- (1.) THE appellant is in special appeal against a judgment of the learned Single Judge dated 26 March 2015. In the writ petition, which the appellant filed under Article 226 of the Constitution, the appellant sought to question the correctness of an order dated 7 November 2014 passed by the Joint Director of Education, Varanasi Region, Varanasi besides seeking a mandamus for the payment of the arrears of salary from 30 November 1996 until 28 July 2007. The learned Single Judge has held that the appellant was regularised by an order dated 14 February 2007 against a post which had fallen vacant on 16 November 2005. Moreover, in the view of the learned Single Judge, since no post was vacant in the institution prior to that date, the appellant was not entitled to arrears of salary prior to the date of regularisation. Finally, it has also been noted that the termination of the appellant had never been found to be illegal and hence her claim for regularisation was correctly allowed only after a vacancy had arisen on 16 November 2005. In the circumstances, it has been held that this is not a case where the appellant was illegally kept out of employment so as to warrant any grant of arrears of salary, however, continuity of service has been granted.
(2.) INITIALLY , the appellant was appointed on an adhoc basis as an Assistant Teacher. The post was notified for regular appointment. The post was notified as a reserved post for a Scheduled Caste candidate, who was eventually recommended for appointment on 4 November 1996. Pursuant to the selection of that candidate, the engagement of the appellant came to an end. The appellant, initially filed a writ petition, which was disposed of on 11 January 2002 with a direction to the Regularisation Committee to reconsider the case of the appellant for regularisation. When the claim was rejected on a second occasion, the appellant filed a writ petition, in which a final order was passed on 7 August 2006, directing the Regularisation Committee to reconsider the case in light of the earlier judgment dated 11 January 2002. Pursuant thereto, the Regional Level Committee passed an order on 14 February 2007, allowing the claim of regularisation with effect from 16 November 2005, when a post had fallen vacant on the resignation of the regular incumbent. The appellant then filed a writ petition seeking the fixation of her salary and arrears, which was disposed of by directing a decision on the representation. In pursuance thereof, an order was passed on 7 November 2014 by the Joint Director of Education holding that the appellant should be paid her salary until 29 November 1996 when her services had been terminated. The appellant had not worked between 30 November 1996 and 28 February 2007 and it was only in pursuance of the order dated 14 February 2007 that she assumed charge on 1 March 2007. On these grounds, the claim for payment of arrears between 1996 and 2007 was rejected.
(3.) LEARNED counsel appearing on behalf of the appellant submitted that in terms of the order of the learned Single Judge dated 11 January 2002, her claim for regularisation ought to have been considered either in respect of the same institution or if no sanctioned post was available, by absorbing her against a vacant post in the same district. In assessing the merits of the submission, there are a number of difficulties in the way of the appellant in seeking the relief as sought. Firstly, the appointment of the appellant came to an end on 29 November 1996. The post which was occupied by the appellant on an adhoc basis was filled up by a regularly selected candidate from the reserved category. This order of termination was never set aside and attained finality. The appellant was agitating her right to regularisation. Eventually, the appellant was regularised once a vacancy arose in the institution in the month of November 2006 and an order was passed on 14 February 2007. It is not the case of the appellant that prior to the order of the Regional Level Committee there was any vacant post in the institution against which she could have been regularised nor was any factual material established before the Court to indicate that any other vacant post was available against which she could have been regularised. In this background, while the learned Single Judge declined to grant the prayer for arrears, some limited relief has been granted in favour of the appellant by granting her continuity of service in pursuance of the order of regularisation dated 14 February 2007. This direction of the learned Single Judge would, in our view, meet the ends of justice.;