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RAMJI SINGH YADAV versus STATE OF U.P. THRU. SECY. SECONDARY EDUCATION & OTHERS

High Court of Judicature at Allahabad

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Ramji Singh Yadav v. State Of U.P. Thru. Secy. Secondary Education & Others - WRIT - A No. 78954 of 2005 [2006] RD-AH 18891 (8 November 2006)

 

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. 3                                                  

Civil Misc. Writ Petition No.  78954 of 2005

Ram Ji Singh Yadav............................................      Petitioner

Vs.

State of Uttar Pradesh & others................................... Respondents

................................

Hon'ble Ashok Bhushan,J.

Heard counsel for the petitioner and the  learned standing counsel. Counter and rejoinder affidavits have been exchanged and with the consent of parties this writ petition is being finally disposed of.

By this writ petition the petitioner has prayed for quashing the order dated 29.11.2005 passed by the Director of Education and a writ of mandamus directing  the respondents not to interfere with the working of the petitioner as Assistant Teacher in L.T. grade in Rashtriya Inter College Karambar, Ballia and to pay his regular salary and also arrears of salary from September, 1995 to  September, 1997 and February, 2003 till date.

Brief facts necessary for finally deciding the writ petition are ;

One Daya Shanker Chaubey working as Assistant Teacher L.T. grade was given ad  hoc promotion on the post of Lecturer in Geography causing a   short term vacancy. The said ad hoc promotion of Sri Daya Shanker Chaubey was approved by the District Inspector of Schools on 28.8.1992.   The petitioner was selected for ad hoc  appointment in short term vacancy on the post of Assistant Teacher L.T. grade caused due to ad hoc promotion  of Daya Shanker Chaubey. The selection  and ad hoc appointment of the petitioner was  approved by the District Inspector of Schools on 29.7.1993 in pursuance of which the petitioner joined the institution on 29.7.1993 and has been functioning  thereafter.  The petitioner's case is that he was paid salary upto August, 1995 and thereafter his salary was stopped on certain quarries made  by  the District Inspector of Schools and the Director of Education.  The District Inspector of Schools subsequently passed an order on 6.10.1997 for releasing the salary  of the petitioner but the salary of the petitioner from September, 1995 to September,1997 has not been paid. Again  from February, 2003  the salary of the petitioner was stopped, the State Government issued  communication dated  18.12.2002 making certain quarries.  The petitioner's case is that the District Inspector of Schools even thereafter took a decision for releasing the salary of the petitioner.  In the intervening period  a writ petition being writ petition No.  25885 of 2003 ( U.P. Madhyamik Shikshak Sangh and others Vs. State of U.P. and others ) was filed  which was disposed of by this Court on 25.2.2004. The Director of Education passed an order on 22.3.2005 declining the salary of the petitioner.  A Contempt Petition No. 1724 of 2004 was filed before this Court  with regard to non-compliance of the of the judgment dated 25.2.2004. A representation was submitted by the petitioner to the Director of Education which representation was ultimately rejected by the impugned order dated 29.11.2005.  The Director of Education in the impugned order has observed that original papers are not available regarding appointment of the petitioner another  reasons given is that the ad hoc appointment of the petitioner was made on 23.7.1993 when amendment in Section 18 has already been made with effect from 14.7.1992 in accordance which the Committee of Management had no jurisdiction to make ad hoc appointment.  In the counter affidavit  filed by the State Government the same reason has been reiterated.

 Learned counsel for the petitioner challenging the impugned order contended that the petitioner's ad hoc appointment was approved by the District Inspector of Schools  and he was also paid salary.  The observation in the impugned order regarding non availability of original papers of  ad hoc appointment of the petitioner is fallacious  which cannot affect the right of the petitioner.  The submission of the petitioner  is that the Committee of Management had jurisdiction to make ad hoc appointment of the petitioner and has relied on the decision of the Full Bench in the case of  Radha Raizada and others   Versus Committee of Management, Vidyawati Darbari Girls Inter College and others  reported in (1994) 3  UPLBEC  1551.   It is further contended by the counsel for the petitioner that the petitioner is also entitled  for consideration of his case under Section 33-F of the Uttar Pradesh Secondary Education Services Commission Selection Board Act, 1982.  He submitted  that the approval order  was issued on 29.7.1993 and the petitioner was appointed in July, 1993  which is prior to cut of date and there being ad hoc appointment on short term vacancy prior to 6.8.1993, the respondent may be directed to consider the claim of the petitioner for regularisation.

Learned standing counsel refuting the submissions of counsel for the petitioner supported the order of the Director of Education.

I have considered the submission of counsel for the parties and perused the record.

From the facts mentioned in the counter affidavit  there is no dispute  that the ad hoc appointment was made on the vacancy  caused due ad hoc promotion of Daya Shanker Chaubey. Daya Shanker Chaubey was given ad hoc promotion  which was approved by the District Inspector of Schools on 28.8.1992 and subsequent to the said promotion the ad hoc appointment of the petitioner was made in short term vacancy  which was approved by the District Inspector of Schools on 29.7.1993.  The petitioner has also been paid salary subsequently thereafter  till September, 1995.  The main reason given in the order of Director of Education is that the Committee of Management had no jurisdiction to make ad hoc appointment after 14.7.1992.  The reason given  by the Director of Education is erroneous and contrary to the judgment of  the Full Bench of this Court in the case of Radha Raizada and others   Versus Committee of Management, Vidyawati Darbari Girls Inter College and others  reported in (1994) 3  UPLBEC  1551 (supra) .   It is true that  subsequent to 14.7.1992 no ad hoc appointment  can be made by the Committee of Management  on substantive vacancy but the ad hoc appointment can be made on short term vacancy which is governed by the provisions of Uttar Pradesh Secondary Education Services Commission (  Removal of Difficulties ) (Second )  Order, 1981 which was fully applicable at the relevant time.  The observation of the Director of Education  that the original papers are not available cannot defeat  the entitlement of the petitioner.  There is no denial that the ad hoc appointment of the petitioner was approved by the District Inspector of Schools on 29.7.1993.  The ad hoc appointment having been approved by the District Inspector of Schools and the petitioner having been paid salary thereafter, it is not open to the respondent to say that the original papers of selection are not available. The  petitioner has specifically stated in paragraph 34 of the writ petition that Daya Shanker Chaubey has been granted regular promotion by the U.P. Secondary Education Service Commission  vide order dated 19.2.1998.  Consequently, the vacancy has become substantive vacancy and according to the provisions of Section 33-F  of the U.P. Act  5 of 1981 the petitioner is also entitled to be considered  by the competent authority for regular appointment  under Section 33-F.

In view of foregoing discussions  the impugned order darted 29.11.2005 passed by the Director of Education is set aside. It is held that the  petitioner is entitled to work as Assistant Teacher  L.T. Grade .  The Regional Committee which is authorised to consider the claim of the petitioner shall consider  and take appropriate decision with regard to petitioner under Section 33-F of the U.P. Act 5 of 1982. The Director of Education shall ensure payment of arrears of salary to which the petitioner is entitled in accordance with law, within a period of four months from the date of production of a certified copy of this order.

With the above observations the writ petition is disposed of.

D.-8.11.2006

SCS          


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