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2019 DIGILAW 425 (ALL)

SARAJ v. D. I. O. S JAUNPUR

2019-02-18

ASHOK KUMAR

body2019
JUDGMENT Ashok Kumar, J. Heard learned counsel for the petitioner, learned Standing Counsel for the respondent nos. 1 and 4 and Sri Rajnish Kumar Srivastava, learned counsel for respondent nos. 2 and 3. 2. This writ petition has been filed in September, 1990. The petitioner has challenged the order passed by the District Inspector of Schools, Jaunpur dated 16.08.1990. Vide order dated 16.08.1990 the appointment of the petitioner on the post of sweeper in the respondent no. 2, institution was cancelled. 3. The brief facts of the case are that the post of sweeper fell vacant in the respondent no. 2, institution due to retirement of one Smt. Dhanpatti Devi, the sweepress. Since no action was taken and the requirement of the sweeper in the institute was necessary, the Principal of the institution has sent a reminder letter dated 13.09.1989 to the D.I.O.S. specifically mentioning therein about the existence of the vacancy of the sweeper with effect from 31.08.1989, the date of retirement of sweepress, Smt. Dhanpatti Devi. 4. The principal has proceeded to send a letter dated 14.09.1989 to the employment exchange by which letter he has submitted the list of eligible candidates for appointment of sweeper in the institute. It was made clear in the said letter addressed to the employment exchange that the educational qualification for IVth Class Employee have been prescribed being Class Vth passed. In reply to the letter addressed to the employment exchange dated 14.09.1989, the employment officer has informed the principal that no person eligible having Vth Class educational qualification is available for the post of sweeper, thus no candidates could be sent by the employment exchange for appointment as the sweeper as desired by the Principal of the Institution. This letter of the employment officer was issued on 16.10.1989. 5. In view of the above, the principal of the institution having no option but to fill-up the vacancy by way of direct recruitment and therefore, the post of sweeper was published on the notice board on 25.10.1989. 6. Pursuant to the said advertisement the petitioner along with three other candidates applied for appointment as sweeper in the respondent no. 2, institution. 6. Pursuant to the said advertisement the petitioner along with three other candidates applied for appointment as sweeper in the respondent no. 2, institution. The selection process was started and the selection chart has been prepared of all the candidates, who applied/appeared and after consideration of all material available on record the Principal of the institution has found the petitioner most suitable and therefore, the petitioner was selected for the post of sweeper in the respondent no. 2, institution. 7. The process was finalized by the selection committee of the institution for the appointment of the sweeper and an appointment letter dated 01.11.1989 was issued appointing the petitioner on the post of sweeper in the respondent no. 2, institution. The petitioner reported for duty on the very same day i.e. on 01.11.1989 and was allowed to join with effect from 01.11.1989. 8. Learned counsel for the petitioner has submitted that at the time of selection of the petitioner on the post of sweeper/Class IVth Employee there was no provision in the Intermediate Education Act for approval of the appointment of Class IVth Employee to be appointed as sweeper by the D.I.O.S., however, for the payment of salary the approval was necessary from the D.I.O.S. and in this regard the Principal of the Institution has issued a request letter dated 28.11.1989 addressed to the D.I.O.S. for sanction of the payment of salary. The D.I.O.S. has not passed any order hence a reminder letter was sent by the Principal of the institution on 13.02.1990 requesting for sanction of payment of salary for the petitioner on the post of sweeper. 9. It is claimed that thereafter the petitioner continued on the post of sweeper, however, after a gap of more than 11 months the D.I.O.S. has passed the order dated 16.08.1990 by which order he has rejected the request of sanction of the salary to the petitioner. 10. By means of the present writ petition the order passed by D.I.O.S. Dated 16.08.1990 rejecting the request of sanction of payment of salary has been challenged by the petitioner. Counter and rejoinder affidavits are exchanged. 11. Learned Standing Counsel has placed reliance of paragraph 5 of the counter affidavit filed by the D.I.O.S., Jaunpur, on 31.08.2018 (after a gap of about 28 years). In para 5 of the counter affidavit the respondent no. Counter and rejoinder affidavits are exchanged. 11. Learned Standing Counsel has placed reliance of paragraph 5 of the counter affidavit filed by the D.I.O.S., Jaunpur, on 31.08.2018 (after a gap of about 28 years). In para 5 of the counter affidavit the respondent no. 1 (D.I.O.S.) has stated that the post on which the petitioner is claiming his appointment was never advertised in daily news paper hence the entire selection process is seriously doubtful. In para 5 the respondent- D.I.O.S. has admitted that the post was advertised on the notice board. He has not disputed that apart from the petitioner three other persons also applied and participated in the process of appointment as sweeper on the basis of the advertisement published on the notice board by the institution. 12. Learned counsel for the petitioner has placed reliance of the affidavit of second compliance filed by the respondent nos. 2 and 3 particularly page 20, which is admittedly the notice dated 25.10.1989 placed on the notice board and has been duly signed by the Principal of the Institution and the letter of the appointment issued and signed by the Principal of the Institution (page 21). The contents of the said notice and letter of appointment are quoted herein below:- ^^lwpuk iVV dh Lkwpuk dsoy vuqlwfpr tkfr@vuqlwfpr tutkfr ds fy, esgrj ds ,d in LFkk;h :i ls fjDr gSA ftlds fy,s d{kk&5 mŸkh.kZ U;wure ;ksX;rk j[kh x;h gSA tks vH;FkhZ d{kk&5 mŸkh.kZ gS os viuk vkosnu&i= 31-10-1989 rd iz/kkukpk;Z ds ikl tek djds fnukad 01-11-1989 dks lk{kkRdkj gsrq vius ;ksX;rk izek.k&i= lfgr fnu esa 2-00 cts mifLFkr gksA Lohij in gsrq&lk{kkRdkj fooj.k Øekad uke vH;FkhZ firk dk uke tUe frfFk 'kSf{kd ;ksX;rk fo'ks"k 1 Jh egknso okjh Jh njckjh okjh & & fiNM+h tkfr gSA 2- Jhefr lquhrk okjh iRuh Jh jketh okjh & & ^^ 3- Jh ljkt Jh [kkfyn & d{kk&5 ikl esgrj in gsrq ;ksX; ik;s x;sA budh fu;qqfDr dh xbZA 4- Jh foir gfj Jh >wjh gfj 32 o"kZ & vuqifLFkr 13. Learned counsel for the petitioner has placed reliance of the letter issued by the Principal indicating that the petitioner has been appointed with effect from 01.11.1989 on the post of sweeper for the period of one year. These facts are not disputed by learned Standing Counsel. The objection of learned Standing Counsel is only that the selection process of the post of sweeper was irregular. 14. These facts are not disputed by learned Standing Counsel. The objection of learned Standing Counsel is only that the selection process of the post of sweeper was irregular. 14. Having heard learned counsel for the petitioner, learned Standing Counsel and learned counsel representing the Institution/Committee of Management, this Court is of the opinion that the appointment of the petitioner was not irregular. The Principal has published the notice in the notice board, which is not disputed by the respondent/D.I.O.S. The selection process was carried out and thereafter the petitioner was found most suitable for the post of sweeper which was available after the retirement of a sweepress. Further this Court has noticed that the petitioner's qualification was Class Vth passed out and the caste of the petitioner was Hela. 15. This Court has also noticed that following interim order has been passed by this Court on 11.09.1990:- "List for admission. Respondents No. 2 and 3 shall be served by the petitioner. For respondents No. 1 and 4 standing counsel is present. He may file C.A. within six weeks. In the meantime the operation of the order dated 16.08.1990 shall remain stayed and if the petitioner discharges the functions as sweeper, he is entitled to receive pay month by month as admissible under rules." 16. Admittedly, the petitioner is working on the post of sweeper since 01.11.1989 i.e. since last about 29 and half years. 17. Learned counsel for the petitioner has informed that the petitioner is going to retire in September, 2019. 18. In view of the aforesaid, without going into the other issues raised by the petitioner I find it appropriate that the petitioner be permitted/allowed to continue his services till date of retirement and the petitioner is also entitled to get the salary for the post on which he is working. 19. Learned counsel for the petitioner has informed that the D.I.O.S. has stopped the salary of the petitioner since March, 2018. This is nothing but clearly an abuse of process of law and the act of the D.I.O.S. prima facie is not acceptable. 20. Admittedly, an interim order is passed by this Court is continuing in favour of the petitioner then how the D.I.O.S. has stopped the salary of the petitioner. The order impugned dated 16.08.1990 is set aside. The services of the petitioner are confirmed and continued. 20. Admittedly, an interim order is passed by this Court is continuing in favour of the petitioner then how the D.I.O.S. has stopped the salary of the petitioner. The order impugned dated 16.08.1990 is set aside. The services of the petitioner are confirmed and continued. The petitioner is entitled for all the arrears and the benefits. The D.I.O.S. shall ensure that the entire salary, with interest, be paid to the petitioner within four weeks from today. 21. The writ petition is allowed.