SHASHI GUPTA Vs. DEPUTY DIRECTOR OF EDUCATION IIND FIRST REGION MEERUT
LAWS(ALL)-2009-4-85
HIGH COURT OF ALLAHABAD
Decided on April 27,2009

SHASHI GUPTA Appellant
VERSUS
DEPUTY DIRECTOR OF EDUCATION (IIND), FIRST REGION, MEERUT Respondents

JUDGEMENT

Sudhir Agarwal, J. - (1.) THE writ petition is directed against the order dated 25.3.1994 passed by the Deputy Director of Education-II, Meerut Region, Meerut holding termination of the petitioner after conversion of the leave vacancy into substantive vacancy finding that neither the petitioner is entitled for regularization nor can be adjusted against the substantive vacancy caused on account of Smt. Prabha Kumari proceeding on leave initially from 19.8.88 to 14.2.89 which was extended upto 31.12.1991 due to extension of leave by Smt. Prabha Kumari from time to time but, thereafter, when Smt. Prabha Kumari submitted her resignation, the vacancy became substantive and the Management, accordingly, passed an order terminating the services of the petitioner. An appointment made against a short term vacancy need to follow a different procedure provided under Second Removal of Difficulties Order while in case of a substantive, the procedure for recruitment is provided under First Removal of Difficulties Order. This Court in Surendra Kumar Srivastava Vs. State of U.P. and others 2007 (1) ESC 118 (Alld) (DB) held that a person, who has been appointed against a short term vacancy on the post of Assistant Teacher cannot be adjusted against the vacancy which became substantive later on, but he has to undergo a fresh process of recruitment in accordance with procedure prescribed for filling the substantive vacancy on ad hoc basis subject to recruitment by Commission. THE Court, after giving an anxious consideration to the issue, in Surendra Kumar (Supra) held as under : ".......................we do not find any provision which directly or even indirectly vests a right in a person appointed 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 place. THE contention raised on behalf of the respondents 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 does not get any support from the statutory provisions and, therefore, cannot be accepted. THE contention is also not acceptable for the reason that it runs counter to the intendment of the provisions of the Act, Rules and Regulations. We should not be understood to be saying that an ad hoc teacher in a short-term vacancy cannot be appointed in a substantive vacancy. He can be appointed in the substantive vacancy if he is selected in accordance with the procedure and in the manner laid down in the relevant provisions of the Acts, Rules, Regulations and Removal of Difficulties Orders. What we want to stress and which is clear to under section is that he cannot claim as a matter of right that he is entitled to continue in the post till the candidate selected by the Commission/Board joins even if the short term vacancy has ceased and a substantive vacancy in the post of teacher has been created in its place." THE Court further said that "we are of the considered opinion that an ad hoc appointee against the short term vacancy would seize on cessation of short term vacancy for any reason whatsoever including where vacancy is converted into a substantive one. In such a case, the appointment, therefore, whether ad hoc or regular has to be made in accordance with the provisions contained in 1982 Act read with the Rules and Regulations framed thereunder. We have observed that Section 33-E of 1982 Act inserted by Amendment Act of 1999 came into force on 25th January 1999 has rescinded First, Second, Third and Fourth Removal of Difficulties Orders issued under 1982 Act and, thereafter, now the ad hoc appointment, if any, can be made only in accordance with the provision of Section 18 of 1982 Act and not otherwise." I, therefore, do not find any fault in the order impugned in this writ petition. THE petitioner has no right to continue after the vacancy became substantive. THE writ petition lacks merit and is, accordingly, dismissed.;


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