Court No. - 58
Case :- WRIT - A No. - 14937 of 2017 Petitioner :- Harish Chandra Pandey Respondent :- State Of U.P. And 4 Ors. Counsel for Petitioner :- Vinod Kumar Agarwal Counsel for Respondent :- C.S.C.,Rajnish Kumar Srivastava
Hon'ble Ashwani Kumar Mishra,J.
This petition is directed against an order dated 14.03.2017 passed by the Committee of Management of the institution concerned, whereby, petitioner has been restrained from functioning in the institution concerned. The order records that the petitioner continued to work and receive salary under an interim order passed by this Court, whereafter his petition has been dismissed on 13.01.2015. A Special Appeal filed by the petitioner thereafter being Special Appeal Defective No.432 of 2016 has also been dismissed on 11.07.2016. The order of the Special Appeal dated 11.07.2016, is reproduced hereinafter:-
"Heard learned counsel for the parties.
Cause for the delay in filing of the appeal has been explained to the satisfaction of the Court.
Delay is condoned. Application is allowed.
Heard learned counsel for the parties.
Two facts are admitted on record; (a) petitioner was appointed against a short-term vacancy in accordance with the provisions of U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981, which contemplates the procedure for appointment on short-term vacancy, and (b) the vacancy against which the petitioner was appointed became substantive due to death of Jung Bahadur Mishra, who was earlier granted ad hoc promotion.
A Full Bench of this Court in the case of Smt. Pramila Mishra vs. Deputy Director of Education; 1997 (2) ESC 1284 (All)(FB) has held that once a short-term vacancy is converted into a substantive vacancy, the incumbent appointed against the short-term vacancy on ad hoc basis has no right to continue. It is this law which has been followed by the learned Single Judge while making the judgment under challenge.
We hardly see any reason to interfere with the conclusion so drawn by the learned Single Judge.
The learned Single Judge has also examined as to what would be the effect of the interim order passed in the writ petition whereunder the petitioner had continued. The learned Single Judge has held that once the writ petition stands dismissed, the interim order would merge in the final judgment.
Counsel for the petitioner, however, refers to the judgment of the Apex Court in the case of Radheshyam Dube appellant vs. The District Inspector of Schools and others respondent; AIR 1987 SC 1628, wherein the Apex Court has held that once a counter affidavit has been called for and no reply has been filed then the petitioner would be entitled to relief.
The Apex Court has noticed that the dispute in the matter before the Apex Court was between the petitioner and respondent no. 2, who did not file any affidavit resisting the claim set up by the petitioner. It is in this factual background that the Apex Court had held that in absence of the counter affidavit resisting the claim set up in the writ petition, the petitioner was entitled to the relief.
In our opinion the judgment of the Apex Court is clearly distinguishable.
As already noticed above that right of ad hoc teacher appointed against a short term vacancy stood lost subsequent to the conversion of short-term vacancy into a substantive vacancy. The legal issue has been settled by the Full Bench of this Court in the case of Smt. Pramila Mishra (supra). The writ petition as filed was liable to be dismissed because of the law laid down by the Full Bench.
There is no error in the order passed by the learned Single Judge. Appeal is dismissed."
Various arguments are advanced on behalf of petitioner to challenged the order. It is, however, not in issue that petitioner's continuance was under an interim order, whereafter, the writ petition itself was dismissed and the order of dismissal of writ petition has been affirmed with dismissal of Special Appeal (Defective) on 11.07.2016. It would mean that the Division Bench Judgement has attained finality. The impugned order is merely a consequential order pursuant to earlier adjudication made by this Court.
Learned counsel for the petitioner states that a review application has also been filed in special appeal which is pending. The mere pendency of the review application would not mean that the order of the Division Bench has been stayed or nullified.
Against such consequential order no writ would not lie, when the cause of petitioner otherwise stands adjudicated and has attained finality.
The writ petition is, accordingly, dismissed.
Order Date :- 27.2.2019 Radhika