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2013 DIGILAW 120 (ALL)

RAM KISHORE NIRANJAN v. STATE OF U. P.

2013-01-10

RAJES KUMAR

body2013
Rajes Kumar, J. Heard Sri R.M. Saggi, learned counsel for the petitioner and learned Standing Counsel for the respondents. There was an institution, named as Uchchtar Madhyamik Vidyalaya, Akori ( Ait) District Jalaun, which was aided and recognized under the U.P. Intermediate Education Act, 1921. The provision of U.P. Intermediate College ( Payment of Salary of Teachers and other Employees) Act, 1971 was applicable. There was ten sanctioned posts consisting of one post for Principal, four posts for L.T. Grade Teachers and five posts of C.T. Grade Teachers. Sri Jugal Kishore Verma was the Principal of the College. The service of Jugal Kishore Verma has been terminated and Sri Bhagwan Singh,who was the senior most teacher, became the officiating Principal. According to the impugned order of the District Inspector of Schools, Jalaun, a resolution for the appointment/promotion of Sri Bhagwan Singh on the post of Principal was passed as Resolution No. 5 on 13.5.1992 and approval of such resolution was given by the District Inspector of Schools, Jalaun vide no. 2407-8/92-93 dated 6.8.1992. The case of the petitioner is that by the resolution, the petitioner has been appointed as L.T.Grade Teacher by the appointment letter dated 17.4.1992. He joined on 18.4.1992 and the papers have been sent for approval to the District Inspector of Schools, Jalaun. The District Inspector of Schools, Jalaun has disapproved the appointment of the petitioner on 12.5.1992 on the ground that no post was vacant. The petitioner challenged the said order in Writ Petition No. 22814 of 1992 which has been allowed vide order dated 7.11.1994 and the District Inspector of Schools has been directed to pass a fresh order. While allowing the writ petition, the Court has observed that the District Inspector of Schools has not recorded any specific finding that the post on which Sri Bhagwan Sing was working was not a post created by the Director of Education and further he has not recorded any finding that in what manner the appointment of the petitioner is illegal and what procedure was not followed. In pursuance of the order of this Court, the present impugned order has been passed rejecting the claim of appointment of the petitioner. In the impugned order, the District Inspector of Schools has held that when the Resolution no. In pursuance of the order of this Court, the present impugned order has been passed rejecting the claim of appointment of the petitioner. In the impugned order, the District Inspector of Schools has held that when the Resolution no. 2 dated 17.4.1992 was passed by the Committee of Management and has been sent to the District Inspector of Schools, no post of L.T.Grade Teacher was vacant and, therefore, there was no question of the appointment of the petitioner and his appointment was wholly illegal. It has been observed that on termination of service of Sri Jugal Kishore Verma, the Committee of Management has passed resolution no. 5 dated 13.5.1992 for the promotion/appointment on the post of Principal which has been approved by the District Inspector of Schools, Jalaun on 6.8.1992. Learned counsel for the petitioner submitted that when Sri Jugal Kishore Verma was suspended, Sri Bhagwan Singh, being a senior teacher, was given the charge of officiating Principal and, therefore, short term vacancy of L.T. Grade teacher arose and against the said vacancy he has been appointed. Therefore, his appointment was valid and in accordance to law. Sri Bhagwan Singh was made officiating Principal and this fact has been accepted by the District Inspector of Schools in his counter affidavit of paragraph-3, filed in Writ Petition No. 22814 of 1992, which is Annexure-8 to the writ petition. He further submitted that in any view of the matter when by the resolution no. 5 dated 13.5.1992 by which Sri Bhagwan Singh was promoted on the post of Principal and the same has been approved on 6.8.1992, the substantive vacancy arose and, therefore, the petitioner was entitled to be appointed against the said vacancy. I do not find substance in the argument of learned counsel for the petitioner. Even for the sake of argument, if it is accepted that in the year 1988 Sri Bhagwan Singh was given the charge of officiating Principal, the vacancy of L.T. Grade Teacher on which Sri Bhagwan Singh was working cannot be said to be created inasmuch as he was only given the charge of officiating Principal. Sri Bhagwan Singh has been promoted/appointed as Principal by resolution no. 5 dated 13.5.1992 on the post of Principal which has been approved by the District Inspector of Schools. On the said date the vacancy has only arisen. Therefore, the appointment of the petitioner by resolution no. Sri Bhagwan Singh has been promoted/appointed as Principal by resolution no. 5 dated 13.5.1992 on the post of Principal which has been approved by the District Inspector of Schools. On the said date the vacancy has only arisen. Therefore, the appointment of the petitioner by resolution no. 2 dated 17.4.1992 against the alleged short term vacancy though there was no short term vacancy, was wholly unjustified and has rightly not been approved by the District Inspector of Schools. In any view of the matter, when Sri Bhagwan Singh was appointed/promoted on the post of Principal by resolution no. 5 dated 13.5.1992 and the said resolution has been approved by the District Inspector of Schools on 6.8.1992, the substantive vacancy of L.T. Grade Teacher arose and in this view of the matter also the petitioner cannot claim his appointment against short term vacancy inasmuch as short term vacancy ceases to exist. The Manager of the institution has also filed a counter affidavit. In paragraph-4 of the counter affidavit, it is stated that Sri Bhagwan Singh was promoted on the post of Principal by resolution dated 13.5.1992 which has been approved by the District Inspector of Schools on 6.8.1992. Reliance is placed on a Full Bench decision of this Court in the case of Smt. Pramila Mishra Vs. Deputy Director of Education, Jhansi Division, Jhansi and others, reported in ( 1997) 2 UPLBEC 1329 . Learned counsel for the petitioner submitted that appointment of Sri Hari Babu was against the vacancy arisen on account of promotion of Sri Bhagwan Singh was illegal inasmuch as without following the procedure. I refrain to entertain the submission of learned counsel for the petitioner inasmuch as the petitioner's appointment was ab initio illegal and the petitioner has no locus to challenge the appointment of Sri Hari Babu. Therefore, this argument of learned counsel for the petitioner cannot be entertained. In view of the above, the petition has no force and is accordingly dismissed.