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2016 DIGILAW 1294 (ALL)

Shivmani Mishra v. State of U. P.

2016-04-07

PRABHAT CHANDRA TRIPATHI, TARUN AGARWALA

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JUDGMENT We have heard learned counsel for the petitioners, Sri Bajrang Bahadur Singh, the learned counsel for the intervenor, Sri Ved Vyas Mishra, the learned counsel for Sampurnanand Sanskrit Vishwavidyalaya, Varanasi, respondent Nos.2 and 3 and the learned standing counsel. The writ petition is being disposed of at the admission stage without calling for a counter affidavit and without issuing a notice to the Committee of Management, respondent No.4. Pursuant to the advertisement petitioner No.1 was appointed on the post of Principal and the remaining petitioners were appointed on the post of Assistant Lecturers. Their appointments were challenged in Writ Petition No.33381 of 2015, Chandra Kishore Chaturvedi vs. State of U.P. and 5 others, in which an interim order was passed on 30.7.2015, which is extracted hereunder; "Heard Sri Saurabh Srivastava, learned counsel for the petitioner. The petitioner is seeking quashing of the advertisement dated 23.12.2014 for the post of Lecturer. According to the petitioner, he has also applied against the said advertisement but in the interview held on 10.5.2015 it is found that the Interview Board was not properly constituted. The matter requires consideration. Sri Harishchandra Pathak, learned Standing Counsel accepts notice on behalf of respondent no.1, Sri V.B. Mishra accepts notice on behalf of the respondent no.2, Sri N. L. Pandey accepts notice on behalf of the respondent no.4. Sri N.L. Pandey submits that he shall also file vakalatnama on behalf of respondent no.3. Issue notice to respondent no.5. The petitioner shall take steps for service upon the respondent no.5 within three days. Connect with Writ Petition No.35445 of 2015, Dr. Bhanu Pratap Mishra vs. State of U.P. & Others. All the respondents may file counter affidavit within six weeks. List thereafter before the appropriate Bench. The matter shall not be treated as tied up or part heard with this Bench. It is provided that selection process may go on but appointments made shall be subject to the outcome of the writ petition." Similarly in another writ petition No.35445 of 2015, Dr.Bhanu Pratap Mishra vs. State of U.P. and 6 others, an interim order was passed on 26.6.2015, which was extracted hereunder: - "Heard Sri Bajrang Bahadur Singh, learned counsel for the petitioner, Sri Som Narayan Mishra, learned Standing Counsel for respondent nos. 1, 3 and 4, Sri Mani Shankar Mishra holding brief of Sri Ved Vyas Mishra, learned counsel for the respondent no. 1, 3 and 4, Sri Mani Shankar Mishra holding brief of Sri Ved Vyas Mishra, learned counsel for the respondent no. 2 and Sri N.L. Pandey, learned counsel for the respondent no.6. On 23rd June, 2015, this Court passed the following order : - "Heard Sri Bajrang Bahadur Singh, learned counsel for the petitioner, Sri Som Narayan Mishra, learned Standing Counsel for respondent No.1, 3 and 4 and Sri Mani Shankar Mishra holding brief of Sri Ved Vyas, learned counsel for respondent no. 2. The submission of learned counsel for the petitioner is that pursuant to advertisement dated 23 December, 2014 inviting applications for recruitment on 1 post of Principal, 3 posts of Lecturer and 2 posts of Assistant Lecturer, the petitioner applied for the post of Principal/Assistant Lecturer. As per Rule 11.15 and 11.16 of the Rules of Sampurnanand Sanskrit Vishwavidyalaya, Varanasi, a Selection Committee consisting of the members as prescribed therein should have been constituted for recruitment but the recruitment process is being attempted to be completed without constituting the Selection Committee in accordance with Rule 11.16 of the Rules. He submits that in similar circumstances, the respondent no. 3 has disapproved the initiation of recruitment process, in case of other institutions, namely, Shri Teek Mani Sanskrit College, Shakarkand Gali, Varanasi but in the case of respondent no. 5/6 institutions, the aforesaid provision is being completely ignored. Learned counsel for respondent no. 2 and the learned Standing Counsel pray for and are granted 3 days' time to seek instructions in the matter. Put up on 26 June, 2015." Pursuant to the aforequoted order, learned counsel for the respondent no. 2 and learned Standing Counsel have obtained instructions. Learned counsel for respondent no. 2 states that selection on the post of the principal was done in accordance with law. On the contrary, learned Standing Counsel states that as per instructions of the District Inspector of Schools, Varanasi, dated 25th June, 2015 the permission sought by the respondent no. 5 for the date of interview by the selection committee was not granted and the matter was returned back vide letter dated 1st May, 2015. Learned Standing Counsel submits that as per instructions, the respondent no. 5 has not constituted selection committee in accordance with the relevant rules. Learned counsel for the respondent no. 5 for the date of interview by the selection committee was not granted and the matter was returned back vide letter dated 1st May, 2015. Learned Standing Counsel submits that as per instructions, the respondent no. 5 has not constituted selection committee in accordance with the relevant rules. Learned counsel for the respondent no. 6 has raised preliminary objection as to the maintainability of the writ petition on the ground that the petitioner, who has participated in the selection process, after being unsuccessful, can not question the it. Petitioners have no locus-standi to challenge the impugned order. Issue notice to the respondent no. 7 returnable at an early date. Steps be taken within a week by speed/ registered post. All the respondents may file counter affidavit within two weeks. Petitioner shall have two weeks thereafter to file rejoinder affidavit. List immediately after expiry of five weeks. Considering the facts and circumstances of the case, it is provided that any appointment made pursuant to the impugned advertisement shall be subject to the result of the writ petition." The interim order apparently makes it clear that any appointment made would be subject to the result of the writ petition. Based on the interim order, the selection process pursuant to the impugned advertisement continued and the petitioners were appointed. The appointment of the petitioners, as per the statement given by Sri Ved Vyas Mishra, the learned counsel for the University, has been approved by the Vice Chancellor. According to the petitioners, they have joined the College and are working since 29.12.2015, but their salary has not been released. By the impugned order dated 19.1.2016, the District Inspector of Schools has refused to release the salary on account of pendency of the two writ petitions. The petitioners, being aggrieved, have filed the writ petition. Having heard the learned counsel for the petitioners, it is apparently clear, that the interim order passed in the aforesaid two writ petitions does not restrain the District Inspector of Schools from releasing the salary. It is axiomatic that if the petitioners have joined the posts and are working, then salary is required to be released. The appointment of the petitioners is subject to the result of the two writ petitions. So long as they are working and are performing their job, they are entitled for the salary. It is axiomatic that if the petitioners have joined the posts and are working, then salary is required to be released. The appointment of the petitioners is subject to the result of the two writ petitions. So long as they are working and are performing their job, they are entitled for the salary. Consequently, the impugned order dated 19.1.2016 passed by the District Inspector of Schools cannot be sustained and is quashed. The writ petition is allowed. The District Inspector of Schools is directed to enquire from the Committee of Management and from such other sources as to whether the petitioners have joined their posts and are working or not. In the event they are found to be working, their salary would be released. Their appointment would be subject to the result of the aforesaid two writ petitions.