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SUNIL KUMAR PANDEY versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Sunil Kumar Pandey v. State Of U.P. And Others - WRIT - A No. 43795 of 2004 [2006] RD-AH 9468 (12 May 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.26

Civil Misc. Writ Petition No. 43795 of 2004

Sunil Kumar Pandey

Versus

      State of U.P. and others

Hon.Shishir Kumar, J.

By means of the present writ petition the petitioner has approached this Court for issuing a writ in the nature of certiorari quashing the order 12.4.2004 passed by respondent No.2 (Annexure 7 to the writ petition). Further issuing a writ in the nature in the nature of mandamus directing the respondents to pay the arrears as well as the salary to the petitioner.

Sri Banmali Uchchattar Madhyamik Vidyalaya, Padri Bazar, District Deoria is recognized institution under the provisions of U.P. Intermediate Education Act, 1921.  The salary of teachers and other employees are being paid under the provisions of U.P. Act No.24 of 1971.  After ad hoc promotion of Sri Ram Badan Rai as officiating principal of the institution, the post of assistant teacher in L.T. grade fell vacant.  The said institution is up to the High School, therefore, the senior most teacher in L.T. grade was promoted to officiate as  principal of the institution, therefore, the short term vacancy arose in L.T. Grade.  The Committee of Management intimated the said vacancy arose in L.T. Grade.  The Committee of Management intimated the said fact relating to vacancy to the District Inspector of Schools on several occasions but no steps have been taken.  Ultimately the Committee of Management again intimated the vacancy to the District Inspector of Schools on 3.5.1998.,  The District Inspector of Schools did not make any recommendation on the aforesaid post, therefore, the Committee of Management had no option expect to take necessary steps for making  appointment on the post of assistant teacher in L.T.Grade.  Accordingly, the Committee of Management advertised the vacancy in daily newspaper ''Dainik Jagaran' on 10.11.1998 as well as other daily newspaper ''Sema Rekha' on the same date.  In response to the aforesaid advertisement, the petitioner who was eligible has submitted an application for appointment on the said post.  The Selection Committee was constituted under the provision of U.P. Secondary Education Service Selection Board (Removal of Difficulties IInd Order) 1981.  The interview of various candidates was held on 28.11.1998.  On the basis of the quality point marks as the petitioner got the highest quality point marks, therefore, the Selection Committee recommended the candidature of the petitioner for making ad hoc appointment.  A resolution was passed by the Committee of Management, the Manger of the Committee issued an order of appointment to the petitioner on 1.12.1998.  In pursuance of the aforesaid appointment letter, the petitioner joined his duties on 2.12.1998. From the date of appointment the petitioner is still working.  All the relevant papers relating to the appointment of the petitioner were sent to the District Inspector of Schools for granting financial approval on 30.11.1998.  In spite of various reminders and in spite of the fact that several months have been passed, but no decision relating to the grant of financial approval to the appointment of the petitioner has been taken by the respondent.  The petitioner made several representations to the District Inspector of Schools for payment of salary.  The respondent No.2 had passed an order rejecting the claim of the petitioner vide its order dated 12.4.2004 (Annexure 7 to the writ petition) by which the respondent No.2 has given a reasoning to this effect that no approval relating to the appointment of the petitioner can be granted on the ground that there is a ban for making an appointment and as the Removal of Difficulties Order has already been repealed and the Committee of Management has got no jurisdiction make an appointment.

The counsel for the petitioner submits that as on the basis of promotion on L.T. grade teacher after due advertisement the appointment of the petitioner was made by duly constituted Selection Committee and papers relating to the financial approval were sent to the District Inspector of Schools, respondent No.2 but no action has been taken.  The ground of rejection taken by the respondent No.2 cannot be a basis because the appointment of the petitioner is of 1.12.1998 and the Removal of Difficulties Order (Second) has been repealed on 23rd January, 1999. The nature of Government Order dated 23.1.1999 is not retrospective.  It could only be made applicable prospectively.  It is not in dispute that admittedly, the petitioner was given an appointment on 1.12.1998.  As regards, the ban imposed the contention of the petitioner is that this Court has considered the similar controversy and has held that for a short term vacancy which is to be filled up by the Committee of Management, there cannot be any ban and if such ban is made applicable that will not be applicable for the purposes of appointment by the Committee of Management for short term vacancy.

The reliance has been placed by the petitioner in a judgment of this Court reported in (2003) 1 E.S.C. 634 Mohd. Isha Khan Vs. District Inspector of Schools, Kushinagar and another and reliance has been placed upon in Para 4 of the said judgment.  The same is being quoted below:-

"4. Learned counsel for the petitioner contended that the ban was imposed vide the Government Order dated 9.6.1995 much after the appointment of the petitioner and, therefore, on this ground the approval to the appointment of the petitioner cannot be denied.  It is also contended that the vacancy in question being a short-term vacancy the Government Order imposing ban is not applicable and in terms of the provisions of the Second Removal of Difficulties Order, if the order according approval against short term vacancy is not communicated within seven days from the date of receipt of the papers, it would be deemed to have been accorded.  Learned counsel cited Single Judge judgment of this court in the case of Mukesh Kumar V. State of U.P. and others reported in 1996 (2) UPLBEC 783 and in the case of Kumari  Prabhabati Dikshit V. U.P. Madhyamik Shiksha Seva Ayog, Allahabad reported in 1992 (1) UPLBEC 582.  He has further submitted that in the case of  Koshinder Kumar and others V. State of U.P. and others in Civil Misc. Writ Petition No.14936 of 1996 involving similar and identical controversy was involved and this Court has quashed the order refusing to accord approval on the ground of ban imposed by the State Government and the petitioner was allowed to continue to work until the vacancies are converted into substantive vacancies or till the reversion of the permanent incumbent."  

The another judgment relied upon by the counsel for the petitioner in Chandra Mohan Pandey Vs. District Inspector of Schools reported in 2005(3) Selected Allahabad Cases and has submitted that this Court has considered that as the Removal of Difficulties Order (Second) has been repealed with effect from 25.1.1999, as such, it would not made any difference with regard to action taken under the said order prior to the date of repeal.

In view of the aforesaid fact, the petitioner submits that the order passed by the respondents is liable to be quashed.  The further submission has been made that from the perusal of the order dated 12.4.2004 it is clear that the order passed by the respondent No.2 is an order of non-application of mind without assigning any reason.  The same is liable to be quashed only on this ground.

A counter affidavit has been filed on behalf of the respondents and in the counter affidavit the Learned Standing Counsel wanted to justify the action of the respondent No.2 and has submitted that as the Removal of Difficulties Order (Second) has already been repealed, therefore, the Committee of Management was having no jurisdiction to make any appointment.  The another submission made on behalf of the respondents is that there was a ban for making any appointment by the State Government, therefore, if any appointment is made by the institution or Committee of Management, the same will be void, and therefore, the respondent no.2 has correctly rejected the claim of the petitioner.

I have heard learned counsel for the petitioner and learned Standing Counsel and have perused the record.

From the record, it is clear that on the basis of the promotion of one senior most LT grade teacher on the post of Principal on ad hoc basis, a short term vacancy has taken place and the vacancy was notified in two newspapers and when the District Inspector of Schools have not intimated anything, then the appointment has been made by appointment letter dated 1.2.1998 and the petitioner has joined on 2.12.1990.  One of the ground taken by the respondent No.2 is that as the Removal of Difficulties Order (Second) was repealed on 23rd January, 1999, therefore, as the Committee of Management was not having any jurisdiction to make an appointment, as such, no financial approval can be given.  The said ground of rejection taken by the respondent No.2 appears to be misconceived.  Admittedly the nature of repeal of the Second Removal of Difficulty Order is prospective unless and until specified otherwise.  There is nothing in the order by which the Second Removal of Difficulties Order has been repealed, that it will be operative retrospectively.  Unless and until a specified clause to this effect is mentioned while repealing a particular order regarding the applicability the same will be applicable prospective. It will always be presumed that it will be applicable from the date of notification.  As regards, the ban is concerned, this Court in case of   Mohd. Isha Khan (Supra) has clearly held that for a short-term vacancy, no ban can be imposed.

In view of the aforesaid fact, I am of the opinion, that the order dated 12.4.2004 (Annexure 7 to the writ petition) cannot be sustained and is hereby quashed and the matter is remitted back to the respondent No.2 to pass appropriate orders according to law taking into consideration the relevant judgments and observations made above. While passing the order, the respondent No.2 will pass a detailed and reasoned order according to law relating to financial approval of appointment of the petitioner within a period of two months from the date of production of the certified copy of this order.

With these observations the writ petition is disposed of. There shall be no order as to costs.

10.5.2006

SKD        


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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