Court No. - 4
Case :- SPECIAL APPEAL No. - 786 of 2010 Appellant :- Anil Kumar Yadav Respondent :- State Of U.P. Through Principal Secy. Secondary Edu. And Ors Counsel for Appellant :- Siddharth Khare,Ashok Khare,Sanjai Kr. Rai Counsel for Respondent :- C.S.C.,A.K. Malviya,J.P. Singh
Hon'ble Bala Krishna Narayana,J. Hon'ble Rohit Ranjan Agarwal,J.
Heard learned counsel for the parties.
This special appeal has been filed by the appellant/respondent no. 5, Anil Kumar Yadav against order dated 10.08.2009 passed by learned Single Judge of this Court by which the Civil Misc. Writ Petition No. 46782 of 2006 preferred by the respondent no. 5/petitioner, Shiv Chandra before this Court challenging the selection and appointment of appellant/respondent no. 5, Anil Kumar Yadav as a Class- IV employee in Shri Shankarji Inter College, Patjeeva, Post- Kasaila Bela, District- Mau, hereinafter referred to as the 'College', was disposed of.
Brief facts of the case as emerging from the perusal of the order impugned are hereinbelow :-
The services of respondent no. 5/petitioner, Shiv Chandra who was a Class- IV employee, were terminated by order dated 16.07.1998 and after dismissal of his appeal by Committee of Management, he preferred Civil Misc. Writ Petition No. 5885 of 2000 before this Court, which was pending on the date of the passing of the impugned order. Treating resultant vacancy after termination of the services of respondent no. 5/petitioner, Shiv Chandra, the respondent no. 4, Principal of College, proceeded to fill up the same and appointed appellant/respondent no. 5, Anil Kumar Yadav as a Class- IV employee in the College. The appointment of appellant/respondent no. 5, Anil Kumar Yadav was made against the vacancy which had resulted due to termination of the services of respondent no. 5/petitioner, Shiv Chandra. Civil Misc. Writ Petition No. 5885 of 2000 was allowed by the judgement and order passed on the same date as the judgement and order impugned in the instant appeal and since the order of termination of the services of respondent no. 5/petitioner, Shiv Chandra as well as the appellate order were quashed, the result of the said judgement and order was that there remained no vacancy on 16.07.1998 permitting a valid appointment of appellant/respondent no. 5, Anil Kumar Yadav. The operative portion of the impugned order runs as hereunder :-
"In view of the detailed judgment of date in writ petition no. 5885 of 2000 since there did not exist any vacancy, the appointment of respondent no. 5 by means of the impugned order dated 18.1.2003 cannot sustain.
It is interesting to note that though at the time of appointment of respondent no. 5, he was sought to be appointed in the resultant vacancy caused due to termination of the petitioner, but when this fact was brought to the notice of District Inspector of Schools (hereinafter referred to as 'DIOS') that the validity of termination is still sub judice in writ petition no. 5885 of 2000, he passed an order on 29.6.2005 observing that since respondent no. 5 has already been appointed with the approval of DIOS, the petitioner can be adjusted against another vacancy caused due to retirement of Sri Kinnu Ram Paricharak. This Decision of DIOS is patently illegal inasmuch the question of adjustment of the petitioner against any post or subsequent vacancy cannot arise since he was already appointed in the College against an existing vacancy and if his termination is illegal, he would be deemed to be in service as if no vacancy arose and the question of absorption or adjustment, if any, in the case of petitioner against a subsequent vacancy would not arise at all.
So far as the respondent no. 5 is concerned, since he was appointed against the resultant vacancy caused due to termination of the petitioner on 16.7.1998, if any vacancy occurred subsequently, the question of his absorption against such subsequent vacancy also would not arise as the vacancy which has occurred subsequently has to be filled in accordance with law afresh. Therefore, the order dated 29.6.2005 is of no consequence.
In the result, this writ petition is also allowed. The order dated 18.1.2003 (Annexure 11 to the writ petition) is hereby quashed. No costs."
The limited prayer which has been made by the appellant, Anil Kumar Yadav in this appeal is that after the reinstatement of the respondent no. 5, Shiv Chandra, respondent no. 5, Shiv Chandra was allowed to work on the post rendered vacant upon superannuation of one Kinnu Ram Paricharak and he is still working on the said post and hence, he may be adjusted permanently against the existing substantive vacancy. There is no dispute about the fact that the selection of appellant, Anil Kumar Yadav was made after following the prescribed procedure against the substantive vacancy of a Class- IV employee of the College created on account of termination of the services of its incumbent respondent no. 5, Shiv Chandra but since his termination order was set-aside by this Court and respondent no. 5, Shiv Chandra was reinstated, respondent no. 5, Shiv Chandra was permitted to work on the post rendered vacant upon superannuation of Kinnu Ram Paricharak.
In view of the above, we dispose of this appeal with liberty to the appellant, Anil Kumar Yadav to file a representation before the respondent no. 2, District Inspector of Schools, Mau with a prayer to adjust him against permanent vacancy existing in the College after the superannuation of Kinnu Ram Paricharak and in case any such representation is filed by appellant before the respondent no. 2 along with the certified copy of this order, he shall consider and decide the same strictly in accordance with law by a speaking and reasoned order as expeditiously as possible preferably within a period of two months from the date of production of certified copy of this order before him after affording opportunity of hearing to the concerned parties.
It is made clear that we have not expressed any opinion on the merits of the case or the claim of the appellant.
Order Date :- 29.11.2019 KS