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Allahabad High Court · body

2010 DIGILAW 2106 (ALL)

SATISH KUMAR YADAV v. STATE OF U. P.

2010-07-20

A.P.SAHI

body2010
JUDGMENT Hon’ble A.P. Sahi, J.—Heard learned counsel for the petitioner, learned Standing Counsel and perused the counter-affidavit filed on behalf of the State. 2. The issue is very short but the petitioner has been made to travel up to this Court on account of an incorrect understanding of the position of law by the District Inspector of Schools, who appears to have skipped over the directions issued by this Court and the findings recorded in relation to the existence of the vacancy and the occupancy of the post against which the petitioner is claiming salary. 3. The dispute in short is that the petitioner claims to have been appointed on 25.12.1998 against a short term vacancy on the post of a L.T. grade teacher. There is no dispute that the management was authorised to make an appointment against a short term vacancy. Even otherwise, this position stands clarified by this Court while answering a reference through a Division Bench judgment dated 31.3.2010 in the case of Daya Shanker Misra v. District Inspector of Schools and others, Writ Petition No. 20843 of 2002. The aforesaid vacancy had arisen on account of an ad hoc promotion of one Raja Ram Yadav as Lecturer in Economics which post was earlier held by one Mohd. Rafiq. Mohd. Rafiq was officiating as Principal and, therefore, he was occupying the said post. Sri Raja Ram Yadav was not paid salary and refusal to do so came to be challenged by him in Writ Petition No. 14952 of 1999. The petitioner had also filed a writ petition being Civil Misc. Writ Petition No. 7736 of 1999 claiming payment of salary. The said petition was disposed of on 26.2.1999 with a direction to decide the claim of the petitioner. 4. The writ petition filed by Raja Ram Yadav was finally allowed on 22.5.2006 holding that Mohd. Rafiq was officiating as Principal and, therefore, the post of Lecturer in Economics which was substantively held by him, came to be temporarily vacated resulting in the occurrence of a short term vacancy. Against the same, Raja Ram Yadav was promoted. Accordingly, the post held by Raja Ram Yadav in the L.T. grade also become vacant and resultantly a short term vacancy arose in the L.T. grade. These aspects have been clearly explained with a windowpane effect in the judgment of Hon. Sudhir Agarwal, J, dated 22.5.2006 (Annexure-16 to the writ petition). Against the same, Raja Ram Yadav was promoted. Accordingly, the post held by Raja Ram Yadav in the L.T. grade also become vacant and resultantly a short term vacancy arose in the L.T. grade. These aspects have been clearly explained with a windowpane effect in the judgment of Hon. Sudhir Agarwal, J, dated 22.5.2006 (Annexure-16 to the writ petition). 5. The petitioner’s claim has now been rejected on the ground that since Raja Ram Yadav has not been paid salary in the Lecturer grade, therefore, it was not possible to make payment of salary to the petitioner in the LT grade against the short term vacancy on which he was appointed. The conclusion of the District Inspector of Schools is that as a result of the logic noticed above, there is no short term vacancy in the L.T. grade. The impugned order dated 22.12.2006 has, therefore, been questioned by the petitioner on the ground that it proceeds on an erroneous assumption of fact and completely ignores the findings recorded in the judgment dated 22.5.2006. 6. Learned Standing Counsel on behalf of the State contends that the counter-affidavit recites that there would be a double payment on the same post inasmuch as Mr. Raja Ram Yadav was getting payment of salary in the LT grade even though he had been promoted as an ad hoc Lecturer. 7. From the facts as enumerated above, the writ petition of Raja Ram Yadav had already been allowed holding that he was entitled to hold the post of Lecturer on ad hoc basis and he was also found entitled to payment of salary as Lecturer. There is nothing in the counter-affidavit to indicate any order to the contrary in relation to Raja Ram Yadav. The stand that the department had not granted financial sanction or approval to the appointment of Raja Ram Yadav is a stand against the clear cut judgment of this Court dated 22.5.2006. Once this Court has held that Raja Ram Yadav was rightly promoted as ad-hoc Lecturer and was entitled to payment of salary, then the natural consequence which can be inferred is that there was a short term vacancy in the L.T. grade. The assumption of the District Inspector of Schools to the contrary and the position so taken in the counter-affidavit is therefore unacceptable and unsustainable in Law. The assumption of the District Inspector of Schools to the contrary and the position so taken in the counter-affidavit is therefore unacceptable and unsustainable in Law. The impact of the judicial intervention by this Court in its order dated 22.5.2006 clears off any such impediment as suggested in the impugned order or the counter-affidavit. 8. In such a situation, the District Inspector of Schools ought to have adjusted the salary of the L.T. grade paid to Raja Ram Yadav in the Lecturer grade and thereafter should have passed an order in relation to payment of salary of the petitioner in the L.T. grade. This would have avoided any double payment in the matter. The District Inspector of Schools, instead of doing so, has passed the impugned order which in my opinion is not only erroneous but is also contemptuous in nature as it clearly chooses to avoid the direction of this Court dated 22.5.2006. In view of this, there is no option but to quash the order dated 22.12.2006. There is no other infirmity pointed out in the selection and appointment of the petitioner. 9. The writ petition is allowed and the order dated 22.12.2006 is quashed. The District Inspector of Schools shall, in the light of what has been stated above, proceed to process the salary bill of the petitioner and ensure that the payment is made within 6 weeks without any delay. 10. In the event the District Inspector of Schools fails to discharge his duty, the matter shall be reported to the Secretary of the department concerned, who shall take appropriate action against the concerned District Inspector of Schools. ————