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