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Virendra Kumar Srivastava & Another v. The D.I.O.S. Mau & Others - WRIT - A No. - 27235 of 1994  RD-AH 18440 (28 November 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 26
Civil Misc. Writ Petition No. 27235 of 1994
Virendra Kumar Srivastava and another
District Inspector of Schools, Mau and others
Civil Misc. Writ Petition No. 3617 of 1994
Ram Darash Yadav
District Inspector of Schools, Mau and others
Civil Misc. Writ Petition No. 23457 of 1990
Shesh Nath Singh
The District Inspector of Schools, Mau and others
Hon'ble V.K. Shukla, J.
List has been revised. Sri Amar Nath Tripathi, Senior Advocate, is present for petitioners in Civil Misc. Writ Petition No. 27235 of 1994 and Civil Misc. Writ Petition No. 3617 of 1994. Learned Standing Counsel is also present for State respondents. However, no other counsel is present for private respondents in spite of the fact that names of various counsels have been shown in the cause list from the side of respondents.
In the district of Mau, there is a recognized institution known as K.M.K. Uchchatar Madhyamik Vidyalaya, Pipridesh, District Mau. Said institution is governed by the provisions as contained under U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder. Institution in question is on grant-in-aid list of the State Government, as such the provisions of U.P. Act No. 24 of 1971 are fully applicable to the the said institution. In the institution concerned one A.K. Singh, who had been performing and discharging duties as class IV employee left his service in the year 1976 and in his place one Doodh Nath was appointed as class IV employee and his appointment was duly approved by the District Inspector of Schools and he started working since 01.04.1976. Another class IV employee Dev Narain Chaubey proceeded on leave from the institution with effect from 01.08.1988. In the said vacancy one Shesh Nath Singh, petitioner in Civil Misc. Writ Petition No. 23457 of 1990, was appointed on 02.08.1988 and his appointment was also approved by the District Inspector of Schools, categorically mentioning therein that his appointment would continue till Dev Narain Chaubey returned back. On 01.01.1990, Dev Narain Chaubey rejoined the institution and net effect of the same was that services of Shesh Nath Singh automatically came to an end. Shesh Nath Singh filed writ petition No. 23457 of 1990, claiming salary, wherein on 12.09.1990 interim mandamus was issued. Petitioner No. 2 of Civil Misc. Writ Petition No. 27235 of 1994 claims that one Khuttal, another class IV employee, of the institution retired from service on 30.09.1993, and qua this vacancy advertisement was published and selection proceedings were undertaken and thereby he was selected and offered appointment on 08.11.1993 by the Principal of the institution, who happens to be competent authority in respect of appointment of class IV employees. Thereafter, papers were transmitted to the District Inspector of Schools for financial sanction, but no action was taken thereon. Civil Misc. Writ Petition No. 3617 of 1994, Ram Darash Yadav Versus District Inspector of Schools, Mau and others was filed for payment of salary, wherein counter and rejoinder affidavit were directed to be exchanged. Shesh Nath Singh, who after his services were dispensed with on rejoining of Dev Narain Chaubey, as mentioned earlier, filed writ petition No. 23457 of 1990, in which an interim mandamus had been issued, and after expiry of four years from the date of the said interim mandamus an order was passed on 05.05.1994, directing adjustment of Shesh Nath Singh in the vacancy caused on account of retirement of Khuttal. At this juncture Civil Misc. Writ Petition No. 27235 of 1994 was filed. On presentation of this writ petition, an interim order was granted, which was subsequently affirmed while rejecting the Stay Vacation Application of Shesh Nath Singh.
In all the writ petitions counter and rejoinder affidavits have been exchanged, and they have been taken up for final hearing and disposal in revised list.
Sri Amar Nath Tripathi, Senior Advocate, representing petitioners in petition Civil Misc. Writ Petition No. 27235 of 1994 and Civil Misc. Writ Petition No. 3617 of 1994, has contended that the order of adjustment passed in favour of Shesh Nath Singh was unsustainable, inasmuch as his appointment was purely in stop gap arrangement and he could not have been adjusted against substantive and permanent vacancy, as such said order is liable to be quashed.
Learned Standing Counsel, on the other hand, has contended that rightful decision of adjustment has been taken, as such no interference is required by this Court.
After respective arguments have been advanced, factual position which emerges is to the effect since the institution in question is recognized and aided institution, as such appointment against class IV vacancies are to be made strictly in consonance with Regulations 101 to 107 of Chapter III of the Regulations framed under U.P. Act No. 2 of 1921. In the present case undisputedly, petitioner, Ram Darash Yadav, claims to have been appointed against the vacancy caused on account of retirement of one Khuttal after due advertisement and after facing interview etc. and the papers were transmitted to the District Inspector of Schools for financial sanction, but the District Inspector of Schools did not take any decision thereon, and on 05.05.1994 on the basis of the interim mandamus passed four years back in writ petition filed by Shesh Nath Singh, who had been appointed in leave vacancy, directed his adjustment against the vacancy in which petitioner No. 2 of Civil Misc. Writ Petition No. 27235 of 1994 had been appointed. Such an adjustment is totally unjustifiable and is not subscribed by any statutory Rules or Regulations. On rejoining of Dev Narain Chaubey, appointment of Shesh Nath Singh, as per terms and condition of his appointment, automatically came to an end, then there was no justification on the part of the District Inspector of Schools to have passed order of adjustment on 05.05.1994, that too under the shelter of interim mandamus issued four years back on 12.09.1990, as such order dated 05.05.1994 is unsustainable and cannot be subscribed. After enforcement of Regulations 101 to 107 of Chapter III of the Regulations framed under U.P. Act No. 2 of 1921, claim of petitioner, Ram Darash Yadav, is to be adverted to by the District Inspector of Schools as under the provisions as contained under Regulations 101 to 107 of Chapter III of the Regulations framed under U.P. Act No. 2 of 1921, as held by Division Bench of this Court in the case of Jagdish Singh etc. v. State of U.P. and others, (2006) 3 UPLBEC 2765, and as appointment is not at all feasible without prior approval, till date no exercise has been carried out to see as to whether appointment of Ram Darash Yadav has been validly made or not.
Consequently, writ petition No. 27235 of 1994 succeed and is allowed. Civil Misac. Writ Petition No. 3617 of 1994 is disposed of. District Inspector of Schools, Mau is directed to look into the claim of petitioner, Ram Darash Yadav, of according approval to his appointment made in the vacancy caused on account of retirement of Khuttal and take appropriate decision in accordance with law, within eight weeks from the date of receipt of a certified copy of this judgment. Writ petition No.23457 of 1990 filed by Shesh Nath Singh is dismissed.
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