Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 1642 (ALL)

SANJAY KUMAR SRIVASTAVA v. STATE OF U P

2009-04-22

DILIP GUPTA

body2009
DILIP GUPTA, J. ( 1 ) THIS petition has been filed for quashing the order dated 17th May, 2001 by which the District Magistrate, Kushinagar rejected the representation filed by the petitioner for payment of salary. ( 2 ) THE petitioner claims that he was appointed as Class IV employee on temporary basis in Nazarat, Tehsil Padrauna by the order dated 23rd February, 1995 issued by the Sub-Divisional Magistrate, Padrauna. On the basis of the said order, he joined his duties but salary was not paid to him at all. He filed various representations and when nothing was done, he filed writ petition in this Court being Writ Petition No. 20270 of 1995 which was disposed of on 19th April, 2000 with a direction to the District Magistrate to examine whether the petitioner was appointed or not and if the petitioner was legally appointed then to pay his salary. ( 3 ) THE District Magistrate by the order dated 17th May, 2001 has rejected the representation filed by the petitioner mentioning therein that any file relating to the appointment of the petitioner is not available in the office of Tehsildar or the District Magistrate. It has further been stated that the provisions of Class IV Service Rules, 1975 (hereinafter referred to as the 1975 Rules) dealing with such appointments of Class IV employees have not been followed as neither any advertisement was issued nor the Selection Committee was constituted. He has also observed that the appointment of the petitioner appears to be fraudulent and so it is not possible to make any payment to him. ( 4 ) LEARNED counsel for the petitioner submitted that the Sub-Divisional Magistrate, Kushinagar who has issued the appointment order dated 23rd February, 1995 was competent to issue the orders as is clear from the Government Order dated 12th January, 1976. He, therefore, submits that once the appointment order was issued, the petitioner is clearly entitled to payment of salary and view to the contrary taken by the District Magistrate is erroneous. Learned Standing Counsel, on the other hand, has supported the impugned order. ( 5 ) I have carefully considered the submissions advanced by the learned Counsel for the parties. Learned counsel for the petitioner has not denied that the 1975 Rules which provide for a procedure to be followed while making appointment of Class IV employees is not applicable. Learned Standing Counsel, on the other hand, has supported the impugned order. ( 5 ) I have carefully considered the submissions advanced by the learned Counsel for the parties. Learned counsel for the petitioner has not denied that the 1975 Rules which provide for a procedure to be followed while making appointment of Class IV employees is not applicable. There is nothing on the record to indicate that such procedure was followed even though a categorical stand was taken by the District Magistrate in the impugned order that the procedure had not been followed. It may true that under the Government Order dated 12th January, 1976, the Sub-Divisional Magistrate is the authority empowered to appoint a Class IV employee, but merely being the appointing authority does not empower the Sub-Divisional to make the appointment dehors the provisions of the Rules. Such appointment does not enure to the benefit of the petitioner. It also needs to be mentioned that the Court Clerk, Tehsil Padrauna in his report which has been annexed as Annexure 7 to the writ petition also mentions that one Anurag Srivastava, Tehsildar brought the appointment orders without any file and had asked him to merely issue the appointment orders. This statement also confirms the stand of the District Magistrate that there is no file relating to the appointment of the petitioner. ( 6 ) THERE is, therefore, no infirmity in the impugned order and the petitioner is not entitled to any relief. ( 7 ) THE petition is, accordingly, dismissed. .