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Rajveer Kumar v. State Of U.P. Thru' Its Secy. Of Education (Sec. Edu) & Ors. - WRIT - A No. 49217 of 2002  RD-AH 11196 (10 July 2006)
CIVIL MISC. WRIT PETITON NO.49217 OF 2002
State of U.P. and others
HON. SHISHIR KUMAR, J.
The present writ petition has been filed for quashing the impugned orders dated 9.8.2002 and 16.12.1999 passed by respondent no.2, Annexures-1 and 2 to the writ petition. Further prayer is in the nature of mandamus directing the respondents to pay the arrears of salary since the date of joining of the petitioner i.e. 7.8.1997 and to pay current regular salary.
The facts arising out of the writ petition are that one Anand Babu Mishra retired on 30.6.1996 on the post of Lecturer (Physics) and in place of Anand Babu Mishra one Shanker Lal who was working as Physics Demonstrator was promoted on the said post on 1.7.1996. The promotion of Shanker Lal was under 50% quota. After the promotion of Shanker Lal a post of Physics Demonstrator fell vacant. Therefore, the Committee of Management decided to fill up the said short-term vacancy of the Physics Demonstrator and intimation to that effect was given to the District Inspector of Schools. An advertisement was made in the newspaper on 21.7.1997 and the same was also published on the Notice Board. The applications were invited and a Selection Committee was constituted and finally the Selection Committee as the petitioner was fully qualified for the said post having three years experience, selected the petitioner and a letter of appointment was issued in favour of the petitioner on 6.8.1997.
The petitioner joined on the said post and the relevant papers were sent to the District Inspector of Schools for according approval to the appointment of the petitioner but the District Inspector of Schools in spite of several reminders sent by the petitioner as well as by the Committee of Management, has neither accorded nor refused the approval. Subsequently again reminder was given by the petitioner to pass the appropriate orders. Then by order-dated 16.12.1999 the District Inspector of Schools has rejected the claim of the petitioner.
Aggrieved by the aforesaid order the petitioner has filed Writ petition No.13739 of 2000 which was finally disposed of by order dated 23.4.2002 and the writ petition was allowed and the order dated 16.12.1999 was quashed and respondent no.1 was directed to reconsider the case of the petitioner according to law. A specific finding while disposing of the writ petition was given that as the basis of rejection of the appointment of the petitioner was that as the Removal of Difficulties Order has already been repealed by Ordinance dated 25.1.1999 and the appointment of the petitioner was prior to that date, therefore, the ground taken by the District Inspector of Schools has got no basis. Immediately after obtaining the certified copy of the order the petitioner has submitted a representation to the District Inspector of Schools and the District Inspector of Schools again vide its order dated 1.8.2002 has rejected the claim of the petitioner on the similar ground which was in the earlier order to the effect that as the Removal of Difficulties Order has already been repealed and the Committee of Management has got no jurisdiction to make an appointment and it can only be done by the Commission, therefore, no financial approval relating to the appointment of the petitioner can be granted. The petitioner has brought to the notice of the Court the finding recorded by the District Inspector of Schools and has submitted that the ground taken by the respondents that as the appointment of Sri Shanker Lal was on adhoc basis; therefore, there is no short-term vacancy. The petitioner submits that the said finding recorded by the respondent is baseless, as admittedly the competent authority has approved the adhoc promotion of Shanker Lal subsequently. Further contention raised on behalf of the petitioner is that the sole ground of rejection of the claim of the petitioner is that as the removal of Difficulties Order 1981 has already been repealed, therefore, the Committee of Management has got no jurisdiction to make appointment. As regards the publication in the newspaper the petitioner submits that a specific averment has been made in the writ petition regarding publication in para 4 of the writ petition and there is no specific denial by the respondents, therefore, the finding recorded by the respondent no.2 is liable to be quashed only on this ground alone.
I have heard the learned counsel for the petitioner and the Standing Counsel and have also perused the record. From the record it is clear that the earlier order passed by the District Inspector of Schools dated 16.12.1999 has already been quashed by this Court taking into consideration the fact that the nature of Ordinance dated 25.1.1999 is not retrospective. It is prospective in nature, therefore, if any appointment has been made prior to the said date that cannot become invalid or illegal on that ground. There is no dispute to this effect that on the date when the petitioner was given appointment, the Committee of Management was fully authorized to make adhoc and short-term appointment. The stand taken by respondent no.2 that the appointment of Shanker Lal as Lecturer was approved in the year 1999, therefore, there was no vacancy as the promotion of Shanker Lal as Lecturer was approved by the competent authority on 1.10.1999. The aforesaid finding recorded by respondent no.2 cannot be sustained. As soon as Shanker Lal was promoted on 1.7.1996, a short-term vacancy has taken place and the Committee of Management was justified in making the appointment. The rejection on the ground that as the Removal of Difficulties Order has already been repealed, no approval can be granted. Respondent no.2 has committed the same mistake and illegality, which he had committed in the earlier order, which has already been quashed. Admittedly, the nature of repealing of Removal of Difficulties Order is not retrospective and it is prospective in nature. Therefore, the basis of rejection of the claim of the petitioner on the aforesaid ground is not sustainable in law.
In view of the aforesaid fact, the writ petition is allowed. The order dated 9.8.2002 passed by respondent no.2, Annexure-1 to the writ petition is hereby quashed and respondent no.2 is directed to accord financial approval to the appointment of the petitioner within a period of six weeks. No order as to costs.
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