Court No. - 40
Case :- SPECIAL APPEAL DEFECTIVE No. - 800 of 2018 Appellant :- Harkesh Bahadur Singh Respondent :- State Of U.P. And 4 Ors Counsel for Appellant :- Pradeep Kumar Singh,Shri Ashok Khare Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Ajit Kumar,J.
Civil Misc. Delay Condonation Application No.2 of 2018 Heard Sri Ashok Khare, learned senior counsel for the appellant.
The delay is sufficiently explained. It is condoned and the appeal shall be treated to be within time. The office shall give a regular number to this appeal.
Order on appeal.
Sri Ashok Khare submits that the learned single judge has overlooked the necessary and relevant facts that was material for the adjudication of the controversy namely that the appellant was continuing against a post which had been offered by direct recruitment to the respondent no.5 in the writ petition, namely Mahendra Kumar. The said candidate did not join and therefore, the post continues to exist and this aspect having been omitted from being considered by the learned single judge, the impugned judgement deserves to be set aside.
It is the contention of Sri Khare that the issue of the basic appointment of the appellant as an L.T. Grade teacher in the institution was not even under question and consequently the observation made by the learned Single Judge that the appellant did not have any right to continue and his appointment was invalid was beyond the scope of the controversy.
Having considered the submissions raised and keeping in view the law which has been referred to by the learned single Judge, it is an indisputable fact that the post against which the appellant is claiming appointment was created afresh on 30.11.1992. The appellant claims to have been appointed on adhoc basis by the Committee of Management on 31.12.1993 against the said vacancy which was naturally a substantive vacancy being a newly created post.The law is by now well settled that after 14.07.1992, the Committee of Management of a recognized and aided institution had no power to make any ad hoc appointment against a substantive vacancy. In such circumstances, even if the appellant continued either by virtue of any order of authority or by virtue of any interim order of this Court, the same would not confer any right of continuous appointment or any further relief of regularization as the appointment itself had not been validly made. the conclusion drawn by the learned single judge to that effect does not suffer from any infirmity.
We therefore do not find any reason to interfere with the impugned judgment but we clarify that the period for which the appellant has worked and received salary, the same shall not be recoverable.
Disposed off with the said direction.
Order Date :- 29.10.2018 saqlain