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2024 DIGILAW 1871 (ALL)

Kanti Mishra v. State of U. P.

2024-08-09

SUBHASH VIDYARTHI

body2024
JUDGMENT : Subhash Vidyarthi, J. (Civil Misc. Delay Condonation Application No. 16 of 2022) (Civil Misc. Recall/ restoration Application No. 17 of 2022) 1. Heard Sri Kavindra Singh, the learned counsel for the petitioner and Sri Ajeet Kumar Singh, the learned Additional Chief Standing Counsel representing opposite parties no. 1 & 2. 2. This is an application for recall of order dated 26.02.2020 passed by this Court whereby the writ petition was dismissed after recording that on the previous occasion, while adjourning the case this Court had provided that no further adjournments shall be entertained. Yet adjournment had been sought on the ground of illness of the learned counsel for the petitioner. 3. It has been stated in the affidavit filed in support of the application that the aforesaid order was not in the knowledge of the petitioner and she came to know about it when a listing application had been filed. As the learned counsel for the petitioner was unwell and he had sent an illness slip and subsequently the petitioner had filed an application for recall of order, this Court is of the opinion that there is sufficient cause of non-appearance of the applicant when the case was dismissed for non appearance. 4. Accordingly, the application for recall of the order and application for condonation of delay are allowed and the writ petition is restored to its original number. (Order on Memo of Writ Petition) 5. Heard Sri Kavindra Singh, the learned counsel for the petitioner and Sri Ajeet Kumar Singh, the learned Additional Chief Standing Counsel representing opposite parties no. 1 & 2. 6. By means of the instant writ petition the petitioner has challenged validity of order dated 02.01.2013 passed by the Deputy Director of Education (Secondary) IV Division, Allahabad, whereby the Deputy Director has rejected the petitioner's claim for payment of arrears of salary for the period 18.03.1994 to 31.03.2006 on the ground that the petitioner had not performed teaching work during he aforesaid period. 7. Briefly stated, facts of the case are that in a selection held by the Committee of Management, Vidyawati Darbari Balika Inter College, Lukerganj, Allahabad for making appointments on two posts of Assistant Teachers (BTC Grade), the petitioner was placed at Serial No. 3 of the select list. The candidates placed at serial nos. 7. Briefly stated, facts of the case are that in a selection held by the Committee of Management, Vidyawati Darbari Balika Inter College, Lukerganj, Allahabad for making appointments on two posts of Assistant Teachers (BTC Grade), the petitioner was placed at Serial No. 3 of the select list. The candidates placed at serial nos. 1 & 2 of the select list were appointed and had joined their duties but after some time the candidate who was placed at serial no. 2 of the select list and who had been appointed and joined in furtherance of the aforesaid advertisement, tendered her resignation. On the vacancy created after the candidate appointed in furtherance of the earlier advertisement had resigned, the petitioner was appointed on 12.03.1994 and she joined her duties on 18.03.1994. 8. The petitioner had filed a Writ Petition No. 10667 of 1995 in this Court praying for payment of her salary, which was disposed of by means of an order dated 16.05.2005. 9. A proposal for approval of the petitioner's appointment was sent but the Regional Deputy Director Education (II), IV Division, Allahabad rejected the approval granted to the petitioner by means of an order dated 13.03.1995. Therefore, the petitioner's services were terminated by means of an order dated 03.08.1995 passed by the Manager of the college. The petitioner filed Civil Misc. Writ Petition No. 10667 of 1995 which was disposed off by means of an order dated 16.05.2005. 10. A perusal of the aforesaid order passed by this Court indicates that the writ petition was allowed by observing that 'it is well settled that purpose of making a waiting list is that if the selected candidate does not join or after joining the post, resigns, another candidate according to the merit in the waiting list be given appointment.' 11. In compliance of the aforesaid order dated 16.05.2005, the petitioner was granted a fresh appointment by means of an order dated 31.03.2006. Now the petitioner is claiming payment of salary for the period from 18.03.1994 to 02.04.2006. 12. In compliance of the aforesaid order dated 16.05.2005, the petitioner was granted a fresh appointment by means of an order dated 31.03.2006. Now the petitioner is claiming payment of salary for the period from 18.03.1994 to 02.04.2006. 12. The observation made by this Court in the order dated 16.05.2005 that 'it is well settled that purpose of making a waiting list is that if the selected candidate does not join or after joining the post, resigns, another candidate according to the merit in the waiting list be given appointment' apparently was passed in ignorance of the settled provisions of law that the select list stands exhausted after a candidate is appointed and joins the post. The vacancy created after the candidate tenders resignation, after his resignation a fresh vacancy which can only be filled through a fresh selection process. However, as the petitioner has been granted appointment in furtherance of the order and she has rendered services and the opposite parties have availed her services it would not be proper to disapprove the petitioner of the benefits of appointment that have already been granted to her. There appears to be no illegality in the interim order dated 02.01.2023 declining payment of arrears of salary to the petitioner for the period she was out of employment, which was not illegal in any manner. 13. In view of the aforesaid discussion, this Court is of the considered view that the impugned order does not suffer from any illegality. 14. The writ petition lacks merits the same is hereby dismissed.