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2014 DIGILAW 380 (ALL)

State of U. P. v. Sachendra Kumar

2014-02-03

D.Y.CHANDRACHUD, DILIP GUPTA

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JUDGMENT Dilip Gupta, J. This special appeal arises from an interlocutory order of the learned Single Judge dated 9 May 2012. In the writ petition, that was filed by the respondent, besides challenging an order dated 22 November 2003 passed by the third respondent and an order dated 26 December 2003 passed by the fifth respondent, the respondent had also sought a mandamus commanding the appellants to pay his salary in the requisite pay scale and to release the arrears of salary. 2. On 16 January 2004, while issuing notice for filing the counter and rejoinder affidavits, the learned Single Judge observed that if the respondent is working on a Class-IV post in the Government Girls Inter College, Hathras, he shall be permitted to work and the question of payment of salary shall be considered after the exchange of affidavits. 3. The parties have now filed their counter and rejoinder affidavits and the petition itself is ready for final hearing. 4. When the petition came up before the learned Judge on 9 May 2012, the learned Single Judge observed that the respondent is still working on this Class-IV post in pursuance of the interim directions and hence the payment of salary cannot be denied. The learned Single Judge, as an interim measure, directed the appellants to pay the current salary to the respondent forthwith on Class-IV post. A direction for the payment of arrears of salary was also issued. 5. We have perused the second supplementary counter affidavit filed by the State. The principal defence of the State Government is that the appointment of the respondent was not made after following the required selection procedure since the vacancy was neither properly advertised nor was the selection committee properly constituted. Moreover, in the impugned order of the Joint Director of Education, Agra Region, Agra, it has been stated that when the Principal of the Institution was granted the charge of the office of District Inspector of Schools for a short period of time, approval was granted by the Principal for payment of salary in a manner contrary to law. 6. We clarify that we have not expressed any view on the correctness of the observations made in the impugned order which is under challenge before the learned Single Judge or on the merits of the contention in the counter affidavit. 6. We clarify that we have not expressed any view on the correctness of the observations made in the impugned order which is under challenge before the learned Single Judge or on the merits of the contention in the counter affidavit. However, these are sufficient to indicate that the appropriate course of action for the learned Single Judge would have been to take up the petition for final disposal since the counter and rejoinder affidavits had been filed. The subsequent interim order which has now been passed, virtually amounts to a final relief in the petition. Hence, we are of the view that the order of the learned Single Judge impugned in the present appeal would have to be modified appropriately. 7. We, accordingly, vacate the interim protection which was granted by the impugned order dated 9 May 2012 with a request to the learned Single Judge to take up the petition itself, namely, Writ-A No.1579 of 2004 for final disposal. We, however, clarify that the earlier order dated 16 January 2004 permitting the respondent to work on the Class - IV post in Government Girls Inter College, Hathras, will not be affected by the setting aside of the subsequent directions dated 9 May 2012. We grant liberty to the respondent to move the learned Single Judge for expeditious disposal of the petition. With these observations and in terms of the aforesaid modification, we dispose of the special appeal.