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P. MALIK versus STATE

High Court of Judicature at Allahabad

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P. Malik v. State - WRIT - A No. - 11862 of 1994 [2007] RD-AH 15021 (5 September 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No.26

Civil Misc. Writ Petition No. 11862 of 1994

Pramod Malik

Versus

State of Uttar Pradesh and others

Hon.Shishir Kumar, J.

By means of the present writ petition the petitioner has approached this Court for issuing a writ of mandamus directing the respondents to ensure payment of salary to the petitioner as L.T. grade teacher with effect from the date of appointment i.e. 12.1.1994. Further a writ in the nature of mandamus directing the respondents not to interfere in the functioning of the petitioner.

There is an institution namely as Veer Smarak Inter College, Baraut, District Meerut, is a recognized institution under the provision of the Intermediate Education Act and the institution is also aided under the provision of U.P. High School Teachers and other Employment (Payment of Salary) Act, 1971 and those of U.P. Secondary Education Services Commission Act, 1982 are applicable in the case of the petitioner.

One Mahendra Singh Tomar was working as permanent lecturer in Hindi in the institution, was retired on 30.6.1991. On a resolution by the Committee of Management, the senior most teacher in the institution namely Smt. Shanti Devi Verma was promoted on ad hoc basis as Lecturer in Hindi. She was also retired on 30.6.1992, as such, a substantive vacancy fell vacant. One Harpal Singh Tomar, who was working as L.T. grade teacher was having qualification was permitted to work on ad hoc basis and necessary papers to that effect were sent to the District Inspector of Schools on 21.4.1993 for granting approval. The District Inspector of Schools vide its order dated 12.10.1993 approved the ad hoc promotion of Sri Harpal Singh Tomar, lecturer in Hindi with effect from 1.7.1993.

Due to the promotion of Sri Harpal Singh Tomar, a short term vacancy in L.T. grade has taken place and intimation to that effect was given to the District Inspector of Schools vide its letter dated 28.12.1993. An advertisement to that effect was made in the paper and a Selection Committee was constituted and various persons were considered. The petitioner was found eligible, as such, the Committee of Management decided to appoint the petitioner on ad hoc basis in L.T. grade in short term vacancy. The papers relating to the approval of the appointment of the petitioner were sent to the District Inspector of Schools but the District Inspector of Schools in spite of repeated information has not approved the appointment of the petitioner in spite of the fact that the petitioner joined the services and was working there. Aggrieved by the aforesaid action of the respondents, the petitioner has approached this Court.

Sri R.M.Saggi, learned counsel for the petitioner submitted that as short term vacancy has taken place after due advertisement, a Selection Committee was constituted and the petitioner was given appointment and the papers were sent to the District Inspector of Schools for approval. The appointment of the petitioner was under the U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, as such, if no order has been passed there is a deemed approval after seven days from the date of receipt of papers pertaining to ad hoc appointment of the petitioner. It has further been submitted by the petitioner that as the promotion of Sri Harpal Singh Tomar has already been approved by the competent authority, as such, a short term vacancy has taken place and after following the procedure as provided under the Second Removal of Difficulties Order, the petitioner was given appointment. Therefore, the District Inspector of Schools was bound to approved the appointment of the petitioner. The said action of the respondent- District Inspector of Schools is wholly illegal and without jurisdiction and against the well settled principle of law as laid down by this Court in various judgements.

The date of appointment of the petitioner is 12.1.1994 and the Full Bench decision of Radha Raizada's case has come subsequently, which has observed regarding certain conditions and guidelines of the appointment of ad- hoc teacher or to fulfil the short term vacancy. Earlier there was no requirement in the appointment which could be invalid if it is under the Second Removal of Difficulties Order.

Petitioner has relied upon a judgement of this Court reported in 2006 (3) ESC, 2166 (Allahabad) Subhash Chandra Tripathi Vs. District Inspector of Schools Kanpur Nagar and others and relied upon paras 23 and 24 of the said judgement. The same are being reproduced below:-

"23. The second ground on which the claim of the petitioner has been rejected that without prior permission the advertisement inviting application for short term appointment could not be issued. In the impugned order or in the counter affidavit or during the argument the reference to any provision of law where such a requirement is mandatory has been disclosed. The appointment to the short-term vacancies, at the relevant time, was governed by the Second Removal of Difficulties Order as explained by the Full Bench decision of this Court in case of Radha Raizada and others v. Committee of Management, (1994) 2 ESC 345 (All) (FB).

24. The another ground given in the impugned order is that before filing the vacancy, the Management ought to have obtained financial approval of the post. It is not the case of the respondents that Sri Shanker Dayal Pandey, who was working as L.T. Grade teacher was given ad hoc promotion in the lecturers grade with effect from 17.2.1986. it is also not the case of the respondents that Sri Shyam Bihari Singh, who was working as assistant teacher in L.T. Grade was not drawing his salary in L.T.grade. It is also not the case of the respondents that at any time financial approval to that post was withdrawn by the respondents. There is no requirement of law to obtain further approval while making short-term appointment on the post except when the post has been abolished, but it is not the case of the respondents. The learned Standing Counsel has failed to point out any provision of law by which such a requirement has been placed upon the Management."

It has been submitted that in the similar controversy this Court has allowed the writ petition and directed the respondent No.2 to pay the salary to the petitioner.

A counter affidavit has been filed by the respondents. Only this averment has been made that the appointment of the petitioner was not in accordance with law and without following the proper procedure. It has also been stated that the petitioner has never worked in the institution.

A rejoinder affidavit has been filed and the allegations made in paragraphs 15, 16 and 18 of the counter affidavit have been denied and averment to this effect has been made that the petitioner is regularly working on the post of Assistant Teacher in the institution. The copy of the same has been annexed from November, 1994 to July, 1999 showing therein that the petitioner is working.

I have considered the submissions made on behalf of the petitioner and learned Standing Counsel and have also perused the judgement relied upon by the learned counsel for the petitioner.

It is apparent from the record that a short term vacancy on the basis of ad- hoc promotion of one Harpal Singh Tomar has taken place. Admittedly,

the promotion of Harpal Singh Tomar was approved by the District Inspector of Schools. On the basis of short term vacancy, an advertisement was made and the Selection Committee was constituted and the petitioner was found eligible, therefore, he has been appointed but the District Inspector of Schools has not passed any order either disapproving or approving the appointment of the petitioner. Therefore, in view of the Praveen Pratap Singh Bhadauria Vs. District Inspector of Schools, Varanasi and others reported in 1999 (3) ESC 2236 it has been held that if after the ad hoc appointment the papers have been forwarded to the District Inspector of Schools and if the District Inspector of Schools has not granted any approval then immediately after expiry of seven days, the appointment of teacher shall be deemed to have been approved by reason of Clause (iv) of the paragraph 2(3) of the Second Removal of Difficulties Order.

Admittedly, the short term vacancy arose on 1.7.1993 and no financial approval has been granted. The papers relating to financial approval were sent to the District Inspector of Schools, therefore, in view of the Second Removal of Difficulties Order, the appointment of the petitioner will be deemed to be approved.

In view of the aforesaid fact, the writ petition is allowed. The appointment of the petitioner will be deemed to be approved immediately after seven days, as such, the petitioner is entitled for salary. A writ of mandamus is issued to the respondent No.2 to pay the salary to the petitioner and to permit the petitioner to work as a teacher in the institution.

No order as to costs.

5.9.2007

SKD


Copyright

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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