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2006 DIGILAW 1319 (ALL)

RISHI SAHAY PATHAK v. STATE OF UTTAR PRADESH

2006-05-09

S.K.SINGH

body2006
JUDGMENT Honble S.K. Singh, J.—Heard Counsel for the petitioner and learned Standing Counsel who appeared on behalf of the State authorities and Sri Manish Dev Singh, learned Advocate who appeared on behalf of the Management. 2. By means of this writ petition, petitioner has prayed for issuance of writ in the nature of mandamus commanding the respondents to treat the petitioner as validly and legally appointed teacher in L.T. grade of Kashiraj Mahavidyalaya Inter College, Aurai, district Bhadohi (now Sant Ravi Das Nagar) (hereinafter referred to as the institution) and not to interfere in his working. There is a further prayer that respondents be further directed to pay salary from the date of initial appointment i.e. 4.9.1995 and the current salary month to month. 3. Submission of the learned Counsel for the petitioner is that one Rajeshwar Tiwari working as Lecturer in the institution retired on 30.6.1995 upon which one Girija Prasad Tiwari, L.T. grade teacher was given ad-hoc promotion on the post of Lecturer. It is submitted that on account of ad hoc promotion of Girija Prasad Tiwari referred above a short-term vacancy arose in the L.T. grade for which advertisement was published on 27.9.1995 in the daily newspaper having wide circulation in the area namely Bharat Doot and Sanmarg. Vacancy was also notified to the Employment Exchange. Thereafter on 21-8-1995 Management after considering the claim of various applicants found the petitioner to be most suitable and thus resolved to select/appoint the petitioner and the papers were forwarded to the District Inspector of Schools and as no decision was communicated, petitioner was given appointment letter on 2.9.1995, pursuant to which he joined on 4.9.1995 and since then he is continuously working. As petitioner was not paid his salary he made representation to the District Inspector of Schools in this respect. As no heed was paid petitioner was compelled to file this writ petition. Submission is that on the aforesaid facts petitioner is entitled to be treated as validly appointed teacher and he is to get his salary since the date he joined. 4. In the counter-affidavit filed by the State authorities the objection appears to be that the vacancy was not the short-term vacancy and reservation policy was not followed and the vacancy was not advertised in the daily newspaper having wide circulation. 5. 4. In the counter-affidavit filed by the State authorities the objection appears to be that the vacancy was not the short-term vacancy and reservation policy was not followed and the vacancy was not advertised in the daily newspaper having wide circulation. 5. At this stage learned Counsel for the petitioner placed reliance on various judgments in support of the petitioner’s claim to which reference can be given at this place. In support of the submission that the objection about non-following of reservation policy cannot be said to be a valid ground for not accepting the petitioner’s claim reference has been given to the decision of this Court given in the case of Smt. Pratima Chauhan and another v. Regional Deputy Director of Education (Madhyamik), Agra and others, 1999(2) ESC 1106 (All) and the decision in the case of Praveen Pratap Singh Bhadauria v. District Inspector of Schools, Varanasi and another, 1999(3) ESC 2236 (All). To support the submission that even if the short term vacancy was converted into the regular vacancy appointee in the short-term vacancy is to as continue, reliance has been placed on the decision given in the case of Smt. Sarita Gupta v. District Inspector of Schools, Firozabad and others, 2005(2) ESC 851 . To substantiate the submission that vacancy in which petitioner has been appointed was a short-term vacancy reliance has been placed on the case of Alok Kumar Dixit v. District Inspector of Schools, Bulandshahr and another, (2004) 1 UPLBEC 192 and Arjun Kumar Jaiswal v. District Inspector of Schools and others, (1994) 2 UPLBEC 1250. 6. During the course of arguments Sri Alam, learned Standing Counsel submits that so far the nature of the vacancy is concerned which is said to be the short-term vacancy the decision cited by the learned Counsel for the petitioner as given in the case of Alok Kumar Dixit (supra) and in the case of Arjun Kumar Jaiswal (supra) can be decisive on the point. So far as the non-following of reservation policy is concerned, needless to say that in view of the decision cited by the learned Counsel for the petitioner regarding short-term vacancy, its non-observance cannot be said to be fatal to the appointment made in the short-term vacancy. So far newspaper is concerned Sanmarg cannot be said to have no wide circulation in the locality. 7. So far newspaper is concerned Sanmarg cannot be said to have no wide circulation in the locality. 7. Be that as it may, as the concerned authority has not considered and passed any order on the petitioner’s claim as made before this Court, on an analysis of the matter, this Court feels proper that this exercise has to be first made by the District Inspector of Schools who is the competent authority to pass appropriate order in respect of the validity of the petitioner’s appointment and consequential order for payment of the salary and, therefore, instead of passing the order straightaway this Court in the ends of justice prefers to issue a direction to the District Inspector of Schools for passing appropriate order in accordance with law keeping in mind the facts as noted above and as laid down by this Court in several decisions. As the petitioner claims to be working since 4.9.1995 in respect to which there appears to be no dispute, if on the facts petitioner’s appointment is found to be valid, needless to say that petitioner will be entitled for payment of salary since the date of his joining and thereafter the current salary. 8. For the reasons recorded above the writ petition succeeds and is allowed and the concerned District Inspector of Schools is directed to entertain the petitioner’s claim if the same is filed alongwith fresh application and certified copy of this order within a period of three weeks from today and then to pass appropriate order in accordance with law dealing with the matter preferably within a period of two months from the date of receipt of certified copy of this order. Accordingly this writ petition stands allowed/disposed of in the manner indicated above. Petition Allowed. ————