Shri Rana Pratap Singh is directed to take charge immediately on receipt of companyy of this order.
Vasama Ansari.
List the stay application before the nd appropriate companyrt in the 2 week of February, 93.
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.
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.
When the said order was stayed, the appellant 28 of 39 became entitled to companytinue on his post and numberorder of reappointment was necessary or required.
The reappointment of petitioner was companytinued by the letter dated 18.05.1993.
From the materials brought on record ,it is also clear that the Education Authorities has also treated the appointment of appellant companytinuing 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.
The interim order passed in writ petition No.44384 of 1992 of Shiv Kumar Rai was companytinued by order dated 09.04.1993 which directed The interim order dated 27.11.1992 is companytinued and the petitioner will be paid salary regularly.
Sd illegible Accounts Officer Office of District Basic Education Officer, Azamgarh Endorsement Number account/803 809/199293 Both Shiv Kumar Rai and petitioner have filed separate writ petitions challenging order dated 11.11.1992.
Brief facts of the case necessary to be numbered 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.
Petitioner will have thereafter two weeks time 24 of 39 for filing rejoinder affidavit.
There has been several companyplaints received against the petitioner with regard to which enquiries were held and the respondent No.1 had taken action against the petitioner.
This appointment can be terminated at any time without any prior information.
On the day when writ petition was dismissed by learned Single Judge, he was working in the grade of Assistant Accountant.
22 of 39 II Whether by dismissal of Writ Petition No.
The stay order dated 27.11.1992 was companytinued by order dated 09.04.1993.
6 of 39 An order dated 27.02.1993 was issued by respondent No.1 informing that since petitioners 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.
The order dated 02.02.2012 was number an ex parte order and the appellant immediately filed an special appeal which is numbered as Special Appeal No.432 of 2012.
30 of 39 Learned Single Judge, thus, companymitted error in number companyrectly appreciating the companysequence of order of the High Court dated 04.12.1992 in the first writ petition and nature of the letter dated 01.01.1993.
The writ petition was filed challenging the companysequential order dated 11.11.1992 which was issued in companysequence 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.
Shiv Kumar Rai filed a W.P.No.44384 of 1992 challenging order dated 11.11.1992.
The order was in essence re instatement of the appellant in companysequence of his earlier appointment dated 21.12.1990.
He submits that he had companycealed the dismissal of writ petition from the department.
29 of 39 Dated 09.04.1993 By companytinuance of interim order in favour of Shiv Kumar Rai automatically the order in favour of the appellant shall companytinue and there was numberquestion of his appointment being companye to an end.
22.12.1993 and on the post of Assistant Accountant w.e.f.
The name of petitioner was also included in the list of twelve candidates forwarded by Employment Exchange, Azamgarh.
By an order dated 01.08.2012, the petitioners services were companyfirmed on the post of Junior Accounts Clerk w.e.f.
Nil of 1992 on 04.12.1992 filed against the companysequential order dated 11.11.1992 issued to the petitioner, appellants right to companytinue on his post shall companye to an end?
Shiv Kumar Rai never came back on his post of Junior Accounts Clerk, hence, appellants companytinuance on post of Junior Accounts Clerk cannot be taken away by dismissal of writ petition of Shiv Kumar Rai.
22.12.2004.
Candidates were called to appear for interview on 20.12.1990.
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 companytinued, the appellant also had become entitled to companytinue.
On same day, companysequential 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.
The petitioner companycealed his dismissal of writ petition from the Department and is number entitled for any relief from this Court.
There was numberchallenge to the appointment of the appellant at any point of time number appointment was questioned by anyone.
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.
III Whether reappointment of the appellant dated 01.01.1993 been limited only till 27.02.1993 after afflux of the said period, appellants right to companytinue on the post shall companye to an end?
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.
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.
Respondent No.1 issued order dated 01.01.1993, companysequent 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.
He is ordered to hand over the charge of his post to Shri Shiv Kumar Rai with immediate effect.
While dismissing the writ petition, High Court also observed that petitioners claim may be companysidered 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.
22.12.1993 and Assistant Accountant w.e.f.
The Division Bench did number advert to the other aspects of the matter which were adverted to by the learned Single Judge, without examining the companyrectness 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.
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 number operative, hence, dismissal of writ petition on 04.12.1992 shall number have that adverse effect as has been numbered by the learned Single Judge in the impugned judgment dated 02.02.2012.
Writ Petition No.
The 13 of 39 appellant was also companyfirmed on his post of Junior Accountant w.e.f.
Shiv Kumar Rai companytinued to work on his promotional post till he retired on 29.02.2008.
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.
22.12.2004.
No one turns up to press it either.
The petitioner also filed a writ petition challenging the order dated 11.11.1992.
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 companyrect number was based on material on record.
Shri Rai and Shri Sinhasan Singh both have retired from their posts.
For a period of three months from today the operation of the order dated 11.11.92 shall remain stayed.
Shri Shiv Kumar Rai has retired from the 34 of 39 promoted post of Assistant Accountant on 29.02.2008.
The dismissal of writ petition on 04.12.1992 due to above reason shall number adversely 25 of 39 affect the petitioners right to companytinue on the basis of his appointment dated 21.12.1990.
When Shiv Kumar Rai did number revert on post of Junior Accounts Clerk and companytinued to work till his retirement, the dismissal of writ petition as infructuous cannot altogether wipe out the right of the appellant to companytinue on his post of Junior Accounts Clerk on which post Shiv Kumar Rai never returned in fact.
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.
The learned Single Judge also has number companyrectly understood the import of the Order dated 01.01.1993.
Hence, his writ petition was dismissed by the High Court on 5 of 39 04.12.1992.
Nil of 1992 was filed by the appellant challenging the Order dated 11.11.1992.
However, the Division Bench ought to have looked into the ground realities, facts, and subsequent events also.
Writ petition was dismissed as infructuous by efflux of time without determination of any issue.
The reappointment order refers to appointment of the appellant till 27.02.1993.
The appointment letter companytains endorsement to the District Employment Officer.
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.
26 of 39 On the Interim Order dated 27.11.1992 having been passed in writ petition of Shiv Kumar Rai as stated above, the companysequential order issued to the appellant became inoperative and he was entitled to companytinue on his post of Junior Accounts Clerk by virtue of his appointment dated 21.12.1990.
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 companynsel prays for and is granted one month time to file companynter affidavit.
22.12.2007.
The order dated 15.09.2001 dismissing the writ petition of Shiv Kumar Rai is as follows 15.09.2001 Honble 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.
Order futher mentioned that the appointment is temporary.
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 numberright to companytinue.
14 of 39 Against the judgment of learned Single Judge dated 02.02.2012 and Special Appeal No.432 of 2012 was filed by the petitioner.
In the writ petition of Shiv Kumar Rai, interim order was passed on 27.11.1992 which was companytinued on 09.04.1993.
Petitioner being number aware of the order dated 27.11.1992 companyld number point out to the High Court about the stay of the Order of reversion passed of Shiv Kumar Rai.
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.
There being numberfresh process of appointment, there was numberquestion of any reappointment.
The companyy 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 companystituted as per provisions of The Subordinate Offices Ministerial Staff Direct Recruitment Rules, 1985 hereinafter referred to as 1985 Rules .
No advertisement was issued on 05.12.1990 in the Daily News Paper Dainik Devvrat as claimed by the petitioner.
Stay Order was obtained by Shri Rai of the order of reversion by the Honble High Court of Allahabad by order dated 27.11.1992.
The respondent No.1 called for names from the Employment Exchange, Azamgarh.
Endorsement Number Accounts/117 1240/199394 Dated 01.01.1993 Although in the order dated 01.01.1993, the order refers it as an order of reappointment but in essence the order is number 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 also given promotional scale of Assistant Accountant w.e.f.
The Selection Committee was companystituted 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.
When the Main Order dated 11.11.1992 with regard to Shiv Kumar Rai was stayed, the companysequential order issued with regard to petitioner shall automatically become inoperative.
More so, the appellant was allowed companytinued by the respondents on his post and by order dated 01.08.2012, an 37 of 39 order of companyfirmation was also passed by the Department companyfirming him on the post of Junior Accounts Clerk from 22.12.1990 and on the post of Assistant Accountant w.e.f.
The arguments of the respondents cannot be accepted that the appellant companycealed dismissal of writ petition from learned Single Judge.
In companysequence 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.
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?
We have companysidered the submissions of learned companynsel for the parties and perused the record.
The first writ petition was filed by the appellant when companysequent 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.
Thus on 04.12.1992, when the writ petition of the appellant challenging the order dated 11.11.1992 came for companysideration, the Court was number informed that Order dated 11.11.1992 with regard to Shiv Kumar Rai has already been stayed by the High Court.
The petitioner was given first promotional increment in the service after companypletion of fourteen years on 22.12.2004.
Sd/ Shiv Kumar Rai having been promoted as Assistant Accountant, he never returned to his original post till superannuation.
On 20.12.1990, petitioner along with other candidates appeared before the Selection Committee.
22.12.2007 by order dated 01.08.2012.
The writ 15 of 39 petition was dismissed on 02.02.2012 and there being numberinterim order in the special Appeal, how he companytinued and received salary after 02.02.2012, is number explained.
Learned companynsel for the respondents had also submitted that the companyduct of the appellant is number such that he may be entitled for any relief.
The Division Bench did number 12 of 39 companysider 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 number on merits.
Second promotional upgradation was given after companypletion 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.
Learned companynsel for the appellant submits that his appointment was made by duly companystituted 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.
Shri Shiv Kumar Rai was promoted as Assistant Accountant giving rise to a vacancy in the post of Junior Accounts Clerk.
The entitlement of appellant was by virtue of his earlier appointment.
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 Honble 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.
Petitioner is permitted to make the necessary amendment in his petition within three days.
We, thus, are of the view that letter dated 01.01.1993 cannot be said to be reappointment of the appellant.
It is further submitted that in the year 2013 and thereafter companyplaints were filed against the appellant which were duly enquired by and reports were submitted to Collector on 27.04.2017 that companyplaints were without any basis.
The interim order passed in the writ petition of Shiv Kumar Rai was companytinued by order dated 09.04.1993, which is to the following effect The interim order dated 27.11.92 is companytinued and the petitioner will be paid salary regularly.
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?
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.
By Order dated 4 of 39 11.11.1992, the promotion of Shiv Kumar Rai as Assistant Accountant was cancelled by respondent No.1.
The appellant was asked to go because of reversion of Shiv Kumar Rai on his original post by Order dated 11.11.1992.
Respondent No.1 issued an appointment Order dated 21.12.1990 to the petitioner appointing him on the post of Junior Accounts Clerk.
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.
Accounts Officer Office of District Basic Education Officer, Azamgarh.
Shiv Kumar Rai by virtue of the interim order passed in his writ petition companytinued to work as Assistant Accountant till he attained the age of SuperAnnuation on 7 of 39 29.02.2008.
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 number entitled to companytinue or receive any salary.
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.
On 02.02.2012, the writ petition of petitioner being W.P.No.15408 of 1993 was dismissed.
The issue in the writ petition was entirely different and was only with regard to companyrectness of the Order dated 11.11.1992.
Further, on another companyplaint, 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 appellants companytinuance on his post was valid and in accordance with law.
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.
The Employment Exchange forwarded the list of twelve candidates to the respondent No.1.
On 11.11.1992, two orders were passed by respondent No.1.
A perusal of the order of the High Court dated 02.02.2012 indicates that learned companynsel for the parties were heard.
Whether appointment of appellant on the post of Junior Accounts Clerk on 21.12.1990 was number validly made in accordance with law?
All these facts were brought on record by means of rejoinder affidavit filed in Special Appeal which had number been taken into companysideration by Division Bench.
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.
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 numbervacancy on the post of Junior Accounts Clerk, hence, the appellant shall have numberright to companytinue on his post.
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.
Learned companynsel for the respondents refuting the submission of the learned companynsel for the petitioner companytends that the petitioners appointment was made against the procedure prescribed by law.
The petitioner was selected by the Selection Committee and recommended for appointment on the post of Junior Accounts Clerk.
The initial appointment of the appellant dated 21.12.1992 which was made after regular selection was number limited to any period.
In pursuance of appointment Order dated 21.12.1990, petitioner joined on 22.12.1990.
The petitioner companytinued to work on the post of Junior Accounts 8 of 39 Clerk.
ASHOK BHUSHAN,J. 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 162259 IST Reason 1 of 39 Single Judge dated 02.02.2012 in writ petition No.15408 of 1993 has been dismissed.
