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2019 DIGILAW 806 (ALL)

Janardan Yadav v. State of U. P.

2019-04-01

ASHWANI KUMAR MISHRA

body2019
ORDER : Ashwani Kumar Mishra, J. 1. Rejoinder affidavit filed today is taken on record. 2. This petition is directed against an order passed by the Director of Education dated 11.12.2015, where by petitioner's claim for being accorded approval and thereby releasing salary on the post of Assistant Teacher in the institution concerned, has been rejected. 3. Lal Bahadur Shashtri Shiksha Niketan Inter College, Pipara Madan Gopal, District Deoria is a recognised institution under the provisions of the U.P. Intermediate Education Act, 1921 and the provisions of Payment of Salaries Act, 1971 are also applicable thereupon. Initially the institution was a Junior High School but in the year 1981, it was upgraded to the High School level. Aid was extended to the institution w.e.f. 1.4.1991 under the Act of 1971. Petitioner claims to have been appointed as Assistant Teacher in the institution in the year 1988. This appointment was approved by the Inspector on 13.3.1992. The order of the Inspector noticed that the appointment of the petitioner was not against any existing post and that request had been made for sanction of four additional posts which was pending consideration. It was in that circumstances that inspector has granted approval to petitioner's appointment allegedly in public interest due to unavoidable circumstances. However, the order of approval also recorded that salary would be paid to the petitioner only when additional posts are sanctioned. It is admitted on record that no additional post was ever sanctioned. It appears that a vacancy arose due to retirement of one Ram Chandra Pathak on 30.6.2007 and petitioner raised a claim for grant of approval against such vacancy. This Court on 24.12.2009 issued a direction in Writ Petition No. 51202 of 2009 to the Director to take an appropriate decision in the matter. A consequential order was passed by the Director on 29.9.2011, holding that claim of petitioner for adjustment can be considered against the post which has fallen vacant due to the superannuation of Ram Chandra Pathak. A consequential order in favour of petitioner was passed granting him financial approval. A consequential order was passed by the Director on 29.9.2011, holding that claim of petitioner for adjustment can be considered against the post which has fallen vacant due to the superannuation of Ram Chandra Pathak. A consequential order in favour of petitioner was passed granting him financial approval. This order, however was challenged in Writ Petition No. 1122 of 2012, which came to be allowed by this Court on 15.10.2015 by holding as under:- "In view of the statements so made by learned counsels for the parties, the impugned orders dated 21st September, 2011 passed by the Joint Director of Education (Secondary) U.P. Lucknow and the letter/order dated 22nd December, 2011 issued by the District Inspector of Schools, Deoria (Annexures-8 & 5 respectively) are hereby set aside. The respondents No.1 to 5 are directed to allow the petitioner to work as Assistant Teacher (Sanskrit) in the respondent No.5-institution forthwith and they shall also ensure that the payment of salary as per the provisions of Payment of Salaries Act, 1971 is made to him. A further direction is issued to the respondent No.2 to pass an appropriate order in accordance with law in terms of the order of this Court dated 24th December, 2009 passed in Writ Petition No.51202 of 2009, within three weeks from the date of production of a certified copy of this order. It shall be open to the respondent No.6 to move a fresh representation in support of his claim. Interim order, if any passed earlier, stands discharged. Writ Petition is allowed to the extent indicated above." 4. It is thereafter that petitioner represented in the matter and his grievance, noticed above, has ultimately been rejected by the order impugned. The order impugned records that the petitioner's appointment was made in excess of sanctioned vacancy and that in the absence of post, no financial approval can be granted to petitioner's appointment. A further finding is recorded that all sanctioned posts have otherwise been filled up. Aggrieved by this order, petitioner is before this Court. 5. Learned counsel for the petitioner submits that the petitioner's appointment was validly made in the year 1988 and once his claim of adjustment has been accepted by the Director, the authorities were expected to consider his claim for grant of financial approval against any subsequent vacancy, which may have come into existence. 5. Learned counsel for the petitioner submits that the petitioner's appointment was validly made in the year 1988 and once his claim of adjustment has been accepted by the Director, the authorities were expected to consider his claim for grant of financial approval against any subsequent vacancy, which may have come into existence. It is also stated that the financial approval to petitioner's appointment granted vide the order of the Inspector dated 13.3.1992 has otherwise attained finality. Learned counsel for the petitioner therefore submits that since petitioner is working for the last many years, it would be unjust to deny consideration to his claim for payment of salary. 6. Learned Standing Counsel, on the other hand, submits that any appointment made in excess of sanctioned strength would not entitle the petitioner to payment of salary. 7. I have heard learned counsel for the parties and have perused the materials brought on record. 8. Petitioner has brought on record his appointment made by the Manager on 4.7.1988. He claims to have continued pursuant to it. Matter relating to grant of approval to such appointment appears to have remained pending and ultimately the Inspector passed the order of approval on 13.3.1992. This order narrates the unavoidable circumstances in which the approval has been granted to petitioner's appointment. It was nevertheless indicated in categorical terms that salary would be payable to petitioner only if four additional posts are created. It is not in issue that no additional post ever came to be created thereafter. Claim of petitioner for being adjusted against the subsequent accrual of vacancy has been considered but ultimately that order has also been quashed by this Court in Writ Petition No. 1122 of 2012. 9. The question that arises for consideration, therefore, is as to whether consideration of petitioner's claim for grant of financial approval can be ordered against any future vacancy which may have arisen in the institution or not? 10. This Court finds that petitioner has not been able to show that his appointment was made against any existing post. Even the order of approval records that salary would not be paid to petitioner till a post is created. It remain admitted on record that no additional post was ever created. 10. This Court finds that petitioner has not been able to show that his appointment was made against any existing post. Even the order of approval records that salary would not be paid to petitioner till a post is created. It remain admitted on record that no additional post was ever created. Once it has been found that the petitioner's appointment was in excess of sanctioned strength, and no further anticipated vacancy was created against which petitioner could be adjusted, the petitioner cannot claim any right to payment of salary. 11. Consideration of petitioner's claim against subsequent vacancy that had arisen in the year 2007, otherwise, stood quashed by this Court. In the absence of any post existing at the time of petitioner's initial appointment, no direction in favour of the petitioner can be issued. Even otherwise, it is not clear that as to whether any procedure, known to law, had been followed before appointing the petitioner. 12. In the facts and circumstances, noticed above, no relief can be granted to the petitioner. No provision of law is shown where under an appointment made earlier can be adjusted against a subsequent vacancy, which may arise in an institution. It is, otherwise, settled that no substantive vacancy accruing in the institution can be filled except in the manner provided under the provisions of the 'U.P. Secondary Education Service Selection Board Act, 1982'. Adjustment, as is claimed, is not one of the method specified in the Act of 1982. 13. Writ petition fails and is accordingly dismissed.