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Allahabad High Court · body

2010 DIGILAW 278 (ALL)

Shravan Kumar Tiwari v. State of U. P.

2010-01-22

SHISHIR KUMAR

body2010
JUDGMENT HON. SHISHIR KUMAR, J. Heard Sri Anil Bhushan, learned counsel for the petitioner and the learned Standing Counsel for the respondents. 2. This writ petition has been filed for quashing the order dated 11.8.2005 passed by respondent no.2, Annexure-9 to the writ petition. Further prayer is to issue a writ in the nature of mandamus commanding the respondents to pay the salary to the petitioner from the date of his appointment w.e.f. 8.3.2004. 3. It appears that there is an institution namely Raja Sri Krishna Dutt Inter College, Jaunpur which is a recognized institution under the provisions of U.P. Intermediate Education Act and the institution is under the grant in aid from the State Government and U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act 1971 is applicable. One Dina Nath Upadhyay was a permanent Class-III employee who was working as Head Clerk in the institution, retired on 31.8.2003. One Sri Ashok Kumar Tiwari who was working on the post of Assistant Clerk was promoted as Head Clerk in the institution. Due to the promotion of Sri Ashok Kumar Tiwari a vacancy of Assistant Clerk came into existence. In such a situation, as per Chapter - III, Regulation 101, no appointment shall be made unless and until there is a prior approval of the District Inspector of Schools, the Committee of Management sought an approval to fill up the aforesaid vacancy and a letter to that effect was sent and approval was granted on 24.12.2003. After obtaining approval, an advertisement in the newspaper was made and various candidates on the basis of advertisement, made application and petitioner was duly selected for the post of clerk and an appointment letter was issued in favour of the petitioner on 24.3.2004. All the relevant papers were sent for granting approval for the purpose of payment of salary but no orders were passed. Then the petitioner filed a writ petition before the Court as Writ Petition No. 36192 of 2004 which was finally disposed of directing the Regional Level Committee to take a decision with regard to the financial approval of the appointment of the petitioner. But the Regional level Committee by the impugned order dated 11.8.2005 has rejected the claim of the petitioner on various grounds. But the Regional level Committee by the impugned order dated 11.8.2005 has rejected the claim of the petitioner on various grounds. One of the grounds was that advertisement was made after a lapse of about one month from the date of approval for making appointment dated 24.12.2003. Further ground has been taken that as regards the educational qualification, the typing experience has not been mentioned and according to the Government Order, the minimum qualification is intermediate with the knowledge of typing and no proper Selection Committee has been constituted. Further grounds have been taken that as the various persons were working on supernumerary posts under the Dying in Harness Rules and they have to be absorbed, therefore, the appointment of the petitioner is not valid. The petitioner aggrieved by the aforesaid order has filed the present writ petition. 4. Sri Anil Bhushan, learned counsel for the petitioner submits that the grounds taken in the impugned order are not sustainable in law in view of the fact that the prior approval was taken as required under the law and after taking prior approval the appointment was made, therefore, if in the opinion of the District Inspector of Schools, who is the competent authority, if certain supernumerary post was to be filled up under the Dying in Harness Rules, the prior approval should not have been granted. If the District Inspector of Schools, after perusal of the relevant record, has granted a permission for making an appointment, then it cannot be disapproved only on the ground stated in the impugned order. 5. As regards the second ground taken in the impugned order, there is no requirement under the law that if a prior approval has been granted for the purpose of making an appointment, it has to be advertised within a prescribed limit, admittedly within a period of one month advertisement have been made. Further submission has been made that there is no requirement under the Rules that a person who is going to be considered as Class-III employee in the institution, should be having knowledge of typing and without knowledge of typing, he cannot be appointed. In such a situation, learned counsel for the petitioner submits that the claim of the petitioner cannot be rejected on the ground mentioned in the order impugned. 6. A counter affidavit has been filed. In such a situation, learned counsel for the petitioner submits that the claim of the petitioner cannot be rejected on the ground mentioned in the order impugned. 6. A counter affidavit has been filed. The only averments made in paragraphs 3 and 6 of the counter affidavit, are that the provisions of Regulations 101 to 107 has not been followed and about 17 dependents of the deceased employees were working on supernumerary postd and without adjustment or absorption on a vacant post, the petitioner has been appointed and the said post was to be filled up by the dependent of the deceased employee. 7. I have considered the submissions made on behalf of the parties and perused the record. From the record it clearly appears that immediately after the vacancy created in the institution after retirement of Sri Dina Nath Upadhyay and promotion of Ashok Kumar Tiwari, a requisition was sent to the District Inspector of Schools for the purpose of granting prior approval for making appointment. This letter was sent by the Committee of Management on 18.11.2002. On 24.12.2003 an approval was granted by the District Inspector of schools for making appointment and then it was published in the newspaper and the petitioner was appointed by the Selection Committee after consideration of the various candidates, who made applications for the said purpose. The petitioner was selected and given appointment. 8. As regards the ground taken by the respondent while rejecting the claim of the petitioner that the advertisement was made in the newspaper after a period of one month, in my opinion, this ground cannot be sustained in view of the fact that there is no requirement under the law that there is a specific period mentioned that if the approval has been granted for making an appointment, publication in the newspaper advertising the post for the purpose of appointment has to be made within a specific period. If there is no requirement, then the claim of a person cannot be rejected on this ground. It is to be noted from the record that approval was granted on 24.12.2003 and the publication was made on 21.1.2004 meaning thereby within a period of one month from the date of granting approval the advertisement was made. 9. If there is no requirement, then the claim of a person cannot be rejected on this ground. It is to be noted from the record that approval was granted on 24.12.2003 and the publication was made on 21.1.2004 meaning thereby within a period of one month from the date of granting approval the advertisement was made. 9. As regards the requirement of knowledge of typing, the learned Standing Counsel or the respondent is not able to show from the record that under the rules there is a requirement to that effect that a person who is going or is to be considered for appointment on the post of clerk in a recognized institution, should be having a knowledge of typing and if a person is not having the knowledge of typing, he cannot be appointed on the post of clerk. 10. As regards the filling up of the supernumerary post of 17 persons in number, as stated in the impugned order to be filled up under the Dying Harness Rules, in my opinion, this ground cannot be sustained being the fact as a Committee of Management has sent a requisition to the District Inspector of Schools regarding sanction of strength of the post of clerk in the institution, the vacancy as well as the promotion of Mr. Tiwari who was promoted to the post of Head Clerk, therefore, if after perusal of the relevant record submitted by the Committee of Management, the prior approval has been granted, then claim of a person cannot be rejected on this ground that the post is to be filled up under the Dying in Harness Rules. 11. As regards the rejection of the claim on the ground that no proper Selection Committee was constituted, learned Standing Counsel is not able to show from the record that the consideration of the petitioner and other candidates have not been done by the proper Selection Committee constituted by the Committee of Management. 12. In view of the aforesaid fact, I am of opinion that the order passed by respondent no.2 dated 11.8.2005, Annexure-9 to the writ petition is not sustainable in law and is hereby quashed. The writ petition is allowed. It is however, directed that the appointment of the petitioner may be deemed to be approved and the petitioner is entitled for salary from the date of his appointment. 13. The writ petition is allowed. It is however, directed that the appointment of the petitioner may be deemed to be approved and the petitioner is entitled for salary from the date of his appointment. 13. No order is passed as to costs.