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Shri Narain Singh v. State Of U.P. And Others - WRIT - A No. 2586 of 2004 [2007] RD-AH 6372 (6 April 2007)


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Civil Misc. Writ Petition No. 2586 of 2004

Sri Narain Singh                       Vs.                  State of U.P.  & others


Hon. Ran Vijai Singh,J.

This writ petition has been filed by the petitioner claiming himself to be Assistant Teacher in L.T. Grade (Biology) for issuing a writ of certiorari quashing the order dated 19.11.2003 (Annexure 14 to the writ petition) passed by the District Inspector of Schools, Meerut. This order has been passed by the District Inspector of Schools pursuant to the order of this Court passed in the  writ petition No. 43699 of 1999.

Earlier  to  this writ petition  he had  filed another writ petition No. 9907 of 1994 in which  an interim  mandamus  was issued   on 17.3.1994 directing  the District Inspector of Schools  to pay salary to the petitioner or to show cause. This writ petition is still pending. However pending this writ petition the petitioner has filed Writ Petition No. 18464 of 1999, this writ petition was disposed of on 5.5.1999 with the direction to respondent no.1 i.e. Joint Director of Education Meerut  to decide the representation  of the petitioner  in accordance with law.  The representation was decided by the Joint Director of Education and the Joint  Director of Education  per his order dated 12.7.1999 refused  to pay salary to the petitioner   on the ground that on the date of appointment neither the post was sanctioned nor vacant, therefore, no appointment on that post could be made. This order was again challenged  by the petitioner in writ petition No.43699 of 1999 where  it has been argued that the Institution  has been upgraded and the teacher who had been teaching before up gradation are entitled for the salary after the up gradation in view of  the decision of this Court  in case of Radhey Mohan Pandey and others Vs. State of U.P. and others, reported in 1991 (18) AIR 302 para 4. While deciding this case finally  the Hon'ble Judge dealing with the matter has held that before the payment of


salary the factual matter has also  to be scrutinized. Therefore, His Lordship has directed the petitioner to file  a comprehensive fresh  representation before the District Inspector of Schools giving all details for redressal of his grievance. It appears that the petitioner  has moved a fresh representation  and that has been decided by the District Inspector of Schools on 19.11.2003 which is the order impugned. From perusal of the order it transpires that the District Inspector of Schools has not taken the decision as directed by the Court  and followed earlier order dated 12.7.1999 which was passed by the Joint Director of Education who happens to be  two steps above in the hierarchy  of the service. The District Inspector of schools has not examined the matter as directed by the Court earlier  and based his decision only on the decision of the Joint Director of Education dated 12.7.1999.

I have heard Sri N.L. Pandey, learned counsel for the petitioner,  learned Standing counsel and Sri  Pradeep Pandey, learned counsel for respondent No.4.

Sri Pandey, learned counsel appearing for the petitioner has vehementally argued  before this court that on earlier occasion Joint Director of Education has rejected the application of the petitioner arbitrarily without considering the earlier approval granted by DIOS with regard to his appointment and now  at present the District Inspector of Schools who was directed to decide the matter considering  the factual aspect, this time also the District Inspector of Schools in a very casual manner has rejected the claim of the petitioner basing his order on earlier order passed by the Joint Director of Education on 12.7.1999. The learned Standing Counsel appearing for the State respondents also joins hand  with the argument  of the learned Counsel for the petitioner to the extent  that the District Inspector of Schools has not considered  the legal and factual aspect  of the matter. He has further  submitted  that the District


Inspector of Schools was required to see  how and when the vacancy has occurred and before appointing the petitioner  on ad-hoc basis  against the substantive vacancy whether the  requisition was sent to the Commission as required under U.P. Secondary Education Service Selection Board Rule applicable at the relevant time and the petitioner's appointment  was made in accordance with the provision  contained  in para 5 of U.P. Secondary Education Services Commission (Removal of Difficulties) orders 1981.

Considering the facts and circumstances of the case, I find that the order passed by the District Inspector of Schools on 19.11.2003 is prima facie illegal and is quashed. The matter is sent back to the Director of Education  for fresh decision (for the reason that the earlier order dated 12.7.99 was passed by Joint Director of Education and DIOS will not be able to go beyond the order passed by Joint Director of Education). The petitioner  is at liberty to move a fresh representation  giving all the details of his appointment to the Director of Education Secondary U.P. Lucknow along with  the certified copy of the judgment and thereafter the Director of Education shall pass a reasoned order considering all factual and legal aspects in this regard within a period of three months from the date of receipt  of the representation and order passed by this Court.

With this observation, the writ petition is allowed.

However, it is clarified that the petitioner shall not be entitled to salary in view of the quashing of the order dated 19.11.2003 unless the fresh decision is taken by the Director of Education Secondary U.P. Lucknow for payment of salary of the petitioner pursuant to the decision of this Court.




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