Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 8068 of 2009, Judgment Date: Feb 03, 2016

                                                       NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No.8068 OF 2009


Sanjay Kumar Upadhyay                                         ……Appellant(s)


                                 VERSUS


Palak Dhari Yadav & Ors.                                     ……Respondent(s)


                                  WITH

                        CIVIL APPEAL No.8069 OF 2009


Committee of Management, D.A.V.
Girls Higher Secondary School,
May, U.P.                                                     ……Appellant(s)


                                VERSUS


Palak Dhari Yadav                                            ……Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    These appeals are filed against the common judgment  and  order  dated
05.10.2006 passed by the High Court of Judicature at  Allahabad  in  Special
Appeal Nos. 728 and 729 of 1999 whereby  the  Division  Bench  of  the  High
Court allowed both the appeals filed by   respondent  No.1  herein  and  set
aside the order dated 30.07.1999 passed by the  Single  Judge  of  the  High
Court in C.M.W.P. No. 19091 of  1990  filed  by  the  appellant  herein  and
C.M.W.P. No. 6681 of 1990 filed by respondent No. 1 herein.
2)    In order to appreciate the issue involved in this appeal,  which  lies
in a narrow compass, it is necessary to set out the relevant facts in  brief
infra.
3)    D.A.V. Kanya Uchhatar  Madhyamic  Vidyalaya,  Mau,  U.P.  (hereinafter
referred to as “the institution”) is an institution recognized by the  State
Government and receives grant-in-aid.  The Institution is  governed  by  the
U.P. Intermediate Education Act, 1921 (in short  “the  Act”),  other  allied
laws, Rules and Regulations framed under the Act.
4)     On  20/26.06.1989,  the  management  of  the  Institution   gave   an
advertisement in VANDEVI weekly paper published from Mau, for the post of  a
Clerk mentioning the last date for submitting the application as  10.07.1989
and date of interview as 12.07.1989.
5)    Sanjay Kumar Upadhyay-the appellant in C.A.No. 8068  of  2009  applied
for the said post of Clerk.  He appeared for the interview on the  date  and
time fixed by the Management of the Institution.  He was  selected  for  the
abovesaid post and was accordingly given appointment letter  on  18.08.1989.
Pursuant to the appointment letter, he joined  the  service  on  01.09.1989.
The said appointment  was  approved  by  the  Regional  Inspector  of  Girls
Schools, Region Gorakhpur vide letter dated 07.03.1990.
6)    Palak Dhari Yadav-respondent No.1, who was class IV  employee  of  the
Institution, challenged the order of approval dated 07.03.1990 by which  the
appellant was given appointment and filed C.M.W.P. No. 6681 of  1990  before
the High Court. The challenge was on ground that as per Regulation  2(2)  of
Chapter-III of Regulation framed under the Act, when only one post of  clerk
falls vacant in the Institution then it  should  be  filled  up  by  way  of
promotion and not  by  direct  recruitment  by  inviting  applications  from
public as was done in this case.
7)    The appellant also filed C.M.W.P. No. 19091 of 1990  before  the  High
Court on the ground that despite  appointment  given  to  him  and  approval
accorded, he was not being paid his monthly salary.
8)    The Single Judge of the High Court by a common order dated  30.07.1999
allowed C.M.W.P. No. 19091 of 1990 filed  by  the  appellant  and  dismissed
C.M.W.P. No. 6681 of 1990 filed by respondent No.1.  It was  held  that  the
appointment of  the  appellant  on  the  single  post  of  clerk  by  direct
recruitment could be made and was thus a valid appointment in law.   It  was
accordingly directed to the Institution that it should make the  payment  of
salary along with its arrears within two months from the date  of  order  to
the appellant.
9)    Against the order dated 30.07.1999 in C.M.W.P. No. 6681 of  1990,  the
respondent filed Special Appeal No. 728 of 1999 whereas  against  the  order
in C.M.W.P. No. 19091 of 1990 the respondent filed Special  Appeal  No.  729
of 1999 before the High Court.
10)   By impugned judgment dated 05.10.2006, the Division Bench of the  High
Court allowed both the appeals and directed the Management of the  Institute
to consider filling up the post of  clerk  by  way  of  promotion  from  the
eligible Class IV employees of the Institution as per the  seniority.   This
was held by the Division Bench by placing reliance upon a  judgment  of  the
High Court in Jai Bhagwan Singh Vs. District Inspector  of  Schools  &  Ors.
2006  (4)  All.  Law  Journal  438(DB).   As  a  consequence  thereof,   the
appointment of the appellant herein made by direct recruitment on  the  post
in question was declared invalid.
11)   Challenging the said order, the appellant filed Civil Appeal No.  8068
of 2009 and the Committee  of  Management,  D.A.V.  Girls  Higher  Secondary
School, Mau, UP filed C.A. No. 8069 of 2009.
12)   On 27.11.2009, this Court granted leave to the appellant.  This  Court
also noted that the  respondent  (writ  petitioner)  is  not  interested  in
contesting these  appeals  because  despite  service  on  him,  he  has  not
appeared in these appeals.  This Court, therefore, stayed the  operation  of
impugned order.  As a result of the grant of stay, the  appellant  continued
to remain on the post and has been continuously discharging the duties.
13)   Shri P.N. Mishra learned Senior Counsel appearing for the appellant  -
(Shri Sanjay Kumar Upadhya) has urged  only  one  submission.  According  to
him, the first respondent (writ petitioner) retired from the service  during
pendency of these proceedings and, therefore, he is not  now  interested  in
prosecuting his writ petition out of which these appeals arise and  that  is
perhaps the reason, why he has not come  forward  to  oppose  these  appeals
despite service of notice on him. It is  submitted  that  since  the  Single
Judge dismissed the respondent's writ petition and in consequence  held  the
appointment as legal and proper, the appellant was allowed  to  continue  on
the post  uninterruptedly.  It  was  urged  that  even  after  the  impugned
decision was rendered declaring the appointment of the appellant as  bad  in
law, this Court  by  order  27.11.2009  has  stayed  the  operation  of  the
impugned order as a result of which, the appellant continued to work on  the
post of   "Clerk" till date and this is how since last 26 years he has  been
continuously working and drawing regular salary.
14)   Learned counsel, therefore, urged that the appellant  has  now  hardly
few years left in service and there being no  employee  presently  available
in service who can be promoted to the post which he  is  holding  and  hence
the appellant may be allowed to continue on the  post  till  his  retirement
and thereafter the post can be filled up  by  promotion  from  the  eligible
Class-IV employees, if in the meantime, no additional posts are created.
15)   Since there is no one appearing for the  contesting  respondent  (writ
petitioner) to oppose these  appeals,  and  counter  the  arguments  of  the
learned counsel for the appellant mentioned above, we  find  some  force  in
the submission of learned counsel for the appellant.
16)    In our considered opinion, it is not necessary to go into the  merits
of the controversy as to whether the Division Bench  was  right  in  holding
that the post in question could be filled up only by way of  promotion  from
amongst the in service candidate and it could not be  filled  up  by  direct
recruit because we feel that  this  appeal  can  be  disposed  of  on  other
grounds as mentioned infra.
17)   First,  no  one  has  appeared  on  behalf  of  the  respondent  (writ
petitioner)  to  oppose  these  appeals  and  counter   the   aforementioned
submissions of the appellant's counsel.
18)   Second, admittedly the respondent (writ petitioner) has  retired  from
the service and hence his case for promotion on the post in question  cannot
be now considered.
19)    Third, no in-service candidate other than  the  respondent  has  come
forward saying that his candidature be considered for the post by  promoting
him, he being eligible for the post.
20)    Fourth, the appellant has been continuously working on the  post  for
the last 26 years (approx.) on the basis of selection and then on the  basis
of order passed by the Single Judge upholding his  appointment  and  lastly,
on the basis of stay granted by this court on 27.11.2009.
21)   Fifth, if the appellant is allowed to continue  till  he  attains  the
age of retirement, no prejudice is likely to be  caused  to  anyone  because
nothing adverse was brought to our notice against him in these  proceedings.
In addition, he was otherwise found qualified for the post in the  selection
process, but his appointment was cancelled on technical ground.
22)   In the light of foregoing reasons,  we  are  inclined  to  dispose  of
these  appeals  keeping  in  view  the  peculiar  facts  of  the  case   and
accordingly direct  that  the  appellant  (Mr.  Sanjay  Kumar  Upadhaya)  be
allowed to continue on the post of Clerk on which he was appointed till  the
date of his retirement unless otherwise he is  rendered  himself  unable  to
continue in service prior to the date of his retirement  due  to  any  legal
reasons. It is further directed that on appellant demitting the office,  the
post  in  question  be  filled  up  by  promoting  the  suitable  in-service
candidate as per the rules. If, however, in  the  meantime,  the  number  of
post is increased then the post be filled up as  per  the  norms  applicable
for filling such posts as per rules.
23)   With these directions, the impugned  order  stands  modified  to  that
extent. The appeals stand accordingly disposed of. No cost.

                                     .……...................................J.
                                                            [J. CHELAMESWAR]


                                      ………..................................J.
                                                       [ABHAY MANOHAR SAPRE]
      New Delhi,
      February 03, 2016.

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