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2015 DIGILAW 3064 (ALL)

RAJENDRA PRASAD DUBEY v. STATE OF U. P.

2015-09-28

YASHWANT VARMA

body2015
JUDGMENT Hon’ble Yashwant Varma, J.—Heard Sri Irshad Ali, learned counsel for the petitioner, Sri Riyaz Akhtar who has appeared for the respondent No. 4 and the learned standing counsel for the respondent Nos. 1 to 3. 2. The challenge in the present writ petition has been laid to an order dated 12 December 2006 passed by the third respondent - District Inspector of Schools holding that the appointment of the petitioner in the institution in question was illegal. The order passed by the third respondent proceeds to hold that the promotion of Sri Ashok Kumar Pandey was liable to be countenanced from 15 August 2004 and since prior thereto no vacancy came into existence, the appointment of the petitioner was clearly illegal. 3. During the pendency of the present writ petition, this Court by an order passed on 6 May 2009 provided that the employer would continue to pay the current monthly salary of the petitioner. This interim order is stated to have continued till the petitioner retired from service on 30 June 2015. 4. From the perusal of the records of the writ petition, it transpires that one Ashok Kumar Pandey is stated to have been promoted by the Committee of Management in 1995, as a result of which a short-term vacancy came into existence. On 11 August 1995, a requisition is said to have sent by the Committee of Management for appointment by the selection board on the post of Lecturer (Civics). 5. It is contended that pursuant to the advertisements issued by the Committee of Management, the petitioner applied and came to be selected as is evident from the resolution passed by the Committee of Management. In the meanwhile, the papers with respect to the ad hoc promotion of Ashok Kumar Pandey were forwarded to the District Inspector of Schools on 26 October 1995. Upon culmination of the selection process, the District Inspector of Schools by order dated 16 December 1997 accorded approval to the appointment of the petitioner, who joined the institution on 24 October 1995. It is then contended that certain complaints were made with respect to the appointment of the petitioner, as a consequence to which the Director of Education by an order dated 28 August 1998 stayed the order of approval made by the District Inspector of Schools on 16 December 1997. It is then contended that certain complaints were made with respect to the appointment of the petitioner, as a consequence to which the Director of Education by an order dated 28 August 1998 stayed the order of approval made by the District Inspector of Schools on 16 December 1997. On 12 December 2006, the District Inspector of Schools proceeded to annul the claim of the petitioner by holding that prior to 15 August 2004, no vacancy had come into existence and therefore the appointment of the petitioner by the Committee of Management was wholly illegal. 6. Sri Irshad Ali, learned counsel appearing in support of the petition, has contended that the appointment accorded to the petitioner consequent to the ad hoc promotion of Sri Ashok Kumar Pandey was made in accordance with law and the statutory provisions. He contends that the promotion of Sri Ashok Kumar Pandey was never interfered with by the State respondents, although approval thereto is stated to have been accorded only on 15 August 2004. In any view of the matter, it is his submission that the order of 12 December 2006 came to be passed without affording any opportunity of hearing to the petitioner. While the learned standing counsel has sought to support the findings recorded by the District Inspector of Schools, this Court is constrained to take note of what was stated in para 24 of the writ petition. In para 24 of the petition, there is a categorical assertion that the order of 12 December 2006 came to be passed by the third respondent without affording any opportunity of hearing to the petitioner. The State has filed a counter-affidavit in these proceedings. In para 20 thereof, the plea of the petitioner that the principles of natural justice were violated is not denied. 7. Undisputedly a reading of the order impugned in the writ petition shows and establishes that it has civil consequences. In any view of the matter an opportunity of hearing would have enabled the petitioner to submit his claim with regard to the validity of his appointment by the fourth respondent. Apart from the above, this Court finds that the order of 12 December 2006 fails to accord any consideration to the approval earlier accorded to the appointment of the petitioner on 16 December 1997. Apart from the above, this Court finds that the order of 12 December 2006 fails to accord any consideration to the approval earlier accorded to the appointment of the petitioner on 16 December 1997. The impugned order fails to carry or record any reason as to why the approval which was accorded on the aforementioned date was not liable to be viewed as one made in accordance with law. 8. Bearing in mind the above conclusions, which this Court has arrived at coupled with the fact that the petitioner is stated to have attained the age of superannuation on 30 June 2015 and that he continued to be paid salary pursuant to the interim order passed by this Court it appears appropriate that the matter be remanded for a fresh consideration of the issues which arise herein by the third respondent. 9. Accordingly and in light of the above, this writ petition shall stand allowed. The impugned order dated 12 December 2006 shall stand quashed. The third respondent shall now proceed to consider the matter afresh in light of the observations made hereinabove. Needless to state that the third respondent shall afford due opportunity of hearing to the petitioner before proceeding to consider and rule upon his claim with respect to the validity of his appointment, the payment of salary and retiral benefits, if any. The third respondent shall proceed in the mater after putting all concerned to notice and with expedition. An endeavour shall be made to conclude the matter not later than two months from the date of production of a certified copy of the order of this Court. 10. The writ petition shall stand allowed in the above terms.