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Ajai Kumar Rai v. Director Of Education (Basic) & Others - WRIT - A No. 12959 of 2000  RD-AH 8352 (4 May 2007)
Court No. 31
Civil Misc. Writ Petition No. 12959 of 2000
Ajai Kumar Rai Vs. Director of Education (Basic),U.P. Allahabad & others
Hon'ble Mr. Justice Vineet Saran
The petitioner is an Assistant Teacher working in the college of Respondent no. 5. By means of the impugned order dated 2.2.2000 passed by the Director of Education (Basic), Respondent no.1, along with several other teachers, the case of the petitioner was also considered and it has been held that the appointment of the petitioner was not validly made. Pursuant to that, the consequential order dated 10.2.2000 has been passed by the Manager of the Committee of Management of the institution, Respondent no.5, whereby the services of the petitioner have been terminated. Challenging the aforesaid orders this writ petition has been filed by the petitioner.
I have heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Rohit Upadhyay, learned counsel appearing on behalf of the petitioner as well as learned Standing Counsel appearing for the State-respondents. Although appearance on behalf of Respondent no.5, Committee of Management of the school has been entered by Sri Sameer Garg but no one has appeared on behalf of the said respondent even in the revised list. Further, more than seven years have passed but no counter affidavit has yet been filed on behalf of any of the respondents.
The brief facts of this case are that Junior High school Sultanpur, Ballia is a duly recognized High School and is included in the grant-in-aid list of the State Government. After due permission having been given by the Basic Shiksha Adhikari, Ballia, certain posts of Assistant Teachers were advertised. After following the procedure the petitioner was selected for such appointment. On 28.1.1996 the Basic Shiksha Adhikari, Ballia accorded approval to the selection of the petitioner for appointment as Assistant Teacher and pursuant thereto an appointment letter was issued to the petitioner and he joined his services on 29.1.1996. Thereafter in 1997 one Ranjeet Bahadur Rai, who was the then Manager of the institution, challenged the order of appointment of the petitioner by filing writ petition no. 19433 of 1977 which was dismissed by this Court vide order dated 1.7.1997 with the direction that unless the services of the petitioner herein (Ajai Kumar Rai) were terminated in accordance with law, he shall be entitled to payment of his salary. Since in October 1998 the payment of salary to the entire staff of the institution was stopped, all the members of the staff of the institution filed writ petition no. 12889 of 1999, in which an interim order was passed on 30.3.1999 directing the respondents to pay salary to the petitioner until further orders. However, since the salary was not paid to the staff members, Contempt petition no. 1479 of 1999 was filed against the educational authorities for non compliance of the interim order dated 30.3.1999. In the meantime, on 25.8.1999, the Dputy Director of Education passed an order holding certain employees to be entitled for payment of salary but the petitioner was held dis-entitled for such payment. The said order was challenged by the petitioner in writ petition no.40757 of 1999 in which an interim order was granted by this Court on 22.9.1999 directing payment of salary to the petitioner. The said interim order was challenged by the committee of management of the institution in Special Appeal no. 1080 of 1999. Although the interim order dated 22.9.1999 was set aside but the writ petition no. 40757 of 1999 itself was allowed by the Division Bench and the order dated 25.8.1999 was quashed and the Director of Education was given liberty to pass fresh order. Pursuant thereto the impugned order dated 2.2.2000 has been passed.
By means of an interim order dated 17.5.2000 the operation of the orders dated 2.2.2000 and 10.2.2000 had been stayed by this Court.
The submission of the learned counsel for the petitioner is that the initial order dated 28.1.1996 passed by the Basic Shiksha Adhikari, Ballia whereby approval was granted to the selection and appointment of the petitioner as an Assistant Teacher has neither been withdrawn nor quashed by any authority or Court. The Director of Education in its order has merely considered the fact that the Basic Shiksha Adhikari did not produce the record pertaining to the selection proceedings and as such the entire selection process was doubtful. However, nothing has been said in the impugned order with regard to the order granting approval to the appointment of the petitioner as Assistant Teacher by the Basic Shiksha Adhikari.
Merely because certain documents were not produced by the Basic Shiksha Adhikari, the appointment of the petitioner cannot be said to be illegal or invalid. The specific case of the petitioner is that his appointment was made after the vacancy was notified to the Basic Shiksha Adhikari and permission was granted to fill up the vacancy, after adopting the selection process. It is the categorical case of the petitioner that after selection, his appointment was duly approved by the respondents. In the absence of any of the respondents having filed the counter affidavit, the averments made in the writ petition would be taken to be correct. Even in the impugned order it has not been said that the order of approval was either forged or fabricated. As such, merely on surmises, the approval granted to the appointment of the petitioner cannot be set aside.
For the foregoing reasons, in my view, the order passed by the Director of Education as well as the consequential order passed by the committee of management deserve to be set aside.
Accordingly, this writ petition stands allowed. The order dated 2.2.2000 passed by the Director of Education, Respondent no.1, in so far as it relates to the petitioner, as well as the consequential order dated 10.2.2000 passed by the Respondent no.5 are both set aside. The petitioner shall be entitled to all consequential benefits.
No order as to cost.
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