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Smt.Asha Misra v. Union Of India & Another - WRIT - A No. 4753 of 1999  RD-AH 9552 (18 May 2007)
Hon'ble Rakesh Tiwari, J
Smt. Asha Mishra, the petitioner claims that she was appointed as Accounts Clerk vide letter of appointment dated 12.2.1993. She claims that her appointment was made after the post was advertised and interview was held by the Selection Committee. She also claims that her name was incuded in the list dated 24.7.1993 containing the names of teaching and non-teaching staff sent to the concerned authorities for sanction of grant-in-aid to the employees of Rani Padmawati Tarayog Tantra Mahavidyalay Sansthan Indrapur, Shivpur, Varanasi (hereinafter referred to as 'the institution'). The instituion was recognized w.e.f. 29.10.1998 and is granted accorded grant-in-aid by the Government.
The petitioner is aggrieved by the impugned order dated 17.11.1988 appended as Annexure 1 to the writ petition by which Sri Kanhaiya Jha- respondent no. 6 has been absorbed as Accounts Clerk in her place.
It is alleged that respondent no. 6 had not served the institution even for a day and even was not a member of existing non-teaching staff yet he has been illegally absorbed as Accounts Clerk in the institution.
Counsel for the petitioner vehemently urged that the petitioner having been appointed in accordance with recruitment rules and her name having been forwarded to the concerned authorities for grant-in-aid to the employees of the institution, she is entitled to continue as Accounts Clerk in the institution and appointment of respondent no. 6 in her place is illegal and arbitrary.
Per contra, a preliminary objection has been raised by the counsel for the respondents about the maintenability of the writ petition in view of decisions of Hon'ble the Apex Court in Chandra Mohan Khanna V. NCERT - 1991 SCC-578; Ajai Hashia V. Khalidmujib Sheravari -1981 (1)SCC-722 and Pradip Kumar Biswas V. Indian Institute of Chemical Biology and othres-2002(5) SCC-111. Reliance in this regard has also been placed in the decision of this Court in Civil Misc. Writ No. 1546 of 1999- Anirudh Jha V. Union of India decided on 21.3.2007. In these cases it has been held that the institution is not 'State' within the meaning of Article 12 of the Constitution of India.
It is contended by the respondents that the petitioner did not appear before Screening Committee despite intimation and that she does not possess requisite qualifications to hold the post of Accounts Clerk as she is not a Commerce Graduate whereas respondent no. 6 is a Commerce Graduate and possesses the requisite qualifications for the post of Accounts Clerk.
It is stated that the respondent no. 6 has been working as Accounts Clerk for the last about 9 years and is regularly getting his salary and the claim of the petitioner at this belated stage is barred by the principle of waiver and acquisence as well as even equity is also against her.
No other point has been argued.
As regards the preliminary objection the impugned order has been passed by the Deputy Director (Finance) of Rashtriaya Sanskrit Sansthan which is established under the auspices of the Ministry of Human Resources Devement, Government of india. This fact is admitted by the respondents as is evident from office order dated 10.5.2000 passed by Deputy Director (Admn.), Office of the Director, Rashtriya Sanskrit Sansthan, New Delhi, appended as Annexure C.A. 6 to the counter affidavit and letter dated 10.6.2000 from Principal of the institution to the Director, appended as Annexure C.A. 7 to the Counter Affidavit.
From perusal of Annexure C.A. 4 to the counter affidavit, it is evident that Expert Committee for inspection and screening of the insitution submitted its report for consideration of proposal of recognition of the institution by the Ministry of Human Resources Development, Department of Education, New Delhi. The institution was recognized w.e.f. 29.10.1998 and was given grant-in-aid by the Government of India. The impugned order clearly mentions that 95% approved expenditure on recurring items and 75% on non-recurring items is met by the Union Government. Moreover, the array of parties also reflects that Ministry of Human Resources, Rashtriaya Sanskrit Sansthan and its Dy. Director have been impleaded as respondent nos. 1 to 3 and they have also filed counter affidavits.
In the aforesaid judgments cited by counsel for the respondents, it has been held that no foundation was laid that Rashtriya Sanskrit Sansthan was 'State' or not within the meaning of Article 12 of the Consitution, as such relief could not be granted but in the instant case, the respondents have candidly admitted that Rashtriya Sanskrit Sansthan is an auspices of Government of India and the impugned order has been passed by its Deputy Director. Thus, the aforesaid decisions do not apply to the case on hand and the preliminary objection of the respondents is accordingly rejected.
On merits, from perusal of paragraph 8 of the counter affidavit filed by respondent nos. 1 to 5, it appears that the respondent no. 6 was appointed as Accounts Clerk on 2.1.1996. The appointment letter is appended as Annexure C.A. 2 to the counter affidavit, a perusal of which indicates that respondent no. 6 was appointed on his application. Neither the post was advertised nor any interview by the Selection committee was held whereas the petitioner was appointed after advertisement of the post and selection held by the Selection Committee. Interestingly enough, on the own showing of respondents, second Screening Committee was consulted by Ministry of Human Resources Development (Department of Eduction) to review the illegality committed in the absorption of teaching and non-teaching staff in which it was found that the petitioner may be appointed as Lower Division Clerk/Typist as and when post is created. The relevant averment in the Counter Affidavit is quoted below :-
(1) That the second screening committee was duly conveyed to review the irregularities committed in appointment of teaching and non-teaching staff, and recommended to maintain status quo and persons holding respective posts may be given the benefit to continue their service in he Mahavidyalaya. The committee opined that the petitioner may be taken as LDC/Typist as and when the post is created...."
Thus, it is crystal clear that there was illegality in the case of the petitioner and there was only one post of Accounts Clerk in which she was working. The petitioner was admittedly working on the only sanctioned post of Accounts Clerks since 1993. There was, therefore, no occasion for appointment of respondent no.6 on the post of Accounts Clerk in 1996.
For all the reasons stated above, the petitioner has succeeded in establishing that the impugned order is illegal and deserves to be quashed.
Accordingly, the writ petition is allowed. The impugned order dated 17.11.1988 appended as Annexure 1 to the writ petition by which Sri Kanhaiya Jha- respondent no. 6 has been absorbed as Accounts Clerk in place of the petitioner is quashed. The respondents are directed to absorb the petitioner as Accounts Clerk and pay her salary w.e.f. 29.10.1998 in the pay scale as per order dated 17.1.998. No order as to costs.
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