1997 JTR(SC) 592
1997 AIR(SC) 3071 ; 1997 AIR(SCW) 3109 ; 1997 AllLJ 1900 ; 1997 30 AllLR 208 ; 1997 4 JT 572 ; 1997 LIC 2903 ; 1997 2 LLJ 797 ; 1997 4 LLN 580 ; 1997 3 Scale 509 ; 1997 4 SCC 388 ; 1997 SCC(L&S) 967 ; 1997 3 SCR 467 ; 1997 2 SCT 747 ; 1997 4 SLR 11 ; 1997 2 UPLBEC 1133 ; 1997 KHC 844 ; 1997 4 Supreme 31
1997(4) Supreme 31
SUPREME COURT OF INDIA
K. Ramaswamy and D.P. Wadhwa, JJ.
Committee of Management, Arya Nagar Inter College, Arya Nagar, Kanpur through its Manager & Anr. -Appellants
versus
Sree Kumar Tiwary & Anr. -Respondents
Civil Appeal No. 2729 of 1997
(Arising out of SLP (C) No. 24240 of 1996)
Decided on 31-3-1997
Counsel for the Parties :
For the Appellants : Naresh K. Sharma and S.K. Misra, Advocates.
For the Respondents : Vijay Hansaria and S.K. Jain, Advocates.
Act
Referred
:UTTAR PRADESH SECONDARY EDUCATION SERVICES COMMISSION AND SELECTION BOARDS ACT : S.33(b)(1)(a)(i), S.33(b)(i)(c)
UTTAR PRADESH SECONDARY EDUCATION SERVICES COMMISSION REMOVAL OF DIFFICULTIES ORDER : S.33(b)(1)(a)(i)
(A) The Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, read with the U.P. Secondary Education Services Commission (Removal of Difficulties) Order and its Third Order introducing Section 33-B, governs regularization of appointments made against temporary vacancies in teaching service. Section 33-B(1)(a)(i) applies where a candidate was appointed by promotion or direct recruitment before May 13, 1989, and the vacancy arose and was subsequently regularized. The impugned order relied on this provision to validate continuation of service after regularization, but the Act does not automatically cover ad hoc tenures that were terminated before the commencement of the Amendment, especially where the incumbent was serving only by interim permission and the regularization remained subject to the outcome of a pending writ petition.
(B) Key legal principles include: (i) regularization under Section 33-B requires continuous service in the relevant grade, (ii) ad hoc appointments do not confer a vested right to permanent status, (iii) interim stay orders do not equate to substantive rights, (iv) service can be terminated when the vacancy is converted to a substantive basis and filled, and (v) regularization must be preceded by a valid appointment and cannot override the rules on age and service conditions.
Facts of the case:
The first respondent was appointed as an ad hoc teacher on July 1, 1986, against a short-term vacancy caused by promotion of an incumbent. His appointment was terminated on May 30, 1988, effective June 30, 1988. He filed a writ petition challenging the termination, obtained an interim stay, and continued in service under management permission. The Division Bench of the High Court of Allahabad, on August 14, 1996, held that since his services were regularized during the pendency of the writ, he was entitled to continue. The regularization was subject to the writ outcome, and the order was linked to an earlier District Inspector of Schools order dated October 27, 1995, which itself remained under adjudication.
Findings of Court:
The Supreme Court allowed the appeal, set aside the impugned order, and held that the Division Bench erred in directing regularisation. The respondents services were terminated in May 1988, and his continuation was only through an interim stay, not by virtue of a substantive appointment or fulfillment of Section 33-B conditions. The regularization order was subject to the writ petition result, and since the appeal was the continuation of that petition, the bar of age could be relaxed if further appointments were to be made under the rules.
Issues:
(i) Whether an ad hoc employee whose service was terminated and later regularised during a pending writ petition is entitled to the benefit of Section 33-B of the U.P. Secondary Education Services Commission Act, 1982, and (ii) whether regularization under the Third Removal of Difficulties Order applies when the underlying appointment and continuous service are disputed.
Ratio Decidendi:
Section 33-B(1)(a)(i) does not apply because the respondents ad hoc tenure was terminated before the Amendment took effect, and his service after termination was only through an interim stay, not a substantive right; therefore, he cannot claim regularization under the provision, and the Division Benchs direction is set aside.
Result:
The appeal is allowed, the writ petition is dismissed without costs, and no order for regularization is made; further appointments may be considered under rules with appropriate age relaxation if applicable.
(A) The Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, read with the U.P. Secondary Education Services Commission (Removal of Difficulties) Order and its Third Order introducing Section 33-B, governs regularization of appointments made against temporary vacancies in teaching service. Section 33-B(1)(a)(i) applies where a candidate was appointed by promotion or direct recruitment before May 13, 1989, and the vacancy arose and was subsequently regularized. The impugned order relied on this provision to validate continuation of service after regularization, but the Act does not automatically cover ad hoc tenures that were terminated before the commencement of the Amendment, especially where the incumbent was serving only by interim permission and the regularization remained subject to the outcome of a pending writ petition.
(B) Key legal principles include: (i) regularization under Section 33-B requires continuous service in the relevant grade, (ii) ad hoc appointments do not confer a vested right to permanent status, (iii) interim stay orders do not equate to substantive rights, (iv) service can be terminated when the vacancy is converted to a substantive basis and filled, and (v) regularization must be preceded by a valid appointment and cannot override the rules on age and service conditions.
Facts of the case:
The first respondent was appointed as an ad hoc teacher on July 1, 1986, against a short-term vacancy caused by promotion of an incumbent. His appointment was terminated on May 30, 1988, effective June 30, 1988. He filed a writ petition challenging the termination, obtained an interim stay, and continued in service under management permission. The Division Bench of the High Court of Allahabad, on August 14, 1996, held that since his services were regularized during the pendency of the writ, he was entitled to continue. The regularization was subject to the writ outcome, and the order was linked to an earlier District Inspector of Schools order dated October 27, 1995, which itself remained under adjudication.
Findings of Court:
The Supreme Court allowed the appeal, set aside the impugned order, and held that the Division Bench erred in directing regularisation. The respondents services were terminated in May 1988, and his continuation was only through an interim stay, not by virtue of a substantive appointment or fulfillment of Section 33-B conditions. The regularization order was subject to the writ petition result, and since the appeal was the continuation of that petition, the bar of age could be relaxed if further appointments were to be made under the rules.
Issues:
(i) Whether an ad hoc employee whose service was terminated and later regularised during a pending writ petition is entitled to the benefit of Section 33-B of the U.P. Secondary Education Services Commission Act, 1982, and (ii) whether regularization under the Third Removal of Difficulties Order applies when the underlying appointment and continuous service are disputed.
Ratio Decidendi:
Section 33-B(1)(a)(i) does not apply because the respondents ad hoc tenure was terminated before the Amendment took effect, and his service after termination was only through an interim stay, not a substantive right; therefore, he cannot claim regularization under the provision, and the Division Benchs direction is set aside.
Result:
The appeal is allowed, the writ petition is dismissed without costs, and no order for regularization is made; further appointments may be considered under rules with appropriate age relaxation if applicable.
ORDER
Leave granted. We have heard learned counsel on both sides.
2. 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.
3. 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.
4. 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.
5. Shri N.K. Sharma, learned counsel appearing for the appellant, contends that the first respondent came to be appointed on ad hoc basis; he continued in service on ad hoc basis till June 30, 1988. The U.P. Secondary Education Services 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 date of commencement of the Third Removal of Difficulties Order. In view of the fact that he was continuing only on the basis of the interim stay granted by the High Court, it cannot be treated that he has continuously been serving the institution entitling lion to avail of the benefit 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.
6. 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)(a)(i) of U.P. Secondary Education Services 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 Education 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(i) ? 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."
7. 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 not 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.
8. 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.
Appeal allowed.
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