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2017 DIGILAW 1168 (ALL)

Rajendra Prasad Dubey v. D. I. O. S.

2017-05-02

MANOJ KUMAR GUPTA

body2017
JUDGMENT Manoj Kumar Gupta, J. An application seeking recall of order dated 27.8.2010 by which the restoration application filed by the petitioner for recall of order dated 27.4.2004 was dismissed, has been filed. The order passed on 27.8.2010 by which the restoration application was rejected, is to the following effect “Heard. Before the Court deals with the present recall application, it would be appropriate to notice the facts : This petition was filed with the allegations that the petitioners were allegedly appointed in the respondent Institution by the Management and all the papers were sent to the District Inspector of Schools for grant of approval but when no approval was granted, he restrained the petitioners from continuing in the Institution by the impugned order dated 30.3.1991. A counter affidavit on behalf of the State was filed in July 1993 by the District Inspector of Schools stating that the petitioners were not appointed against any sanctioned posts in the following words : “4. That there is an Intermediate College, named as Sri Gandhi Smark Intermediate College Ram Nagar Vidhmauwa in District Jaunpur (here in after referred as institution). This institution was previously High School and it was raised to Intermediate in the year 1984. After the upgradation of the Institution no post of any lecturer, teacher, clerk or peon was sanctioned to this institution and the respondent No. 2 had taken the responsibility of bearing the expenses which were to occur on providing eduction at the intermediate stage till the grant-in-aid for the intermediate stage was not sanctioned by the State Govt. It is pertinent to state that a Division Bench of the Hon’ble High Court has recently decided a bunch of about 30 writ petitions with the leading writ petition No. 28040 of 1992, Dropad Mittal v. R.I.G.S. Meerut and others reported in 1992 (U.P.L.B..E.C. P. 1984) and laid down certain guideline for the payment of salary to adhoc teachers. One of the most important factor which has been emphasised by the Hon’ble Court is that the post against which the appointment is being sought must be sanctioned post as provided under Section 9 of the U.P. High Schools and Intermediate College (Payment of Salary to Teachers and other Employees) Act, 1971 i.e. Act No. 24 of 1971. The post against which the petitioners claim then appointment is not a sanctioned post hence the petitioners are not entitled for salary. The post against which the petitioners claim then appointment is not a sanctioned post hence the petitioners are not entitled for salary. The writ petition is based on false facts and is liable to be dismissed.” Even after expiry of a decade, no rejoinder affidavit was filed and when the matter was taken up on 5.4.2004, further time was granted by a stop order in presence of the counsel for the parties and 27th April 2004 was fixed, but the counsel for the petitioner did not appear on 27.4.2004 and therefore the writ petition was dismissed. However, a recall application No. 63534 of 2006 alongwith a delay condonation application was filed after about two years but the same was also rejected by a reasoned order on 24.7.2006. Now the present restoration application No. 150392 of 2010 has been filed with the allegation that the earlier recall was filed by the petitioner No. 2 without the consent of the petitioner No. 1 and since the counsel for the petitioner could not note the case on 27.4.2004, therefore, the order should be withdrawn. The allegations appear to be false. On 5.4.2004 by the following order, the prayer made by the counsel for the petitioner for grant of time was accepted : “Counter affidavit was served on the petitioner in July, 1993 but no rejoinder affidavit has been filed. Learned counsel for the petitioner prays for and is granted two weeks and no more time to file rejoinder affidavit. List on 27.4.2004.” When the aforesaid order was passed in the presence of the counsel for the petitioner, there was no occasion to have missed his case when it was date fixed. Even otherwise, till date the averments of the counter affidavit have not been rebutted and therefore, the petitioners, in any case, are not entitled for payment of salary from the State exchequer as their appointment was against a non sanctioned post. For all the aforesaid reasons, no ground for recall is made out. Rejected”. Concededly, the order dated 27.8.2010 rejecting the restoration application was passed after hearing counsel for the petitioners. The explanation furnished by the petitioners for not being able to note the date fixed in the case has not been accepted. Thus the rejection of the restoration application is on merits. In such view of the matter, no recall application would be maintainable. The explanation furnished by the petitioners for not being able to note the date fixed in the case has not been accepted. Thus the rejection of the restoration application is on merits. In such view of the matter, no recall application would be maintainable. The mere fact that while rejecting the restoration application, certain observations have been made on the merits of the main petition, would not make the recall application maintainable. It is accordingly rejected.