R.K.Agrawal, J. - (1.) The present special appeal has been filed by Raghuvendra Babu Mishra against the judgment and order dated 3.9.1997 passed by the learned single Judge in Writ Petition No. 10210 of 1994, wherein the learned single Judge had held that the petitioner is not entitled to regularisation/ substantive appointment on the post of lecturer and had dismissed the writ petition.
(2.) Briefly stated the facts giving rise to the present appeal are as follows : "The appellant-writ petitioner was appointed as a lecturer in Physics in Gandhi Vidya Mandir Inter College, Fatehpur-Etah (hereinafter referred to as the College), on 15.7.1989 in a short-term, vacancy caused by the existing lecturer Rama Nand Mishra proceeding on leave. The appellant-writ petitioner was appointed under the provisions of U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 (hereinafter referred to as the Second Removal of Difficulties Order). His appointment was approved by the District Inspector of Schools on 16.9.1989. He continued to work and received salary from the State exchequer. On 17.1.1994, he received a letter from the Manager of the college stating therein that the leave of Ram Nand Mishra was going to be over on 31.1.1994 and, therefore, he shall be relieved from the post in case Rama Nand Mishra joins. The petitioner approached this Court by filing a writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus directing the opposite parties to pass an order of regularisation as lecturer in Physics in the institution in view of Section 33B, which was inserted in U.P. Secondary Education Services Selection Board Act, 1981 (hereinafter referred to as the Act), which came into force on 7.8.1993. According to the appellant-writ petitioner, the short-term leave vacancy on which he was appointed on ad hoc basis became substantive vacancy, when Rama Nand Mishra did not join the college after the expiry of his leave on 31.1.1994. The District Inspector of Schools did not accept the claim of the appellant-writ petitioner on the ground that the short-term vacancy was converted into a substantive vacancy on 8.2.1990 on which date Rama Nand Mishra was absorbed and confirmed as Head Master in Uchchattar Madhyamik Vidyalaya, Talesra, Aligarh and on the said date, the appellant-writ petitioner ceased to be a lecturer in Physics. The learned single Judge relying upon a Full Bench decision of this Court in the case of Smt. Pramila Misra v. Deputy Director of Education, Jhansi Division, Jhansi and Ors., 1997 AWC (Supp) 466 (FB): (1997) 2 UPLBEC 1329, held that the appellant-writ petitioner ceased to work on the post of lecturer in Physics on 8.2.1990 on which date Rama Nand Mishra, who had gone on leave was finally absorbed and confirmed on the post of Head Master in another institution and further the continuation of the petitioner as lecturer in Physics in the said college after 8.2.1990 was not by virtue of his own right. The learned single Judge further found that the essential requirement for regularisation of service under the newly inserted provisions of Section 33B that the persons, who continued to be in service on 7.8.1993 on which date the new section came into force is lacking in the present case and accordingly, the appellant writ petitioner is not entitled for regularisation. "
(3.) We have heard Dr. R. S. Dwivedi, learned senior counsel assisted by Sri V. S. Dwivedi on behalf of the appellant-writ petitioner and Sri Sabhajit Yadav, learned standing counsel appearing on behalf of the respondents.;