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SMT.PUSHPA TRIPATHI AND ANOTHER versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Smt.Pushpa Tripathi And Another v. State Of U.P. And Others - WRIT - A No. 27538 of 2000 [2005] RD-AH 2503 (7 September 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.28

Civil Misc. Writ Petition No.27538  of 2000

Smt.Pushpa Tripathi and another

Vs.

State of U.P. and others

Hon. Sanjay Misra, J.

Heard the learned counsel for the petitioners and the learned Standing Counsel appearing on behalf of respondent nos. 1,2 and 3.

List has been revised. However, none appears on behalf of  respondent nos. 4 and 5.

This writ petition has been filed for issue of  a writ in the nature of mandamus commanding the respondents to pay salary of the petitioner from April 2000 upto date with all service benefits and future salary and to quash the appointment of respondent no.5. The case set up by the petitioner is that Guru Nanak Girls Inter College is a minority  institution and is managed by Committee of Management constituted under the parental society. Two posts of LT grade teacher fell vacant in the said college in June 1997 due to retirement of the previous incumbents. It is alleged that  committee of management intimated the vacancy

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to the DIOS and after permission from the DIOS the committee of management advertised the posts for regular appointment. In pursuance of the said advertisement in two news papers the candidates were considered and  the selection committee found the petitioner nos.1 and 2  tobe qualified  hence it recommended their appointment on the aforesaid vacancy. Committee of management forwarded the entire records of appointment and selection as well as proposal and acceptance of selection committee  to the DIOS for further action. However when the salary of the petitioner was not being paid they made  representations   for payment of their salary. It is alleged that  no  action was taken thereupon. It has been contended by the learned counsel for the petitioner that in a minority institution  the management has got power to appoint a teacher on regular basis. However, during the pendency of this writ petition it appears that, because there was no approval  of the DIOS with respect to appointment of the petitioners,  the management has proceeded to appoint respondent no.5 and the DIOS has accorded approval to such appointment by his order dated 30.10.2000. The

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petitioners have therefore, challenged  the appointment order of respondent no.5.

Learned Standing counsel  has filed  counter affidavit and a   counter affidavit has been filed on behalf of respondent no.4. It has been stated that when committee of management had passed the resolution for the appointment of the  two petitioners  resolution was opposed by some  members of committee and even then the manager in collusion with the Principal falsely applied for approval  for such appointment. In the  counter affidavit a stand has been taken that the  documents were forged and fake and  therefore, no order was  passed by the DIOS.

Learned  counsel for the  petitioners submits that there was a dispute relating to management of the institution between two rival committees and that during tenure of one such committee the petitioners were selected and appointed. However, when the other rival committee came into power they sabotaged the  process of approval of the petitioners appointment by misrepresenting before  the authority concerned. Learned  counsel for the petitioner has relied upon the provisions of Regulation 17 of Chapter II of the Regulation framed under Intermediate Act 1921 and states that  under sub clause (g) a statement has to be

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forwarded  to the Regional Deputy Director or Inspector for approval as required  under section 16FF. Upon such a statement being forwarded the authority concerned will within a period of one month from the date of  receipt give his decision thereon and upon failure  to do so it will be deemed tobe approved. In view of aforesaid provision learned counsel for the petitioner submits that the papers with respect to  selection and appointment of the petitioners were forwarded to the DIOS and further information which was sought by the DIOS was furnished  on 18.5.2000. Learned counsel states that in view of the aforesaid  the Inspector was  required to give his decision within the prescribed  period  from such date.  Having failed to do so the provisions of sub clause (g) of Regulation 17 would be attracted and the appointment of the petitioners would be deemed to have been approved.

In so far as the controversy regarding documents/ statement being forged and fake which were submitted before the DIOS is concerned the DIOS has not passed any order to such effect and therefore the dispute between the parties has not been considered by the DIOS. The DIOS was required to decide  the controversy when a dispute had been raised regarding

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the documents of selection and appointment of the petitioners as filled before him. Such a dispute could have been decided by the DIOS after calling upon the respective parties to produce their evidence, documentary or oral, before him. He was required to take a decision in accordance with law since such a duty has been cast upon him under the Regulations.In such circumstances it would be appropriate that such factual controversy may be decided by the authority empowered to do so under the provisions 17 (g) of the Regulation who are either the Deputy Director of Education or the DIOS.

For the aforesaid reason, this writ petition stands finally disposed of with a direction to the  respondent no.2 to decide  the controversy  raised  between the parties regarding appointment and its approval of the petritioners after affording full opportunity  to respective parties within a period of six months from the date a certified copy of this order is produced before him. It is made clear that this court  has not adjudicated upon the rights of respondent no.5 who may also be heard by the respondent no.2 while considering the dispute. No order is passed as to costs.

7.9.05

Gc.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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