Infructuous by efflux of time = When the Department having continued the appellant and granted him promotion and confirmation, It cannot be said that the appellant committed any concealment or mis­representation.= appellant has been continuing on his post for the last twenty six years and even after dismissal of writ petition of Shiv Kumar Rai on 15.09.2001 more than eighteen years have passed. The appellant has been promoted on next higher post and working on the next higher post as on date. Learned Single Judge has not correctly appreciated the issues as noticed and discussed above. The Division Bench rested its opinion on one issue without taking into consideration subsequent events and the fact that writ petition was dismissed as infructuous by efflux of time.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9220 OF 2019
(ARISING OUT OF SLP(CIVIL) NO. 7505 OF 2018)
RANA PRATAP SINGH … APPELLANT(S)
VERSUS
VITTIYA EVAM LEKHA ADHIKARI,
DISTRICT BASIC EDUCATION
OFFICER AND ORS. … RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.

  1. This appeal has been filed against the
    Division Bench judgment of Allahabad High Court
    dated 06.02.2018 in Special Appeal No.432 of 2012
    by which judgment the Special Appeal filed by the
    appellant questioning the judgment of learned
    1 of 39
    Single Judge dated 02.02.2012 in writ petition
    No.15408 of 1993 has been dismissed.
  2. Brief facts of the case necessary to be noted
    for deciding this appeal are: ­
    One Shiv Kumar Rai was working as Junior
    Accounts Clerk in the office of Finance and
    Accounts Officer, Office of District Basic
    Education Officer, respondent No.1. Shri Shiv
    Kumar Rai was promoted as Assistant Accountant
    giving rise to a vacancy in the post of Junior
    Accounts Clerk. The respondent No.1 called for
    names from the Employment Exchange, Azamgarh.
    The Employment Exchange forwarded the list of
    twelve candidates to the respondent No.1. The
    Selection Committee was constituted in
    accordance with the Statutory Rules namely The
    Subordinate Offices Ministerial Staff(Direct
    Recruitment) Rules, 1985, to hold the
    2 of 39
    selection on the vacant post of Junior
    Accounts Clerk. The name of petitioner was
    also included in the list of twelve candidates
    forwarded by Employment Exchange, Azamgarh.
    The Selection Committee interviewed the
    candidates on 16.08.1989 but the said
    selection was cancelled by the respondent No.1
    and fresh process was initiated for holding
    selection. An advertisement was published by
    District Basic Education Officer, Azamgarh in
    Daily News Paper “Dainik Devvrat” dated
    05.12.1990 calling for application from
    candidates for a vacant post of Junior
    Accounts Clerk. Candidates were called to
    appear for interview on 20.12.1990. By letter
    dated 07.12.1990, the respondent No.1 wrote to
    District Employment Officer, Azamgarh
    requesting the Employment Officer to intimate
    at his level the twelve candidates whose names
    3 of 39
    were forwarded for the vacant post of Junior
    Accounts Clerk to appear for interview on
    20.12.1990. Letter also mentioned that the
    twelve candidates who were forwarded by
    Employment Exchange have also been intimated
    by respondent No.1 to present themselves
    before Selection Committee on 20.12.1990. On
    20.12.1990, petitioner along with other
    candidates appeared before the Selection
    Committee. The petitioner was selected by the
    Selection Committee and recommended for
    appointment on the post of Junior Accounts
    Clerk. Respondent No.1 issued an appointment
    Order dated 21.12.1990 to the petitioner
    appointing him on the post of Junior Accounts
    Clerk. Order futher mentioned that the
    appointment is temporary. In pursuance of
    appointment Order dated 21.12.1990, petitioner
    joined on 22.12.1990. By Order dated
    4 of 39
    11.11.1992, the promotion of Shiv Kumar Rai as
    Assistant Accountant was cancelled by
    respondent No.1. On same day, consequential
    letter dated 11.11.1992 was also issued
    terminating the appointment of the petitioner
    due to Shiv Kumar Rai having been reverted to
    his Original post of Junior Accounts Clerk.
    Shiv Kumar Rai filed a W.P.No.44384 of 1992
    challenging order dated 11.11.1992. Learned
    Single Judge of the High Court vide order
    dated 27.11.1992 stayed the Order dated
    11.11.1992 for a period of three months. The
    petitioner also filed a writ petition
    challenging the order dated 11.11.1992.
    Petitioner being not aware of the order dated
    27.11.1992 could not point out to the High
    Court about the stay of the Order of reversion
    passed of Shiv Kumar Rai. Hence, his writ
    petition was dismissed by the High Court on
    5 of 39
    04.12.1992. While dismissing the writ
    petition, High Court also observed that
    petitioner’s claim may be considered on the
    post of Junior Accounts Clerk which fell due
    to promotion of Ram Sinhasan at whose instance
    the promotion of Shiv Kumar Rai was cancelled.
    Respondent No.1 issued order dated 01.01.1993,
    consequent to passing of interim order of the
    High Court staying the reversion order dated
    11.11.1992 of Shiv Kumar Rai re­appointing the
    petitioner on the post of Junior Accounts
    Clerk till 27.02.1993. The interim order
    passed in writ petition No.44384 of 1992 of
    Shiv Kumar Rai was continued by order dated
    09.04.1993 which directed:
    “The interim order dated
    27.11.1992 is continued and the
    petitioner will be paid salary
    regularly.”
    6 of 39
  3. An order dated 27.02.1993 was issued by
    respondent No.1 informing that since petitioner’s
    re­appointment was on the post of Junior Accounts
    Clerk was upto 27.02.1993, hence he should hand
    over his charge in the afternoon of 27.02.1993 to
    one Shri Mohd. Vasama Ansari.
  4. Writ Petition No.15408 of 1993 was filed by
    the Petitioner challenging the letter dated
    27.02.1993 which letter was stayed by the High
    Court on 29.04.1993 by passing following order:­
    “Until further order the
    operation of the impugned order
    dated 27.02.1993 shall remain
    stayed.”
  5. The re­appointment of petitioner was continued
    by the letter dated 18.05.1993. Shiv Kumar Rai by
    virtue of the interim order passed in his writ
    petition continued to work as Assistant Accountant
    till he attained the age of Super­Annuation on
    7 of 39
    29.02.2008. W.P.No.44384 of 1992 filed by Shiv
    Kumar Rai became infructuous due to efflux of time
    and was dismissed on 15.09.2001. The order dated
    15.09.2001 dismissing the writ petition of Shiv
    Kumar Rai is as follows:­
    “15.09.2001
    Hon’ble R.P.Misra,J.
    This writ petition has been
    listed in the group of such
    cases, which may have become
    infructuous due to efflux of
    time. No one turns up to press it
    either.
    The writ petition is,
    accordingly, dismissed but
    without cost.
    Sd/­”
  6. Shiv Kumar Rai having been promoted as
    Assistant Accountant, he never returned to his
    original post till superannuation. The petitioner
    continued to work on the post of Junior Accounts
    8 of 39
    Clerk. The petitioner was given first promotional
    increment in the service after completion of
    fourteen years on 22.12.2004. Second promotional
    upgradation was given after completion of eighteen
    years of service on 22.12.2008 and order dated
    13.01.2011 was issued by respondent No.1 in the
    above regard. On 02.02.2012, the writ petition of
    petitioner being W.P.No.15408 of 1993 was
    dismissed.
  7. Learned Counsel for the appellant submits that
    learned Single Judge while dismissing the writ
    petition on 02.02.2012 has made observation that
    appointment of the appellant was made without
    following the procedure known to law which
    observation was neither correct nor was based on
    material on record. Learned counsel for the
    appellant submits that his appointment was made by
    duly constituted Selection Committee as per 1985
    9 of 39
    Rules and after calling names from the Employment
    Exchange, Azamgarh, who forwarded twelve names,
    which included name of the appellant. There was no
    challenge to the appointment of the appellant at
    any point of time nor appointment was questioned
    by anyone.
  8. The writ petition was filed challenging the
    consequential order dated 11.11.1992 which was
    issued in consequence of cancelling the promotion
    of Shiv Kumar Rai on the post of Assistant
    Accountant by which he was reverted on the post of
    Junior Accounts Clerk on which appellant was
    appointed. The issue in the writ petition was
    entirely different and was only with regard to
    correctness of the Order dated 11.11.1992.
  9. Learned counsel further submits that learned
    Single Judge erred in observing that on dismissal
    10 of 39
    of first writ petition of the appellant on
    04.12.1992, his removal became final and
    subsequent appointment did not survive for
    consideration before the Court.
  10. It is submitted that the writ petition
    dismissed on 04.12.1992 was against the order
    dated 11.11.1992 which was a consequential order
    and the main order dated 11.11.1992 passed with
    respect to Shiv Kumar Rai having been stayed by
    the High Court on 27.11.1992, the consequential
    order with regard to appellant had no meaning,
    hence, the dismissal of the said writ petition on
    04.12.1992 shall not prejudice the claim of the
    appellant.
  11. It is further submitted that observation of
    learned Single Judge that subsequent appointment
    of the appellant dated 01.01.1993 being limited
    11 of 39
    till 27.03.1993, thereafter appellant cannot
    continue is also erroneous. The Order dated
    01.01.1993 although mentioned re­appointment but
    in essence the order was only of reinstatement of
    the appellant on the post in pursuance of his
    earlier appointment dated 21.12.1992. There being
    no fresh process of appointment, there was no
    question of any re­appointment. The learned Single
    Judge also has not correctly understood the import
    of the Order dated 01.01.1993.
  12. The Division Bench based its judgment only on
    the ground that writ petition filed by Shiv Kumar
    Rai against the order dated 11.11.1993 having been
    dismissed on 15.09.2001, his reversion shall
    attain finality, Consequently there will be no
    vacancy on the post of Junior Accounts Clerk,
    hence, the appellant shall have no right to
    continue on his post. The Division Bench did not
    12 of 39
    consider the fact that Writ petition filed by Shiv
    Kumar Rai was dismissed as infructuous by efflux
    of time and the dismissal of writ petition was not
    on merits. It is a fact that Shiv Kumar Rai
    continued to work on his post of Assistant
    Accountant and retired on 29.02.2008 by holding
    the said promotional post. Shiv Kumar Rai never
    came back on his post of Junior Accounts Clerk,
    hence, appellant’s continuance on post of Junior
    Accounts Clerk cannot be taken away by dismissal
    of writ petition of Shiv Kumar Rai.
  13. Learned counsel for the appellant submitted
    that appellant has been in service for twenty
    seven years. In the meantime, he received
    promotional Pay Scale of Assistant Accountant,
    Selection Grade. On the day when writ petition was
    dismissed by learned Single Judge, he was working
    in the grade of Assistant Accountant. The
    13 of 39
    appellant was also confirmed on his post of Junior
    Accountant w.e.f. 22.12.1993 and Assistant
    Accountant w.e.f. 22.12.2007 by order dated
    01.08.2012. All these facts were brought on record
    by means of rejoinder affidavit filed in Special
    Appeal which had not been taken into consideration
    by Division Bench.
  14. It is further submitted that in the year 2013
    and thereafter complaints were filed against the
    appellant which were duly enquired by and reports
    were submitted to Collector on 27.04.2017 that
    complaints were without any basis. Further, on
    another complaint, report was submitted by Finance
    and Accounts Officer, Primary Education, Azamgarh
    dated 02.02.2017 that appointment of the appellant
    was made after following due procedure of the law
    and the appellant’s continuance on his post was
    valid and in accordance with law.
    14 of 39
  15. Against the judgment of learned Single Judge
    dated 02.02.2012 and Special Appeal No.432 of 2012
    was filed by the petitioner. By an order dated
    01.08.2012, the petitioner’s services were
    confirmed on the post of Junior Accounts Clerk
    w.e.f. 22.12.1993 and on the post of Assistant
    Accountant w.e.f. 22.12.2007. The Special Appeal
    filed by the petitioner was dismissed by Division
    Bench on 06.02.2018, aggrieved against which
    judgment this appeal has been filed.
  16. Learned counsel for the respondents refuting
    the submission of the learned counsel for the
    petitioner contends that the petitioner’s
    appointment was made against the procedure
    prescribed by law. No advertisement was issued on
    05.12.1990 in the Daily News Paper ‘Dainik
    Devvrat’ as claimed by the petitioner. The writ
    15 of 39
    petition was dismissed on 02.02.2012 and there
    being no interim order in the special Appeal, how
    he continued and received salary after 02.02.2012,
    is not explained. The petitioner concealed his
    dismissal of writ petition from the Department and
    is not entitled for any relief from this Court.
    There has been several complaints received against
    the petitioner with regard to which enquiries were
    held and the respondent No.1 had taken action
    against the petitioner.
  17. We have considered the submissions of learned
    counsel for the parties and perused the record.
  18. From submissions of learned counsel for the
    parties and materials on record, following points
    arise for consideration in this appeal:­
    I) Whether appointment of appellant on the
    post of Junior Accounts Clerk on 21.12.1990
    was not validly made in accordance with law?
    16 of 39
    II) Whether by dismissal of Writ Petition
    No.Nil of 1992 on 04.12.1992 filed against the
    consequential order dated 11.11.1992 issued to
    the petitioner, appellant’s right to continue
    on his post shall come to an end?
    III) Whether re­appointment of the appellant
    dated 01.01.1993 been limited only till
    27.02.1993 after efflux of the said period
    appellant’s right to continue on the post
    shall come to an end?
    IV) Whether by dismissal of W.P.No.44384 of
    1992 ­ Shiv Kumar Rai versus Director Basic
    Education and others on 15.09.2001 shall
    result in terminating the vacancy on the post
    of Junior Accounts Clerk on which appellant
    was appointed and was working?
    I) Whether appointment of appellant on the post of
    Junior Accounts Clerk on 21.12.1990 was not
    validly made in accordance with law?
  19. The copy of the appointment order of the
    appellant has been placed on record as AnnexureP1, which mentions that appointment of the
    appellant has been made on he being selected by
    17 of 39
    Selection Committee constituted as per provisions
    of “The Subordinate Offices Ministerial Staff
    (Direct Recruitment) Rules, 1985”(hereinafter
    referred to as “1985 Rules”). The appointment
    letter contains endorsement to the District
    Employment Officer. The material has been brought
    on record that the respondent No.1 has written to
    District Employment Officer on 07.12.1990 in
    reference to names of twelve candidates forwarded
    by the Employment Exchange with respect to the
    post of Junior Accounts Clerk which clearly
    indicate that names were sought from Employment
    Exchange before holding selection. Rules 22 and 23
    of 1985 Rules provides for procedure of
    notification of vacancies to the examination and
    procedure of selection. Rule 22 is as follows: ­
    “Notification of Vacancies to the
    Employment Exchange. ­
    The appointing Authority shall
    determine the number of vacancies
    to be filled during the course of
    the year as also the vacancies to
    18 of 39
    reserved under Rule 7. The
    vacancies shall be notified to
    the Employment Exchange. The
    Appointing Authority may also
    invite application directly from
    the person who have their names
    registered in the Employment
    Exchange. For this purpose, the
    Appointing Authority shall issue
    an advertisement in a local daily
    news paper besides pasting a
    notice for the same on the Notice
    Board. All such application shall
    be placed before the Selection
    Committee.”
  20. The appellant’s case is that apart from
    calling names from the Employment Exchange, the
    respondent No.1 had also published an
    Advertisement on 05.12.1990 in the Daily News
    Paper ‘Dainik Devvrat’. The learned counsel for
    the respondents has refuted the claim of appellant
    of publication in the Daily News Paper. He submits
    that Editor of News Paper vide his letter dated
    21.08.2017 with regard to verification of alleged
    19 of 39
    advertisement has informed that it is not possible
    to verify the same, it being a very old matter.
  21. Learned counsel submits that there was no
    publication in the newspaper and the claim of
    publication was only invented for the purpose of
    this case.
  22. Appellant has refuted the above submission of
    the respondent and submits that newspaper has been
    filed before the High Court and further in the
    reports which were submitted with regard to
    complaints against the appellant, it was
    specifically mentioned that the publication was
    made in the News Paper ‘Dainik Devvrat’ on
    05.12.1992.
  23. There is no denial on the part of the
    respondents that the names were called from the
    20 of 39
    Employment Exchange by the appointing authority
    before conducting the selection and the Employment
    Exchange had forwarded the twelve names which also
    included the name of appellant. The appointment of
    the appellant having been made by Selection
    Committee constituted under Statutory Rules after
    calling the names from Employment Exchange, the
    appointment cannot be said to have been made in
    disregard to the Statutory Rules.
  24. More so in the present case, there was no
    challenge to the appointment by any candidate nor
    any proceedings were initiated by the appointing
    authority questioning the appointment of the
    appellant. The first writ petition was filed by
    the appellant when consequent to reversion of Shiv
    Kumar Rai on the post of Junior Accounts Clerk on
    which appellant was working, his services were
    terminated by order dated 11.11.1992.
    21 of 39
  25. We, thus, conclude that appointment of the
    appellant cannot be said to have been made in
    disregard to the Rules and further, no proceedings
    were initiated either by any candidate or by
    appointing authority questioning the appointment
    of the appellant.
  26. Learned Single Judge without taking into
    consideration the facts of constitution of
    Selection Committee, calling the names from
    Employment Exchange has made observations that no
    procedure known to law namely ‘Publication of
    Notification’ etc. was adopted which cannot be
    approved. Without having full aspect of the
    matter, no such observation ought to have been
    made by learned Single Judge more so when the
    appointment was not questioned either by any
    candidate or by appointing authority by initiating
    any process.
    22 of 39
    II) Whether by dismissal of Writ Petition No.Nil
    of 1992 on 04.12.1992 filed against the
    consequential order dated 11.11.1992 issued to the
    petitioner, appellant’s right to continue on his
    post shall come to an end?
  27. Writ Petition No.Nil of 1992 was filed by the
    appellant challenging the Order dated 11.11.1992.
    On 11.11.1992, two orders were passed by
    respondent No.1. By first order dated 11.11.1992
    appointment(promotion) of Shiv Kumar Rai was
    cancelled and he was directed to take charge of
    his original post of Junior Accounts Clerk. In
    consequence to above 11.11.1992 order with regard
    to petitioner, following order was issued:­
    ” Accounts Officer, Office of
    District Basic Education Officer,
    Azamgarh
    Order Number/Le.No./803­809/1992­93
    Date: 11.11.1992
    Termination of service
    Consequent to reversion of Shri
    Shiv Kumar Rai, Assistant Accounts,
    23 of 39
    Lekha Sangathan Office, District
    Basic Education Officer, Azamgarh at
    his original post Junior Accounts
    Clerk, the purely temporary services
    of Shri Rana Pratap Singh, Junior
    Accounts Clerk are terminated with
    immediate effect. He is ordered to
    hand over the charge of his post to
    Shri Shiv Kumar Rai with immediate
    effect.
    Sd/­ illegible
    Accounts Officer
    Office of District Basic
    Education Officer, Azamgarh
    Endorsement Number account/803­
    809/1992­93″
  28. Both Shiv Kumar Rai and petitioner have filed
    separate writ petitions challenging order dated
    11.11.1992. In writ petition No.44384 of 1992
    filed by Shiv Kumar Rai, following interim order
    was passed on 27.11.1992: ­
    ” ..Issue Notice
    Learned standing counsel prays
    for and is granted one month time to
    file counter affidavit. Petitioner
    will have thereafter two weeks time
    24 of 39
    for filing rejoinder affidavit. List
    the stay application before the
    appropriate court in the 2nd week of
    February, 93.
    For a period of three months from
    today the operation of the order
    dated 11.11.92 shall remain stayed.
    Petitioner is permitted to make
    the necessary amendment in his
    petition within three days.”
  29. Thus on 04.12.1992, when the writ petition of
    the appellant challenging the order dated
    11.11.1992 came for consideration, the Court was
    not informed that Order dated 11.11.1992 with
    regard to Shiv Kumar Rai has already been stayed
    by the High Court. When the Main Order dated
    11.11.1992 with regard to Shiv Kumar Rai was
    stayed, the consequential order issued with regard
    to petitioner shall automatically become
    inoperative. The dismissal of writ petition on
    04.12.1992 due to above reason shall not adversely
    25 of 39
    affect the petitioner’s right to continue on the
    basis of his appointment dated 21.12.1990. In view
    of the interim order passed in writ petition on
    27.11.1992, the order impugned in the writ
    petition of the appellant was not operative,
    hence, dismissal of writ petition on 04.12.1992
    shall not have that adverse effect as has been
    noted by the learned Single Judge in the impugned
    judgment dated 02.02.2012.
  30. It is due to the above reason that
    subsequently the appellant was reinstated on the
    post on 01.01.1993 because vacancy on which he was
    appointed became available by the interim order
    obtained by Shiv Kumar Rai on 27.11.1992.
    III) Whether re­appointment of the appellant dated
    01.01.1993 been limited only till 27.02.1993 after
    afflux of the said period, appellant’s right to
    continue on the post shall come to an end?
    26 of 39
  31. On the Interim Order dated 27.11.1992 having
    been passed in writ petition of Shiv Kumar Rai as
    stated above, the consequential order issued to
    the appellant became inoperative and he was
    entitled to continue on his post of Junior
    Accounts Clerk by virtue of his appointment dated
    21.12.1990. The Order dated 01.01.1993 was issued
    by the respondent No.1 which is to the following
    effect: ­
    “Accounts Officer, Office of District
    Basic Education officer, Azamgarh
    Order Number/Accounts/ /1992­93
    Date : 01.01.93
    Order of re­appointment
    Consequent to passing stay order
    of the operation of Order dated
    11.11.1992 passed by the Hon’ble High
    Court at Allahabad in Writ Petition
    in Shri Shiv Kumar Rai Versus
    Director of Education (Basic)
    Nishatganj and others, Shri Rana
    Pratap Singh son of Shri Suryanath
    Singh is re­appointed on temporary
    basis from the date of taking charge
    on the vacant post of Junior Accounts
    27 of 39
    Clerk till 27.02.1993. This
    appointment can be terminated at any
    time without any prior information.
    Shri Rana Pratap Singh is
    directed to take charge immediately
    on receipt of copy of this order.
    Accounts Officer
    Office of District Basic
    Education Officer, Azamgarh.
    Endorsement Number Accounts/117­
    1240/1993­94
    Dated : 01.01.1993”
  32. Although in the order dated 01.01.1993, the
    order refers it as an order of re­appointment but
    in essence the order is not an order of reappointment but order of reinstatement of
    appellant on the post which became available for
    the appellant after interim order passed in writ
    petition of Shiv Kumar Rai. The appellant was
    asked to go because of reversion of Shiv Kumar Rai
    on his original post by Order dated 11.11.1992.
    When the said order was stayed, the appellant
    28 of 39
    became entitled to continue on his post and no
    order of re­appointment was necessary or required.
    The entitlement of appellant was by virtue of his
    earlier appointment. The re­appointment order
    refers to appointment of the appellant till
    27.02.1993. The initial appointment of the
    appellant dated 21.12.1992 which was made after
    regular selection was not limited to any period.
    The date of 27.02.1993 which was mentioned in the
    letter dated 01.01.1993 was only due to the reason
    that interim order granted to Shiv Kumar Rai on
    27.11.1993 was only for a period of three months
    i.e. only upto the period till 27.02.1993 which
    date was mentioned in the order dated 01.01.1993.
    The interim order passed in the writ petition of
    Shiv Kumar Rai was continued by order dated
    09.04.1993, which is to the following effect:­
    ” …The interim order dated 27.11.92
    is continued and the petitioner will
    be paid salary regularly.
    29 of 39
    Dated/ 09.04.1993”
  33. By continuance of interim order in favour of
    Shiv Kumar Rai automatically the order in favour
    of the appellant shall continue and there was no
    question of his appointment being come to an end.
  34. Learned Single Judge in the impugned judgment
    has taken the view that since the appointment of
    the appellant was only for limited duration till
    27.02.1993, he has no right to continue. Learned
    Single Judge lost sight of the fact that the date
    27.02.1993 was mentioned in the letter dated
    01.01.1993 because of the fact that interim order
    of Shiv Kumar Rai was only for the period of three
    months and when the interim order with regard to
    Shiv Kumar Rai by the High Court was continued,
    the appellant also had become entitled to
    continue.
    30 of 39
  35. Learned Single Judge, thus, committed error in
    not correctly appreciating the consequence of
    order of the High Court dated 04.12.1992 in the
    first writ petition and nature of the letter dated
    01.01.1993.
  36. We, thus, are of the view that letter dated
    01.01.1993 cannot be said to be re­appointment of
    the appellant. The order was in essence reinstatement of the appellant in consequence of his
    earlier appointment dated 21.12.1990. From the
    materials brought on record ,it is also clear that
    the Education Authorities has also treated the
    appointment of appellant continuing from
    22.12.1990, which is clear from order of approval
    of increment dated 30.12.2000, Annexure RA­6 and
    subsequent order issued by Finance and Accounts
    Officer where date of appointment of appellant has
    been mentioned as 21.12.1990.
    31 of 39
    IV) Whether by dismissal of W.P.No.44384 of 1992
    Shiv Kumar Rai Versus Director Basic Education and
    others on 15.09.2001 shall result in terminating
    the vacancy on the post of Junior Accounts Clerk
    on which appellant was appointed and was working?
  37. The Division Bench has dismissed the special
    appeal of the appellant solely relying on the fact
    that by dismissal of writ petition of Shiv Kumar
    Rai on 15.09.2001, the vacancy of post of Junior
    Accounts Clerk shall come to an end.
  38. In the writ petition of Shiv Kumar Rai,
    interim order was passed on 27.11.1992 which was
    continued on 09.04.1993. It is submitted by the
    counsel for the appellant that cancellation of
    promotion of Shiv Kumar Rai on 11.11.1990 too was
    on account of claim of promotion raised by another
    accounts clerk Mr.Ram Sinhasan Rai. It is
    submitted that Ram Sinhasan Rai retired in 1999.
    Ram Sinhasan Rai was never promoted and interim
    order in favour of Shiv Kumar Rai continued till
    32 of 39
    Ram Sinhasan Rai retired in the year 1999. It is
    submitted that writ petition of Shiv Kumar Rai has
    been dismissed as infructuous by efflux of time
    which is clearly mentioned in the order dismissing
    the writ petition. The writ petition of Shiv
    Kumar Rai was not dismissed on merits. Writ
    petition was dismissed as infructuous by efflux of
    time without determination of any issue. Shiv
    Kumar Rai continued to work on his promotional
    post till he retired on 29.02.2008. When Shiv
    Kumar Rai did not revert on post of Junior
    Accounts Clerk and continued to work till his
    retirement, the dismissal of writ petition as
    infructuous cannot altogether wipe out the right
    of the appellant to continue on his post of Junior
    Accounts Clerk on which post Shiv Kumar Rai never
    returned in fact.
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  39. The report dated 27.04.2017 of District
    Handicapped Public Development Officer, Azamgarh
    addressed to Collector, Azamgarh, has been brought
    on record with regard to promotion of Shiv Kumar
    Rai, in which following facts have been stated:­
    ” …After inquiry, this fact came to
    light that the selection of Shri
    Singh has been made by the legally
    constituted Selection Committee at
    the vacant post of Junior Accounts
    Clerk due to the promotion of Shri
    Shiv Kumar Rai at the post of
    Assistant Accountant in the
    department. A representation was
    submitted by Shri Ram Sinhasan Singh,
    Junior Accounts Clerk working in the
    office of Finance and Accounts
    Officer of Basic Education, Azamgarh
    stating that he is senior to Shri
    Rai. Therefore, on the basis of
    seniority, he be promotied at the
    post of Assistant Accountant. Shri
    Rai was reverted to the post of
    Junior Accounts Clerk by order dated
    11.11.1992 of Finance and Accounts
    Officer, Basic Education Azamgarh.
    Stay Order was obtained by Shri Rai
    of the order of reversion by the
    Hon’ble High Court of Allahabad by
    order dated 27.11.1992. The stay
    order dated 27.11.1992 was continued
    by order dated 09.04.1993. Shri Shiv
    Kumar Rai has retired from the
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    promoted post of Assistant Accountant
    on 29.02.2008. Shri Rai and Shri
    Sinhasan Singh both have retired from
    their posts. After retirement, the
    case of mutual seniority has
    finished. Resultantly the lien/tenure
    of Shri Rana Pratap Singh at the post
    of Junior Accounts Clerk remained as
    earlier…”
  40. In the rejoinder affidavit which was filed in
    the special Appeal, the report dated 27.04.2017
    has been brought on record as Annexure RA­14. High
    Court dismissed the special Appeal on 06.02.2018
    solely relying on dismissal of writ petition of
    Shiv Kumar Rai on 15.09.2001.
  41. No exception can be taken to the legal
    position as enumerated by the Division Bench of
    the High Court in paragraphs 9 to 13. However, the
    Division Bench ought to have looked into the
    ground realities, facts, and subsequent events
    also. When Shiv Kumar Rai was never reverted on
    35 of 39
    his post and continued on his promotional post
    till his retirement, it will be taking a too
    technical view that vacancy of his original post
    shall come to an end by dismissal of the writ
    petition. More so, the writ petition was dismissed
    as infructuous on efflux of time without an
    adjudication on merits and without High Court
    being made aware of the subsequent events. The
    Division Bench did not advert to the other aspects
    of the matter which were adverted to by the
    learned Single Judge, without examining the
    correctness of the view taken by learned Single
    Judge, the Division Bench had dismissed the appeal
    solely relying on dismissal of above writ petition
    of Shiv Kumar Rai.
  42. Learned counsel for the respondents had also
    submitted that the conduct of the appellant is not
    such that he may be entitled for any relief. It is
    36 of 39
    submitted that when the writ petition was
    dismissed by learned Single Judge on 02.02.2012
    and special appeal came to be dismissed on
    06.02.2018, the appellant was not entitled to
    continue or receive any salary. He submits that he
    had concealed the dismissal of writ petition from
    the department.
  43. A perusal of the order of the High Court dated
    02.02.2012 indicates that learned counsel for the
    parties were heard. The order dated 02.02.2012 was
    not an ex parte order and the appellant
    immediately filed an special appeal which is
    numbered as Special Appeal No.432 of 2012. The
    arguments of the respondents cannot be accepted
    that the appellant concealed dismissal of writ
    petition from learned Single Judge. More so, the
    appellant was allowed/continued by the respondents
    on his post and by order dated 01.08.2012, an
    37 of 39
    order of confirmation was also passed by the
    Department confirming him on the post of Junior
    Accounts Clerk from 22.12.1990 and on the post of
    Assistant Accountant w.e.f. 22.12.2004. The
    appellant was also given promotional scale of
    Assistant Accountant w.e.f. 22.12.2004. The
    Department having continued the appellant and
    granted him promotion and confirmation, It cannot
    be said that the appellant committed any
    concealment or mis­representation.
  44. We further notice that appellant has been
    continuing on his post for the last twenty six
    years and even after dismissal of writ petition of
    Shiv Kumar Rai on 15.09.2001 more than eighteen
    years have passed. The appellant has been promoted
    on next higher post and working on the next higher
    post as on date.
    38 of 39
  45. Learned Single Judge has not correctly
    appreciated the issues as noticed and discussed
    above. The Division Bench rested its opinion on
    one issue without taking into consideration
    subsequent events and the fact that writ petition
    was dismissed as infructuous by efflux of time.
  46. Taking into consideration entire facts and
    circumstances, we are of the view that judgment of
    learned Single Judge dated 02.02.2012 as well as
    the Division Bench deserve to be set aside. We
    Order accordingly. The appeal is allowed.
    ……………….J.
    (ASHOK BHUSHAN)
    ……………….J.
    (NAVIN SINHA)
    NEW DELHI,
    DECEMBER 18, 2019.
    39 of 39