Introduction:
The Allahabad High Court has ruled that a statutory provision meant to regularise teachers appointed against genuine short-term vacancies cannot be used to legitimise an appointment where the very vacancy on which the appointment was based was found to be fraudulent or unlawfully created. The Court held that Section 33-F of the U.P. Secondary Education Services Selection Board Act, 1982 cannot become a mechanism for conferring substantive employment rights upon a person whose initial appointment itself had no lawful foundation.
A Division Bench comprising Chief Justice Arun Bhansali and Justice Kshitij Shailendra delivered the judgment in Subhash Chandra Tyagi v. State of U.P. and others. The Court dismissed the special appeal and declined to grant relief to the appellant, holding that the alleged short-term vacancy and his appointment against it were fraudulent from their inception. It further upheld the recovery of salary paid to the appellant from the State exchequer.
The dispute arose from Shastri Smarak Inter College, Ahmad Shahpur, District Baghpat, a recognised and aided institution. The appellant claimed that a short-term vacancy had arisen in the LT Grade when an Assistant Teacher, Ved Prakash Harit, allegedly proceeded on leave without pay for two years with effect from September 9, 1992. According to the appellant, the Authorized Controller of the institution issued a notice inviting applications on November 24, 1992, following which he was appointed on December 18, 1992.
The appellant’s case was that the appointment was made against a genuine short-term vacancy and that approval of the District Inspector of Schools, Baghpat was deemed to have been granted. However, when the appellant did not receive salary, he approached the High Court. An interim order permitted him to continue while directing the District Inspector of Schools to examine the question of approval.
On May 23, 1995, the then District Inspector of Schools, S.S. Rawat, approved the appellant’s appointment in the pay scale of Rs. 1,400-2,300, subject to the condition that the appointment would come to an end upon the return of Harit. The appellant thereafter continued to work and receive salary from the State exchequer.
The matter, however, remained pending before the High Court for several years and eventually came up for final hearing in 2010. By that stage, serious doubts had emerged regarding the existence of the alleged short-term vacancy itself. The District Inspector of Schools filed an affidavit stating that the institution had not produced any leave application, service book or salary bills relating to Harit. The office of the District Inspector of Schools also had no such records.
There was also no material showing that Harit had actually returned to service after the alleged leave period or had made any application concerning his employment. More significantly, his name was not found in the salary bills for the relevant period. These circumstances raised a fundamental question as to whether Harit had ever been a genuine employee whose absence could have created a short-term vacancy.
The doubts concerning the appointment were compounded by the conduct of the then District Inspector of Schools, S.S. Rawat. The Court was informed that a State Government order dated March 24, 2009 had ordered forfeiture of his entire gratuity and permanent deduction of half of his pension after charges against him of facilitating 96 fraudulent appointments during his tenure at Meerut were established.
The writ Court consequently directed the management and the appellant to produce material demonstrating that Harit had ever received salary from the State exchequer. Instead of producing such evidence, counsel for the appellant stated that he did not wish to file a reply and that the writ petition had become infructuous.
The writ Court found that Harit’s name did not appear in the salary bills between 1991 and 1993. It therefore dismissed the petition as infructuous and discharged the interim order. The consequence was that the appellant’s service came to an end.
The appellant challenged that decision before a learned Single Judge, but the challenge failed. The Single Judge also directed recovery of Rs. 2,16,000 from the appellant, calculating the amount at Rs. 1,000 for every month during which he had drawn salary from the State exchequer. The amount was made recoverable as arrears of land revenue in case of default.
The matter consequently reached the Division Bench in the form of a special appeal.
At the heart of the dispute was Section 33-F of the 1982 Act. The provision provides a statutory mechanism for regularisation of certain appointments made against short-term vacancies during the specified period between May 14, 1991 and August 6, 1993, where the vacancy subsequently becomes substantive and the statutory requirements for regularisation are satisfied. Sub-section (4) further provides for cessation of appointment where the teacher is found unsuitable or ineligible.
The appellant sought to rely upon this statutory framework to contend that his appointment deserved substantive recognition. The Division Bench, however, held that the statutory benefit presupposes a legally existing short-term vacancy and a lawful appointment against that vacancy. It cannot operate where the vacancy itself was fabricated or fraudulently brought into existence.
The judgment therefore addresses a broader question concerning public employment: whether a person can acquire a statutory right to regularisation merely by pointing to a provision designed to regularise a particular category of appointments when the foundational facts necessary to invoke that provision are themselves fraudulent.
The Court answered the question emphatically in the negative.
Arguments of the Parties:
The appellant contended that his appointment had been made against a short-term vacancy created by the alleged leave of Ved Prakash Harit. According to him, Harit had proceeded on leave without pay for two years from September 9, 1992, thereby creating the vacancy against which the appellant was appointed.
The appellant relied upon the vacancy notice issued by the Authorized Controller on November 24, 1992 and the subsequent resolution dated December 6, 1992. He maintained that he had undergone the process of selection contemplated for filling the short-term vacancy and had thereafter been appointed on December 18, 1992.
It was further argued that the District Inspector of Schools had approved the appointment on May 23, 1995. According to the appellant, that approval gave legal recognition to his appointment and entitled him to continue in service until the vacancy was otherwise dealt with under the applicable statutory framework.
The appellant also sought to rely upon the fact that he had continued in service for a considerable period and had received salary. His case was that the authorities could not, after permitting him to work and paying him from public funds, subsequently treat the appointment as wholly invalid.
In substance, the appellant sought to derive benefit from Section 33-F and the statutory scheme governing regularisation of teachers appointed against short-term vacancies. He argued that his appointment fell within the relevant period and that the vacancy subsequently attracted the statutory provisions concerning substantive appointment.
The appellant also challenged the recovery of salary. He contended that he had performed duties pursuant to the appointment and had continued in service under the protection of court orders and administrative approval. Therefore, according to his case, recovery of the salary already paid to him would be inequitable.
The appellant further questioned the basis on which the authorities had subsequently concluded that the vacancy itself was not genuine. He relied upon the official approval granted by the District Inspector of Schools and the passage of several years during which he continued to work.
The respondents, however, disputed the very foundation of the appellant’s claim. Their case was that there was no reliable evidence establishing that Ved Prakash Harit had actually proceeded on leave in the manner alleged or that his absence had created a genuine short-term vacancy.
The respondents pointed out that no leave application of Harit was available. His service book and relevant pay bills were also not produced. The office of the District Inspector of Schools had no corresponding record demonstrating that Harit had been on sanctioned leave.
More significantly, there was no material establishing that Harit had ever received salary from the State exchequer during the relevant period. His name was absent from the salary bills for 1991 to 1993. In the respondents’ submission, this made the alleged vacancy highly suspect.
The respondents also relied upon the circumstances surrounding the approval granted by the then District Inspector of Schools, S.S. Rawat. The State Government had subsequently taken disciplinary action against Rawat after finding charges relating to his facilitation of 96 fraudulent appointments to be proved. This fact, according to the respondents, seriously undermined the evidentiary value of the approval granted by him.
The respondents therefore contended that the appellant could not use the official approval as a shield when the surrounding material demonstrated that the approval itself had been granted without proper verification.
The respondents further argued that the vacancy notice and selection process did not establish a lawful appointment. The Court noticed that the appellant did not belong to a reserved category, yet he was selected on the reasoning that no reserved category candidate had appeared. The respondents submitted that the absence of a reserved category candidate could not itself transform an otherwise defective selection into a lawful appointment.
The State’s position was ultimately that a statutory regularisation provision cannot cure fraud. Section 33-F, according to the respondents, was enacted to deal with legitimate appointments made against genuine short-term vacancies and not to validate an appointment founded upon a fictitious or unlawfully created vacancy.
The respondents also opposed the appellant’s plea against recovery. Once the appointment was found to be unlawful from its very inception and the interim order protecting the appellant’s continuance had been discharged, the appellant could not claim an indefeasible right to retain salary obtained from the public exchequer on the basis of that appointment.
The Court was therefore required to decide not merely whether the appellant formally satisfied the language of Section 33-F, but whether the foundational conditions necessary for invoking that provision existed at all.
Court’s Judgment:
The Division Bench dismissed the special appeal and refused to grant the appellant any relief. The Court concluded that the alleged short-term vacancy itself was fraudulent and unlawful and that the appellant’s appointment consequently lacked a lawful foundation from the beginning.
The Court began by examining the factual circumstances surrounding the alleged vacancy. It found a complete absence of reliable material showing that Ved Prakash Harit had actually been serving as an Assistant Teacher and had proceeded on the alleged leave from September 9, 1992.
The Court noted that there was no leave application, no service book record and no salary bills demonstrating Harit’s service status in the relevant period. There was also no evidence establishing when he allegedly returned from leave.
This absence of basic employment records was particularly significant because the entire legality of the appellant’s appointment depended upon the existence of Harit’s genuine short-term absence. If Harit had never occupied the relevant position in the manner claimed, there could be no lawful short-term vacancy arising from his leave.
The Court therefore refused to treat the alleged vacancy as an established fact merely because an official approval had subsequently been granted.
The Bench was particularly critical of the manner in which the appointment had been approved by the then District Inspector of Schools. The Court observed that the officer had apparently approved the appointment without verifying whether there was actually a teacher named Ved Prakash Harit.
The Bench raised the disturbing possibility that Harit could have been “simply an imaginary figure brought on scene” for the purpose of creating a short-term vacancy and accommodating the appellant.
The Court’s concern was reinforced by the subsequent disciplinary action against S.S. Rawat. The State Government had ordered forfeiture of his gratuity and permanent deduction of half his pension after charges relating to the facilitation of 96 fraudulent appointments were proved against him.
Although the Court did not treat this circumstance in isolation as conclusive proof of every allegation in the present case, it considered it highly relevant when assessing the reliability of the approval granted by the same officer.
The Bench then turned to Section 33-F. It held that the statutory provision cannot be read mechanically. A person seeking the benefit of a regularisation provision must first demonstrate the existence of the foundational circumstances contemplated by the statute.
Section 33-F was designed to address appointments made against genuine short-term vacancies during a specified period and subject to prescribed statutory conditions. It was never intended to provide a route by which an appointment based upon a fictitious vacancy could acquire substantive status.
The Court emphasised that there cannot be a legal principle under which a court, after finding that the occurrence of a vacancy and the appointment against it were fraudulent, must nevertheless ignore those findings and mechanically apply a statutory regularisation provision to confer benefits upon the person who obtained the appointment.
The Bench observed that doing so would effectively reward the wrongdoer and undermine the statutory scheme.
The judgment contains strong observations concerning the protection of public employment from fraud. The Court stated that constitutional courts cannot allow the sanctity of public employment to be eroded through appointments secured by deceit, misrepresentation or abuse of judicial process.
Public employment, the Court emphasised, is a public trust. Government appointments are not merely private contractual arrangements because they involve public posts and expenditure from the State exchequer. Every appointment must therefore comply with the constitutional requirements of equality, fairness and transparency embodied in Articles 14 and 16 of the Constitution.
The Court was also critical of the prolonged litigation surrounding the appointment. It described the matter as having a “chequered history” and observed that the sequence of events demonstrated how public funds could be misused and how unscrupulous litigants, sometimes in collusion with officials entrusted with protecting public resources, could exploit the judicial process for years.
The Court’s reasoning was not based merely on the technical absence of a document. It examined the entire chain of events and found that the alleged vacancy, the selection and the subsequent approval could not be separated from the larger circumstances suggesting manipulation of the public employment process.
The Court also rejected the argument that the appellant’s prolonged continuance created an independent right in his favour. It reiterated the settled principle that an interim order is always subject to the final outcome of the proceedings.
The appellant had continued in service for years in part because of the interim protection granted during the pendency of his writ petition. However, an interim order does not create an independent substantive right where none exists in law.
Once the writ petition was ultimately dismissed and the interim order was discharged, the appellant could not rely upon the period during which he remained in service under interim protection as a basis for validating his original appointment.
The Court applied the doctrine of restitution. Where a party has obtained an undeserved advantage under an interim or provisional order and ultimately fails in the substantive litigation, the legal system may require restoration of the benefit obtained.
In this context, the salary paid to the appellant from the State exchequer was not treated as a benefit that could automatically be retained merely because it had already been paid.
The Bench relied upon the Supreme Court’s decision in Jainendra Singh v. State of U.P., in which a fraudulently obtained appointment was held to be voidable at the employer’s option and it was recognised that long continuance in service does not create equity or estoppel in favour of an appointment founded upon fraud.
Applying that principle, the Court held that the appellant’s years of continuance could not convert an unlawful appointment into a lawful one.
The Bench observed that once the writ petition had been dismissed after the Court examined the matter and the interim order had been discharged, there was no requirement for the respondents to pass any further order of a different nature before terminating the appellant’s services. The natural consequence was that the appointment could no longer be treated as valid.
The Court consequently held that whatever salary the appellant had received from the State exchequer on the basis of that unlawful appointment was liable to be recovered.
Another important issue concerned the proposed reference to the State Government under Section 33-F(4). The appellant sought to invoke the provision in an attempt to obtain consideration of his eligibility for regularisation.
The High Court declined to make such a reference. It relied upon the Supreme Court’s decision in Suvej Singh v. Ram Naresh and others, which cautions higher courts against unnecessary remands that merely generate another round of litigation without serving any useful legal purpose.
In the present case, the Court found that the appointment was unlawful at its very root. Sending the matter back to the State Government for another consideration under Section 33-F would therefore serve no meaningful purpose and could potentially prolong litigation concerning an appointment which had no lawful foundation.
The Court also took note of the fact that the appellant had not impleaded the State of Uttar Pradesh in his earlier writ petition. The only State official arrayed was the District Inspector of Schools, who was subsequently found to have facilitated 96 unlawful appointments.
The Bench considered this circumstance significant. It observed that the manner in which the proceedings had been instituted suggested that the appellant had sought adjudication in his favour without bringing the State Government, as the principal stakeholder in public employment and expenditure, properly before the Court.
The Court observed that the appellant had “almost succeeded” in those efforts. This was particularly concerning because the consequences of the appointment were not confined to a private dispute between the appellant and the institution. The appointment involved a public post and payment of salary from the State exchequer.
The Court therefore refused to extend equitable considerations in the appellant’s favour.
The judgment also makes clear that statutory regularisation cannot be treated as a substitute for lawful recruitment. Regularisation provisions are exceptions created by legislation for specific categories of appointments. They cnnot be expanded judicially to cover appointments that fall outside t