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Jai Narain Pathak v. District Inspector Of Schools, Gorakhpur & Others - SPECIAL APPEAL No. 43 of 2006 [2006] RD-AH 1098 (17 January 2006)


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Chief Justice's Court

Special Appeal No. 43 of 2006

Jai Narain Pathak vs. D.I.O.S. and others

Hon'ble Ajoy Nath Ray,CJ

Hon'ble Ashok Bhushan,J

Heard learned counsel for the appellant.

By this appeal the appellant has prayed for setting aside the judgment dated 7.12.2005 passed by the learned Single Judge dismissing the writ petition filed by the appellant.

The appellant claims to have been appointed as clerk in the institution in question against a leave vacancy which fell vacant due to grant of  leave to Sri Ram Karan Tripathi who was on medical leave with effect from 1.8.1993 to 31.12.1993. The said Ram Karan Tripathi retired on 31.12.1993. The Committee of Management is said to have passed a resolution dated 26.12.1993 appointing the appellant on the post of clerk until further orders. Petitioner was not paid salary after 31.12.1993. The petitioner has earlier come to this Court by filing a writ petition no. 11446 of 1994 which was disposed of by this Court directing the District Inspector of Schools to consider the claim of the appellant for payment of salary. After the said judgment of this Court dated 22.12.1997, the District Inspector of Schools passed the order on 30.4.1998 directing the payment of salary to the appellant from 1.2.1993 to 26.6.1996 subject to the appellant filing a certificate verified by  Principal to the effect that he has worked every months. The claim for promotion of the respondent no. 4 was accepted and the management was directed to issue promotion order. The earlier order dated 23.12.1994 appointing a person on compassionate ground has been recalled by the District Inspector of Schools vide order dated 30.4.1997 against which the writ petition has been filed by the appellant which has been dismissed by the learned Single Judge.  

  Sri G.K. Singh, learned counsel for the appellant submitted that the appellant was allowed to continue on the post by the resolution of the Committee of Management and he has been paid salary also from 1.2.1993 to 26.6.1996 which itself shows that the appointment of the appellant was approved by the Inspector even after 31.12.1993. He further submits that the order of the Inspector directing for making payment to the appellant up to 26.6.1996 has not been challenged by anyone.

We have considered the submissions raised by the counsel for the appellant.

From the facts of the case it is clear that the initial appointment of the appellant was on a leave vacancy which arose due to grant of medical leave to Ram Karan Tripathi. Ram Karan Tripathi retired on 31.12.1993 and after retirement of Ram Karan Tripathi the leave vacancy automatically came to an end. Appointment of the appellant in the leave vacancy cannot be allowed to continue after 31.12.1993. There is no order of the District Inspector of Schools approving any selection or appointment on the substantive vacancy which came into existence on 31.12.1993. In fact not even a selection is being claimed on the substantive vacancy. Claim by the appellant to continue on the basis of his engagement on the leave vacancy due to grant of medical leave to Sri Ram Karan Tripathi has been rightly not accepted. The order dated 30.4.1998 passed by the District Inspector of Schools cannot be said to be an order approving the appointment of the appellant. The order of the Inspector has directed payment of salary on the strength of the work of the appellant. The order of the Inspector having not been challenged, the appellant can take benefit of the order if the order still continues. However, that order does not improve the claim of the appellant regarding validity of the appointment or continuance after 31.12.1993.

We do not find any error in the order of the learned Single Judge dismissing the writ petition filed by the appellant. The appellant having not been appointed on substantive basis in the manner prescribed, he has no right of continuance on the post.

The appeal has no merit and is hereby dismissed.

Dated: 17.1.2006



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