JUDGMENT S.U. Khan, J.
1. Satya Deo Singh, an assistant teacher in intermediate college Karanda, district Ghazipur, proceeded on leave. The committee of management of the college, which is aided and recognized institution, passed a resolution to appoint the petitioner on ad hoc basis against the aforesaid vacancy created due to long leave. Resolution of committee of management was passed on 27.7.1986. The D.I.O.S. by order dated 11.11.1986 approved the ad hoc appointment made by committee of management through its resolution dated 27.7.1986. However, the D.I.O.S. confined the approval only till joining of Satya Deo Singh or 30.6.1987 which ever was earlier. By another order dated 15.7.1988 which has been annexed as Annexure-C.A.-1 to the counter-affidavit filed by D.I.O.S., the appointment was extended till conversion of vacancy into substantive vacancy, i.e., cessation of short term vacancy.
2. It is stated in para 2 of the writ petition that Satya Deo Singh during the period of his long leave sought voluntary retirement. However, no date has been mentioned therein on which Satya Deo Singh is alleged to have sought voluntary retirement. Satya Deo Singh according to para 8 of the writ petition died on 12.3.1990. It appears that his application for voluntary retirement even if given had not been accepted till his death. It is further alleged in the writ petition that since the date of joining since July, 1986, petitioner continuously worked as assistant teacher in the college. The Manager by order dated 8.4.1990 terminated the services of the petitioner on the ground that the short term vacancy created due to long leave of Satya Deo Singh against which petitioner had been appointed had come to an end due to death of Satya Deo Singh on 12.3.1990. Petitioner has challenged the said termination order through this writ petition. The Division Bench on 4.5.1990, passed a stay order in this writ petition to the effect that, "Issue notice. Meanwhile the ad hoc appointment of petitioner as C.T. grade teacher shall not be dispensed with, till the regular selected candidate from the commission or reserve pool teacher becomes available for appointment, or the services of the petitioner are terminated, according to law which ever is earlier," It appears that word "C.T. grade" were mentioned in the stay order due to inadvertence. As is evident from Annexure-1 order of approval of D.I.O.S., petitioner was appointed in L.T. grade.
3. Through application dated 2.8.2002, petitioner has prayed for a direction to Regional Joint Director of Education to regularize the services of the petitioner. In the affidavit filed in support of the said application, it has been stated that committee of management of the college through resolution dated 9.7,2000 has resolved that the petitioner is entitled to regularization and that the said resolution was sent to D.I.O.S. on 20.7.2000 for transmission to Regional Joint Director of Education, Varanasi.
4. Learned standing counsel placing reliance upon a Full Bench authority of this Court in Smt. Pramila Misra v. Deputy Director of Education, 1997 (Supp) AWC 466 (FB) : 1997 (2) UPLBBC 1329, has argued that after conversion of short-term vacancy into substantive vacancy, petitioner's appointment on short-term vacancy came to an end automatically. Hence, after the death of Satya Deo Singh on 12.3.1990, petitioner's appointment stood automatically cancelled. Learned counsel for the petitioner has placed reliance upon Division Bench authority of this Court in Raj Kumar Verma v. D.I.O.S., 1999 (3) AWC 2485 : 1999 (2) UPLBBC 1420. followed by another Division Bench authority in Shashi Saxena v. D.I.O.S., 2000 (4) AWC 2685 : 2000 (3) ESC 1990. A single Judge authority in 2001 (1) UPLBEC 407, has held that the aforesaid authorities are conflicting hence, on the basis of law of precedent, Full Bench is to be followed. The Full Bench has placed reliance upon that provision of second removal of difficulties order, according to which appointment against short-term vacancy ceases to have any effect after conversion of short-term vacancy into substantive vacancy. According to the Division Bench, the view taken by the Full Bench, is in the teeth of Section 33B of U.P. Secondary Education Service Commission Act, 1982, which provides that those appointees against short term vacancies who had been appointed prior to 13.5.1989 in C.T. grade or prior to 14.5.1991 in trained graduate or Lecturer grade and were constantly working till 7.8.1993 and were found suitable for regularization by duly appointed selection committee, were entitled to be regularized irrespective of conversion of short term vacancy into substantive vacancy as the Full Bench had itself held that "he cannot claim as a matter of right that he is entitled to continue on the post till the candidate selected by the commission Board joins even if the short term vacancy had ceased." According to the Division Bench, the view of the Full Bench was that such appointees could not continue on the post "as of right", hence Full Bench did not prohibit consideration of their case for regularization "after being found suitable by selection committee". In the Full Bench authority short term vacancy had occurred due to medical leave granted to Smt. L.R. Misra on 1.7.1989. The short-term vacancy was converted into substantive vacancy due to death of Smt. L.R. Misra, which occurred before July, 1990. According to Section 33B, short-term appointee may be considered for regularization only if he worked constantly in between 14.7.1991 and 7.8.1993 (in case of L.T. grade or trained graduate grade). The incumbent, i.e., Smt. Sneh Lata Misra continued to work after conversion of short-term vacancy into substantive vacancy by virtue of stay order/judgment passed by this Court which was constantly under challenge. In the Division Bench authority of R.K. Verma, the date of conversion of short-term vacancy into substantive vacancy was to be decided by the D.I.O.S.
5. In my opinion, crucial provision in this regard in Section 33B (1) (c) i.e.. "has been continuously serving the institution from the date of such appointment up to the date of commencement of the Act" i.e., (7.8.1993). In case a teacher was appointed on L.T. grade or trained graduate grade (T.G.G.) on or before 14.5.1991 and he worked till 7.8.1993, then he would be entitled to be considered for regularization even if after 7.8.1993, short term vacancy stood converted into substantive vacancy. However, if conversion took place before 7.8.1993 and his services were terminated due to that reason and he did not work thereafter, then he would not be entitled to be considered for regularization. In the instant case, short term vacancy stood converted into substantive vacancy in March, 1990, due to death of Satya Deo Singh, hence, by virtue of the Full Bench authority, petitioner may not be considered for regularization. However, Court cannot be oblivious of the effect that for last 13 years, petitioner is working on the basis of stay order which was granted on the basis of several decided cases which now stand overruled by the aforesaid Full Bench (e.g. 1989 (2) UPLBEC 607 and 1994 (3) UPLBEC 1653). In some what similar circumstances, I have held in Writ Petition No. 12380 of 1986 (and connected writ petitions) decided on 6.8.2003 that on equitable basis, ad hoc teacher could be considered for regularization if he worked for several years (about 15 years in that case) on the basis of stay order which was in accordance with decided cases which were, however, later on overruled. In that Judgment, I have placed reliance upon AIR 1991 SC 295, also referred to in AIR 2001 SC 102.
6. In 1997 (2) UPLBEC 1133, Supreme Court held that if the services of a short-term appointee under second removal of difficulties order were terminated and he continued to work on the basis of stay order passed by the High Court, then he was not entitled for regularization. However, in the aforesaid authority of the Supreme Court, firstly the facts were slightly different. Educational authorities had passed order of regularization subject to the result of writ petition and the writ petition/ special appeal had been decided on the basis of regularization and it was further directed that regularization order would be subject to contrary order passed by competent authority. The Supreme Court held that as the regularization itself was subject to the result of the writ petition, hence, the writ petition/special appeal should not have been decided on the basis of regularization. Secondly, equitable/ humanitarian consideration was neither argued nor considered by the Supreme Court. In any case. Supreme Court has not expressed any opinion with regard to validity or otherwise of termination order.
7. Paras 12 and 13 of AIR 1991 SC 295, are quoted below :
"12. Having reached the conclusion about the invalidity of the impugned appointments made by the Chief Justice, we cannot, however, refuse to recognize the consequence that involves on uprooting the, appellants."
13. There is good sense in the plea put forward for the appellants. The human problem stands at the outset in these cases and it is that problem that motivated us in allowing the review petitions. It may be recalled that the appellants are in service for the past 10 years. They are either graduates or double graduates or post graduates as against the minimum qualification of S.S.L.C. required for Second Division Clerks in which cadre they were originally recruited. Some of them seem to have earned higher qualification by hard work during their service. Some of them in the normal course have been promoted to higher cadre. They are now overaged for entry into any other service. It seems that most of them cannot get the benefit of age relaxation under Rule 6 of the Karnataka Civil Services (General Recruitment) Rules, 1977. One could only imagine their untold miseries and of their family if they are left at the midstream. Indeed, it would be an act of cruelty at this stage to ask them to appear for written test and viva voce to be conducted by the Public Service Commission for fresh selection (See. Lila Dhar v. State of Rajasthan, (1982) 1 SCR 320 at 326 ; AIR 1981 SC 1777 at p. 1780)."
8. In this case, there is one more aspect of the matter, which requires consideration. By virtue of different authorities which have now been overruled by the aforesaid Full Bench in Pramila Misra and the interim order passed in this writ petition on 4.5.1990, the appointment of the petitioner was to continue till the regular selected candidate from the Commission became available for appointment. There is nothing on record to show that any effort was made for selection of regular candidate by the Commission. The negligence of the respondents of not making any efforts for 13 years to get selected teacher by the Commission further strengthens the case of the petitioner for equitable consideration.
9. Consequently, writ petition is allowed. The competent authority is directed to decide the claim of the petitioner for regularization in accordance with Section 33B of Commission Act and in this regard, D.I.O.S. is directed to transmit the resolution of the committee of management dated 9.7.2000 sent to D.I.O.S. on 20.7.2000 to the competent authority. Until decision of the competent authority regarding regularization of petitioner's services, petitioner shall continue to work and be paid salary accordingly.