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2010 DIGILAW 984 (ALL)

NAVIN KUMAR SINGH v. STATE OF U. P.

2010-03-25

ARUN TANDON

body2010
JUDGMENT Hon’ble Arun Tandon, J.—Notice on behalf of respondent Nos. 1 to 3 has been accepted by the learned Standing Counsel. Notice on behalf of respondent No. 5 has been accepted by Shri K.B.Dixit, Advocate. 2. Counsel for the parties agree that the writ petition may be finally disposed of at this stage without calling any further affidavits specifically in view of the order proposed to be passed today. 3. Ghatam Deo Inter College, Vahanpur Patara, Mainpuri is an aided and recognized institution under the Intermediate Education Act, 1921. The provisions of Act No. 24 of 1971 Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 are also applicable to the said institution. 4. Petitioner before this Court filed Civil Misc. Writ Petition No. 50367 of 2004 contending therein that he was appointed in the said institution in anticipation of a vacancy on Class III post in 1998. It is stated that a post of Assistant Clerk was created for the institution on 30.4.2008. He, therefore, set up a claim for being absorbed against the said vacancy. The writ petition was decided under the order dated 29.11.2004 and the District Inspector of Schools was directed to consider the grievance of the petitioner in accordance with law. Despite the aforesaid order, the claim of the petitioner for absorption was not considered. One post of Clerk fell vacant due to retirement of earlier incumbent on 30.4.2008. The petitioner, therefore, set up another claim against the said post. He therefore, filed Civil Misc. Writ Petition No. 18197 of 2008. Respondent No. 5 claimed appointment by direct recruitment against the same vacancy and filed Civil Misc. Writ Petition No. 41479 of 2009. Both the writ petitions were clubbed together and decided under one common judgment dated 31.8.2009 and the matter was remanded to the Regional Joint Director of Education for decision of the respective claim of the parties for the post of Assistant Clerk in the institution. 5. The Regional Joint Director of Education under the impugned order has negative the claim of the petitioner after holding that his appointment is against an anticipated post. Such appointment is not contemplated under the Intermediate Education Act nor the petitioner can be absorbed against the subsequent vacancy. 5. The Regional Joint Director of Education under the impugned order has negative the claim of the petitioner after holding that his appointment is against an anticipated post. Such appointment is not contemplated under the Intermediate Education Act nor the petitioner can be absorbed against the subsequent vacancy. So far as the claim of respondent No. 5 is concerned, it has been held that his appointment has been made after due advertisement in newspapers and also on the recommendation of the duly constituted selection committee. Therefore, it has been held that respondent No. 5 is entitled for appointment and payment of salary on the said post. It is against this order of the Regional Level Committee dated 23.2.2010 that the present writ petition has been filed. 6. Shri Y.K. Saxena, counsel for the petitioner submits that in identical circumstances this Court in the case of Aruna Shukla and others v. State of U.P. and others, 1997(1) ESC 566 (All), has held that a teacher working earlier against a non existent post is to be absorbed against the subsequent vacancy. 7. This Court may deal with the aforesaid contention first. Under the Intermediate Education Act, appointment of Class III and Class IV post can be made with the prior approval of the District Inspector of Schools only. (Reference Regulation 101 of Chapter III of the regulations framed under the Intermediate Education Act, 1921). The position in that regard has been explained by a Division Bench judgment of this Court in the case of Jagdish Singh etc. v. State of U.P. and others, 2006 (3) ESC 2055 (All) (DB). This Court may further record that payment of salary can be claimed by an employee who is appointed against a duly created post under Section 9 of the U.P. Act No. 24 of 1971. (Ref. Full Bench judgment of this Court in the case of Gopal Dubey v. District Inspector of Schools, Maharajganj; 1999 (1) UPLBEC 01). The Intermediate Education Act does not contemplate any appointment in anticipation. It has been found that the appointment claimed by the petitioner was in anticipation of the vacancy, without approval of the District Inspector of Schools or any competent authority. 8. In the opinion of the Court appointment made against a non existent post is non est and of no legal consequence. It has been found that the appointment claimed by the petitioner was in anticipation of the vacancy, without approval of the District Inspector of Schools or any competent authority. 8. In the opinion of the Court appointment made against a non existent post is non est and of no legal consequence. There being no provision for absorption of such illegal appointee under the Intermediate Education Act, the Regional Level Committee has rightly held that the appointment of the petitioner is a waste paper. The Hon’ble Supreme Court of India in the case of State of Bihar v. Upendra Narayan Singh and others, 2009 (5) SCC 65 , describes appointment without advertisement and regularization thereafter as ‘spoils system’ which has to be deprecated. 9. So far as the judgment in the case of Arun Shukla (Supra) relied upon by the counsel for the petitioner is concerned, it may be noted that in paragraph 7 it has specifically been stated that on facts and circumstances of the case the directions were being issued. Therefore, it is apparently clear that no legal proposition of law has been laid down which can have any binding effect. 10. Accordingly the order of the Regional Level Committee to the extent it hold that petitioner is not entitled for absorption against the post created subsequently is affirmed. It is needless to emphasize that there can be no equity against law. 11. Shri Saxena then contended that the approval granted to the respondent No. 5 is illegal inasmuch as neither the vacancy was advertised in any newspaper having adequate circulation in the district nor any procedure known to law has been followed for the purposes of making appointment on the post of Clerk which has now become available. He, therefore, submits that the second part of the order be set aside. 12. The contention raised on behalf of the petitioner is opposed by respondent No. 5 and it is stated that the vacancy was advertised in newspaper namely Dainik Jantantra dated 6.8.2008 and Desh Dharma Hindi Dainik (Etawah) dated 7.8.2008. Copies of the newspapers have also been produced before this Court. However he could not disclose the constitution of the Selection Committee and the procedure adopted for such selection. 13. Copies of the newspapers have also been produced before this Court. However he could not disclose the constitution of the Selection Committee and the procedure adopted for such selection. 13. On examination of the order of the Regional Level Committee, this Court finds that it has recorded general findings qua appointment of respondent No. 5 namely that the vacancy was advertised, the permission was obtained and after regular selection, the respondent No. 5 has been appointed on the post of Assistant Clerk which was approved under order of the District Inspector of Schools dated 2.1.2009. 14. From the order of the Regional Level Committee this Court finds that the basis three issues which were required to be examined for any appointment being approved for the purposes of payment of salary from the State exchequer have not been examined namely : a. Whether the vacancy was advertised in two newspapers having wide circulation as required or not. b. Whether the Selection Committee was constituted in accordance with the Rules and the Government Order applicable and enforced on the date such recruitment is said to have been made. c. Whether the selection of respondent No. 5 is in accordance with procedure known to law or not. 15. The legal position with regard to appointment on Class III/IV post has been explained by this Court in the case of Principal, Adarsh Inter College, Umari, Bijnor v. State of U.P. and others, 2010 (1) ADJ 403 . 16. Since specific findings on the aforesaid three issues have not been recorded, the general conclusion recorded in the impugned order for upholding the appointment of respondent No. 5 cannot be approved of specifically when there is serious challenge to procedure adopted and the same being an eye wash. 17. In the totality of the circumstances as noticed herein above, this Court feels that interest of substantial justice would be served by providing that the Regional Level Committee may re-examine the issue pertaining to appointment of respondent No. 5 only after affording opportunity of hearing to respondent No. 5 and the petitioner afresh. It shall record its specific findings on the aforesaid three issues. The aforesaid exercise may be completed within four weeks from the date a certified copy of this order is filed before it. Writ petition is disposed of. ————