Research › Search › Judgment

Allahabad High Court · body

2012 DIGILAW 2501 (ALL)

Bhai Lal v. State of U. P. and Others

2012-10-19

DEVENDRA KUMAR UPADHYAYA

body2012
Devendra Kumar Upadhyaya, J.— Heard Sri Rakesh Kumar Singh, learned counsel appearing for the petitioner and Sri Rahul Shukla, learned Standing Counsel for the opposite parties No. 1 to 3. Since the affidavits in the case have been exchanged and learned counsels appearing for the parties have no objection if the matter is disposed of, the Court proceeds to decide the writ petition finally. Requirement of issuance of notice to the opposite party No.4-Principal, Sardar Ballabh Bhai Patel Intermediate College, Bahuta, District Pratapgarh is being dispensed with, as Principal of the Institution is only a proforma opposite party. This writ petition has been filed by the petitioner with the prayer to command the opposite parties No. 2 and 3 to pay him salary of the post of Chaukidar as according to him, he has been duly selected and appointed on the said post in Sardar Ballabh Bhai Patel Intermediate College, Bahuta, District Pratapgarh. Submission of the learned counsel for the petitioner is that Sardar Ballabh Bhai Patel Intermediate College, Bahuta, District Pratapgarh is a recognized institution imparting education upto intermediate and its affairs are governed under the Intermediate Education Act and Rules & Regulations framed thereunder. It has further been stated by the learned counsel for the petitioner that on occurrence of the vacancy in the post of Chaukidar on 31.7.2010 on account of retirement of earlier incumbent, Sri Ram Kishor Patel, the Committee of Management of the Institution sought permission from District Inspector of Schools, Pratapgarh for filling up the said post. The permission was accorded to the Institution by the District Inspector of Schools by means of letter dated 30.12.2010, which has been annexed as Annexure No. 3 to the writ petition. It has further been stated by the learned counsel for the petitioner that the said permission to fill up the post was granted by the District Inspector of Schools with the concurrence of the Director, Secondary Education, U.P., which is reflected in his letter dated 16.12.2010. He submits that after permission was granted by the District Inspector of Schools, Committee of Management lawfully proceeded to make selection after inviting the applications to fill up the vacancy by advertising the same. He submits that after permission was granted by the District Inspector of Schools, Committee of Management lawfully proceeded to make selection after inviting the applications to fill up the vacancy by advertising the same. Pursuant to the said advertisement several candidates applied and on the basis of selection held, the petitioner was declared successful and accordingly, by means of the appointment order dated 24.1.2011, he was appointed on the post of Peon/Chaukidar. The said appointment order in favour of the petitioner was issued by the Principal of the Institution, which has been annexed as Annexure No. 8 to the writ petition. Learned counsel for the petitioner has further submitted that pursuant to the appointment order dated 24.1.2011, the petitioner had submitted his joining on the next date i.e., on 25.1.2011, which was accepted by the Principal of the Institution on the same day. Learned counsel for the petitioner further states that thereafter all the papers were sent to the District Inspector of Schools for according approval for payment of salary to the petitioner. However, the authorities concerned have not taken any decision till date on one hand and on the other hand, the petitioner has been discharging the duties of his post continuously ever since he took over the charge i.e. since 25.1.2011 without being paid his salary. A counter affidavit sworn in by the District Inspector of Schools, Pratapgarh has been filed, wherein the only reason indicated for alleged non-entitlement of the petitioner to be paid salary is that his appointment was made after issuance of the Government Order dated 6.1.2011, wherein direction was issued that in future no appointment against Class-IV post shall be made in the Government aided Institutions. Counter affidavit further states that the petitioner is not entitled to be paid salary for the reason that his appointment was made only on 24.1.2011 i.e. after issuance of Government Order dated 6.1.2011 and case of the petitioner cannot be approved for payment of salary. I have heard learned counsels appearing for the parties and have also gone through the documents available on record. I have heard learned counsels appearing for the parties and have also gone through the documents available on record. Learned counsel appearing for the petitioner placing reliance on the judgment of this Court dated 21.3.2012 rendered in the Bunch of writ petitions, the leading writ petition being Writ Petition No. 11760 of 2011 (Writ-C), C/M Lala Babu Baijal Memorial Inter College and another Versus State of U.P. and others, whereby the Government Order dated 6.1.2011 was struck down, submits that in view of the aforesaid judgment, the reasons indicated in the counter affidavit by the opposite parties for treating the petitioner as being not entitled to be paid salary are erroneous. Learned Standing Counsel appearing for the opposite parties could not dispute the aforesaid legal position. In view of the fact that the Government Order dated 6.1.2011 has been struck down by this Court in the aforementioned case of C/M Lala Babu Baijal Memorial Inter College and another (Supra), the Court concludes that the reasons indicated in the counter affidavit holding the petitioner to be not entitled for payment of salary is not liable to sustain. It is, however, noticeable that Regulation 101 of Chapter III of the Regulations framed under Intermediate Education Act, 1921 requires that non-teaching post in a recognized aided Institutions can be filled in by the appointing authority only with the prior approval of the District Inspector of Schools. In the instant case, however, it appears that in anticipation of the approval of the District Inspector of Schools, the appointment was made by the Principal of the Institution on 24.1.2011. The aforesaid appointment order, in view of the provisions of Regulation 101 could not have been issued by the Committee of Management as requisite approval has not yet been accorded by the District Inspector of Schools. In view of the above discussions, the District Inspector of Schools, Pratapgarh is directed to consider and decide the case of the petitioner for according his approval for appointing the petitioner within a period of four weeks from the date a certified copy of this order is produced before him. While considering the question of approval as required under Regulation 101, the District Inspector of Schools shall satisfy himself that the selection process adopted in the case of the petitioner is as per law. While considering the question of approval as required under Regulation 101, the District Inspector of Schools shall satisfy himself that the selection process adopted in the case of the petitioner is as per law. In case District Inspector of Schools concludes that approval to petitioner needs to be granted, order appointing the petitioner shall be issued by the appointing authority at the earliest and thereafter the petitioner shall be entitled to salary w.e.f. the date he assumes charge of his post pursuant to the appointment order. With the aforesaid directions, the writ petition stands disposed of finally. However, there will be no order as to cost. _____________