MAHESH CHANDRA TRIPATHI,J. - (1.) The special appeal nos.1300 of 2013; 1297 of 2013; 1298 of 2013 and 1299 of 2013 have been preferred against the common judgment and order dated 16.5.2013 passed by learned Single Judge by which Writ Petition No.18046 of 1985; 2775 of 1986; 22891 of 1989; 50312 of 2010 , 18696 of 2012 and 24051 of 2013 were decided and the order of regularisation dated 31.7.2010 passed by Regional Selection Committee in favour of appellant-fifth respondent (Ram Mani Pandey) was set aside. The operative portion of the judgment dated 16.5.2013 is quoted as under:- "It is no doubt true that the appointment of Ram Mani Pandey against short term vacancy is on or before May, 14 1991 and, therefore, Section 33-B is attractive to that extent only. Heavy reliance has been placed by the petitioner on the Enquiry Report on the basis of which it is claimed that he has been continuously working since 1984. However, from the records this Court is satisfied that Ram Mani Pandey had actually not worked continuously since his initial appointment in the institution. It is the case of Ram Mani Pandey himself in Civil Misc. Writ Petition No. 2775 of 1986 that he has not been permitted to work as L.T. Grade teacher in the institution after 18.10.1985 and that he was giving his attendance in the office of the District Inspector of Schools. It may also be recorded that between 1985 to 1995 there was no interim order operating in favour of Ram Mani Pandey in any of the writ petitions permitting him to continue in the institution. It is also admitted on record that for this period between 1985 to 1994 i.e. for nearly ten years, he has not been paid salary from the State exchequer which fact is admitted by the counsel for Ram Mani Pandey today in open Court. In such circumstances it cannot be said that despite having not worked for nearly 10 years, Ram Mani Pandey can be treated to be in continuous service in terms of Section 33-B (c) so as to be eligible for regularization. It has to be kept in mind that admission is the best piece of evidence. The enquiry report relied upon by Ram Mani Pandey is based more on assumption than on hard facts qua actual working of Ram Mani Pandey in the institution between 1985 to 1994. In the totality of the circumstances on record, this Court finds that the case of the petitioner is neither covered by Section 33-F nor is covered by Section 33-B. Therefore, the order regularizing the petitioner cannot be legally sustained. It is admitted on record that the vacancy in L.T. Grade had became substantive on 28.11.2008 with the regularization of Har Prasad Pandey as Lecturer (Civics). Therefore, the services of the petitioner have come to an automatic end in view of the law laid down by the Division Bench of this Court in the case of Surendra Kumar Srivastava v. State of U.P. and others reported in 2007 (1) ESC, 188 (Alld.). Writ petition filed by the Committee of Management No. 50312 of 2010 is allowed. Order of regularization dated 31.07.2010 passed by the Regional Selection Committee is hereby set aside. The services of Ram Mani Pandey have come to an end by operation of law on 28.11. 2008. Therefore, no mandamus as prayed for in Civil Misc. Writ Petition No. 24051 of 2013 and in Civil Misc. Writ Petition No. 22891 of 1989 need be granted as Civil Misc. Writ Petition No. 18696 of 2012 is rendered infructuous. All these writ petitions stands decided accordingly."
(2.) Special Appeal No.1847 of 2010 has been preferred against the judgment and order dated 31.3.2010 passed by learned Single Judge in Writ Petition No.19691 of 2005 (Hari Prasad Pathak and Anr. v. State of U.P. and Ors.) as well as the consequential order dated 31.7.2010 passed by Regional level Committee, Basti Region, Basti by which the service of fourth respondent (Ram Mani Pandey) had been regularized since 31.12.1984. The operative portion of the judgment 31.3.2010 is quoted as below:- "Having heard learned counsel for the parties and keeping in view the background of the litigation, it is evident that the petitioners' claim on the post in question had earlier been rejected under the judgment of this Court dated 08.09.1987. The said judgment records the dispute in relation to the appointment of Hari Prasad Pathak-petitioner no. 1 and consequently on that strength the Court came to the conclusion that the petitioners' appointment came to an end as Hari Prasad Pathak stood reverted. The petitioner no. 2-Ram Mani Pandey had admittedly been appointed against a short term vacancy caused due to the appointment on ad hoc basis of the petitioner no. 1-Hari Prasad Pathak. The appointment of Hari Prasad Pathak was approved on 7th October, 1983. The petitioner no. 2, who was appointed against the said short term vacancy, was approved by the District Inspector of Schools, vide order dated 31.12.1984. The order dated 31.12.1984 has neither been cancelled nor rescinded. It is admitted that no candidate of the Commission has been appointed against the said post and, therefore, the said approval continued in between. Hari Prasad Pathak has filed a couple of writ petitions, in which orders were passed on an interim basis but the writ petitions did not finally grant any relief to him. The fact remains that Hari Prasad Pathak continued on the promoted post in spite of the judgment dated 08.09.1987 due to orders passed in his favour in the subsequent writ petitions. The petitioner no. 2 was also favoured with the orders and the interim order was passed in the present writ petition on 24.07.1995 restraining the respondents from interfering with the petitioners' functioning in the institution and their payment of salary. This order was also in favour of the petitioner no. 1-Hari Prasad Pathak. The fact relating to the dismissal of the writ petition dated 08.09.1987 has been clearly stated in paragraph 10 of the writ petition. The interim order, therefore, was granted after taking notice of every relevant fact the subsequent event of regularization of the petitioner no. 1 has taken place during the pendency of the present writ petition. It is in this context that the writ petition was dismissed as infructuous as against the petitioner no. 1. The fact of regularization of Hari Prasad Pathak has been admitted in paragraphs 4, 5 and 12 of the counter affidavit filed on behalf of the Committee of Management. The regularization order dated 28.11.2008 has also been filed by the Management as annexure 6 to the counter affidavit. The said order has not been challenged nor has it been set aside till date. The regularization, therefore, in relation to Hari Prasad Pathak is complete and it has been accepted by the Committee of Management. In such a situation, neither the Committee of Management nor the Educational Authorities can now be permitted to turn around and question the same. They cannot be allowed to probate and approbate. The appointment and regularization of the petitioner no. 1-Hari Prasad Pathak is final even though the petition on his behalf has been dismissed as infructuous on 03.09.2008. As a matter of fact, the Committee of Management does not dispute the regularization of Hari Prasad Pathak. Once the fate of Shri Hari Prasad Pathak becomes undisputed then there is no occasion to dispute the claim of the petitioner no. 2. The petitioner no. 2 has continued and he has also been paid his salary. Whether he deserves to be regularized or not has to be seen by the Regional Level Committee and not by this Court. Accordingly, in view of the facts as brought out herein above, the writ petition is disposed of with liberty to the petitioner no. 2-Ram Mani Pandey to represent his claim with regard to the regularization before the Competent Authority, who shall decide the same within three months from the date of presentation of a certified copy of the order. Till such decision is taken, the petitioner shall continue to get the benefits under the approval order dated 31.12.1984 as continued by the order of this Court dated 31.07.1995."
(3.) The operative portion of the consequential order dated 31.7.2010 passed by Regional level Committee, Basti Region, Basti by which the service of fourth respondent (Ram Mani Pandey) had been regularized since 31.12.1984 is also quoted as under:-...[VERNACULAR TEXT OMITTED]...;