Rana Pratap Singh vs Vittiya Evam Lekha Adhikari Dist. … on 18 December, 2019


Supreme Court of India

Rana Pratap Singh vs Vittiya Evam Lekha Adhikari Dist. … on 18 December, 2019

Author: Ashok Bhushan

Bench: Ashok Bhushan, M.R. Shah

                                                                      REPORTABLE

                                IN THE SUPREME COURT OF INDIA

                                CIVIL APPELLATE JURISDICTION

                                CIVIL APPEAL NO. 9220 OF 2019
                         (ARISING OUT OF SLP(CIVIL) NO. 7505 OF 2018)


                  RANA PRATAP SINGH                            … APPELLANT(S)


                                                VERSUS


                  VITTIYA EVAM LEKHA ADHIKARI,
                  DISTRICT BASIC EDUCATION
                  OFFICER AND ORS.                            … RESPONDENT(S)




                                         J U D G M E N T

ASHOK BHUSHAN,J.

1. This appeal has been filed against the

Division Bench judgment of Allahabad High Court

dated 06.02.2018 in Special Appeal No.432 of 2012

by which judgment the Special Appeal filed by the

appellant
Signature Not Verified

Digitally signed by
questioning the judgment of learned
MEENAKSHI KOHLI
Date: 2019.12.18
16:22:59 IST
Reason:

1 of 39
Single Judge dated 02.02.2012 in writ petition

No.15408 of 1993 has been dismissed.

2. Brief facts of the case necessary to be noted

for deciding this appeal are: ­

One Shiv Kumar Rai was working as Junior

Accounts Clerk in the office of Finance and

Accounts Officer, Office of District Basic

Education Officer, respondent No.1. Shri Shiv

Kumar Rai was promoted as Assistant Accountant

giving rise to a vacancy in the post of Junior

Accounts Clerk. The respondent No.1 called for

names from the Employment Exchange, Azamgarh.

The Employment Exchange forwarded the list of

twelve candidates to the respondent No.1. The

Selection Committee was constituted in

accordance with the Statutory Rules namely The

Subordinate Offices Ministerial Staff(Direct

Recruitment) Rules, 1985, to hold the

2 of 39
selection on the vacant post of Junior

Accounts Clerk. The name of petitioner was

also included in the list of twelve candidates

forwarded by Employment Exchange, Azamgarh.

The Selection Committee interviewed the

candidates on 16.08.1989 but the said

selection was cancelled by the respondent No.1

and fresh process was initiated for holding

selection. An advertisement was published by

District Basic Education Officer, Azamgarh in

Daily News Paper “Dainik Devvrat” dated

05.12.1990 calling for application from

candidates for a vacant post of Junior

Accounts Clerk. Candidates were called to

appear for interview on 20.12.1990. By letter

dated 07.12.1990, the respondent No.1 wrote to

District Employment Officer, Azamgarh

requesting the Employment Officer to intimate

at his level the twelve candidates whose names

3 of 39
were forwarded for the vacant post of Junior

Accounts Clerk to appear for interview on

20.12.1990. Letter also mentioned that the

twelve candidates who were forwarded by

Employment Exchange have also been intimated

by respondent No.1 to present themselves

before Selection Committee on 20.12.1990. On

20.12.1990, petitioner along with other

candidates appeared before the Selection

Committee. The petitioner was selected by the

Selection Committee and recommended for

appointment on the post of Junior Accounts

Clerk. Respondent No.1 issued an appointment

Order dated 21.12.1990 to the petitioner

appointing him on the post of Junior Accounts

Clerk. Order futher mentioned that the

appointment is temporary. In pursuance of

appointment Order dated 21.12.1990, petitioner

joined on 22.12.1990. By Order dated

4 of 39
11.11.1992, the promotion of Shiv Kumar Rai as

Assistant Accountant was cancelled by

respondent No.1. On same day, consequential

letter dated 11.11.1992 was also issued

terminating the appointment of the petitioner

due to Shiv Kumar Rai having been reverted to

his Original post of Junior Accounts Clerk.

Shiv Kumar Rai filed a W.P.No.44384 of 1992

challenging order dated 11.11.1992. Learned

Single Judge of the High Court vide order

dated 27.11.1992 stayed the Order dated

11.11.1992 for a period of three months. The

petitioner also filed a writ petition

challenging the order dated 11.11.1992.

Petitioner being not aware of the order dated

27.11.1992 could not point out to the High

Court about the stay of the Order of reversion

passed of Shiv Kumar Rai. Hence, his writ

petition was dismissed by the High Court on

5 of 39
04.12.1992. While dismissing the writ

petition, High Court also observed that

petitioner’s claim may be considered on the

post of Junior Accounts Clerk which fell due

to promotion of Ram Sinhasan at whose instance

the promotion of Shiv Kumar Rai was cancelled.

Respondent No.1 issued order dated 01.01.1993,

consequent to passing of interim order of the

High Court staying the reversion order dated

11.11.1992 of Shiv Kumar Rai re­appointing the

petitioner on the post of Junior Accounts

Clerk till 27.02.1993. The interim order

passed in writ petition No.44384 of 1992 of

Shiv Kumar Rai was continued by order dated

09.04.1993 which directed:

“The interim order dated
27.11.1992 is continued and the
petitioner will be paid salary
regularly.”

6 of 39

3. An order dated 27.02.1993 was issued by

respondent No.1 informing that since petitioner’s

re­appointment was on the post of Junior Accounts

Clerk was upto 27.02.1993, hence he should hand

over his charge in the afternoon of 27.02.1993 to

one Shri Mohd. Vasama Ansari.

4. Writ Petition No.15408 of 1993 was filed by

the Petitioner challenging the letter dated

27.02.1993 which letter was stayed by the High

Court on 29.04.1993 by passing following order:­

“Until further order the
operation of the impugned order
dated 27.02.1993 shall remain
stayed.”

5. The re­appointment of petitioner was continued

by the letter dated 18.05.1993. Shiv Kumar Rai by

virtue of the interim order passed in his writ

petition continued to work as Assistant Accountant

till he attained the age of Super­Annuation on

7 of 39
29.02.2008. W.P.No.44384 of 1992 filed by Shiv

Kumar Rai became infructuous due to efflux of time

and was dismissed on 15.09.2001. The order dated

15.09.2001 dismissing the writ petition of Shiv

Kumar Rai is as follows:­

“15.09.2001

Hon’ble R.P.Misra,J.


                This writ petition has been
            listed in the group of such
            cases, which may     have become
            infructuous due to efflux of
            time. No one turns up to press it
            either.

                The    writ        petition      is,
            accordingly,         dismissed       but
            without cost.

                                               Sd/­”




6.   Shiv     Kumar   Rai   having     been     promoted       as

Assistant     Accountant,   he    never   returned     to     his

original post till superannuation. The petitioner

continued to work on the post of Junior Accounts

8 of 39
Clerk. The petitioner was given first promotional

increment in the service after completion of

fourteen years on 22.12.2004. Second promotional

upgradation was given after completion of eighteen

years of service on 22.12.2008 and order dated

13.01.2011 was issued by respondent No.1 in the

above regard. On 02.02.2012, the writ petition of

petitioner being W.P.No.15408 of 1993 was

dismissed.

7. Learned Counsel for the appellant submits that

learned Single Judge while dismissing the writ

petition on 02.02.2012 has made observation that

appointment of the appellant was made without

following the procedure known to law which

observation was neither correct nor was based on

material on record. Learned counsel for the

appellant submits that his appointment was made by

duly constituted Selection Committee as per 1985

9 of 39
Rules and after calling names from the Employment

Exchange, Azamgarh, who forwarded twelve names,

which included name of the appellant. There was no

challenge to the appointment of the appellant at

any point of time nor appointment was questioned

by anyone.

8. The writ petition was filed challenging the

consequential order dated 11.11.1992 which was

issued in consequence of cancelling the promotion

of Shiv Kumar Rai on the post of Assistant

Accountant by which he was reverted on the post of

Junior Accounts Clerk on which appellant was

appointed. The issue in the writ petition was

entirely different and was only with regard to

correctness of the Order dated 11.11.1992.

9. Learned counsel further submits that learned

Single Judge erred in observing that on dismissal

10 of 39
of first writ petition of the appellant on

04.12.1992, his removal became final and

subsequent appointment did not survive for

consideration before the Court.

10. It is submitted that the writ petition

dismissed on 04.12.1992 was against the order

dated 11.11.1992 which was a consequential order

and the main order dated 11.11.1992 passed with

respect to Shiv Kumar Rai having been stayed by

the High Court on 27.11.1992, the consequential

order with regard to appellant had no meaning,

hence, the dismissal of the said writ petition on

04.12.1992 shall not prejudice the claim of the

appellant.

11. It is further submitted that observation of

learned Single Judge that subsequent appointment

of the appellant dated 01.01.1993 being limited

11 of 39
till 27.03.1993, thereafter appellant cannot

continue is also erroneous. The Order dated

01.01.1993 although mentioned re­appointment but

in essence the order was only of reinstatement of

the appellant on the post in pursuance of his

earlier appointment dated 21.12.1992. There being

no fresh process of appointment, there was no

question of any re­appointment. The learned Single

Judge also has not correctly understood the import

of the Order dated 01.01.1993.

12. The Division Bench based its judgment only on

the ground that writ petition filed by Shiv Kumar

Rai against the order dated 11.11.1993 having been

dismissed on 15.09.2001, his reversion shall

attain finality, Consequently there will be no

vacancy on the post of Junior Accounts Clerk,

hence, the appellant shall have no right to

continue on his post. The Division Bench did not

12 of 39
consider the fact that Writ petition filed by Shiv

Kumar Rai was dismissed as infructuous by efflux

of time and the dismissal of writ petition was not

on merits. It is a fact that Shiv Kumar Rai

continued to work on his post of Assistant

Accountant and retired on 29.02.2008 by holding

the said promotional post. Shiv Kumar Rai never

came back on his post of Junior Accounts Clerk,

hence, appellant’s continuance on post of Junior

Accounts Clerk cannot be taken away by dismissal

of writ petition of Shiv Kumar Rai.

13. Learned counsel for the appellant submitted

that appellant has been in service for twenty

seven years. In the meantime, he received

promotional Pay Scale of Assistant Accountant,

Selection Grade. On the day when writ petition was

dismissed by learned Single Judge, he was working

in the grade of Assistant Accountant. The

13 of 39
appellant was also confirmed on his post of Junior

Accountant w.e.f. 22.12.1993 and Assistant

Accountant w.e.f. 22.12.2007 by order dated

01.08.2012. All these facts were brought on record

by means of rejoinder affidavit filed in Special

Appeal which had not been taken into consideration

by Division Bench.

14. It is further submitted that in the year 2013

and thereafter complaints were filed against the

appellant which were duly enquired by and reports

were submitted to Collector on 27.04.2017 that

complaints were without any basis. Further, on

another complaint, report was submitted by Finance

and Accounts Officer, Primary Education, Azamgarh

dated 02.02.2017 that appointment of the appellant

was made after following due procedure of the law

and the appellant’s continuance on his post was

valid and in accordance with law.

14 of 39

15. Against the judgment of learned Single Judge

dated 02.02.2012 and Special Appeal No.432 of 2012

was filed by the petitioner. By an order dated

01.08.2012, the petitioner’s services were

confirmed on the post of Junior Accounts Clerk

w.e.f. 22.12.1993 and on the post of Assistant

Accountant w.e.f. 22.12.2007. The Special Appeal

filed by the petitioner was dismissed by Division

Bench on 06.02.2018, aggrieved against which

judgment this appeal has been filed.

16. Learned counsel for the respondents refuting

the submission of the learned counsel for the

petitioner contends that the petitioner’s

appointment was made against the procedure

prescribed by law. No advertisement was issued on

05.12.1990 in the Daily News Paper ‘Dainik

Devvrat’ as claimed by the petitioner. The writ

15 of 39
petition was dismissed on 02.02.2012 and there

being no interim order in the special Appeal, how

he continued and received salary after 02.02.2012,

is not explained. The petitioner concealed his

dismissal of writ petition from the Department and

is not entitled for any relief from this Court.

There has been several complaints received against

the petitioner with regard to which enquiries were

held and the respondent No.1 had taken action

against the petitioner.

17. We have considered the submissions of learned

counsel for the parties and perused the record.

18. From submissions of learned counsel for the

parties and materials on record, following points

arise for consideration in this appeal:­

I) Whether appointment of appellant on the
post of Junior Accounts Clerk on 21.12.1990
was not validly made in accordance with law?

16 of 39
II) Whether by dismissal of Writ Petition
No.Nil of 1992 on 04.12.1992 filed against the
consequential order dated 11.11.1992 issued to
the petitioner, appellant’s right to continue
on his post shall come to an end?

III) Whether re­appointment of the appellant
dated 01.01.1993 been limited only till
27.02.1993 after efflux of the said period
appellant’s right to continue on the post
shall come to an end?

IV) Whether by dismissal of W.P.No.44384 of
1992 ­ Shiv Kumar Rai versus Director Basic
Education and others on 15.09.2001 shall
result in terminating the vacancy on the post
of Junior Accounts Clerk on which appellant
was appointed and was working?

I) Whether appointment of appellant on the post of
Junior Accounts Clerk on 21.12.1990 was not
validly made in accordance with law?

19. The copy of the appointment order of the

appellant has been placed on record as Annexure­

P1, which mentions that appointment of the

appellant has been made on he being selected by

17 of 39
Selection Committee constituted as per provisions

of “The Subordinate Offices Ministerial Staff

(Direct Recruitment) Rules, 1985”(hereinafter

referred to as “1985 Rules”). The appointment

letter contains endorsement to the District

Employment Officer. The material has been brought

on record that the respondent No.1 has written to

District Employment Officer on 07.12.1990 in

reference to names of twelve candidates forwarded

by the Employment Exchange with respect to the

post of Junior Accounts Clerk which clearly

indicate that names were sought from Employment

Exchange before holding selection. Rules 22 and 23

of 1985 Rules provides for procedure of

notification of vacancies to the examination and

procedure of selection. Rule 22 is as follows: ­

“Notification of Vacancies to the
Employment Exchange. ­
The appointing Authority shall
determine the number of vacancies
to be filled during the course of
the year as also the vacancies to

18 of 39
reserved under Rule 7. The
vacancies shall be notified to
the Employment Exchange. The
Appointing Authority may also
invite application directly from
the person who have their names
registered in the Employment
Exchange. For this purpose, the
Appointing Authority shall issue
an advertisement in a local daily
news paper besides pasting a
notice for the same on the Notice
Board. All such application shall
be placed before the Selection
Committee.”

20. The appellant’s case is that apart from

calling names from the Employment Exchange, the

respondent No.1 had also published an

Advertisement on 05.12.1990 in the Daily News

Paper ‘Dainik Devvrat’. The learned counsel for

the respondents has refuted the claim of appellant

of publication in the Daily News Paper. He submits

that Editor of News Paper vide his letter dated

21.08.2017 with regard to verification of alleged

19 of 39
advertisement has informed that it is not possible

to verify the same, it being a very old matter.

21. Learned counsel submits that there was no

publication in the newspaper and the claim of

publication was only invented for the purpose of

this case.

22. Appellant has refuted the above submission of

the respondent and submits that newspaper has been

filed before the High Court and further in the

reports which were submitted with regard to

complaints against the appellant, it was

specifically mentioned that the publication was

made in the News Paper ‘Dainik Devvrat’ on

05.12.1992.

23. There is no denial on the part of the

respondents that the names were called from the

20 of 39
Employment Exchange by the appointing authority

before conducting the selection and the Employment

Exchange had forwarded the twelve names which also

included the name of appellant. The appointment of

the appellant having been made by Selection

Committee constituted under Statutory Rules after

calling the names from Employment Exchange, the

appointment cannot be said to have been made in

disregard to the Statutory Rules.

24. More so in the present case, there was no

challenge to the appointment by any candidate nor

any proceedings were initiated by the appointing

authority questioning the appointment of the

appellant. The first writ petition was filed by

the appellant when consequent to reversion of Shiv

Kumar Rai on the post of Junior Accounts Clerk on

which appellant was working, his services were

terminated by order dated 11.11.1992.

21 of 39

25. We, thus, conclude that appointment of the

appellant cannot be said to have been made in

disregard to the Rules and further, no proceedings

were initiated either by any candidate or by

appointing authority questioning the appointment

of the appellant.

26. Learned Single Judge without taking into

consideration the facts of constitution of

Selection Committee, calling the names from

Employment Exchange has made observations that no

procedure known to law namely ‘Publication of

Notification’ etc. was adopted which cannot be

approved. Without having full aspect of the

matter, no such observation ought to have been

made by learned Single Judge more so when the

appointment was not questioned either by any

candidate or by appointing authority by initiating

any process.

22 of 39
II) Whether by dismissal of Writ Petition No.Nil
of 1992 on 04.12.1992 filed against the
consequential order dated 11.11.1992 issued to the
petitioner, appellant’s right to continue on his
post shall come to an end?

27. Writ Petition No.Nil of 1992 was filed by the

appellant challenging the Order dated 11.11.1992.

On 11.11.1992, two orders were passed by

respondent No.1. By first order dated 11.11.1992

appointment(promotion) of Shiv Kumar Rai was

cancelled and he was directed to take charge of

his original post of Junior Accounts Clerk. In

consequence to above 11.11.1992 order with regard

to petitioner, following order was issued:­

” Accounts Officer, Office of
District Basic Education Officer,
Azamgarh

Order Number/Le.No./803­809/1992­93

Date: 11.11.1992

Termination of service

Consequent to reversion of Shri
Shiv Kumar Rai, Assistant Accounts,

23 of 39
Lekha Sangathan Office, District
Basic Education Officer, Azamgarh at
his original post Junior Accounts
Clerk, the purely temporary services
of Shri Rana Pratap Singh, Junior
Accounts Clerk are terminated with
immediate effect. He is ordered to
hand over the charge of his post to
Shri Shiv Kumar Rai with immediate
effect.

Sd/­ illegible
Accounts Officer
Office of District Basic
Education Officer, Azamgarh

Endorsement Number account/803­
809/1992­93″

28. Both Shiv Kumar Rai and petitioner have filed

separate writ petitions challenging order dated

11.11.1992. In writ petition No.44384 of 1992

filed by Shiv Kumar Rai, following interim order

was passed on 27.11.1992: ­

” ..Issue Notice

Learned standing counsel prays
for and is granted one month time to
file counter affidavit. Petitioner
will have thereafter two weeks time

24 of 39
for filing rejoinder affidavit. List
the stay application before the
nd
appropriate court in the 2 week of
February, 93.

For a period of three months from
today the operation of the order
dated 11.11.92 shall remain stayed.

Petitioner is permitted to make
the necessary amendment in his
petition within three days.”

29. Thus on 04.12.1992, when the writ petition of

the appellant challenging the order dated

11.11.1992 came for consideration, the Court was

not informed that Order dated 11.11.1992 with

regard to Shiv Kumar Rai has already been stayed

by the High Court. When the Main Order dated

11.11.1992 with regard to Shiv Kumar Rai was

stayed, the consequential order issued with regard

to petitioner shall automatically become

inoperative. The dismissal of writ petition on

04.12.1992 due to above reason shall not adversely

25 of 39
affect the petitioner’s right to continue on the

basis of his appointment dated 21.12.1990. In view

of the interim order passed in writ petition on

27.11.1992, the order impugned in the writ

petition of the appellant was not operative,

hence, dismissal of writ petition on 04.12.1992

shall not have that adverse effect as has been

noted by the learned Single Judge in the impugned

judgment dated 02.02.2012.

30. It is due to the above reason that

subsequently the appellant was reinstated on the

post on 01.01.1993 because vacancy on which he was

appointed became available by the interim order

obtained by Shiv Kumar Rai on 27.11.1992.

III) Whether re­appointment of the appellant dated
01.01.1993 been limited only till 27.02.1993 after
afflux of the said period, appellant’s right to
continue on the post shall come to an end?

26 of 39

31. On the Interim Order dated 27.11.1992 having

been passed in writ petition of Shiv Kumar Rai as

stated above, the consequential order issued to

the appellant became inoperative and he was

entitled to continue on his post of Junior

Accounts Clerk by virtue of his appointment dated

21.12.1990. The Order dated 01.01.1993 was issued

by the respondent No.1 which is to the following

effect: ­

“Accounts Officer, Office of District
Basic Education officer, Azamgarh

Order Number/Accounts/ /1992­93
Date : 01.01.93

Order of re­appointment

Consequent to passing stay order
of the operation of Order dated
11.11.1992 passed by the Hon’ble High
Court at Allahabad in Writ Petition
in Shri Shiv Kumar Rai Versus
Director of Education (Basic)
Nishatganj and others, Shri Rana
Pratap Singh son of Shri Suryanath
Singh is re­appointed on temporary
basis from the date of taking charge
on the vacant post of Junior Accounts

27 of 39
Clerk till 27.02.1993. This
appointment can be terminated at any
time without any prior information.

Shri Rana Pratap Singh is
directed to take charge immediately
on receipt of copy of this order.

Accounts Officer
Office of District Basic
Education Officer, Azamgarh.

Endorsement Number Accounts/117­
1240/1993­94

Dated : 01.01.1993”

32. Although in the order dated 01.01.1993, the

order refers it as an order of re­appointment but

in essence the order is not an order of re­

appointment but order of reinstatement of

appellant on the post which became available for

the appellant after interim order passed in writ

petition of Shiv Kumar Rai. The appellant was

asked to go because of reversion of Shiv Kumar Rai

on his original post by Order dated 11.11.1992.

When the said order was stayed, the appellant

28 of 39
became entitled to continue on his post and no

order of re­appointment was necessary or required.

The entitlement of appellant was by virtue of his

earlier appointment. The re­appointment order

refers to appointment of the appellant till

27.02.1993. The initial appointment of the

appellant dated 21.12.1992 which was made after

regular selection was not limited to any period.

The date of 27.02.1993 which was mentioned in the

letter dated 01.01.1993 was only due to the reason

that interim order granted to Shiv Kumar Rai on

27.11.1993 was only for a period of three months

i.e. only upto the period till 27.02.1993 which

date was mentioned in the order dated 01.01.1993.

The interim order passed in the writ petition of

Shiv Kumar Rai was continued by order dated

09.04.1993, which is to the following effect:­

” …The interim order dated 27.11.92
is continued and the petitioner will
be paid salary regularly.

29 of 39
Dated/ 09.04.1993”

33. By continuance of interim order in favour of

Shiv Kumar Rai automatically the order in favour

of the appellant shall continue and there was no

question of his appointment being come to an end.

34. Learned Single Judge in the impugned judgment

has taken the view that since the appointment of

the appellant was only for limited duration till

27.02.1993, he has no right to continue. Learned

Single Judge lost sight of the fact that the date

27.02.1993 was mentioned in the letter dated

01.01.1993 because of the fact that interim order

of Shiv Kumar Rai was only for the period of three

months and when the interim order with regard to

Shiv Kumar Rai by the High Court was continued,

the appellant also had become entitled to

continue.

30 of 39

35. Learned Single Judge, thus, committed error in

not correctly appreciating the consequence of

order of the High Court dated 04.12.1992 in the

first writ petition and nature of the letter dated

01.01.1993.

36. We, thus, are of the view that letter dated

01.01.1993 cannot be said to be re­appointment of

the appellant. The order was in essence re­

instatement of the appellant in consequence of his

earlier appointment dated 21.12.1990. From the

materials brought on record ,it is also clear that

the Education Authorities has also treated the

appointment of appellant continuing from

22.12.1990, which is clear from order of approval

of increment dated 30.12.2000, Annexure RA­6 and

subsequent order issued by Finance and Accounts

Officer where date of appointment of appellant has

been mentioned as 21.12.1990.

31 of 39
IV) Whether by dismissal of W.P.No.44384 of 1992
Shiv Kumar Rai Versus Director Basic Education and
others on 15.09.2001 shall result in terminating
the vacancy on the post of Junior Accounts Clerk
on which appellant was appointed and was working?

37. The Division Bench has dismissed the special

appeal of the appellant solely relying on the fact

that by dismissal of writ petition of Shiv Kumar

Rai on 15.09.2001, the vacancy of post of Junior

Accounts Clerk shall come to an end.

38. In the writ petition of Shiv Kumar Rai,

interim order was passed on 27.11.1992 which was

continued on 09.04.1993. It is submitted by the

counsel for the appellant that cancellation of

promotion of Shiv Kumar Rai on 11.11.1990 too was

on account of claim of promotion raised by another

accounts clerk Mr.Ram Sinhasan Rai. It is

submitted that Ram Sinhasan Rai retired in 1999.

Ram Sinhasan Rai was never promoted and interim

order in favour of Shiv Kumar Rai continued till

32 of 39
Ram Sinhasan Rai retired in the year 1999. It is

submitted that writ petition of Shiv Kumar Rai has

been dismissed as infructuous by efflux of time

which is clearly mentioned in the order dismissing

the writ petition. The writ petition of Shiv

Kumar Rai was not dismissed on merits. Writ

petition was dismissed as infructuous by efflux of

time without determination of any issue. Shiv

Kumar Rai continued to work on his promotional

post till he retired on 29.02.2008. When Shiv

Kumar Rai did not revert on post of Junior

Accounts Clerk and continued to work till his

retirement, the dismissal of writ petition as

infructuous cannot altogether wipe out the right

of the appellant to continue on his post of Junior

Accounts Clerk on which post Shiv Kumar Rai never

returned in fact.

33 of 39

39. The report dated 27.04.2017 of District

Handicapped Public Development Officer, Azamgarh

addressed to Collector, Azamgarh, has been brought

on record with regard to promotion of Shiv Kumar

Rai, in which following facts have been stated:­

” …After inquiry, this fact came to
light that the selection of Shri
Singh has been made by the legally
constituted Selection Committee at
the vacant post of Junior Accounts
Clerk due to the promotion of Shri
Shiv Kumar Rai at the post of
Assistant Accountant in the
department. A representation was
submitted by Shri Ram Sinhasan Singh,
Junior Accounts Clerk working in the
office of Finance and Accounts
Officer of Basic Education, Azamgarh
stating that he is senior to Shri
Rai. Therefore, on the basis of
seniority, he be promotied at the
post of Assistant Accountant. Shri
Rai was reverted to the post of
Junior Accounts Clerk by order dated
11.11.1992 of Finance and Accounts
Officer, Basic Education Azamgarh.
Stay Order was obtained by Shri Rai
of the order of reversion by the
Hon’ble High Court of Allahabad by
order dated 27.11.1992. The stay
order dated 27.11.1992 was continued
by order dated 09.04.1993. Shri Shiv
Kumar Rai has retired from the

34 of 39
promoted post of Assistant Accountant
on 29.02.2008. Shri Rai and Shri
Sinhasan Singh both have retired from
their posts. After retirement, the
case of mutual seniority has
finished. Resultantly the lien/tenure
of Shri Rana Pratap Singh at the post
of Junior Accounts Clerk remained as
earlier…”

40. In the rejoinder affidavit which was filed in

the special Appeal, the report dated 27.04.2017

has been brought on record as Annexure RA­14. High

Court dismissed the special Appeal on 06.02.2018

solely relying on dismissal of writ petition of

Shiv Kumar Rai on 15.09.2001.

41. No exception can be taken to the legal

position as enumerated by the Division Bench of

the High Court in paragraphs 9 to 13. However, the

Division Bench ought to have looked into the

ground realities, facts, and subsequent events

also. When Shiv Kumar Rai was never reverted on

35 of 39
his post and continued on his promotional post

till his retirement, it will be taking a too

technical view that vacancy of his original post

shall come to an end by dismissal of the writ

petition. More so, the writ petition was dismissed

as infructuous on efflux of time without an

adjudication on merits and without High Court

being made aware of the subsequent events. The

Division Bench did not advert to the other aspects

of the matter which were adverted to by the

learned Single Judge, without examining the

correctness of the view taken by learned Single

Judge, the Division Bench had dismissed the appeal

solely relying on dismissal of above writ petition

of Shiv Kumar Rai.

42. Learned counsel for the respondents had also

submitted that the conduct of the appellant is not

such that he may be entitled for any relief. It is

36 of 39
submitted that when the writ petition was

dismissed by learned Single Judge on 02.02.2012

and special appeal came to be dismissed on

06.02.2018, the appellant was not entitled to

continue or receive any salary. He submits that he

had concealed the dismissal of writ petition from

the department.

43. A perusal of the order of the High Court dated

02.02.2012 indicates that learned counsel for the

parties were heard. The order dated 02.02.2012 was

not an ex parte order and the appellant

immediately filed an special appeal which is

numbered as Special Appeal No.432 of 2012. The

arguments of the respondents cannot be accepted

that the appellant concealed dismissal of writ

petition from learned Single Judge. More so, the

appellant was allowed/continued by the respondents

on his post and by order dated 01.08.2012, an

37 of 39
order of confirmation was also passed by the

Department confirming him on the post of Junior

Accounts Clerk from 22.12.1990 and on the post of

Assistant Accountant w.e.f. 22.12.2004. The

appellant was also given promotional scale of

Assistant Accountant w.e.f. 22.12.2004. The

Department having continued the appellant and

granted him promotion and confirmation, It cannot

be said that the appellant committed any

concealment or mis­representation.

44. We further notice that appellant has been

continuing on his post for the last twenty six

years and even after dismissal of writ petition of

Shiv Kumar Rai on 15.09.2001 more than eighteen

years have passed. The appellant has been promoted

on next higher post and working on the next higher

post as on date.

38 of 39

45. Learned Single Judge has not correctly

appreciated the issues as noticed and discussed

above. The Division Bench rested its opinion on

one issue without taking into consideration

subsequent events and the fact that writ petition

was dismissed as infructuous by efflux of time.

46. Taking into consideration entire facts and

circumstances, we are of the view that judgment of

learned Single Judge dated 02.02.2012 as well as

the Division Bench deserve to be set aside. We

Order accordingly. The appeal is allowed.

……………….J.

(ASHOK BHUSHAN)

……………….J.

(NAVIN SINHA)

NEW DELHI,
DECEMBER 18, 2019.

39 of 39



Source link