Service Law – Appointment – Validity of – One 'S' was working as Junior Accounts Clerk - Later, he was promoted as Assistant Accountant giving rise to a vacancy in the post of Junior Accounts Clerk – Thereafter, the Selection Committee interviewed the candidates for the post of Junior Accounts Clerk – Appellant was selected by respondent no. 1 for the said post – However, by order dated 11.11.1992, the promotion of 'S' as Assistant Accountant was cancelled by respondent no. 1 – Consequent to which, the appointment of the appellant as Junior Accounts Clerk was terminated – Both 'S' and appellant filed writ petitions against the order dated 11.11.1992 – In the writ petition filed by 'S', High Court stayed the order dated 11.11.1992 for 3 months – However, the writ petition filed by the appellant was dismissed – Pursuant to the order of the High Court in writ petition of 'S', respondent no. 1 stayed the cancellation of promotion of 'S' and re-appointed appellant till 27.02.1993 – On 27.02.1993, appellant was asked to hand over the charge of his post to another person – Appellant filed writ petition against the order dated 27.02.1993 and the said order was stayed by the High Court - Appellant was re-appointed – 'S' by virtue of the interim order passed in his writ petition attained the age of superannuation – The writ petition filed 'S' became infructuous due to efflux of time and was dismissed – Meanwhile, appellant also continued working and was even promoted – On 02.02.2012, the writ petition filed by the appellant was dismissed and the Single Judge of High Court held that appointment of the appellant was made without following the procedure of law and his appointment was limited till 27.02.1993 – Division Bench of High Court further held that since writ petition filed by 'S' was dismissed, his reversion had attained finality and consequently there was no vacancy on the post of Junior Accounts Clerk hence, the appellant had no right to continue on his post – On appeal, held : The appointment of the appellant was made by Selection Committee Constituted under 1985 rules after calling the names from Employment Exchange, the appointment was not made in disregard to the statutory rules – Further, no challange was made to the appointment by any candidate nor appointing authority had questioned the appointment – As far as appointment of appellant till 27.02.1993 is concerned, the order dated 01.01.1993 refers it as an order of re-appointment but in essence it was an order reinstatement of appellant – The Single Judge of the High Court lost sight of the fact that the date 27.02.1993 was mentioned in letter dated 01.01.1993 because of the fact that interim order of 'S' was continued after 3 months, the appellant also had become entitled to continue – Insofar as dismissal on merits, it was dismissed as infructuous by efflux of time without determination of any issue – Also, when 'S' never reverted on his post and continued on his promotional post till his retirement, it was a too technical view that vacancy of his original post came to an end by dismissal of writ petition – The dismissal of the writ petition as infructuous cannot altogether wipe out the right of the appellant to continue on his post of Junior Accounts Clerk on which 'S' never returned in fact – Therefore, Judgment of the Single Judge and Divison Bench of High Court set aside.
Allowing the appeal, the Court
HELD: Whether appointment of appellant on the post of Junior Accounts Clerk on 21.12.1990 was not validly made in accordance with law?
1. There is no denial on the part of the respondents that the names were called from the 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. [Para 23][188-C-D] DIST. BASIC EDUCATION OFFICER
2. 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 'S' on the post of Junior Accounts Clerk on which appellant was working, his services were terminated by order dated 11.11.1992. [Para 24][188-D-E]
3. Thus, the 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. [Para 25][188-F]
Whether by dismissal of Writ Petition 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?
4. A writ petition 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 'S' was cancelled and he was directed to take charge of his original post of Junior Accounts Clerk. [Para 27][189-A-B]
5. Both 'S' and petitioner have filed separate writ petitions challenging 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 consideration, the Court was not informed that Order dated 11.11.1992 with regard to 'S' has already been stayed by the High Court. When the Main Order dated 11.11.1992 with regard to 'S' 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 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 Single Judge in the impugned judgment dated 02.02.2012. [Paras 28 and 29][189-G; 190-C-D] Whether re-appointment 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?
6. By continuance of interim order in favour of 'S' automatically the order in favour of the appellant shall continue and there was no question of his appointment being come to an end. [Para 33][192-D]
7. Thus, letter dated 01.01.1993 cannot be said to be reappointment of the appellant. The order was in essence reinstatement 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 RA-6 and subsequent order issued by Finance and Accounts Officer where date of appointment of appellant has been mentioned as 21.12.1990. [Para 36][192-G-H] Whether by dismissal of writ petition by 'S' 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?
8. It is submitted that writ petition of 'S' has been dismissed as infructuous by efflux of time which is clearly mentioned in the order dismissing the writ petition. The writ petition of 'S' was not dismissed on merits. The writ petition was dismissed as infructuous by efflux of time without determination of any issue. 'S' continued to work on his promotional post till he retired on 29.02.2008. When 'S' 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 'S' never returned in fact. [Para 38][193-C-F] DIST. BASIC EDUCATION OFFICER
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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