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Bal Mukund Paliwal v. State Of U.P. & Others - WRIT - A No. 64939 of 2005 [2005] RD-AH 4043 (5 October 2005)


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Court No.18

Civl Misc.Writ Petiton No.64939 of 2005

Bal Mukund Paliwal Vs. State of U.P. and others

Hon'ble A.P. Sahi,J.

Heard  Sri Anil Bhushan, learned counsel for the petitioner and  Sri K.R.Singh learned standing counsel for the respondents no.1,2 and 3.

Since the matter involves pure questions of law, and facts are undisputed, therefore, the court  is proceeding to decide the mater with the consent of the parties.

A perusal of the impugned order indicates, that the petitioner 's claim has been rejected on the ground, that since the post against which  the petitioner had been appointed on short term basis, which was subsequently converted to a substantive vacancy, therefore, no approval can be granted and secondly  the appointment cannot be made by the Committee of Management with the insertion of 33-E  in the U.P. Secondary Education Service Selection  Board Act,  1982    as the Removal of Difficulties Orders stood rescinded and, therefore, the Management was devoid of authority  to proceed to make such appointments.

The undisputed facts, as emerge from a  perusal  of the impugned order itself, are that the petitioner's appointment was against a short term vacancy, which occurred on account of the ad-hoc promotion  of one Jagdish Prasad Paliwal, the permanent  incumbent of the post. The petitioner's appointment  was made in the year 1996 and subsequently in the year 1998,  the said vacancy was converted into  a substantive vacancy, and as such  the petitioner lost his right to stake his claim against the aforesaid post.

The impugned order proceeds on an erroneous assumption of law as well as of fact. The issue, as to whether  the power of the Committee of Management was taken  away or not, for making  appointment on short term basis, has already been settled by various decisions of this court  as also the Apex Court. The matter was considered  in detail by me  in the judgment dated 20.5.2005 in writ petition no.10367 of 2005 and  the issues decided  are extracted below :

"The third ground taken is that since the removal of difficulties order has been rescinded on 25.1.1999, therefore, appointment of the petitioner cannot survive as the procedure under which the petitioners claim appointment has already been obliterated. The aforesaid finding is also erroneous inasmuch as the petitioners' appointment was made way back in the year 1994 and at that point of time, there was a clear declaration of law made by this Court that the procedure prescribed under the Removal of Difficulties Order continues to subsist as is evident from the perusal of the ratio of the decision of the Apex Court in P.K. Sharma Vs. State of U.P. and others, reported in (1996) 3 UPLBEC 1959 (Para 11). A learned single Judge of this Court in the case of Daya Shanker Pandey Vs. State of U.P. and others, (2000) 1 ESC 204, held that candidates appointed under the Second Removal of Difficulties Order had no right to continue beyond 25.1.1999 i.e. the date from which the Removal of Difficulties Orders was rescinded. The said view of the learned single Judge has been overruled by this Court in Special Appeal No. (345) of 2003 decided on 18.8.2004 and following the Apex Court decision in P.K. Sharma's case (supra) and that of Shyam Singh Vs. District Inspector of Schools and other, Civil Misc. Writ petition No. 33880 of 1999, decided on 11.8.1999 it has been held that the appointment made under the second Removal of Difficulties Order would not come to an end merely on account of the same have been rescinded. Thus, the third ground taken in the impugned order is also untenable in the eyes of law."

In view of the aforesaid settled position the impugned order  is unsustainable on the said ground.

The second ground  taken  is, that since the  short term  vacancy was converted into a substantive vacancy as such the petitioner loses any right to continue further,   the same has been considered in detail in the case of Smt.  Sarita Gupta  Vs. Distt. Insepctor of Schools , Firozabad,  in writ petition No. 8286 of 2000 decided on 14.2.2005, wherein it has been held that the appointment against  a short term vacancy  shall be permitted to be continued, even if the vacancy  is converted to a substantive vacancy, until  the vacancy is filled up on substantive basis  in accordance with law. In these circumstances,  the findings recorded in the impugned order  in this respect are also untenable . No other ground has been taken  by the Distt. Inspector of Schools to non suit the petitioner.

Accordingly, the writ petition succeeds  and is  allowed. The order dated 14.8.2005, Annexure IX to the writ petition, is quashed. The respondent no.3 Distt. Inspector of Schools, Aligarh , is directed to treat the petitioner  to be validly appointed  and thereafter proceed  to pass appropriate orders  including  the disbursement of salary  to the petitioner as expeditiously as possible preferably within one month from the date of presentation of a certified copy of this order before him.

The writ petition is allowed with no order as to costs.




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