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SURYA PRAKASH RAI versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Surya Prakash Rai v. State Of U.P. And Others - WRIT - A No. - 17676 of 2006 [2007] RD-AH 17623 (12 November 2007)

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 AT ALLAHABAD

Court No. 10

Civil Misc. Writ Petition No. 17676 of 2006

Surya Prakash Rai ........... Petitioner

Vs.

State of U.P. & Others ........... Respondents

***********

Hon'ble Pankaj Mithal,J.

Heard learned counsel for the petitioner and learned Standing counsel. The respondent No.5 Committee of Management has supported the petitioner.

The petitioner has challenged the order dated 21.3.2006 passed by the DIOS, by which the appointment of the petitioner as Assistant Teacher on a short term vacancy in the institution has been disapproved on the ground that the vacancy was not notified in two newspapers having adequate circulation in U.P.

The institution Sant Vinoba Inter College, District Mau is a recognised institution receiving grant-in-aid from the State Government. In the said institution the post of principal fell vacant. Therefore, one Kailash Nath Yadav, lecturer Chemistry was promoted on ad hoc basis as the principal. This resulted in a short term vacancy of the post of lecturer Chemistry at the institution. The said short term vacancy was liable to be filled up in accordance with the Second Removal of Difficulty Order. Accordingly to paragraph 2 of the Second Removal of Difficulty Order, a short term vacancy which arises in the institution has to be filled up by the Committee of Management by the promotion from amongst the permanent senior most teachers of the institution and further if it cannot be filled up by such promotion due to non availability of a teacher having a prescribed minimum qualification, the same shall be filled up by direct recruitment in the manner provided. Since there was no teacher available for promotion at the institution on the said short term vacancy, the DIOS vide order dated 25.6.1998 permitted the Committee of Management to fill up the said post by direct recruitment in the manner prescribed. In view of the permission granted by the DIOS, the post was advertised in two daily newspapers "Dainik Jagran" and "Poorvancahl Sandesh". The petitioner in pursuance thereof applied along with four other candidates and was duly selected for the post on the basis of quality points marks. The District Inspector of Schools on receiving the documents vide order dated 29.8.1998 allegedly granted financial approval to the petitioner's appointment. However, the petitioner was not paid any salary on the pretext that no such financial approval was granted to the petitioner's appointment. Therefore, the petitioner preferred a Writ Petition No. 17168 of 2002 for the payment of salary. The said writ petition was disposed of vide judgment and order dated 10.1.2006 with the direction to the DIOS to decide the claim of the petitioner afresh within two months. In pursuance thereof the DIOS has passed the impugned order dated 21.3.2006 rejecting the representation of the petitioner and refusing to accord the financial approval to his appointment.

Learned counsel for the petitioner has argued that in view of the admitted fact that the petitioner was appointed against a short term vacancy after following the due procedure prescribed, there was no occasion for the DIOS to refuse financial approval to his appointment even if the earlier order granting financial approval dated 29.8.1998 is treated to be no nest. The post was widely advertised in the two leading newspapers therefore, the DIOS erred in refusing the approval on the ground that one of the newspapers "Poorvancahl Sandesh" was not a State level newspaper.

Learned Standing counsel in defence has only submitted that according to the law laid down by this Court in the case of Radha Raizada Vs. Committee of Management (1994) 3 UPLBEC 1551 as the post was not advertised in two newspapers having adequate circulation in U.P., the DIOS has rightly refused financial approval to the petitioner's appointment. No other point for disapproving the appointment was raised before me.

I have considered the respective submissions of the learned counsel for the parties. Undisputedly, a short term vacancy on the post of lecturer in the institution had arisen, which was required to be filled up in accordance with Second Removal of Difficulty Order which only provides for the notifying the vacancy on the notice board of the institution. However, the full Bench of this Court in the Case of Radha Raizada (Supra) while considering the procedure for appointment on short term vacancy ruled that the notification of the short term vacancy on the notice board is inadequate and therefore, the procedure prescribed for advertising the vacancy as per the First Removal of Difficulty Order should be followed and the management should advertise the same at least in two newspapers having adequate circulation in U.P. Thus, even though the Second Removal of Difficulty Order does not specifically provide for advertising the vacancy in the two newspapers by virtue of the law laid down by the court, the short term vacancies came to be advertised in the newspapers at least two in number having circulation in U.P. for giving wide publicity. The intention behind this wide publicity is certainly to enable the candidates throughout U.P. to compete. However, it has to be kept in mind that the appointment of a short term vacancy is not a regular appointment and the requirement of advertising the vacancy in newspapers is only procedural in nature. Therefore, any slight irregularity in strictly following the said procedure of advertisement may not in all cases result in invalidating the appointment if otherwise made in accordance with law and there is no other illegality in following the procedure. In the case of the Arun Tewari and others Vs. Zila Mansavi Shikshak Sangh and others AIR 1998 SC 331 (Pr. 7, 19 and 20) it has been held that where the appointment is not substantive and only a stop gap arrangement, the requirement of public notice/advertisement in newspapers can be dispensed with. The conclusion drawn from the decision of the Supreme Court above is that temporary or a short term appointment should not be rendered void ab initio on mere technicality as it would frustrate the entire emergent purpose of filling the short term vacancy. In the instant case undisputedly, the short term vacancy had been advertised in "Dainik Jagran" which is admittedly a daily newspaper having widest possible circulation in the State of U.P. and at the same time in a daily newspaper "Poorvanchal Sandesh". The said newspaper is also having sufficient circulation though it may not be having a recognition of a State level newspaper. Thus, in the totality of circumstances, in my opinion the short term vacancy was widely published and the mere fact that the second newspaper was not a State level newspaper would not vitiate the selection/appointment when the selection /appointment is otherwise in accordance with law.

In view of the above, a writ of certiorari is issued quashing the impugned order dated 21.3.2006 passed by the DIOS and a further writ in the nature of mandamus is issued commanding the DIOS to pay the salary of lecturer, Chemistry admissible to the petitioner for the period he has already worked and to continue to pay the same on regular monthly basis till the said vacancy exsists and the petitioner continues the work on it.

The writ petition succeeds and is allowed. No order as to costs.

Dt. 12.11.2007

S.S.


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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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