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Sri Shree Pati Ram v. Director Of Higher Education, U.P. Allahabad & Others - WRIT - A No. 37212 of 2000  RD-AH 11870 (12 July 2007)
Court No. 26
Civil Misc. Writ Petition No. 37212 of 2000
Sri Shree Pati Ram Vs. Director of Higher Education & others
Hon'ble Mr. Justice Vineet Saran
The petitioner was initially engaged as a Junior Clerk on daily wage basis on 3.1.1990 in the Respondent no.2-college run by the State Government. His engagement on such basis was extended from time to time. Thereafter on 24.4.1995, in response to an advertisement issued by the Principal of the college for appointment on the post of Junior Clerk, the petitioner had applied and after facing the selection process, he was selected and appointed as a Junior Clerk on 6.7.1995. He continued to work on such post. Thereafter a committee was constituted to enquire into the validity of the appointment of the petitioner which submitted its report on 23.2.1998, a copy of which has been filed as Annexure-2 to this writ petition. Thereafter by order dated 4.8.2000 passed by the Joint Director of Education, the services of the petitioner have been terminated on the ground that the appointment of the petitioner itself was irregular. Challenging the said order, this writ petition has been filed.
I have heard Sri Bhim Singh, learned counsel for the petitioner as well as learned Standing Counsel appearing for the State-respondents and have perused the record.
The appointment of the petitioner has been cancelled on the grounds that the same was made without any prior approval of the Directorate; there was no representation of the District Magistrate in the selection committee; the petitioner did not possess the requisite typing speed; there was ban on such appointment imposed by the State Government; and that in an enquiry conducted on a complaint made with regard to the appointment of the petitioner, the same was found to be irregular.
Nothing has been placed on record to show that prior approval of the Directorate was required before giving appointment to the petitioner as a Junior Clerk nor has anything been placed on record that a nominee of the District Magistrate was required to be there in the selection committee. Admittedly while conducting the enquiry on the complaint made with regard to the appointment of the petitioner, the petitioner was neither given any notice nor was he given opportunity of hearing. It was only thereafter that a show cause notice was given to the petitioner to explain why his appointment be not cancelled because it was given during the period when a ban was imposed by the State Government and the same was made by the Principal without following the proper selection process. It is also pertinent to note that with regard to the appointment of the petitioner earlier also, an enquiry had been conducted in the year 1998 and the committee of which the Principal was a member submitted its report on 24.2.1998. In the said report it was held that the appointment given to the petitioner was perfectly valid and that he be given the benefits of service. Submission of such report has not been denied by the respondents. The cancellation of the appointment of the petitioner on the basis of ex parte enquiry conducted on a complaint, without notice to the petitioner, cannot be said to be justified. The ban imposed by the Government Order dated 18.4.1994 was for short term appointment and as such the same would not be applicable to the case of the petitioner as the appointment of the petitioner was given after due advertisement and following the process of selection, in which the petitioner participated and was declared selected. As such, the said grounds for cancellation of his appointment would also not be valid. No such irregularity in the selection process has been brought on record so as to warrant the cancellation of the appointment of the petitioner. An ex parte enquiry on the basis of some complaint cannot form basis for passing of the impugned order. Accordingly, the impugned order dated 4.8.2000 passed by the Joint Director of Education is liable to be quashed.
Learned Standing Counsel has, however, stated that the petitioner has not worked since the passing of the impugned order and as such on the principle of "No work no pay", he would not be entitled to payment of any back wages. Sri Bhim Singh, learned counsel for the petitioner, has agreed that in case if the petitioner is reinstated even without back wages but if he is given the benefit of continuity of service for the purposes of his seniority and fixation of pay, the same would be acceptable to the petitioner.
For the foregoing reasons, this writ petition is allowed. The order dated 4.8.2000 passed by the Joint Director of Education is quashed. The petitioner shall be reinstated in the service. However, he shall not be entitled to payment of back wages but he shall get the benefit of continuity of service and all other benefits including grant of increment and fixation of pay accordingly.
No order as to cost.
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