Justice Manju Rani Chauhan held,

“A deeming provision cannot be invoked to validate an appointment which, at its inception, was made in disregard of the mandatory conditions governing the recruitment and reservation process. The statutory fiction of deemed approval cannot be permitted to operate as an instrument for legitimising an appointment made contrary to the very statutory framework within which the power of appointment was required to be exercised.”

A post of C.T. Grade Teacher was sanctioned in Kanhaiya Junior High School, Gorakhpur in January 1988 with a stipulation that reservation for Scheduled Caste candidates was to be followed. Petitioner, a general category candidate, was selected by the Selection Committee, which included the nominee of the District Basic Education Officer, though two Scheduled Caste candidates had also appeared for the interview. He joined on 18.05.1988 but was not paid salary. The post was re-advertised in February 1989 as reserved for a Scheduled Caste candidate.

Petitioner challenged the re-advertisement and later, by amendment, the order dated 31.12.1988 disapproving his appointment. It was argued that since no decision was communicated within thirty days, his appointment stood approved by deeming fiction, and that the disapproval was passed without hearing him.

Counsel for State argued that the management had ignored the directions on reservation. It was urged that the petitioner remained in service till superannuation only because of the interim order passed by the High Court.

The Court observed that the management, instead of holding a fresh selection as per the reservation requirement, tried to change the conditions and get the earlier selection approved. It held that participation of the department's nominee in the Selection Committee did not cure the illegality in the selection.

Rejecting the plea of violation of natural justice, the Court observed that the District Basic Education Officer had raised specific queries on the irregularities and the management had replied to them. It held that the petitioner could not claim a separate opportunity of hearing.

“In any event, an opportunity of hearing cannot be invoked for perpetuating an appointment which suffers from a fundamental statutory infirmity.”

Holding that the re-advertisement did not create an artificial vacancy, the Court turned to the petitioner's continuance in service under the interim order and observed,

“An interim order is necessarily interlocutory in character and does not, by itself, adjudicate upon or confer substantive validity upon an appointment which is ultimately found to be contrary to the statutory rules.”

It held that the petitioner had no vested right to retiral benefits on the basis of such continuance. However, the Court held that the claim of salary for the period during which the petitioner actually worked under the interim order would have to be examined separately, in light of the terms of that order and the applicable provisions.

Upholding the order dated 31.12.1988, the Court dismissed the writ petition, subject to such consideration of salary, if any, as may arise from the service rendered by the petitioner under the interim order.

Case Title: Anil Kumar Chaudhary v. The Zila Basic Shiksha Adhikari Gorakhpur And Others