Research › Search › Judgment

Allahabad High Court · body

2000 DIGILAW 1102 (ALL)

SHIV PRASAD v. STATE OF UTTAR PRADESH

2000-08-25

A.K.YOG

body2000
A. K. YOG, J. ( 1 ) THIS is a writ petition under Article 226 of Constitution of India seeking to challenge the order dated 17. 8. 1994 (Annexure CA-1 to the counter affidavit of respondent No. 5) and order dated 3. 9. 1994 (Annexure-5 to the writ petition) whereby District Inspector of Schools cancelled the petitioners appointment on class IV post in a recognised Government aided intermediate college called Public Intermediate College, Motiahan, District, Allahabad (called as the college) on the ground that there was no class IV post available and, secondly, one Shashi Kumar Gupta (respondent No. 6) who was given appointment earlier in another Institution (without class IV post being available) was being adjusted in the college. ( 2 ) THERE is no dispute that one Moti Lal working in the college as peon, retired and a substantive vacany on the said class IV post came into existence. On this contingency, a retired Daftari in the office of the District Inspector of Schools, Allahabad, submitted an application to the DIOS, allahabad praying for one of his son to be appointed as his family was in financial hardship. The dios on the said application made an endorsement dated July 4, 1994 directing the Principal of the College to take action in accordance with the Rules (Annexure 9 to the writ petition ). ( 3 ) IT is also not disputed by any of the respondents that the Committee of Management issued an advertisement in daily news paper dainik Jagaran on 2. 8. 1994 (Annmexure -1 to the writ petition) and an interview was held on 18. 8. 1994. Petitioner was selected and an appointment letter was issued in his favour on the basis of which he joined the post of peon in the college on 27. 8. 1994 (Annexures 2 and 3 to the writ petition ). The Principal of the college submitted papers to the concerned DIOS on 1. 9. 1994 (Annexure 4 to the writ petition ). The District Inspector of schools vide impugned order 3. 9. 1994 refused to accord sanction to the appointment of the petitioner on two grounds; (i) there was no class IV post available in the college on which petitioner could be apppointed and; (ii) no prior permission as contemplated under Regulation 101 of Chaper III of the Regulations framed under the U. P. Intermediate Education Act was taken from him. 9. 1994 refused to accord sanction to the appointment of the petitioner on two grounds; (i) there was no class IV post available in the college on which petitioner could be apppointed and; (ii) no prior permission as contemplated under Regulation 101 of Chaper III of the Regulations framed under the U. P. Intermediate Education Act was taken from him. The District Inspector of Schools in the said impugned order dated 3. 9. 1994 also mentioned that one Shashi Kumar Gupta (respondent No. 6) who was appointed on compassionate ground under Dying in Harness Rules at Vidyawati Yadav Smarak Maharashi inter College, Handia, Allahabad, was being adjusted in the college (Public Intermediate college, Motiahan, District Allahabad and in consequence whereof there remains no vacant post of class IV and hence the approval in favour of the petitioner could not be granted. ( 4 ) HEARD learned Counsel for the petitioner Km. Manju Chandra, Advocate, learned Standing counsel on behalf of respondents No. 1, 2 and 3; Sri Mukesh Kumar holding brief of Sri Ashok khare Advocate on behalf of Respondent No. 6 and Sri C. P. Gupta, Advocate appearing on behalf of respondent No. 4, the Committee of Management. In spite of service, the Committee of management did not choose to file counter affidavit as indicated vide order dated 24. 8. 2000 in the order sheet of the case. It may be stated that factual averments in the counter affidavit have not been disputed by any of the contesting respondents. On the other hand counter affidavit filed by the Principal of the college (respondent No. 5) support the case of the petitioner. ( 5 ) SO far as the objection of the DIOS against the college for not obtaining prior approval under relevant Regulation 101 is concerned, it will be noted that the District Inspector of Schools has not denied the correctness of the endorsement dated 4. 7. 1994 appearing on the letter of retired daftari of his office namely Durga Prasad (Annexure 9 to the writ petition ). The endorsement, already referred to above, clearly shows that the District Inspector of Schools required the principal, (the appointing authority of class IV in a recognised Intermediate College) to take necessary steps in accordance with the Rules i. e. to fill up vacant class IV post in the college. The endorsement, already referred to above, clearly shows that the District Inspector of Schools required the principal, (the appointing authority of class IV in a recognised Intermediate College) to take necessary steps in accordance with the Rules i. e. to fill up vacant class IV post in the college. The District Inspector of Schools did not ask the committee of management to send necessary details so as to enable him to recommend a candidate under Dying in Harness Rules nor the district Inspector of Schools recommended any name under Dying in Harness Rules. The objection of the District Inspector of Schools on this score cannot be sustained. This Court after perusing the Counter Affidavit of the District Inspector of Schools (sworn by Anoop Kumar maheswari) clearly shows that the District Inspector of Schools had earlier recommended the name of Respondent No. 6 on compassionate ground for being appointed on class IV post at vidyawati Yadav Smarak Maharashi Inter College, Handia, Allahabad vide letter dated 6. 2. 1993 (Annexure 6 to the writ petition ). The Principal of the said Vidyawati Yadav Smarak Maharashi inter College, Handia, Allahabad vide letter dated 10. 2. 1993 allowed Shashi Kumar Gupta to join (Annexure 7 to the writ petition ). Annexure 8 to the writ petition shows that said Shashi kumar Gupta, Respondent No. 6 had filed Writ Petition No. 30697 of 1994 and the learend single Judge of this Court issued interim order dated 21. 9. 1994 directing the educational authorities to pay salary to said Shashi Kumar Gupta as class IV employee month by month in accordance with law. ( 6 ) UNFORTUNATELY the District Inspector of Schools has not filed all relevant documents along with his Counter Affidavit though he was expected to have know the relevant orders regarding the appointment of Sri Shashi Kumar Gupta. Reasons for not annexing relevant documents, which form part of the record of the office of the District Inspector of Schools, have not been disclosed in the counter affidavit. The Court is constrained to construe that those orders have been deliberately with held so that this Court may not be in a posititon to ascertain correct postition. ( 7 ) PERUSAL of Annexure CA 1 to the Counter Affidavit of the Principal of the College/respondent no. 5 shows that the District Inspector of Schools passed same order dated 4. 5. ( 7 ) PERUSAL of Annexure CA 1 to the Counter Affidavit of the Principal of the College/respondent no. 5 shows that the District Inspector of Schools passed same order dated 4. 5. 1994 for making appointment in favour of Shashi Kumar Gupta under Dying in Harness Rules at Vidyawati yadav Srnarak Maharashi Inter College, Handia, Allahabad. There is no explanation about his earlier orders of the year 1993 (referred to above), particularly when the copies of those documents filed by the petitioner have not been disputed. ( 8 ) PERUSAL of the letter dated 1. 9. 1994 (Annexure 4 to the Writ Petition) written by the Principal of Public Intermediate College to the concerned District Inspector of Schools shows that Anand kumar son of retired Daftari of the office of the said District Inspector of Schools did not appear in the interview and the name of the petitioner was being recommended for appointment. It is evident that on receipt of the said letter the District Inspector of Schools was not happily disposed of towards the college and he raised objections against appointment of the petitioner. ( 9 ) IT will be noted that letter dated 17. 8. 1994 (Annexure CA-1 to the Counter Affidavit of respondent No. 5) in favour of Shashi Kumar Gupta for his appointment in the college, does not indicate as to when the said letter was despatched and received by the concerned college. Letter dated 3. 9. 1994, which refers to the District Inspector of Schools earlier letter dated 17,8. 1994 was certainly received after the petitioner was interviewed, selected, appointed by the Principal in the institution and papers had already been submitted to the District Inspector of Schools on 1. 9. 1994 (Annexure 4 to the Writ Petition ). ( 10 ) PROXIMITY of the date in the instant cases raises serious doubt on the bona fide of the District inspector of Schools in the instant case. The District Inspector of Schools admits that earlier also he had recommended appointment in favour of Shashi Kumar Gupta without a class IV vacant post being available in this college, which shows that some thing was wrong in the office of or with the said District Inspector of Schools. The District Inspector of Schools ought to act cautiously and after verification of correct facts. The District Inspector of Schools ought to act cautiously and after verification of correct facts. Having failed to do so reflects upon the discharge of duties by the said District Inspector of Schools. ( 11 ) AS far as adjustment of Shashi Kumar Gupta in the college is concerned, the District Inspect of Schools had no jurisdiction so long as the appointment of the petitioner was not cancelled after affording an opportunity of hearing to the petitioner. Moreover, no adjustment could not done if no post was available in the college. The objection regarding non-availability of the post is thus preposterous defence. His order to adjust Shashi Kumar Gupta in the college is thus uncalled for and improper. ( 12 ) PARAGRAPH 4 of Supplementary affidavit (filed today) read with order dated 20. 11. 1999 passed by the District Basic Education Officer, Allahabad (Annexure S. A. 1 to the supplementary Affidavit) shows that Shashi Kumar Gupta respondent No. 6 has already been appointed as Assistant Teacher in some Basic School. ( 13 ) IN view of the above I find no difficulty in adjusting equities between the parties. The petitioner shall continue on the post of peon in the said institution and salary to be paid to him; if he is allowed to work in the college Rights of the Respondent No. 6 however shall not be prejudiced, for the period during which he was worked on the post. For the reasons; given above the impugned order dated 3. 9. 1994 (Annexure 5 to the Writ Petition) and order dated 17. 8. 1994 (Annexure CA-1 to the Counter Affidavit of the Respondent No. 5) are being set aside. ( 14 ) IT is further clarified that the petitioner shall not be paid his arrears of salary for the period he has not actually worked but he shall be paid his salary month by month in future in accordance with law. ( 15 ) THE writ petition stands allowed. No order as to costs. .