Hon'ble Mrs. Sunita Agarwal,J.
The present Special Appeal has been filed by the petitioner-appellant against the judgment and order dated 4.9.2008 passed by the learned Single Judge dismissing Civil Misc. Writ Petition No. 29122 of 1996 filed by the petitioner-appellant.
By the order dated 20.11.2008, the appeal was admitted and time was granted for filing counter affidavit and rejoinder affidavit in respect of the Stay Application. The affidavits have since been exchanged between the parties. As the disposal of the Stay Matter requires detailed hearing of the appeal, we have heard the appeal itself and are proceeding to decide the same on merits.
From the perusal of the record, it appears that one Raj Kumar Singh was working on the post of Lab Boy in the Institution in question, namely, Adarsh Uchchattar Madhyamic Vidyalaya Daula, District Meerut. The said Raj Kumar Singh proceeded on leave without pay with effect from 8.7.1991, consequent to his appointment on the post of Assistant Teacher. Short term vacancy thus occurred on the post of Lab Boy on account of leave taken by the said Raj Kumar Singh. The Institution in question, by the order dated 19.1.1992, appointed the petitioner on the said short term vacancy on the post of Lab Boy. Copy of the appointment order dated 19.1.1992 was filed as Annexure 1 to the Writ Petition, and appears at Page 47 of the Paper-Book of the Special Appeal. It was recited in the said appointment letter that the appointment was made on the temporary post of Lab Boy, and the salary would be paid to the petitioner- appellant after the appointment was got noted by the District Inspector of Schools, Meerut in accordance with rules.
The matter was sent to the District Inspector of Schools, Meerut. The District Inspector of Schools, Meerut, by the order dated 26.12.1992 (Annexure 3 to the Writ Petition and appearing at Page 49 of the Paper-Book of the Special Appeal), gave his approval in respect of the temporary appointment of the petitioner- appellant on the leave vacancy which had occurred on the post of Lab Boy. It was, inter-alia, stated in the order dated 26.12.1992 as under:
"Jh jktdqekj flag foKku&d{k ifjpkjd ds fnukad 8&7&91 ls voSrfud vodk'k ds izfr fnukad 1&2&92 ls Jh jktdqekj ds vodk'k ls ykSVus rd vFkok in ds Li"V fjfDr fnukad rd vLFkkbZ fu;qfDrA"
Thus, the approval given by the District Inspector of Schools, Meerut clearly contemplates that the appointment of the petitioner-appellant was to continue till the said Raj Kumar Singh would join on the post of Lab Boy after the expiry of his leave or till the occurrence of clear vacancy on the post of Lab Boy. It was further mentioned in the said approval that the appointment of the petitioner-appellant was purely temporary.
It further appears that as the petitioner-appellant had not got his salary pursuant to the said appointment, he approached this Court by filing Civil Misc. Writ Petition No. 26030 of 1993 which was disposed of by this Court by the order dated 13.5.1993. After the said order was passed by this Court, the payment of salary to the petitioner-appellant started and it was paid for sometime.
It further appears that the said Raj Kumar Singh who had been appointed on the post of Assistant Teacher, submitted his resignation from the post of Lab Boy on 20.6.1996. The said resignation was accepted by the Committee of Management. In consequence of acceptance of resignation of Raj Kumar Singh from the post of Lab Boy, the Principal of the Institution in question issued a letter dated 1.7.1996 (Annexure 8 to the Writ Petition and appearing at Page 53 of the Paper-Book of the Special Appeal) to the petitioner-appellant, inter-alia, stating that in view of the acceptance of the resignation of Raj Kumar Singh, temporary appointment of the petitioner- appellant on the post of Lab Boy automatically came to an end with immediate effect. Reference was made to the condition mentioned by the District Inspector of Schools in the order dated 26.12.1992 while granting his approval.
The petitioner-appellant thereupon filed the aforesaid Civil Misc. Writ Petition No. 29122 of 1996. After exchange of affidavits between the parties, the said Writ Petition was decided by the learned Single Judge by the judgment and order dated 4.9.2008. As noted above, the learned Single Judge dismissed the Writ Petition filed by the petitioner-appellant. The learned Single Judge held that the post of Lab Boy was a temporary post and the petitioner-appellant was appointed only till its becoming a clear vacancy, and the same became a clear vacancy when the said Raj Kumar Singh resigned from the said post.
Learned Single Judge further noted that the appointment letter itself contemplated that the salary was to be paid by the District Inspector of Schools, Meerut and for that purpose, a note was required to be made by the District Inspector of Schools, Meerut. By the order/letter dated 26.12.1992, the District Inspector of Schools, Meerut, while making such note, clarified in such note that the appointment of the petitioner was on a short term vacancy and would come to an end under the two conditions prescribed in the said order/letter. Once the said Raj Kumar Singh submitted his resignation, the temporary appointment of the petitioner on a short term leave vacancy came to an end in accordance with the said order/letter of the District Inspector of Schools, Meerut dated 26.12.1992.
We have heard Sri Rahul Jain, learned counsel for the petitioner- appellant and the learned Standing Counsel appearing for respondents no. 1,2,5 & 6 at length, and perused the record.
It is submitted by Sri Rahul Jain, learned counsel for the petitioner- appellant that even though the order dated 1.7.1996 mentioned that the resignation submitted by the said Raj Kumar Singh had been accepted, the averments made in paragraph 17 of the counter affidavit filed on behalf of the respondents no. 3 and 4 in the Writ Petition showed that the said Raj Kumar Singh proceeded on leave without pay w.e.f. 1.7.1996 and continued till 30.6.1997.
In the circumstances, the submission proceeds, the assumption made that the said Raj Kumar Singh had submitted resignation on 1.7.1996 which had been accepted, was not correct. Therefore, Sri Rhul Jain submits, the order dated 1.7.1996 is vitiated.
In reply, the learned Standing Counsel appearing for respondents no. 1,2,5 & 6 submits that the averments made in various paragraphs of the counter affidavit, when read in the light of the averments made in the Writ Petition as well as in the rejoinder affidavit filed in the Writ Petition, showed that the stand taken in the counter affidavit was that the resignation had been submitted by the said Raj Kumar Singh on 20.6.1996.
Infact, the learned Standing Counsel submits, the case of the petitioner-appellant as taken in the Writ Petition was that as the said Raj Kumar Singh had proceeded on leave on 8.7.1991 consequent to his appointment on the post of Assistant Teacher, the said Raj Kumar Singh would be deemed to have resigned from the post of Lab Boy on 8.7.1991 and, therefore, the appointment of the petitioner-appellant was made on a substantive vacancy on the post of Lab Boy.
It is submitted by the learned Standing Counsel that when read in the said context, it is evident that the dates mentioned in paragraph 17 of the counter affidavit regarding the period of leave without pay were incorrectly mentioned on account of mistake.
We have considered the submissions made by the learned counsel for the parties.
The order dated 1.7.1996 (Annexure 8 to the Writ Petition) clearly mentions that the resignation submitted by the said Raj Kumar Singh from the post of Lab Boy had been accepted. In case, the petitioner-appellant wanted to dispute the correctness of the said fact mentioned in the said order dated 1.7.1996, it was incumbent upon the petitioner-appellant to have made clear pleadings in the Writ Petition in this regard.
From the perusal of the Writ Petition, we find that there is no averment in the Writ Petition that the fact of resignation as mentioned in the order dated 1.7.1996 was wrongly mentioned, and infact, the said Raj Kumar Singh continued to remain on leave with effect from 1.7.1996 onwards. On the contrary, the case of the petitioner as mentioned in para 18 of the Writ Petition was as under:
"That since there is no illegality in the appointment of the petitioner and on the place of which the petitioner was appointed has already permitted to joined the services in the institution on 8.7.1991 it is employed one that his resignation was accepted on the same day i.e. on 8.7.1991 and any appointment made later on will be deemed as regular appointment by respondent no. 4 can not take such plea that the petitioner's services has been dispense with on account of the resignation tendered by Raj Kumar Singh who has already permitted to join in the said institution on 8.7.1991. Moreover, in the letter dated 1.7.1991 there is no mention of the date, resignation was tendered by Raj Kumar Singh."
Thus, the case of the petitioner-appellant in the Writ Petition was that the said Raj Kumar Singh having joined on the post of Assistant Teacher on 8.7.1991 would be deemed to have resigned from the post of Lab Boy with effect from the said date.
Various paragraphs of the counter affidavit filed on behalf of the respondents no.3 and 4, such as, paragraphs 7,8,9,10,12 & 14, show that the case of the respondents no. 3 & 4 in the counter affidavit was that the said Raj Kumar Singh submitted his resignation on 20.6.1996 from the post of Lab Boy, and therefore, the vacancy on the post of Lab Boy became substantive vacancy and in the circumstances, the petitioner-appellant could not be permitted to continue on the post of Lab Boy.
In the rejoinder affidavit, the petitioner-appellant has reiterated the stand taken in paragraph 18 of the Writ Petition. In this regard, we may refer to the averments made in paragraphs 9,13 & 16 of the rejoinder affidavit filed on behalf of the petitioner-appellant in reply to the counter affidavit filed on behalf of the respondents no. 3 and 4. The said paragraphs of the rejoinder affidavit are reproduced below:
"9. That in reply to the contents of paragraph no.10 of the counter affidavit, it is stated that the petitioner's appointment on 1.2.1992 was made on substantive posts because of the facts that as soon as Raj Kumar Singh who was proceeded on leave has joined on 8.1.1991 as an Assistant Teacher. The posts will become substantive posts and the appointment of the petitioner on that post on 1.2.1992. His appointment of the substantive post and as such the averment made in the paragraph are wholly incorrect and without any substance. "
"13. That the contents of paragraph no. 14 of the counter affidavit are wrong and denied and as such in its proper reply it is stated that since the petitioner was appointed on 1.2.1992 after joining of Raj Kumar Singh on 8.7.1991 in the institution as an Assistant Teacher and as such the appointment of the petitioner was made on substantive posts."
"16.That in reply to the contents of paragraph No. 17 of the counter affidavit, it is submitted that it would be deemed as that Raj Kumar Singh has resigned from the post on which he has joined as an Assistant Teacher in the institution."
Similar averments have been made in paragraph 12 of the rejoinder affidavit filed on behalf of the petitioner-appellant in reply to the counter affidavit filed on behalf of the respondents no.1 and 2.
It is, thus, evident that the petitioner-appellant never raised any plea in the Writ Petition or in the rejoinder affidavits filed in the Writ Petition that the said Raj Kumar Singh continued on leave without pay in respect of the post of Lab Boy with effect from 1.7.1996 to 30.6.1997. The averments made in paragraph 17 of the counter affidavit filed on behalf of the respondents no. 3 and 4 in the Writ Petition, which have been relied upon by the learned counsel for the petitioner-appellant, will have to be read in the context of various paragraphs of the counter affidavit. When read with the averments made in the various paragraphs of the counter affidavit, it is evident that the dates as mentioned in paragraph 17 of the counter affidavit regarding the period when the said Raj Kumar Singh proceeded on leave without pay have evidently been mentioned under misconception and by mistake.
In view of the above, we are unable to accept the submission made by the learned counsel for the petitioner-appellant that the said Raj Kumar Singh continued to remain on leave with effect from 1.7.1996 to 30.6.1997. Ground no. 6 taken in the present appeal which has been relied upon by the learned counsel for the petitioner-appellant in support of his aforesaid submission is thus not substantiated by the pleadings made in the Writ Petition. We do not find any error in the judgment and order dated 4.9.2008 passed by the learned Single Judge.
In our view, the learned Single Judge, in the judgment and order dated 4.9.2008, has correctly rejected the submissions made on behalf of the petitioner- appellant. No error has been shown in the said judgment and order passed by the learned Single Judge.
In our opinion, the present appeal filed by the petitioner-appellant lacks merits and the same is liable to be dismissed.
The Special Appeal is accordingly dismissed.
However, on the facts and in the circumstances of the case, there will be no order as to costs.
Order Date: 15.3.2012 P.P.