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Mukesh Kumar Pandey v. District Inspector of Schools - WRIT - C No. 47560 of 1999 [2005] RD-AH 1557 (5 July 2005)


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Court No. 28

Civil Misc. Writ Petition No. 47560  of 1999

Mukesh Kumar Pandey


District Inspector of Schools and another

Hon.Sanjay Misra.J.

Heard learned counsel for the petitioner, learned Standing Counsel appearing on behalf of respondent no.1 and Sri G.K.Singh, learned counsel appearing on behalf of respondent no.3.

          The petitioner has challenged the order dated 6.11.1999 filed as Annexure-6 to the writ petition passed by the respondent no.1. By the said order, the approval sought for by the Committee of Management for the appointment of the petitioner on a short term vacancy on the post of Assistant Teacher (Art) has been refused. It is the contention of the petitioner that a short term vacancy had occurred in the College and after following the procedure prescribed for appointment thereon , the Committee of Management has appointed the petitioner on a short term vacancy. The occurrence of the  said vacancies as alleged  by the petitioner has been denied on behalf of the respondent no.3,  who is the Principal of the College, in as much as it has been stated that such  a short term vacancy did not exist.    

        Learned standing counsel has supported the  impugned order and as stated in the counter affidavit  the appointment of the petitioner was illegal in as much as there was a ban dated 9.6.1995  issued by the State Government on further appointment .

         A perusal of the impugned order indicates that the District Inspector of Schools while considering the proposal of the Committee of Management  has found that procedure  prescribed for filling up  the short term vacancy has been followed and there is no dispute with respect to validity of the appointment of the petitioner on that ground. However, formal approval has been refused on the ground that there existed a ban with respect to a short term appointment .  

            Learned counsel for the petitioner has placed reliance on a decision of this Court  in the case of (Mohd. Isha Khan Vs. DIOS Kushi Nagar and others)reported in 2003 Volume I ESC. 634 In the aforesaid case, this court has held that since there was no denial to the fact that procedure prescribed for a short term vacancy has been followed and complied with and the only grounds for refusal was a  ban imposed by the State Government,  it held that such a ban would not be applicable in the case of short term vacancies because it will adversely affect the  studies of students , therefore, it is in the general interest that the same may be filled up at the earliest. In the present case the impugned order indicates that the procedure prescribed for making short term appointment has been followed and the only ground for refusal is  a ban imposed by the State Government. Following the decision in the case of Mohd. Isha (Supra) it is held that such a ground was not available to the respondent no.1 for refusing to grant approval to the  appointment of the petitioner on short term vacancy. For this reason the impugned order is liable to be set aside.

       Sri G.K.Singh, learned counsel for the respondent no.3 has however disputed the nature of vacancy and has come up with a case that there does not exist any short  term vacancy at all. However, this case has been set up by the Principal and it is not a ground taken by the District Inspector of Schools  while refusing to accord approval.  In any event, in view of the fact that the impugned order cannot be  sustained for the reason it has refused the approval, the same is quashed. The matter is remitted back to the District Inspector of Schools to consider the proposal of the Committee of Management for according  approval to the appointment of the petitioner on the short term vacancy in accordance with law after giving opportunity of hearing to the petitioner as well as to the Committee of Management within three months from the date a certified copy of this order is presented before him. It is made clear that this Court has not adjudicated upon the correctness or otherwise of the stand taken by the respondent no.3 and it will be open for the said respondent to raise his objection before the District Inspector of Schools who may consider the same in accordance with law.

     In the light of above, this writ petition stands allowed. No order is passed as to costs.

Dt. 5.9.2005



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