IMPORTANT POINTS
Leave vacancy arising from leave of regularly appointed employee ceases to exist with death of that employee.
An ad hoc appointee in leave vacancy has no right or entitlement to claim substantive appointment.

JUDGMENT :

DHANANJAYA Y CHANDRACHUD, J.

1. Leave granted.

2. This appeal arises from a judgment dated 30 October 2017 of the Division Bench of the High Court of Judicature at Allahabad dismissing the Special Appeal filed by the appellant and affirming the judgment of the Single Judge dated 9 October 2013.

3. The appellant was appointed by the Committee of Management of the third respondent as an ad-hoc Lecturer in English on 11 August 1993 against a short-term vacancy which arose upon the grant of three months’ leave to the then incumbent in the post. On 1 October 1993 the regularly appointed lecturer who was on leave died. As a result, the appellant continued in service. On 30 June 1994, the management sought to absorb the appellant in the substantive vacancy which arose on the death of the regularly appointed candidate.

4. The case of the appellant is that the management sought the approval of the District Inspector of Schools (DIOS) on 2 July 1994 and again on 18 March 1996, but no intimation was received. Aggrieved, in April 1996, the appellant filed a writ petition before the High Court seeking a mandamus to treat his ad hoc appointment as an appointment on a permanent basis and for a direction to the State to release his salary, since the institution is an aided institution.

5. The High Court issued an interim order on 16 April 1996 to the effect that until the next date of listing or until a regularly appointed candidate is available, whichever is earlier, the appellant shall be allowed to continue against the payment of due salary.

6. On 30 June 1997, a candidate by the name of Nem Singh was appointed by the U.P. Secondary Education Service Selection Board. According to the State, the appellant and the management colluded to prevent the selected candidate from joining the post, though this is a matter of dispute. There is on the record a letter from the Deputy Director of Education dated 30 June 1997 stating that Nem Singh could not take over the charge of the school since he did not make any contact with the school. The admitted position is that the selected candidate did not join the post. In consequence, the appellant continued to be employed in the post. The salary of the appellant was stopped.

7. The writ petition filed by the appellant was dismissed by a learned Single Judge of the High Court on 9 October 2013. The appellant filed a Special Appeal against the dismissal of the petition.

8. During the pendency of the Special Appeal, there was an interim order in favour of the appellant in terms similar to the interim protection which was granted earlier on 16 April 1996 by the Single Judge of the High Court. By the impugned order dated 30 October 2017, the Special Appeal was dismissed by the Division Bench. The High Court held that the appellant was appointed in a leave vacancy, in terms of the Second Removal of Difficulties Order 1981. The High Court observed that in the absence of approval to his appointment by the competent authority, any further direction for his continuance or for payment of salary is not permissible in law.

9. From the order of the High Court, it emerges that a counter affidavit was filed in the course of the Special Appeal where it was stated on behalf of the DIOS that by a letter dated 14 July 1994, approval for the appointment of the appellant had been declined since it was not in conformity with the provisions of Section 18 of the UP Secondary Education Services Selection Board Act 1982 and the Removal of Difficulties Order. Consequently, while affirming the judgment of the learned Single Judge, the Division Bench directed that the salary which was paid over till the date of the judgment shall not be recovered, but the appellant will not be entitled to any further emoluments.

10. Assailing the decision of the Division Bench in Special Appeal, the appellant moved this Court under Article 136 of the Constitution of India. On 10 January 2018, when the Special Leave Petition was taken up, the following