Radhey Shyam Dwivedi vs Dy. Director of Education Varanasi and others

Sudhir Agarwal, J.—Heard Sri K.N. Mishra, learned counsel for the petitioner at length and learned standing counsel for the respondents.The writ petition is directed against the orders dated 26.12.1979 and 22.2.1980 (Annexures-4 and 6 respectively to the writ petition) passed by Deputy Director of Education.

By means of impugned order dated 26.12.1979, the Deputy Director of Education has held that petitioner''s appointment was illegal and not made in accordance with Regulations framed under the Uttar Pradesh Intermediate Education (Amendment) Act, 1971 (hereinafter referred to as ''Act'') hence was not liable to be given the benefit of Section 16GG (1) of the Act for the purpose of regularization.

The petitioner claims that by means of order dated 6.4.1975. the Manager, Kisan Uchchattar Madhyamic Vidyalaya Saidpur. Varanasi (hereinafter referred to as ''Institution'') appointed the petitioner as Assistant Teacher for imparting Education in Junior High-School and High School in the Government Grade. Pursuant to the same, the petitioner claimed to have Joined the institution on the same date. i.e. on 6.4.1975. Thereafter an additional Section was created in Class IX and pursuant thereto and also with regard to Removal of Difficulties Orders dated 18.8.1975 and 28.6.1976. the petitioner was appointed as Assistant Teacher L.T. grade by the Manager vide order dated 29.9.1976. copy whereof has been annexed as Annexure-1 to the Supplementary-Affidavit sworn on 29.7.1980.

Learned counsel for the petitioner contended that after insertion of Section 16GG he sought regularization but the same has been declined by impugned order while other persons have been regularized and in this way he has been discriminated.

The first issue of consideration is whether the petitioner is entitled for the benefit of Section 16GG or not which was inserted by U.P. Act No. 5 of 1977 w.e.f. 21.4.1977 and reads as under:

16GG. Regulation of appointment of ad hoc teachers.-- (1) Notwithstanding anything contained in Sections 16E. 16F and 16FF. every teacher of an institution appointed between August 18, 1975 and September 30, 1976 (both dates inclusive) on ad hoc basis against a clear vacancy and possessing prescribed qualifications or having been exempted from such qualifications in accordance with the provisions of this Act, shall, with effect from the date of commencement of this section, be deemed to have been appointed in a substantive capacity, provided such teacher has been continuously serving the Institution from the date of his appointment up to the commencement of this section.

Explanation. --For the purposes of this sub-section, the period during which any break in service of teacher has occurred between the date of his ad hoc appointment and the date of commencement of this section for any reason not arising out of his misconduct or his own violation shall be disregarded:

Provided that nothing in this section shall be construed as entitling such teacher to any pay or allowance for any such period of break in his service.

(2) Every teacher deemed to have been appointed in a substantive capacity under subsection (1) shall be deemed to be on probation from the date of commencement of this section.

(3) Nothing in this section shall be construed to entitle any teacher to:

(a) substantive appointment on any post if on the date of commencement of this section, such post has already been filled or selection for such post has already been made in accordance with this Act or the regulations made thereunder or

(b) substantive appointment if such teacher was related to any member of the Committee of Management or the Principal or Headmaster of the institution concerned.

Explanation. --For the purposes of this sub-section, a person shall be deemed to be related to another if

(a) they are members of a Hindu undivided family; or

(b) they are husband and wife; or

(c) the one is related to the other in the manner indicated in the (Second Schedule).

A perusal of Section 16GG shows that it contemplates an appointment made between 18.8.1975 and 30.9.1976 (both dates inclusive) which was though ad hoc but made against a clear vacancy. The incumbent so appointed if possess prescribed qualification or exempted from such qualification in accordance with the Act, such person shall be deemed to have been appointed in a substantive capacity with effect from the date of commencement of Section 16GG, provided such person has been continuously serving the institution from the date of his appointment till the date of commencement of the aforesaid section. The crucial period to which the aforesaid provision apply is 18.8.1975 to 30.9.1976 (both dates inclusive). Learned counsel for the petitioner could not dispute that the present petitioner was not appointed on any date covered by the aforesaid period inasmuch as he was admittedly appointed by the Manager of the College on 6.4.1975. A copy of the aforesaid order has been placed on record as Annexure-1 to the writ petition.

That being so, evidently Section 16GG has no application to the case of the petitioner and hence the Deputy Director of Education has rightly declined the benefit of Section 16GG to the petitioner and this Court finds no reason to interfere with the impugned order dated 26.12.1979 (Annexure-4 to the writ petition).

The next impugned order is dated 22.2.1980 (Annexure-6 to the writ petition) whereby the petitioner''s application for review/recall has been rejected. Once this Court finds no error in the order dated 26.12.1979 (Annexure-4 to the writ petition), I have no reason to interfere with the order rejecting review application also.

It is next contended that pursuant to the interim order dated 19.10.1981 passed in this writ petition the petitioner is continuing and receiving salary and, therefore, appropriate protection should be given to him for his continuance pursuant to the interim order passed by this Court. The submission in my view further lacks merit.

Be that as it may. it is well established that act of the Court shall prejudice none. The service rendered pursuant to an interim order would not give any benefit to petitioner. This issue has been considered by a Division Bench of this Court (in which I was also a member) in Smt. Vijay Rani v. Regional Inspectress of Girl''s Schools. Region-1, Meerut and others, 2007 2 ESC 987, and the Court held as under:

An interim order passed by the Court merges with the final order and. therefore, the result brought by dismissal of the writ petition is that the interim order becomes non est. A Division Bench of this Court in Shyam Lal Vs. State of Uttar Pradesh, Lucknow and Others, , while considering the effect of dismissal of writ petition on interim order passed by the Court has laid down as under:

It is well-settled that an interim order merges in the final order and does not exist by itself. So the result brought about by an interim order would be non est in the eye of law if the final order grants no relief. The grant of interim relief when the petition was ultimately dismissed could not have the effect to postponing implementation of the order of compulsory retirement. It must in the circumstances take effect as if there was no interim order.

The same principle has been reiterated in the following cases:

(A) Sri Ram Charan Das Vs. Pyare Lal, .

In Shyam Lal Vs. State of Uttar Pradesh, Lucknow and Others, . a Bench of this Court has held that orders of stay of injunction are interim orders that merge in final orders passed in the proceedings. The result brought about by the interim order becomes non est in the eye of law in final order grants no relief. In this view of the matter it seems to us that the interim stay became non est and lost all the efficacy, the Commissioner having upheld the permission which became effective from the date it was passed.

(B) Shyam Manohar Shukla v. State of V.P. 1986 4 LCD 196

It is settled law that an interim order passed in a case which is ultimately dismissed is to be treated as not having'' been passed at all (See Shyam Lal v. State of Uttar Pradesh) Lucknow, AIR 1968 All 139 and Sri Ram Charan Das Vs. Pyare Lal, .

(C) M/s. Kanoria Chemicals and Industries Ltd. Vs. U.P. State Electricity Board and other, .

After the dismissal of the writ petitions wherein notification dated 21.4.1990 was stayed, the result brought about by the interim orders staying the notification, became non est in the eye of law and lost all its efficacy and the notification became effective from the beginning.

Recently also in Raghavendra Rao Etc. Vs. State of Karnataka and Others Etc., , the Apex Court has observed:

It is now a well-settled principle of law that merely because an employee had continued under cover of an order of Court, he would not be entitled to any right to be absorbed or made permanent in the service.

In view of above discussion. I find no reason to interfere in the matter. The writ petition is accordingly dismissed.