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Ram Prakash Rai v. The D.I.O.,S. And Others - WRIT - A No. 37073 of 1993  RD-AH 9802 (22 May 2007)
Court No. 26
Civil Misc. Writ Petition No. 37073 of 1993
Sri Ram Prakash Rai
The District Inspector of Schools, Gorakhpur & Others
Hon'ble Rakesh Tiwari, J.
Heard learned counsel for the parties and perused the record.
The petitioner has prayed for a writ of certiorari quashing the impugned order of respondent no. 1 dated 2.9.1993 appended as Annexure VI to the writ petition besides a writ of mandamus commanding respondent no. 1 to grant financial approval to his appointment on Class IV post in the Zoology Lab and to pay his salary relating to the said post in the pay scale of Rs. 950 - 1200.
It appears from the record that one Ram Briksha Nai was promoted to the post of Clerk from Class IV category in the respondent-College as a result of which a Class IV post in the pay scale of Rs. 750 - 940 fell vacant.
The petitioner was appointed directly by the Principal of the College in the capacity of appointing authority of Class IV category of employees under Regulation 100 of Chapter III of the Regulations read with other Regulations framed under the U.P. Intermediate Education Act, 1921 on the aforesaid vacant post of Class IV category in the Science Lab of the College which was occupied by Sri Ram Briksha Nai on the ground that there was no claimant under the Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974. The petitioner had joined his post on 1.8.1993.
The Principal sought financial approval of the District Inspector of Schools, Gorakhpur (hereinafter referred to as the D.I.O.S.) vide his letter dated 5.8.1993. However, the D.I.O.S. refused to grant financial approval to the appointment of the petitioner on the ground that after insertion of Regulations 101 to 107 to the Regulations the post cannot be filled up by direct recruitment if there are claimants under the Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 which the District Inspector of Schools did not disclose.
This Court vide order dated 7.10.1993 while granting time to the respective counsel for the parties to file counter and rejoinder affidavits directed the management of the College to permit the petitioner to continue in service subject to final orders of this Court which was made absolute vide order dated 2.5.2002.
The District Inspector of Schools appears to have refused the financial approval on mere technicalities that prior approval was not obtained by the Principal for the appointment informing him that there are no such claimants under the Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974.
The learned counsel for the petitioner contends that the object of Regulations 101 to 107 is that benefit should be given to the wards of the employees of the College who have died in harness. If there was no such claimant Regulations 101 to 107 cannot apply to this case.
The learned counsel for the petitioner has placed reliance upon a decision rendered in Syed Athar Ali Vs District Inspector of Schools, Bareilly and another, (1995) 2 UPLBEC 968, wherein it has been held: -
"It has been rightly contended on behalf of the petitioner that the provisions introduced on 30.7.1992 although provides a scheme for appointment of the dependant of an employee dying in harness, the same does not exclude appointment of other candidates in the vacancy not filled on compassionate ground. A bare perusal of the said provisions of Regulations 101 to 107 shows that provisions were made for appointment on compassionate ground but it did not exclude the scope of appointment of ordinary candidates by direct recruitment. In the present case, it is admitted that the petitioner was appointed against a permanent vacancy and the respondent did not contend that such appointment was irregular in any respect. The sole ground of refusing financial approval is the provision incorporated by circular dated 30.7.1992. It is apparent that the said provision has been misread by the District Inspector of Schools, Bareilly while passing the impugned order to the extent that he presumed total exclusion of a candidate if he is not a claimant for employment on compassionate ground. In the present case it has also not been stated by the District Inspector of Schools concerned that the said vacancy was already recommended to be filled up by a candidate on compassionate ground before the appointment of the petitioner.
The learned counsel for the petitioner contends that the District Inspector of Schools has not recommended any person for the appointment. It is the general practice in the schools/colleges that after appointments approval is subsequently sought under deeming clause. From the record it appears that there is no claimant for appointment Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974.
In this view of the matter, the writ petition is allowed and the impugned order is quashed. The matter is remanded to the District Inspector of Schools to reconsider the matter in the light of the relevant Government Orders regarding appointment of the petitioner in Class IV post and whether there was in fact a vacancy of Class IV category. It is made clear that the District Inspector of Schools shall take decision afresh without being influenced by any observations of this Court.
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