Research › Search › Judgment

Allahabad High Court · body

2007 DIGILAW 2894 (ALL)

PRADYUMNA PATI TRIPATHI v. STATE OF UTTAR PRADESH

2007-12-03

D.P.SINGH

body2007
JUDGMENT Hon’ble D.P. Singh, J.—Heard learned Counsel for the parties. 2. Pleadings are complete and with the consent of the parties, this petition is being disposed of finally under the Rules of the Court. 3. Ratan Sen Degree College, Bansi District Siddharth Nagar (hereinafter referred to as the College) is an aided and recognized Degree College affiliated to Gorakhpur University now known as Deen Dayal Upadhyaya, Gorakhpur University, Gorakhpur. The petitioner was appointed as Deputy Librarian in the College by the Management vide its order dated 10th January, 1977 and joined on 15.2.1977, thereafter, his services were confirmed vide resolution of the Management dated 14.11.1981. A post of Hindi lecturer fell vacant in the College and since the petitioner was duly qualified he applied and appeared before the Selection Committee and was duly selected and appointed and his appointment was approved by the Vice-Chancellor on ad hoc basis till the regular incumbent selected from the Commission joins vide his order dated 2.11.1991. It is further pleaded that he applied for leave without pay from the post of Deputy Librarian which was duly sanctioned and he continued to work as lecturer in Hindi and received salary of that post. After expiry of his leave period he reverted to the post of Deputy Librarian and on the direction of the Management through its letter dated 31.10.1996 he joined on 1.11.1996 on that post. He continued to get his salary till May, 1997 but thereafter his salary was withheld and on enquiry it was found that on the oral directions of the District Inspector of Schools, the salary has been withheld. In spite of representing his case to various authorities including the Manager of the College, who was a sitting M.L.A., no action was forthcoming and thus he approached the Director of Higher Education. The Director after examining the records found that the petitioner was working on stop gap arrangement on ad hoc basis on the post of lecturer and had also been granted leave without pay from the post of Deputy Librarian, he issued directions vide his order dated 25.3.2000 that the petitioner was entitled for salary from the post of Deputy librarian and accordingly, directed the Deputy Inspector of Schools to pay current as well as the arrears of salary. On the insistance of the Management, he also sought the advice of the D.G.C. (Civil) which went in favour of the petitioner. Nevertheless, the salary was not paid inspite of the directions of the Regional Higher Education Officer on the premise that the salary bills were not being forwarded by the Management. When further action was sought to be taken, the present impugned resolution dated 24.9.2000 and the order of termination dated 25.9.2000 has been passed holding that the petitioner was appointed against a non-existant post and that too without recourse to the procedure provided under Chapter XXIII of the Statutes and, therefore, the initial appointment of the petitioner was void and, therefore, his services stood terminated. 4. Learned Counsel for the petitioner has urged that the conditions of his service and the qualifications of the post of Deputy Librarian were governed by a Government order dated 3rd of May, 1968 and not under Chapter XXIII of the First Statutes of the Gorakhpur University. 5. Chapter XXIII of the Statutes governs the conditions of service of non teaching staff of affiliated Degree Colleges and was inserted in the Statute book w.e.f. 11th May, 1977 but it is evident from the record that the petitioner was appointed prior to the aforesaid insertion. Therefore, recourse to Chapter XXIII could not have been taken by the Management as there is nothing to show that the insertion was retrospective in operation and neither there is any such suggestion on behalf of the Management. 6. It is evident from the extract of the Pay Commission that the Government order dated 3rd May, 1968 categorised the affiliated Degree Colleges into three categories. The College was placed in the second category where students enrolled were between 1000 to 1500 and such College was entitled to a post of Deputy librarian. The Government order also prescribes the qualification for the post. These factual allegations to that effect in paragraphs 5 to 7of the writ petition that in pursuance of the aforesaid Government order a post of Deputy librarian stood sanctioned on which the petitioner was appointed, has not been specifically denied in the counter affidavit. The Government order also prescribes the qualification for the post. These factual allegations to that effect in paragraphs 5 to 7of the writ petition that in pursuance of the aforesaid Government order a post of Deputy librarian stood sanctioned on which the petitioner was appointed, has not been specifically denied in the counter affidavit. However, even assuming for the sake of argument that the appointment of the petitioner was irregular, but it is admitted to the parties that a post of Deputy Librarian was formally sanctioned vide order dated 30.1.1978 on temporary basis which was extended from time to time and the post was made permanent w.e.f. 1.7.1980 vide an order of the Director dated 10.10.1980 and, therefore, the said irregularity stood cured once the post was formally sanctioned. It has to be borne in mind that this objection was raised on the eve of his retirement and after nearly 25 years of the appointment of the petitioner and after his services were duly confirmed and he was being extended all the benefits of a regular appointee for all these years. The Apex Court in the case of Ms. Shainda Hasan v. State of U.P., A.I.R. 1990 S.C. 1381 and later in H.C. Puttaswamy v. The Hon’ble Chief Justice of Karnataka High Court, A.I.R. 1991 S.C. 295, has held that even though the initial appointment may have been irregular or invalid but as the incumbent had continued for 16 and 10 years, respectively, they would be deemed to be regular appointee. Examined from this angle also, the action of the Management cannot be sustained. 7. Learned Counsel for the petitioner has also urged that the impugned order was passed without any notice or opportunity to the petitioner and that too without prior approval of the authorities. 8. This averment of fact that neither opportunity was provided nor prior approval was obtained, has not been denied, but it is contended, that since the appointment of the petitioner at the very initial stage was invalid and void, therefore, no opportunity was required. The stand of the respondents cannot be accepted. As already held hereinabove, the petitioner was holding a lien on the post of Deputy Librarian and was working for the last more than two decades and was being extended all the facilities applicable to a regular employee, he was entitled at least to a notice before action was taken. The stand of the respondents cannot be accepted. As already held hereinabove, the petitioner was holding a lien on the post of Deputy Librarian and was working for the last more than two decades and was being extended all the facilities applicable to a regular employee, he was entitled at least to a notice before action was taken. On the facts of this case, it cannot be said that the appointment of the petitioner was void. Therefore, on this short ground alone the orders cannot be sustained. Further, under clause 24.03 of the Statutes no punishment could have been awarded without prior permission of the District Inspector of Schools, therefore, on this ground also, the order is vitiated. 9. It has come on record that the petitioner was due to retire in December, 2000 and in spite of the specific order of the Director his salary was not released and then the action of his termination was taken on a totally new ground and that too without any notice or opportunity to him, speaks volumes about the attitude of the Management. The petitioner has been forced to litigate by the Management even though his right to receive salary and continue till the date of superannuation was well recognized in law. 10. For the reasons stated above, this petition succeeds and is allowed and the impugned order and resolutions are hereby quashed. The respondents are directed to pay the entire arrears of salary to the petitioner and will also finalize his retiral dues as he has retired during the pendency of this petition. On the facts of this case, the petitioner is also entitled to his costs, which are quantified at Rs. 5000/- to be paid by the Management. 11. All the aforesaid amounts be paid to the petitioner not later than six weeks from the date of submission of a certified copy of this order. ————