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Narendra Singh v. D.I.O.S. And Ors. - WRIT - A No. 9896 of 1994  RD-AH 10053 (24 May 2007)
Hon'ble Rakesh Tiwari, J
Heard counsel for the parties and perused the record.
Case of the petitioner is that in response to an advertisement dated 1.6.1991 inviting applications for appointment on ad hoc basis on the post of Assistant Teacher in Adarsh Krishak Uchattar Madhyamik Vidyalaya, Karat, Mathura (for short ' College'), the petitioner applied and after selection, was appointed as such vide letter of appointment dated 28.6.1991.
The grievance of the petitioner is that the District Inspector of Schools, Mathura has neither accorded approval to his appointment nor released salary of the petitioner.
At the admission stage, following ad interim mandamus was issued by this Court:-
"Hon. V. Bahuguna, J
Petitioner is directed to serve respondent no. 3 by registered notice and take steps within three days.
Standing counsel is granted one month's time to file a counter affidavit.
List this petition for admission in the first week of May, 1994.
Meanwhile respondent no. 1 is directed to pay salary to the petitione in accordance with law or show cause before the next dte of hearing. A copy of this order shall be served by the petitioner upon the respondent no. 1 personally.
Dt. 16.3.94 Sd/- V.Bahuguna, J"
In the instant case, the petitioner claims that he was working on a newly created post, which has been surrendered by the committeee of Managerment of the college.
Counsel for the petitioner as well as Standing Counsel are agreed that the controversy involved in the instant writ petition is covered by the decision of this Court in Civil Misc. Writ No. 10335 of 1994- Shri Avtar Singh V. District Inspector of Schools, Aligarh and others, decied on 10.5.2001 wherein it has been held that newly created post cannot be surrendered. The Court after considering the provisions of Chapter 2 Regulation 20 of U.P.Intermediate Education Act held that :-
" It has been further stated that there was no vacancy in the L.T. Grade when petitioner was appointed. In this case there is no denying of the fact that three L.T. Grade posts were created for the first time by the order dated 26.4.1980 filed as Annexure I. After creation of the post on 26.4.1980, only two posts were filled up and on 3rd post petitioner claimed his appointment on 20.12.1991. The ground taken in the counter affidavit is that the third post of L.T. Grade will be deemed to be surrendered in accordance with Chapter II Regulation 20 of the U.P. Intermediate Education Act. Chater 2 Regulation 20 of he U.P. Intermediate Education Act is extracted below :-
" Where the committee of management has failed to advertise any sanctioned post which has fallen vacant in accordance with the regulation contained in the vacancy, such post shall be deemed to have been surrendered and shall not be filled up unless its creation is sanctioned afresh by the Director."
Chapter 2 Regulation 20 will have application when management has failed to advertise any sanctioned post which has fallen vacant in accordance with the regulation contained in this Chapter 2 within a period of 3 months from the date of occurrence of vacancy. The words fallen vacant and the words occurrence of the vacancy which finds place in Chapter 2 Regulation 20 clearly suggests that Regulation 20 will have application when the post falls vacant. The vacancy can only occur when the post is created. The act of post creation is not akin to the act of falling vacant. Thus when the post is created for the first time, the provisions of Regulation 20 Chapter 2 are not attracted. They will be attracted when a post falls vacancy in accordance iwh the Regulation.
In the present writ petition from the facts on reord it is clear that since the posts were created for the first time on 26.4.1980 and the third post of L.T. Grade teacher which is claimed to be deemed surrender was never filled up the provision of Chapter 2 Regulation 20 are not attracted nor will vitiate the appointment of the petitioner. In the counter affidavit, the respondent has relied on Regulation 20 Chapter 2 of the U.P. Intermediate Education Act for non making payment of salary to the petitioner.
The view taken by the respondent in refusing the payment is erroneous and contrary to provision of Chapter 2 Regulation 20.
This Court on 24.3.1994 granted interim order. The petitioener is continuing on the post by virtue of the interim order on 24.3.2001. It is to be noted that the aforesaid interim order came to an end on16.2.2000 due to petitioner's not taking any step for serving on respondent no. 3. Now the respondent no. 3 has put in appearance through counsel.
In view of above the writ petition is allowed and direction is issued to the respondent to pay salary to the petitioner as Assistant Teacher in L.T. Grade regularly in accordance with law.
Dated 10.5.2001 Sd/- Ashok Bhushan, J"
Standing counsel further states that the appointment of the petitioner was never approved by the District Inspector of Schools and from the record, it is not celar whether any approval to the appointment of the petitioner was accorded or not.
Be that as it may, the writ petition is disposed of with the direction to the District Inspector of Schools, Mathura- respondent no. 1 to decide the matter in accordance with law laid down in Civil Misc. Writ No. 10335 of 1994- Shri Avtar Singh V. District Inspector of Schools, Aligarh and others, decied on 10.5.2001 by a reasoned and speaking order within two months from the date of production of a certified copy of this judgment. No order as to costs.
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