- (1.) D. K. Seth, J. On account of sub stantive vacancy in certain posts advertise ment was issued pursuant to which the petitioner was selected. Though, she was not trained graduate yet she was given appointment with the approval of Regional Inspectress of Schools, 7th Region, Gorakhpur, w. e. f. 7-9-1974. It ap pears that the appointment was given only for the year 1974-75. Subsequently by an order dated 7-11-1975 she was again given appointment for a period of six months and her appointment was subsequently ex tended upto 15-11-1976. All these ap pointments and extensions were granted with the approvals of the Regional In spectress of Girls Schools as is apparent from the different Annexures annexed in the writ petition as well as counter-af fidavits filed on behalf of the Committee of Management and that of the State. Thus, the facts remains that the petitioner was appointed before 30-6-1975 and con tinued till 15- 11-1976. Sri P. N. Roy, learned Counsel for the petitioner relying on the U. P. Secondary Education Laws (Removal of Difficulties Order (Fifth), 1976 contends that by reason of para 3 of the said Order, the petitioner is entitled to be appointed in substantive capacity. Therefore, by no means her services could be dispensed with as has been sought to be done since 16- 11-1976. Since then she has not been paid her salary. Upon the writ petition being moved by an order dated 22-1-1981, the respondents were directed to pay her salary and it was open to the respondents not to take work from the petitioner. The said interim order is sought to be vacated but by an order dated 12-11-1981, the interim order was not va cated. The learned Counsel for the petitioner contends that she has been paid her salary pursuant to the said interim order since then. But she has not been allowed to work in the school. The said situation has been allowed to continue till today.
(2.) THE delay in moving the writ peti tion in 1980 has been explained by the learned Counsel for the petitioner that several representations were being moved by her and she was expecting an order on the basis thereof. But the first repre sentation, which is Annexure 1 to the writ petition, appears to have been made on 8-4-1980 and the next one was 21-10-80. On the basis of said representations and the report was submitted on 3-5-1980, which is Annexure 4 to the writ petition, wherein the Regional Inspectress of Girls Schools had pointed out that the petitioner should have been treated to have been substantively appointed for the year 1975-76, her salary should have been paid after 15-11-1976, therefore, ap propriate steps may be taken in that regard. Though, it appears that the petitioner did not take steps right from 1976 till April, 1980, but the respondents themselves by its own report contained in Annexure 4, which is dated 3-5-1980, had accepted the contention of the petitioner. Therefore, on the ground of delay, laches or negligence, the writ petition cannot be thrown away. Para 3 of the Fifth Removal of Difficulties Order, 1976 relied upon by the Counsel for the petitioner specifies as fol lows :- "3. Where any person was appointed by the Committee of Management as a teacher on or before June 30, 1975 for any period as a temporary measure with the approval or permission of the Inspector and such person has worked thereafter up to November 15,1976, he shall be deemed to have been appointed in a substantive capacity: (a) in case the appointment was initially made in a clear vacancy, from the date of ap pointment ; (b) in case the appointment was initially made in a leave vacancy or a vacancy occurring for a part of the session or otherwise then in clear vacancy, from the date when such vacancy as sumed the character of clear vacancy; (c) in case the appointment was initially made on a post, the creation of which was sanc tioned subsequently by a competent authority in that behalf from the date of such sanction; (d) in case he did not possess the prescribed training qualifications at the time of initial appointment from the date of acquisition of such training qualification: Provided that in cases referred to in sub-clauses (a), (b) and (c), such person possesses the prescribed qualification or has been ex empted from the requirements of minimum qualifications and was duly selected and ap pointed in accordance with law for the time being in force. Explanation.-The period during which any such teacher has, between the date of his appointment and November 15,1976, ceased to work for any reason not arising out of his own request shall not continue a break into service for purposes of this clause. "
(3.) A reading of the said para clearly indicates that person appointed by the Committee of Management as teacher with the permission of the Inspectress of Girls Schools on or before 30-6-1975 for any period even as temporary measure and if such person has worked thereafter till 15-11-1976, then such person shall be deemed to nave been appointed in a sub stantive capacity and the date of such ap pointments shall be the date on which, if such person is untrained, he acquires such training/qualifications. Though, it is al leged that the petitioner did not work con tinuously and there were never breaks in her service but by reason to the explana tion given above such breaks having not been due to the petitioner's own request, do not constitute break of the service for the purpose of para 3. Now in the present case, the petitioner was appointed before June 30, 1975. The breaks were not due to the re quest of the petitioner, it is also not the case made out in the counter-affidavit. Ul timately the petitioner continued till 15-11-1997. She had not continued After 16-11-1976. Therefore, she satisfied the test and the ingredients as laid down in para 3 of the said Fifth Removal of Difficulties Order, 1976 read with the explanation referred to above.;