Ferdino Inacio Rebello, C.J. - (1.) THIS is an appeal against an interim order dated 07.10.2010 by which a learned Judge of this Court has stayed the operation of order dated 10th August, 2010 passed by the Secretary, U.P. Secondary Education Service Selection Board, Allahabad. Learned Counsel for the Appellant, however, contends that the effect of the stay granted virtually ousts the right of the Appellant herein from being appointed to the post and, therefore, the appeal along with the writ petition ought to be heard finally.
(2.) BY consent of the counsel who are present and as no adverse order would be passed against Respondent No. 1 as also Respondent No. 6 after hearing the matter, we propose to dispose of this appeal as also the writ petition finally at this stage. A few facts are necessary for determining the controversy involved this appeal. The case of Respondent No. 1 is that he was appointed on 30.07.2008 under the provisions of the U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as the 'Rules 1974') in the institution. The vacancy in the said School had arisen on 30.06.2008 and requisition for filling up the said vacancy was, however, sent on 05.05.2008, i.e. before the vacancy had arisen. The District Inspector of Schools, vide letter dated 30.07.2008 itself had informed the U.P. Secondary Education Service Selection Board, Allahabad, (hereinafter referred to as the 'Board') not to advertise and fill up the said vacancy in the school as the same had been filled up under the Rules 1974. In spite of that, the Board proceeded to select candidate against the said post and by order dated 24.09.2010, the Secretary of the Board directed the District Inspector of Schools to ensure that the Appellant be allowed to join in the school in spite of the fact that there was no vacancy.
(3.) ON behalf of Respondent No. 1, it was contended that the Appellant can be adjusted in some other school in view of the provisions of Rule 13 (5) of the U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as the 'Rules 1998'). It was submitted before the learned Single Judge that equity and law both are in favour of Respondent No. 1 as he was appointed against a substantive vacancy and his services cannot be terminated. The learned Single Judge, finding that the equity and law both are in favour of Respondent No. 1, was pleased to stay the operation of order dated 10th August, 2010 by which the Secretary, U.P. Secondary Education Services Selection Board, Allahabad -Respondent No. 5, had directed that the Appellant be allowed to join the post.;