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Om Prakash v. D.I.O.S. & Others - SPECIAL APPEAL No. 1282 of 2005 [2005] RD-AH 5221 (7 November 2005)


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Court No.32

Special Appeal No. 1282 of 2005

Om Prakash .....Appellant


District Inspector of Schools & others .....Respondents


Hon'ble S. Rafat Alam, J.

Hon'ble Sudhir Agarwal, J.

This special appeal arises from the order/judgment of the Hon'ble Single Judge of this Court dated 8.9.2005 in Civil Misc. Writ Petition No.  30541 of 2002.

We have heard Sri H.S.Mishra, learned counsel for the appellant, Smt. Sunita Agarwal, learned counsel for respondent nos. 3 and 4 and the learned Standing Counsel for the State-respondent no.1.  

It appears that the Principal of the College appointed the appellant to the post of Chaukidar, on purely temporary basis, vide order dated 10.9.1986 against a leave vacancy with clear stipulation that his appointment would automatically come to an end after joining of Shri Shambhu Nath Mishra, incumbent having lien on the post. It was further mentioned in the letter of appointment that his appointment shall be subject to the approval of the Regional Inspectors of Girls School, 4th Region, Allahabad. The appellant being aware of the terms and conditions and nature of appointment joined the post. Subsequently, vide order dated 8.7.1988 he was appointed to look after cycle stand of the girls' students with the condition that he can be deployed for any other work. Now the grievance of the appellant in the writ petition was that  despite his appointment dated 8.7.1988 by the management the same has not been approved by the District Inspector of Schools nor he has been paid salary and thus the following reliefs were sought in the writ petition:

(i) "issue a writ, order or direction in the nature of mandamus directing the Principal and Management of the Respondent Institution to forward the name of the petitioner for approval of his appointment dated 8.7.1988 and for payment of salary to DIOS-II, Allahabad, under U.P. Intermediate (Payment of Salary to Teachers and Employees) Act, for the post of class-IV employees, against the vacant posts, and further direction be issued to D.I.O.S.-II to consider and grant approval accordingly, so that Justice be done.

(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents not to interfere into the services of the petitioner and continue to pay his salary until the approval and payment of regular salary under U.P. Intermediate (Payment of Salary to teachers and other employees) Act, come in existence.

(iii) Issue a writ, order or direction in the nature of mandamus directing the respondents not be fill-up the two vacant posts of class-IV employees, without considering the claim of the petitioner.

(iv) Issue any other writ, order or direction, which this Hon'ble Court may deem fit and proper in the circumstances of the case.

(v) Award the cost of the petition to be petitioner."

The contention of the appellant is that his appointment by the order dated 8.7.1988 to look after the work of cycle stand is against a sanctioned post. There is nothing on record to show that there was any such sanctioned post and the liability of payment of salary whereof lies upon the State Government under 1971 Act. Section 9 of the Act provides that the salary is payable in respect of such posts which are sanctioned by the authorities under the Act. There is nothing on record to show that any post was sanctioned for running the cycle stand against which the petitioner was appointed.

The appellant further claims that subsequently two class -IV post fell vacant and the recruitment was to be made by the D.I.O.S. but he directed that the surplus staff of the institution shall be absorbed against the vacancy. The appellant urges that he is also a surplus staff and thus he should be appointed. The question as to whether the appellant fulfils the requirement of surplus staff has been considered in detail by the Hon'ble Single Judge and after quoting section 16(EE) of the U.P.Intermediate Education Act it held that neither the petitioner comes within the definition of the "employee" nor "retrenched person" as provided under the aforesaid provision. We do not find any error in the view taken by the Hon'ble Single Judge.

Explanation of section 16 (EE) of the Act defines "employee" and in relation to an institution it means a teacher, Head of the Institution or other employee holding the permanent post on the date immediately preceding the date of retrenchment. This shows that on the date of alleged retrenchment the employee must be holding a permanent post i.e. a lien on a sanctioned post. In the present case admittedly the appellant as he himself claims was appointed in a leave vacancy for a short duration when Sri S.S. Misra had gone on leave. Thereafter there was no appointment of the petitioner at all but by order dated 8.7.1988 the management only permitted the appellant to take care of the girls cycle stand. There was no post sanctioned of class-IV employee for the aforesaid purpose at cycle stand and there is nothing on record to show that the appellant was appointed against the sanctioned post. The question, therefore, of holding permanent post does not arise at all and therefore the appellant is not covered by the term "employee" as defined under section 16(EE). That being so the appellant cannot be "retrenched employee" as well and therefore section 16(EE) of the Act has no application to the case of the petitioner. The learned Single Judge has rightly referred to the judgment of the Apex Court in the case of The Secretary, Ministry of Works and Housing Government of India and others Versus Shri Mohinder Singh Jagdev and others reported in Judgment Today 1996 (8) SC 46 wherein the Apex Court has held that "until the temporary service matures into a permanent, he has no right to the post."

In the aforesaid circumstances, the contention of the appellant that he is entitled for payment of salary under 1971 Act is clearly misconceived and hence rejected.

It is also apparent from the record that the appellant was getting salary from the management itself after his engagement on 8.7.1988 to look after the girls cycle stand. No salary has been paid to him by the respondents No. 1 and 2 since 1971 Act was inapplicable to the case of the appellant.

In these circumstances we do not find any reason to interfere with the judgment under appeal, and therefore, this special appeal lacks merit and is dismissed.

Dated: 7.11.2005



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