A.M. Hussain vs Deputy Director of Education Vllth Region Gorakhpur and Ors.

D. K. Seth, J.—The petitioner was appointed in short terms leave vacancy on 3.1.1995, pursuant to which he had joined on 411995. The letter of appointment and the report of joining are Annexures1 and 2 respectively. The appointment of the petitioner in the short terms vacancy was approved by the District Inspector of Schools, Maharajganj from time to time which are Annexures3, 4, 5 and 6 respectively. The appointment was made in the place of one Sri Rama Nand Pandey who went on leave without pay. By an order dated 9101996 which is Annexure8 to the writ petition as translated at the Bar, it appears that from reliable source it was learnt that the said Sri Ramanand Pandey had been working in the office of the District Inspector of Schools, Gorakhpur and had been drawing his salary thereand the enquiry with regard thereto has been made to the District Inspector of Schools, Gorakhpur, but no information had been forthcoming from him. Until such report comes the petitioner''s payment of salary was directed to be stopped. The petitioner made a representation on 11th October, 1996, (Annexure9 to the writ petition). On the other hand by an order dated 5111996 (Annexure10 to the writ petition) addressed to the manager of the school, the District Inspector of Schools has asked for requisition from the school for appointment in the vacancy resulted on account of the tendering of resignation by the said Sri Rama Nand Pandey. In the said letter as translated at Bar it has been alleged that the said Sri Rama Nand Pandey had been receiving salary in the office of the District Inspector of Schools, Gorakhpur since 1994, though he was on leave without pay from the said school in the post of Assistant Teacher.

In July 1996, the said Sri Rama Nand Pandey had submitted his resignation. Concealing the said fact the petitioner was appointed in the place of the said Sri Ramanand Pandey. The appointment of the petitioner was continued even after submission of the resignation of Ramanand Pandey. Concealing the fact of such resignation the extension of approval of appointment of the petitioner was obtained on 23796, upon showing the vacancy to be a short term leave vacancy. Therefore, the manager was asked to submit his explanation by 26.7.96, at the same time the respondent has asked to send requisition on account of such vacancy,

The learned counsel for the petition contends that the petitioner was in no way concerned or connected with the alleged suppression. It is not known to the petitioner as to whether any information was available to the school authority that the said Sri Ramanand Pandey was working elsewhere or not. In any event, he is in no way concerned with the same. He contends further that there was no scope for petitioner''s knowledge about the resignation of Sri Ramanand Pandey. How the extension was sought for is the business of the school authority. The petitioner has no knowledge about the same. Therefore, he cannot suffer on account of the irregularity on the part of the school authority. He contends further that since he has been appointed immediately after the said Sri Rama Nand Pandey had gone on leave, there has no question of his initial appointment being irregular or illegal. He relies on the decision of the case of Km. Meena Singh v. District Inspector of Schools, Jaunpur reported in 1994(3) UPLBEC 1653, in support of his contention that even if the leave vacancy is converted into a regular vacancy, the respondent cannot replace the petitioner an ad hoc appointee by another ad hoc appointee. By reason of the ratio decided in the said case the adhoc appointment so made would continue till a regular selection is made by the Commission.

Mr. Verma, learned standing counsel on the other hand contends that since the appointment of the petitioner was obtained by concealment of fact collusively and the petitioner was a party to the collusion the appointment was illegal and irregular and, therefore, the order passed by the respondents are legal and valid. The petitioner cannot obtain any benefit out of such irregularity and illegality. According to him, therefore, the writ petition is liable to be dismissed.

Now the facts remains that though in Annexure10 it is pointed out that the said Sri Rama Nand Pandey is receiving salary since 1994 but the specific date has not been indicated therein. Admittedly, Sri Ramanand Pandey was on leave without pay wherein the petitioner was engaged on 311995. On the records it is not available as to when the said Sri Rama Nand Pandey had gone on leave and what was the reason for his going on such leave. It is also not available on record as to whether the school authority was in possession of the information that the said Sri Rama Nand Pandey was working in the office of the District Inspector of Schools, or not. Even if, it is assumed that the school authority had such an information in that even, unless the service of the said Sri Ramanand Pandey comes to an end or a resignation is tendered by him, the vacancy continues to be a shortterm vacancy where an appointment could be made. Now, if there is any irregularity or illegality in the appointment of the petitioner and if the petitioner is a party to the collusion, the same is a different question open to be decided by the respondent if they are so advised in appropriate manner. The respondents may also proceed with the enquiry or to showcause that has been issued to the school authority by means of Annexure10 to the writ petition. They will be free to proceed in accordance with law and take appropriate steps on the basis there of if already not taken.

The said question is altogether different from the question of continuation of the petitioner on ad hoc appointment. Until a decision is arrived at in the said process in appropriate manner, there is no scope for dispensing with the service of the petitioner. In view of the decision of this Court in the case of Km. Meena Singh (supra) wherein it has been held that in case where during continuation of a short term vacancy a regular vacancy occurs on that basis and the short term vacancy becomes a regular vacancy, in that event, the ad hoc appointee may not be replaced by another ad hoc appointee. Relying on the ratio decided in the said case the petitioner''s appointment cannot be discontinued except otherwise on a specific finding upon an appropriate enquiry after giving him an opportunity that the petitioner was in any manner guilty in obtaining the appointment through collusion or otherwise. Therefore, the order dated 9th October, 1996 (contained in Annexure8 to the writ petition). So far as the stoppage of salary of the petitioner is concerned, is suspended till the appropriate decision is arrived at by the respondents pursuant to the order (contained in Annexure10 to the writ petition), The respondents shall continue to pay salary to the petitioner so long such decision is not arrived at. The payment of salary shall be subject to such decision as well as the selection for appointment made pursuant to the requisition made in compliance with the order (contained in Annexure10) This order shall, however, not prevent the respondents from proceeding with the order contained in (Annexure10 to the writ petition) if not already complied with in accordance with law. Necessary directions are accordingly issued. The writ petition is, thus, disposed of. There will, however, be no order as to costs.

Certified copy of this order shall be furnished to the learned counsel for the parties on payment of usual charges with in a week.