- (1.) O. P. Garg, J. Counter and rejoinder-affidavits have been filed. Heard Sri V. S. Dwivedi, learned Counsel for the petitioner and the learned Standing Coun sel on behalf of the respondent No. 1.
(2.) IN the short term leave vacancy, which had arisen on account of proceeding on leave by one Sri Ramanand Misra, who was a Lecturer in Physics in Gandhi Vidya Mandir INter College, Fatehpur (Etah), the petitioner Raghuvendra Babu Misra was appointed on 15-7-1989 under the provisions of U. P. Secondary Education Service Commission (Removal of Dif ficulties) (Second) Order, 1981. The ap pointment of the petitioner was duly ap proved by the District INspector of Schools (for short 'digs') on 16-9-1989. The petitioner was paid the salary and he continued to work. On 17-1-94, the petitioner received a letter from the Manager of the institution stating there in that the leave of Sri Ramanand Misra was going to be over on 31-1-1994, and, there fore, the petitioner shall be relieved from the post in case Sri Ramanand Misra joins. The case of the petitioner is that under the newly added provisions of Sec tion 33-B in U. P. Secondary Education Service Commission Act, 1981, which came into force w. e. f. 7-8-1993, his ad-hoc appointment in short term vacancy is li able to be regularised. The petitioner, therefore, prays that the respondents be directed to regularise his services as leeturer in Physics and that they be also com manded to pay arrears of increment since the year 1989. The respondent No. 1 has challenged the stand taken by the petitioner. It is alleged that the short term vacancy was converted into a substantive vacancy on 8-2- 1990 on which date, Sri Ramanand Misra was absorbed and con firmed as Head Master in Ucchattar Madhyamik Vidhyalaya Talesra (Aligarh) and that on the said date, the petitioner ceased to be a Lecturer in Physics. Learned Standing Counsel placed reliance on a recent decision of the Full Bench of this Court reported in (1997) 2 UPLBEC 1329, Smt Pramila Misra v. Deputy Director of Education Jhansi Division Jhansi and Ors. , wherein it was held that in case of ad hoc appointment in a short term vacancy, paragraph 3 of the Second Order specifically lays down that the appointment will come to an end if the short term vacancy otherwise ceases to exist. The Full Bench further observed: "it follows, therefore, that when a vacancy caused due to grant of leave to or suspension of the permanent incumbent becomes a substan tive vacancy on account of his death, resignation or termination or removal from service, the short term vacancy ceased to exist and a substan tive vacancy is created in its place. " It was further observed: "there appears to be no provision which directly or even indirectly vests a right in a per son appointed as an ad hoc teacher in a short term vacancy to continue even after the said vacancy has ceased to exist and a substantive vacancy has been created in its placed. "
(3.) THE Full Bench rejected the con tention raised on behalf of the respon dents that such an appointee (in short term vacancy) is entitled to continue in the post (substantive vacancy) till a candidate selected by the Commission/board joins the post. In view of the decision of the Full Bench in the case of Smt. Pramila Misra (supra), the petitioner ceased to work on the post of Lecturer in Physics on 8-2-1990 on which date Sri Ramanand Misra who had gone on leave was finally absorbed and confirmed on the post of Head Master in another institution. Learned Counsel for the petitioner further urged that the petitioner is entitled to be regularised in service in view of the newly added provision contained in Sec tion 33-B as on the date on which the said amendment came into force, i. e. on 7-8-1993, the petitioner was working as Lec turer in Physics. Learned Standing Coun sel pointed out that after the cessation of employment of the petitioner on 8-2- 1990, his subsequent continuance cannot be reckoned for the purpose of regularization of service as his continuance was un authorised and, at best, on account of mercy of the management. In support of his contention the learned Standing Counsel placed reliance on a decision of Supreme Court reported in JT1997 (4) SC 572, Committee of Management, Arya Nagar Inter College, Arya Nagar, Kanpur through its Manager and another v. Sree Kumar Tewary and another. On the authority of the aforesaid ruling, the con tinuance of the petitioner on the post of Lecture in Physics after 8-2-1990 was not by virtue of his own right. Therefore, one of the essential requirements for regularization of services under the newly engrafted provision of Section 33-B that the petitioner should continue to be in service on 7-8-1993, on which date the amended Section came into being, is lack ing as the petitioner, on legal matrix, ceased to be a Lecturer in Physics w. e. f. 8-2-1990. The services of the petitioner, therefore, cannot be regularised under the provisions of Section 33-B of the Act.;