1. Heard Mr. Ashok Khare, learned Senior Counsel assisted by Mr. K.M. Asthna, learned Counsel for petitioner, Mr. Ashwani Kumar Mishra, learned Advocate holding brief of Mr. Sanjay Kumar Dubey, learned counsel for contesting respondent and Mr. Manvendra Dixit, learned Standing Counsel for State respondents.

2. Facts of present case are unique that a father-son duo has created such circumstances that father of the petitioner (Ram Swaroop Sharma), a Head Clerk went on medical leave at fag end of his service in January 2000, which necessitated to grant an ad-hoc promotion to a working clerk (Vimal Kumar Chakravorty ) as a Head Clerk, which further creates a ‘short term vacancy’ of a assistant clerk on which the petitioner was appointed by purportedly a due procedure on 09.02.2000, which got approved on 31.03.2000 also.

3. Meanwhile, father of the petitioner got retried with in a very short period being on medical leave on 31.08.2000 and therefore Mr. Vimal Kumar Chakravorty was regularised as Head Clerk and the Petitioner was regularised as Class III employee, on 25.10.2000 though his appointment was against a short term vacancy, which has limited life i.e. till vacancy was declared substantially vacant, however, despite it became vacant substantially in above referred circumstance (when head clerk was regularised) but the committee of the management of concerned college and state officers bye passed the rigours of a fresh recruitment process and allows the petitioner to be regularised within a very short period of ten months despite appointed against a short term vacancy.

4. The petitioner enjoyed his appointment further without any hindrance and was granted pay scale of Head Clerk on retirement of Mr Vimal Kumar Chakravorty as Head Clerk on 17.6.2016. Earlier In 2013 a complaint was made whereby above referred modus operandi of fatherson duo was came into light but state respondents have ignored it and the complaint was dismissed by an order dated 29.11.2014. But it was taken note in a subsequent complaint and a notice dated 15.6.2018 was issued to the petitioner. The respondent no. 5 claimed promotion on the post of head clerk in place of the petitioner.

5. The DIOS, Hathras after considering the version of the petitioner and respondent no 4 as well on basis of record passed impugned order dated 6.7.2018, whereby approval granted earlier to the appointment of the petitioner was withdrawn. Relevant part of the order is reproduced herein after :-

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6. In the present writ petition this court by an order dated 13.8.2018 has granted a interim order where by impugned order was completely stayed, which was challenged by the Respondent No 5 in a Special Appeal No. 879 of 2018 and it was interfered and modified by order dated 18.09.2018 that instead of complete stay only limited stay was granted that no recovery be made. According to record no counter affidavit is being filed by the respondent no 5.

7. Mr Ashok Khare, learned Senior Counsel on behalf of the petitioner has tried vehemently to opposed the impugned order however failed to cross a legal hurdle that a undisputedly the vacancy was only a short term vacancy and well settled legal position that an appointee against short vacancy shall cease as soon said vacancy comes to end or said vacancy became substantive and only in exceptional circumstances, such appointee could be entitled for certain benefit, but it is not the case of the petitioner. (See Amar Pal Singh vs State of UP 2012:AHC:93859.).

8. The facts of the judgment passed by the Supreme Court in Radhey Shyam Yadav & Anr. Vs State of U.P. & Ors, 2024 SCC Online SC 10 are distinguishable.

9. The manner of appointment of the petitioner and that within very short period, post became substantive are factors which are sufficient to hold that it was a plan by father-son duo.(See Sarita Gupta vs DIOS Firozabad C.M.W.P No 8286 of 2000 decided on 14.02.2005).

10. Otherwise also initial appointment was de hors of legal provisions and Ld counsel for state has rightly made reference of para 7 of the counter affidavit, which is reproduced herein after and that it was vaguely denied or replied in rejoinder affidavit. No substantial document in support of a contention that selection process was in terms of legal provision was part of record except a copy of advertisement, which has ambiguous contents that even details of post was not specifically mentioned nor any document of selection committee was placed on record.

“7. That in reply to the contents of paragraph no. 13 & 14 of the writ petition, it is stated here that since the college authorities have illegally appointed the petitioner on the post of clerk by adopting illegal means as there is no vacancy occurred in college for the post of clerk and as such there is no justification to grant approval to the appointment of petitioner and as such the petitioner is not entitled for any benefit. It is further stated here that since Ram Swaroop retired from service on 31.08.2000 ans as such there is no vacancy occurred in the month of Feb. 2000. It is also pertinent to mention here that from the perusal of salary bill for the month of March 2000, it is established that Ram Swaroop is receiving salary from the month of Feb. 2000. it is further stated here that “ By perusal of Annexure -6 of the writ petition it is clear that the Principal of college has sent a report/comment to Deputy Director of Education 2 nd Region Agra on 01.09.2000 in which he has mentioned that Ram Swaroop seriously fallen ill and as such he was granted medical leave from the month of Feb. 2000 to Aug. 2000” thus it is clear that from the month of Feb. 2000 Ram Swaroop receive the salary. It can’t to say that the vacancy fallen vacant in the month of Feb. 2000 is totally incorrect and against the Regulation 101 of Chapter-II of the Regulation framed under U.P. Intermediate Education Act, 1921. In view of Regulation 101 without taking any permission from the then District Inspector of Schools Hathras have illegally appointed the petitioner by showing that the post of Clerk is lying vacant in the institution substantively. No information was given regarding alleged vacancy to the District Inspector of Schools Hathras nor any permission sought by the college authority before making any appointment. In view of aforesaid facts the petitioner is not entitled to get any benefit as his appointment is illegal, without following the procedure of U.P. Intermediate Education Act, 1921.”

11. The ambiguous details of advertisement as annexed in Writ Petition is reproduced hereinafter:

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12. In aforesaid circumstances, when above referred details does not mention about any short-term vacancy, the further procedure on it is void-ab-initio, therefore there is no illegality in the impugned order, however since the petitioner has worked for substantial period therefore, interim order as modified by the Division Bench is made absolute that there shall be no recovery.

13. Writ Petition is disposed of.