was enacted - Held, the Committee's
reasoning was flawed, as the vacancy became
substantive
in
1990
due
to
deemed
abandonment under Fundamental Rule 18 -
The order dated 02.05.2022 was set aside for
misapplication of law, and the Committee was
directed to regularise the petitioner under
Section 33-B with all consequential benefits,
as supported by Kalyan Dombivali Municipal
Corporation Vs Sanjay Gajanan Gharat.
(Paras 8, 15, 27, 37, 38)

Writ Petition Allowed .
Order Dated 02.05.2022 Quashed - Petitioner
Entitled to Regularisation and Consequential
Benefits.

List of Cases cited:

## Text

_Characters 0–39,582 of 42,869. This is a partial read: ask again with offset=39582 for what follows._

214 INDIAN LAW REPORTS ALLAHABAD SERIES
of mistake committed by a third party.
Even, if her claim is admitted, no one
would be adversely affected. On the other
hand, the State health system would get an
additional hand when large number of posts
of staff nurses are lying vacant because of
non-availability of eligible candidates.

37. One more factor, which weigh
with us is that the Writ Court has already
allowed the claim of the writ petitioner.
The view taken by the learned Single
Judge is a possible view in the peculiar
facts of the instant case. We therefore, do
not feel inclined to interfere with the
order of the learned Single Judge in
exercise of jurisdiction in intra-court
appeal.

38. In the circumstances, we dismiss
the appeal. No order as to costs.
----------
(2024) 4 ILRA 214
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.03.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 1247 of 2023

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

Counsel for the Petitioner:
Sri Siddharth Khare, Sri Parashar Pandey,
Sri Ashok Khare (Sr. Advocate)

Counsel for the Respondents:
C.S.C.

A. Service Law - Regularisation of Ad-Hoc
Appointment - Eligibility Under Section
33-B - Petitioner, appointed as an ad-hoc
Lecturer in 1985 against a short-term vacancy,
challenged the Regional Selection Committee's
order
dated
02.05.2022
rejecting
his
regularisation claim - Held, under Section 33-B
of the U.P. Secondary Education Service
Selection Board Act, 1982, teachers appointed
before 14.05.1991 against short-term vacancies
that later converted to substantive vacancies are
eligible
for
regularisation
-
The
original
Lecturer's continuous absence beyond five years
from 1985 deemed the vacancy substantive by
1990, per Fundamental Rule 18 and Jyoti Yadav
Vs Deputy Director of Education, making the
petitioner eligible for regularisation - The
Committee's finding that the vacancy arose only
in 2006 was unsustainable. (Paras 8, 9, 11, 20,
21, 22, 24, 25, 26, 27, 37)

B. Service Law - Deemed Abandonment of
Service - The Lecturer (Suraj Prakash Agrawal)
who proceeded on leave in 1985 never
returned, and his absence exceeded five years -
Held, under Fundamental Rule 18, applicable via
Regulation
99
of
the
U.P.
Intermediate
Education Act, 1921, continuous absence for
five years results in deemed abandonment of
service, converting the short-term vacancy into
a substantive one by October 1990 - The
Regional Selection Committee erred in holding
the vacancy arose only upon the Lecturer's
retirement in 2006, as per Jyoti Yadav Vs
Deputy Director of Education. (Paras 9, 11, 12,
19, 23, 24, 25, 26, 27)

C. Statutory Interpretation - Harmonious
Construction of Regularisation Provisions
- Petitioner argued that Sections 33-A to 33-G
of the Act, 1982, reflect the legislature's intent
to
regularise
ad-hoc
teachers
appointed
between 1985 and 1999 - Held, applying the
rule of harmonious construction, as elucidated in
Kalyan Dombivali Municipal Corporation Vs
Sanjay Gajanan Gharat and Jahaj Pal Vs District
Inspector of Schools, these provisions aim to
protect
validly
appointed
ad-hoc
teachers
against short-term or substantive vacancies -
The petitioner, appointed validly in 1985 and
continuing until superannuation, was entitled to
regularisation under Section 33-B, and denial
was contrary to the legislative intent. (Paras 9,
13, 14, 28, 29, 32, 33, 34, 35)

D. Service Law - Consequential Benefits
and Post-Retirement Dues - Petitioner
4 All. Sunil Kumar Mishra Vs. State of U.P. & Ors.
215
sought salary arrears for 2016-2019 and postretirement benefits, including pension, after
wrongful
termination
attempts
by
the
committee of management were quashed -
Held, as the petitioner's termination was
deemed illegal and his regularisation was
upheld, he was entitled to salary for the
period
2016-2019
when
interim
orders
prevented his service, and to post-retirement
benefits, including pension, consistent with
his continuous service, as per Jahaj Pal Vs
District Inspector of Schools. (Paras 5, 6, 16,
17, 38)

E. Judicial Review - Erroneous Rejection
of Regularisation - The Regional Selection
Committee
rejected
the
petitioner's
regularisation claim, citing the absence of a
substantive vacancy in 1993 when Section 33B was enacted - Held, the Committee's
reasoning was flawed, as the vacancy became
substantive
in
1990
due
to
deemed
abandonment under Fundamental Rule 18 -
The order dated 02.05.2022 was set aside for
misapplication of law, and the Committee was
directed to regularise the petitioner under
Section 33-B with all consequential benefits,
as supported by Kalyan Dombivali Municipal
Corporation Vs Sanjay Gajanan Gharat.
(Paras 8, 15, 27, 37, 38)

Writ Petition Allowed .
Order Dated 02.05.2022 Quashed - Petitioner
Entitled to Regularisation and Consequential
Benefits.

List of Cases cited:

1. Jahaj Pal Vs District Inspector of Schools,
Special Appeal No. 280 of 2013, decided on
21.02.2019

2.
Jyoti
Yadav
Vs
Deputy
Director
of
Education (Secondary), 2016 SCC OnLine All
3532; 2016 (4) All LJ 27

3. Kalyan Dombivali Municipal Corporation Vs
Sanjay Gajanan Gharat, 2022 SCC OnLine SC
385; AIR 2022 SC 1618

4. Sanjay Singh Vs St. of U.P., Civil Appeal No.
8300 of 2016, decided on 26.08.2020
5. Philips India Ltd. Vs Labour Court, Madras,
(1985) 3 SCC 103

6. Sultana Begum Vs Prem Chand Jain, (1997) 1
SCC 373

7. Punjab Beverages Pvt. Ltd. Vs Suresh Chand,
(1978) 2 SCC 144

8. Poppatlal Shah Vs St. of Madras, AIR 1953 SC
274

9. Attorney General Vs Bastow, (1957) 1 All ER
497

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Ashok Khare, learned
Senior Advocate assisted by Sri Parashar
Pandey, learned counsel for the petitioner
and learned Additional Chief Standing
Counsel for the State-respondents.

2. Petitioner who has finally retired as
Lecturer from the institution of 5th
respondent on 31.03.2022, has approached
this Court questioning the decision of the
Regional
Selection
Committee
dated
02.05.2022
whereby
his
claim
for
regularisation as Lecturer has been rejected
and so resultantly he stands denied of post
retirement dues including pension.

3. Briefly stated facts of the case are
that on account of one Suraj Prakash
Agrawal, Lecturer (Chemistry) proceeding
on
long
leave,
the
committee
of
management proceeded to fill up such short
term vacancy by appointing petitioner as
ad-hoc
Lecturer
on 29.10.1985.
The
appointment of the petitioner though came
to be approved by the District Inspector of
Schools (DIOS) but he was not paid any
salary. Resultantly, petitioner filed a writ
petition before this Court being Writ-A
No.20807 of 1986 and the High Court
while entertaining the petition issued a
216 INDIAN LAW REPORTS ALLAHABAD SERIES
direction on 17.12.1986 to the effect that
until services of the petitioner were
terminated or some other candidate came
and joined on recommendation of the
Selection
Board,
petitioner
shall
be
continued and he shall be entitled to
emoluments (salary).

4. Ever since his appointment,
petitioner continued to teach in the
institution regularly and received salary as
the sitting Lecturer Suraj Prakash Agrawal
who had lien against the post, did not turn
up to resume his duties. Section (1-A) came
to be inserted after Section 33-A(1) of the
UP Secondary Education Service Selection
Board Act, 1982 (for short, 'the Act, 1982')
w.e.f. 06.04.1991 taking aid of which, the
services
of
petitioner
came
to
be
regularised and the order to this effect was
passed by the DIOS on 19.05.1992. Since
the
services
of
the
petitioner
were
regularised, the writ petition earlier filed by
the petitioner being Writ Petition (A)
No.20807 of 1986 was dismissed as
infructuous on 11.09.2006. Petitioner was
accorded with selection grade upon 12
years
of
continuous
service
after
regularisation, by the order of DIOS vide
order dated 22.11.2008, however, suddenly
the committee of management adopted a
resolution on the back of the petitioner on
22.11.2016 terminating the services of the
petitioner. Petitioner represented before the
DIOS against the resolution adopted by the
committee of management on the ground
that until prior approval of the UP
Secondary Education Service Selection
Board (for short, "Selection Board"), no
such order could have been passed. The
DIOS allowed the representation of the
petitioner on 25.11.2016 holding that
without approval of the Board, resolution
adopted by the committee of management
will be taken to be null and void.

5. The committee of management
challenged the decision of the DIOS dated
25.11.2016 vide writ petition being Writ-A
No.57215 of 2016 and got an interim stay
order. It is also pertinent to mention here
that, when the question of appointment of
ad-hoc/officiating
principal
arose
on
account
of
post
falling
vacant
on
30.06.2014, both the petitioner and one
Ganesh Chandra Goel put up their
repetitive claims on the basis of seniority to
be appointed and claim of petitioner having
been rejected, he filed a writ petition before
this Court vide Writ-A No.52277 of 2014.
While this writ petition remained pending,
the DIOS passed an order accepting the
claim of petitioner for being appointed as
officiating principal on 28.09.2016, which
came to be challenged by Ganesh Chandra
Goel vide writ petition being Writ-A
No.48836 of 2016. One more writ petition
was filed by the petitioner as Writ Petition
No.60494 of 2016 which was directed
against the resolution of the committee of
management dated 20.11.2016 and the
consequential order dated 22.11.2016,
though
the
same
got
subsequently
disapproved by the DIOS on 25.11.2016.

6. All these four writ petitions came
to be adjudicated by a common judgment
delivered
on 02.04.2019. Under
this
judgment, the writ petition of petitioner
against Ganesh Chandra Goel as to
seniority being Writ- A No.52277 of 2014
was dismissed and writ petition of Ganesh
Chandra Goel, Writ-A No.48836 of 2016
was
consequently
allowed.
The
writ
petition of the committee of management
being No.57215 of 2016 to the above
extent was also allowed. However, its writ
petition directed against the order of DIOS
holding resolution and the consequential
action of the committee of management
taken by the manager dated 20.11.2016 and
4 All. Sunil Kumar Mishra Vs. State of U.P. & Ors.
217
22.11.2016 respectively, was dismissed
holding both the resolutions and the
consequential action as unsustainable and
consequently writ petition of the petitioner
against the resolution and the consequential
action being Writ Petition No.60494 of
2016 was allowed. The regularisation of the
petitioner under sub-section (1-A) of
Section 33(1) was also held to be
unsustainable and accordingly, matter was
remitted for the purposes of consideration
of claim of petitioner for regularisation
afresh.

7. Against this order, petitioner as well
as committee of management both preferred
intra-court appeals, total five in number,
being Special Appeal Nos.743 of 2019, 744
of 2019, 745 of 2019, 595 of 2019 and 599
of 2019; respectively. The Division Bench
considered the claim of petitioner for
regularisation more to be maintainable under
Section 33-B of the Act, 1982 and in light of
judgment of the Full Bench in case of Jahaj
Pal v. District Inspector of Schools & anr
(Special Appeal No.280 of 2013), decided
on 21.02.2019, petitioner's continuance was
held to be valid one even after short-term
vacancy getting converted into a substantive
vacancy. Accordingly, all the appeals were
dismissed subject to the modification that
regularisation shall be considered in view of
Section 33-B of the Act, 1982.

8. The Regional Selection Committee
proceeded to examine the matter of
petitioner for the purposes of regularisation
afresh but rejected the claim chiefly on the
ground
that
the
post
fell
vacant
substantively on 30.06.2006 and, therefore,
claim of petitioner would not stand covered
under Section 33-B which came to be
enforced w.e.f. 07.08.1993 and on that date
there was no substantive vacancy of
Lecturer in place.

9. Learned Senior Counsel, Mr. Khare
raised following two grounds of attack:

(i)
lecturer
Suraj
Prakash
Agrawal having proceeded on leave in the
year 1985 and having not turned up again
shall be deemed to have abandoned his
employment with the institution upon
expiry of period of five years, the
maximum period for which extraordinary
leave could have been granted and,
therefore, vacancy should be taken to have
substantively fallen vacant in the year 1991
much ahead of Section 33-B being
incorporated under the Act 1982 being only
w.e.f. 07.08.1993; and

(ii) taking into consideration the
object with which various sections 33-A,
33-B, 33-B, 33-D, 33-E, 33-F and 33-G had
come to be incorporated by the State
continuously paving way for regularisation
of the services of the ad-hoc teachers w.e.f.
1991 till 25.01.1999 when the powers of
the committee of management to make adhoc appointments were finally taken away,
it would lead to draw an inevitable
conclusion that whoever was appointed and
had been teaching on ad-hoc basis
continuously as on 22.03.2016, would be
regularised.

10. In support of his first argument,
learned Senior Counsel had relied upon
Fundamental Rule 18 which provides that
if a government servant remains absent
continuously for a period of five years or
more whether with leave or without leave,
such
government
servant
would
automatically
cease
to
be
in
service/employment.

11. Sri Khare had further submitted
that for the purposes of leave rules etc. vide
Regulation 99 of Chapter III of UP
Intermediate Education Act, 1921, the rules
218 INDIAN LAW REPORTS ALLAHABAD SERIES
applicable to government servant had been
made applicable to the teachers and
employees of recognised schools and
intermediate colleges under the Act, 1921
and so as per Fundamental Rule 18, Sri
Agrawal would be taken to have abandoned
his service for having not reported back
to the institution for more than five years.
In support of his contention, Sri Khare
had further relied upon a division bench
judgment of this Court in the case of
Deputy
Director
of
Education
(Secondary) & anr v. Jyoti Yadav & anr;
2016 SCC OnLine All 3532; 2016 (4) All
LJ 27, in which the Court has very
categorically
held
that
continuous
absence from duty for a period of five
years
and
above
would
result
in
automatic cession of employment without
reference to any departmental inquiry
whatsoever.

12. Thus, according to Mr. Khare,
since Mr. Agrawal did not turn up ever to
join back to resume his duties in the
institution, he ought to have been taken to
have abandoned his employment in the
year 1991 and the Management as well as
the Regional Selection Committee was
not justified in holding that vacancy fell
vacant in the year 2006 when Mr.
Agrawal
in
ordinary
course
of
employment had retired.

13. In support of his second
argument, learned Senior Advocate Sri
Khare had placed reliance upon a
judgment of Supreme Court in the case of
Kalyan
Dombivali
Municipal
Corporation v. Sanjay Gajanan Gharat
& anr; 2022 SCC OnLine SC 385; AIR
2022 SC 1618. Citing the judgment, Mr.
Khare
had
placed
emphasis
upon
paragraphs 31, 32 & 33 thereof to
demonstrate as to how the principle of
construction had been evaluated as to the
interpretation
of
different
provisions
contained in an enactment. He had also
relied upon the judgment of Full Bench in
Jahaj Pal's case (supra).

14. Sri Khare submitted that the
entire act had to be read in its entirety
and the relevant provisions contained
therein under various sections could not
be interpreted in a compartmentalised
manner. He submitted that besides the
principle that an Act had to be read in its
entirety for the purposes of understanding
its
object
with
which
the
various
provisions had been incorporated but the
elementary rule was to have a purposive
interpretation
and
for
that
it
was
necessary to read various provisions of
the Act harmoniously. He had argued that
no word or letter in an enactment could
be rendered redundant as legislature had
inserted it in the Act with conscious mind
and taking it to be necessary in its
wisdom. According to Mr. Khare, if the
clauses under various sections running
from 33-A to 33-G that provided for cutoff dates for regularisation purposes were
taken together then one could safely
arrive
at
a
conclusion
that
every
appointment
made
on
ad-hoc
basis
against a substantive vacancy and shortterm vacancy as per the powers that were
available with the management or other
authority, as the case may be, teachers
working
between
12.06.1985
and
25.01.1998
were
directed
to
be
regularised. These cases of regularisation
were covered with different cut-off dates
under different sections running from
Section 33-A to 33-G and according to
Mr. Khare, this was indicative of a fact
and law that whoever was lawfully
appointed against available vacancy on a
short-term basis and was having the
4 All. Sunil Kumar Mishra Vs. State of U.P. & Ors.
219
requisite
eligibility,
was
to
be
regularised, sometimes automatically and
sometimes with reference to authorities
including Regional Selection Committee.

15. Thus, Mr. Khare had strenuously
argued that Regional Selection Committee
both on the count of existence of
substantive vacancy in the year 1991 and
aims and object of the various sections
providing for regularisation from time to
time, manifestly erred in rejecting the claim
of petitioner for regularisation.

16. Mr. Khare had also pressed the
3rd relief claimed in the writ petition for
payment of arrears of salary in between
2016 and 2019 when his writ petitions
remained pending and the interim order
continued to operate against the order of
DIOS in the writ petition filed by the
committee of management. He submitted
that he was wrongly terminated from
employment and that order having been
held to be bad both initially in the writ
petition by Single Judge and then by the
Division Bench in the appeal filed by the
committee of management, petitioner upon
reinstatement, was also entitled to full
salary for such period.

17. Mr. Khare had further submitted
that in the event writ petition succeeds against
the
rejection
of
regularization
order,
petitioner would be entitled to post retirement
dues including pension in light of law laid
down by this Court from time to time.

18.

Learned
Additional
Chief
Standing Counsel had sought to urge that in
absence of any resignation letter or any
order
passed
by
the
committee
of
management, an employee who has been a
member of service, would be taken to have
continued to enjoy lien against post and,
therefore, if he/she proceeded on leave,
such leave vacancy would be taken to be a
short term vacancy until such employee
attained his age of superannuation. He
submitted that there had to be no order
declaring the vacancy as a substantive
vacancy for making regular appointment.
He had further sought to argue that every
section added under the Act, 1982 was as
per the need of the time and must be
contextually interpreted to mean that State
intended to regularise the services of adhoc employees working against short term
vacancy or substantive vacancy at the
relevant point of time. He had submitted
that there were other reasons also assigned
in the order impugned which went on to
show that neither any procedure was
adopted for making appointment, nor any
material was available as to the merit of
petitioner vis-a-vis other candidates with
reference to any selection committee, if
ever held. Thus, he sought to justify the
order for the reasons assigned therein.

19. Having heard learned counsel for
the respective parties and their arguments
raised across the bar, I find following facts
to be undisputed to the parties:

(i) Sri Suraj Prakash Agrawal was
working as a Lecturer in the institution
against substantive vacancy as on 1985
when he proceeded on leave.

(ii)
Petitioner
came
to
be
appointed against the post thus fallen
vacant on account of leave granted to Sri
Suraj Prakash Agrawal, treating it to be a
short term vacancy.

(iii) Sri Suraj Prakash Agrawal,
the Lecturer who had proceeded on leave
without pay, never turned up to join back to
resume his duties.

(iv) The DIOS though approved
the appointment of the petitioner but he
220 INDIAN LAW REPORTS ALLAHABAD SERIES
was not paid salary so he approached this
Court by filing a writ petition being Writ-A
No.20807 of 1986, in which, on 17.12.1986
an
interim
order
was
passed
for
continuance of petitioner and payment of
salary. The services of the petitioner came
to be regularised under Section 33-A(1-A)
by the DIOS on 19.05.1992.

(v) Sri Suraj Prakash Agrawal in
normal course of events would have retired
only in the year 2006.

20. In view of the above, the question,
therefore, arises whether petitioner could
have been regularised in view of Section
33-B taking vacancy to have converted into
substantive vacancy upon expiry of period
of five years on the principle of deemed
cession of contract of employment between
Suraj Prakash Agrawal and the institution.
Section 33-B(1)(a)(i) runs as under:

33-B(1) Any teacher, other than
the Principal or Headmaster, who-

(a)
(i)
was
appointed
by
promotion or by direct recruitment in the
lecturer grade or Trained Graduate grade
on or before May 14, 1991 or in the
Certificate of Teaching grade on or before
May 13, 1989 against a short term vacancy
in accordance with paragraph 2 of the
Uttar
Pradesh
Secondary
Education
Services
Commission
(Removal
of
Difficulties) (Second) Order, 1981 and
such vacancy was subsequently converted
into a substantive vacancy"

(emphasis added)

21. A bare reading of the aforesaid
provisions makes it clear that whoever has
been
appointed
by
way
of
direct
recruitment in the Lecturer's Grade on or
before 14.05.1991 will be considered for
regularisation if such a vacancy got
converted into a substantive vacancy.

22.

Admittedly,
petitioner
was
appointed prior to 14th May, 1991 and,
therefore, his case stood covered if the
vacancy upon which he was appointed, is
taken to have converted into substantive
vacancy on account of Suraj Prakash
Agrawal, who had lien against the post,
having not turned up to join.

23. Now, it is to be seen in light of
Division Bench judgment of this Court in
the case of Jyoti Yadav (supra) as to what
rules of leave are; how a leave can be
condoned; when it can be granted and what
rules are applicable. Regulation 99 of
Chapter III of the UP Intermediate
Education Act, 1921 very specifically
provides that in matters of leave and grant
of leave and related matters, the rules as
applicable to the employees of the
government intermediate colleges would
apply. Regulation 99 runs as under:-

99. (1) आचायज, प्रिानाध्यापक एिं
अन्य कमजचाररयों को आकम्स्मक अिकाि,
अम्जजत अिकाि, धचहकत्सा अिकाि, प्रसूधत
अिकाि, व्यविगत कायज अिकाि तर्था
असािारण अिकाि उतनी अिधि के धिए तर्था
उन प्रधतबंिों के अिीन स्िीकृत हकया जा
सकता िै जो राज्य सरकार समय समय पर
राजकीय उच्चतर माध्यधमक विद्याियों के
इन्िी श्रेणी के कमजचाररयों के धिए धनम्श्चत करे
या अपने हकसी विधिष्ट आदेिों द्वारा हकन्िी
अपिादों सहित, जो हकसी वििेष पररम्स्र्थधतिि
अपेम्क्षत िों, धनिाजररत करें। आकम्स्मक
अिकाि आचायज अर्थिा प्रिानाध्यापक के
मामिे में प्रबंिक द्वारा तर्था अन्य कमजचाररयों
के मामिे में आचायज/प्रिानाध्यापक द्वारा
4 All. Sunil Kumar Mishra Vs. State of U.P. & Ors.
221
स्िीकृत
हकया
जायेगा।
अन्य
अिकाि
प्रबन्िक द्वारा (आचायज / प्रिानाध्यापक द्वारा)
प्रार्थजना पर्त्र प्रस्तुत/अिासररत हकये जाने पर
स्िीकृत हकये जायेंगे। चतुर्थज श्रेणी के कमजचारी
के
समबन्ि
में
अन्य
अिकाि
भी
आचायज/प्रिानाध्यापक द्वारा स्िीकृत हकये
जायेंगे।

परंतु वििेष पररम्स्र्थधत में राज्य
सरकार ऐसा अिकाि और ऐसी ितों पर जो
िि उधचत समझे, स्िीकृत कर भी सकती िै।

(2) अिकाि अधिकार स्िरूप निीं
मांगा जा सकता, पररम्स्र्थधत की आिश्यकता
को देखते िुए संमोदन प्रधिकारी हकसी भी
प्रकार का अिकाि स्िीकृत करने से इंकार कर
सकता िै और पििे स्िीकृत हकये गये
अिकाि को भी रद्द कर सकता िै

हर्प्पणी-
यहद
कोई
आचायज,
प्रिानाध्यापक
अर्थिा
अध्यापक,
राज्य
वििान मंडि या संसद का सदस्य िो तो उसे
वििान मंडि, संसद अर्थिा उसकी सधमधतयों
की बैठकों में भाग िेने िेतु उसके द्वारा ऐसी
बैठक तर्था उसमें भाग िेने िेतु जाने के अपने
इरादे की सूचना हदये जाने पर, उसे संस्र्था से
अिमुि कर हदया जायेगा और संस्र्था से
उनकी ऐसी अनुपम्स्र्थधत की अिधि में उसे ऐसे
अिकाि पर समझा जायेगा जैसा उसे देय िो
तर्था म्जसके धिए िि आिेदन करें। यहद उसे
कोई अिकाि देय न िो तो ऐसी अनुपम्स्र्थधत
की अिधि में वबना िेतन के अिकाि पर
समझा जायेगा।
(emphasis added)

24. It is not disputed by learned
Standing Counsel that Fundament Rule 18
as applicable to the government servants in
various matters would apply to the
government college teachers also as they
are government employees and so these
Rules would also be attracted in view of
Regulation 99 to the teachers of secondary
education
recognised
private
aided
institution.

25. Coming to the judgment of
Division Bench of this Court in case of
Jyoti Yadav (supra) , I find that this case is
related to an Assistant Teacher of a
recognised private institution. Interpreting
provisions as contained under Rule 18 of
the Fundamental Rules and quoting the
same as well, the Court vide paragraphs 10,
11 & 12 held thus:

"10. Fundamental Rule 18 runs
as follows:

"18. Unless the Government in
view of the special circumstances of the
case, shall otherwise determine, after five
years' continuous absence from duty
elsewhere then on foreign service in India
whether
with
or
without
leave,
a
government servant ceases to be in
Government employee"

11.
The
aforementioned
Fundamental
Rule
provides
for
abandonment
of
service/cessation
of
service after five years continuous absence
from duty, whether with or without leave.
Once five year continuous absence from
duty is there, then leave or no leave will not
make any difference, the abandonment of
service/cessation of employment has to be
accepted and prior to expiry of period of
five years, if there is absence from duty, the
same has to be accepted as misconduct and
for the same disciplinary proceedings will
have to be initiated by holding regular
222 INDIAN LAW REPORTS ALLAHABAD SERIES
departmental enquiry. Here the shortcut
method that has been adhered to cannot at
all be subscribed by law.

12. As the above extracts from the
judgment would indicate the Division
Bench has proceeded to hold that if the
absence is continuous and for five years or
more
abandonment
of
service
and
consequent cessation of employment has
to be accepted. The rule clearly seems to
indicate that in case of absence of five
years
or
more,
the
cessation
of
employment
is
automatic
and
the
presumption
of
abandonment
is
immediately attracted. At this stage, as the
Division Bench has held, the holding of an
enquiry is not necessary. Fundamental
Rule 18, in the submission of the learned
counsel for the appellant, would clearly be
attracted to the services of the original
petitioner. If the appellant be correct in
this submission then and in that case the
requirement of a separate provision in the
service rules for automatic termination
would not arise. These aspects do not
appear to have been considered or taken
into account by the learned Single Judge
while allowing the writ petition."
(emphasis added)

26. In view of the above, therefore,
the legal proposition settled is that if an
employee does not proceed on leave and
does not turn up to join back the institution
where he has been working, beyond a
period of five years, this will invite
preposition of 'deemed abandonment' of
employment. The result of abandonment of
job by an employee having lien against
post, would end his or her lien and this will
automatically result in converting/creating
a vacancy as a substantive vacancy.

27. Upon above legal proposition,
therefore, since Sri Suraj Prakash Agrawal
since did not turn up to join the post of
Lecturer (Chemistry) upon which he was
working on 1985 and he proceeded on
leave, after expiry of five years, the post
would be taken to have fallen vacant
substantively by legal fiction in October,
1990 and therefore, upon incorporation of
provisions contained under Section 33-B
on 07.08.1993, the short-term vacancy
against which petitioner in the case in
hand was working since 1985, will be
taken to have converted into substantive
vacancy
to
entitle
petitioner
for
regularisation. Thus, the contrary findings
returned
by
the
Regional
Selection
Committee that the post would be taken to
have fallen vacant in 2006 only upon
retirement of Suraj Prakash Agrawal, is
absolutely unsustainable and the order
deserves to be set aside on this count
alone.

28. Coming to further argument
about harmonious construction of various
provisions incorporated under the Act,
1982 right since 1991 till the year 2016 in
light of object of the State Government to
regularise
the
services
of
all
such
employees who have been working on adhoc basis upon being appointed against
short-term vacancy from time to time and
even on substantive vacancy in accordance
with law, I would like here to refer to a
judgement of Five-Judge Bench of this
Court in the case of Jahaj Pal (supra)
where the Full Bench has observed that
Section 33-G was a residuary provision to
make regularisation of all such employees
teachers
who
were
appointed
till
25.01.1999
or
even
subsequently
if
proceedings for selection had started prior
to 25.01.1999.

29. Para 102 of the Jahaj Pal's case
(supra) is quoted as under;
4 All. Sunil Kumar Mishra Vs. State of U.P. & Ors.
223

"102. Section 33-G in fact is a
kind of residuary provision taking into
consideration ad hoc appointees against
short
term
vacancies
or
substantive
vacancies which remained to be covered
for substantive appointments under various
provisions already made. Section 33G(l)(a) says that ad hoc appointments
made against short term vacancies, in
accordance with procedure prescribed in
Para 2 of Second Order, whether by
promotion or by direct recruitment, in
Lecturer or Trained Graduate Grade, and
the vacancies were subsequently converted
into substantive, would be considered for
substantive appointment by a Selection
Committee
to
be
constituted
under
aforesaid provision. Section 33-G(l)(b)
provided
similar
benefit
to
ad
hoc
appointments made against substantive
vacancies in accordance with section 18 in
Lecturer or Trained Graduate Grade from
7.8.1993
to
30.12.2000.
All
other
conditions were similar as provided in
earlier similar provisions, which we have
already discussed."

30. Now if one examines various
sections running from Section 33-A to 33G, one would find that since prior to 1985
uptil
25.01.1999
all
such
ad-hoc
appointments
were
sought
to
be
regularised. These provisions are to the
rescue of those teachers who were
appointed in accordance with law against
the existing vacancies for the reason that
selection Board was not in a position to
hold selection to enable government to
make appointment regularly so as to meet
the requirement. Education is heart and
soul of any civilized society and it is also a
function of the State to ensure that its
citizens are provided with adequate means
of education. Ours is a social welfare State
and so State Government had rightly come
to the rescue of such teachers who had been
validly appointed having eligibility against
existing vacancies and had continued to
teach for a very long period. The
intendment of legislature has been not to
fire them upon vacancies getting converted
into substantive vacancies from short-term
vacancy. In Jahaj Pal's case (supra), the
Full Bench has dealt with this aspect of the
matter in detail and hold appointees against
short-term
vacancy
were
entitled
to
continue even upon short-term vacancies
getting
converted
into
substantive
vacancies
later
on.
Vide
paragraph
207(XV), the Full Bench has held thus:

XV. The teachers, who come
within the ambit of section 33-B, whether
appointed
on
ad-hoc
basis
against
substantive
vacancies
or
short
term
vacancies on and after 7.8.1993 (the date
when Amendment Act 1 of 1993 came into
force) would be entitled to continue till they
are not considered by the Selection
Committee for substantive appointment. In
their cases, the term of ad-hoc appointment
would not be governed either by the First
Order or the Second Order, and with effect
from 7.8.1993, it would be governed by
sub-section (5) of section 33-B. In other.
words, on and after 7.8.1993, a teacher
appointed on ad-hoc basis, whether against
short term vacancy or substantive vacancy,
falling within the ambit of section 33-B(l)
will continue to work till such date, as the
State Government may by order specify,
and, his tenure will not be governed either
by Para 3 of the First Order or Para 3 of
the Second Order, as the case may be.

31. Interestingly, the Government did
not
specify
any date
to
end
such
appointment what it did was to end
appointments made under Section 16-E(ii)
in light of judgement of Supreme Court in
224 INDIAN LAW REPORTS ALLAHABAD SERIES
the case of Sanjay Singh v. State of UP &
ors passed in Civil Appeal No.8300 of
2016, decided on 26.08.2020 and in the
process directed that all such ad-hoc
appointees, who were not validly appointed
and who could therefore, not be regularised
shall cease to continue. In my considered
view, this is not a specification of date in
cases covered under the judgment in Jahaj
Pal's case (supra). All these appointees did
continue but they remain ad-hoc because
their cases were never examined for
regularisation either on the relevant date
when
concerned
sections
were
incorporated, or even subsequently. So,
there cannot be any presumption that there
appointments were invalid.

32. Mr. Khare was right in arguing
that
looking
to
the
intendment
of
legislature, if the harmonious construction
is given to various provisions contained
under Section 33-A to 33-G, one would
find that purpose for which the various
sections were inserted from time to time
would be achieved. In Kalyan Dombivali
(supra) vide paragraphs 31 to 33, the Court
held thus:

31. In the case of Philips India
Ltd. v. Labour Court, Madras and Others
(1985) 3 SCC 103, this Court had an
occasion to decide the rate of overtime
wages as mentioned in Section 31 of the
Tamil Nadu Shops and Establishments Act,
1947. This Court found that for finding the
minimum rate of overtime wages as
mentioned in Section 31 of the said Act, it
will have to be interpreted in the light of
the provisions contained in Section 14(1)
read with proviso to Section 31 of the said
Act. Coming to this conclusion, this Court
observed thus:

"15. No canon of statutory
construction is more firmly established
than that the statute must be read as a
whole.
This
is
a
general
rule
of
construction applicable to all statutes alike
which is spoken of as construction ex
visceribus actus. This rule of statutory
construction is so firmly established that it
is variously styled as "elementary rule"
(see Attorney General v. Bastow [(1957) 1
All ER 497] ) and as a "settled rule" (see
Poppatlal Shah v. State of Madras [AIR
1953 SC 274 : 1953 SCR 667] ). The only
recognised exception to this well-laid
principle is that it cannot be called in aid to
alter the meaning of what is of itself clear
and explicit. Lord Coke laid down that: "it
is the most natural and genuine exposition
of a statute, to construe one part of a
statute by another part of the same statute,
for that best expresseth meaning of the
makers" (Quoted with approval in Punjab
Beverages Pvt. Ltd. v. Suresh Chand
[(1978) 2 SCC 144 : 1978 SCC (L&S) 165
: (1978) 3 SCR 370] )."

32. It could thus be seen that this
Court has held that the Statute must be
read as a whole. It has been held that this
rule of statutory construction is so firmly
established that it is variously styled as
"elementary rule". It has been held that for
finding out the true meaning of one part of
a statute, a reference will have to be made
to another part of the statute and that will
best express meaning of the makers.

33. In the case of Sultana Begum
v. Prem Chand Jain (1997) 1 SCC 373, this
Court
was
considering
the
question
regarding the conflict between Section 47
of the Code of Civil Procedure, 1908 and
Order XXI Rule 2 thereof. This Court held
that applying the rule of harmonious
construction, the so-called conflict between
the said two provisions had been dispelled.
Observing so, this Court reiterated the
following
well
settled
principles
of
interpretation of statutes:"
4 All. Sunil Kumar Mishra Vs. State of U.P. & Ors.
225

15. On a conspectus of the case
law
indicated
above,
the
following
principles are clearly discernible:

(1) It is the duty of the courts to
avoid a head on clash between two sections
of the Act and to construe the provisions
which appear to be in conflict with each
other in such a manner as to harmonise
them.

(2)
The
provisions
of
one
section of a statute cannot be used to
defeat the other provisions unless the
court, in spite of its efforts, finds it
impossible
to
effect
reconciliation
between them.

(3) It has to be borne in mind by
all the courts all the time that when there
are two conflicting provisions in an Act,
which cannot be reconciled with each
other, they should be so interpreted that,
if possible, effect should be given to both.
This is the essence of the rule of
"harmonious construction".

(4) The courts have also to keep
in mind that an interpretation which
reduces one of the provisions as a "dead
letter" or "useless lumber" is not
harmonious construction.

(5) To harmonise is not to
destroy any statutory provision or to
render it otiose."
(emphasis added)

33.

The
rule
of
harmonious
construction
of
various
provisions
contained under Sections 33-A to 33-G
leads me to conclude that no Assistant
Teacher who has been working upon
being validly appointed against a shortterm vacancy would be thrown out of job
upon vacancy getting converted into
substantive on the ground that his claim
could not be considered at relevant time
and now time has run out. Each and every
appointment has to be examined vis-a-vis
vacancy upon which it had been made at
relevant point of time and status of vacancy
subsequently and so long as sections for
regularisation from 33-A to 33-G are not
repealed and remain on statute book, all
such cases of regularisation would be given
positive consideration, as last of such
appointments made as on 25.01.1999 are
sought to be regularised and thereafter no
such power vested in the appointing
authority to make ad-hoc appointments.

34. The Full Bench did not proceed
further to make any observation to explain
scope of various sections incorporated for
regularisation 33-B, 33-E, 33-F and 33-G.
The question, therefore, arises as to
whether an Assistant Teacher can be
rendered remediless who has continued in a
short-term vacancy even after getting
converted into a substantive vacancy.

35. When the legislature intended not
to throw a teacher from his job who has
been working against short-term vacancy,
merely because State authorities have not
attempted to rescue a teacher from getting
fired only upon not being considered in
accordance with Rules and the provisions
contained under the law, such teacher
cannot be denied benefit of regularisation.

36.