Home Allahabad High Court Allahabad High Court allows petition challenging order by DIOS cancelling appointment on ground of short term vacancy

Allahabad High Court allows petition challenging order by DIOS cancelling appointment on ground of short term vacancy

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Allahabad High Court allows petition challenging order by DIOS cancelling appointment on ground of short term vacancy
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The Allahabad High Court has allowed the petition challenging the order by which the District Inspector of Schools, Varanasi has cancelled the appointment of the petitioner on the ground that the short term vacancy was not intimated to his office nor was any permission obtained from him nor was the selection done in accordance with the judgment of the Court in the case of Km Radha Raizada and Another vs Committee of Management and Others.

A Single Bench of Justice Kshitij Shailendra passed this order while hearing a petition filed by Rakesh Kumar Sharma.

The case of the petitioner is that one Seva Ram Singh was posted as Lecturer in History and he retired after attaining the age of superannuation on 30.06.1997 and on the said post, one Keshav Prasad Singh, who was senior most L.T Grade Teacher was promoted on his place, as a result whereof, a short term vacancy arose in the institution and the Management intimated the said vacancy to the District Inspector of Schools on 15.07.1997.

Thereafter, an advertisement was published on 22.09.1997 in two daily newspapers and the selection committee was constituted which held the proceedings on 03.10.1997 and after following due process of law, the petitioner was appointed. The appointment letter dated 05.10.1997 was issued by the Committee of Management. Thereafter, papers were submitted before the District Inspector of Schools and then the order impugned was issued.

The submission of the counsel for the petitioner is that the short term vacancies are filled up as per the provisions of UP Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 and Clause 2 of the same has been placed before the Court.

It is contended that though the post has to be filled up by direct recruitment and only requirement is notify the vacancy on the notice board of the institution, the Full Bench of this Court in the case of Km Radha Raizada and another Vs Committee of Management and others: 1995 (25) AllLR 383 (FB) has laid down that even the said post shall be filled up after publication of advertisement in newspapers. Regarding the necessity to obtain prior approval, the judgment says that there is no such necessity.

In view of the above, it has been argued that there being no flaw either factual or legal in the appointment of the petitioner, the order impugned cannot sustain.

A counter affidavit has been filed on behalf of the State respondents in which it has been stated that when the order of Keshav Prasad Singh was issued on 20th February, 1998, it contained a stipulation that the short term vacancy would not be filled up without prior approval of the District Inspector of Schools.

It is, therefore, contended by the Standing Counsel that before filling up of the vacancy, no prior approval was obtained from the District Inspector of Schools and, hence, the appointment was illegal.

It has further been argued in the counter affidavit that on the date of advertisement short term vacancy was not in existence and, hence, no question could arise to fill up the same.

The Court observed that,

Having heard the counsel for the parties, I find that though after 30.06.1997, in place of Seva Ram Singh, Keshav Prasad Singh was accorded promotion, however, formal letter was issued in 1998, it cannot be said that the short term vacancy did not arise on 15.07.1997, rather there is a clear admission in the letter dated 20.02.1998 itself, that the said short term vacancy had, in fact, arisen on the very same date i.e 15.07.1997. The only question to be examined by this Court is as to whether the Committee of Management rightly or wrongly filled up the same vacancy by offering appointment to the petitioner.

As already discussed, the post was duly advertised, selection proceedings were held and papers were forwarded later on to the District Inspector of Schools.

In view of the Full Bench judgment of the Court in the case of Km Radha Raizada (supra), there being no requirement of prior approval, the condition imposed in the letter dated 20.02.1998 is contrary to law.

In the case, an interim order was passed on 23.09.1999 whereby the respondents were directed to continue the petitioner in service and pay his salary forthwith.

Though, the writ was, later on, dismissed for want of prosecution on 05.05.2017 but while restoring the same on 06.07.2022, taking note of interim order and continuity in service of the petitioner, the interim order was revived on the same terms, subject to the condition that no regularly selected candidate had been appointed in the meantime.

The Committee of Management has come up with a clear stand that no person was appointed on the post and the petitioner continued to serve the institution and salary was also paid to him.

“At this stage, the petitioner is 55 years of age and has remained in service at the strength of the interim order for the last more than 24 years. Even otherwise, for the reasons recorded herein above, the order impugned is found contrary to the provisions of U.P Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 and the judgment of Full Bench of the Court in the case of Km Radha Raizada (supra)”, the Court further observed while allowing the petition.

The Court ordered that,

The order dated 15.03.1999 passed by the District Inspector of Schools, Varanasi is quashed.

The petitioner’s claim for regularization in terms of Section 33G of UP Secondary Education (Services Selection Board) Act, 1982 shall be considered by the Competent Authority within a period of four months from the date a certified copy of the order is produced before the said authority.

The petitioner shall be allowed to continue in service and shall be paid his regular salary month to month.

In so far as certain alleged arrears of salary are concerned, the petitioner may move an appropriate application before the District Inspector of Schools, Varanasi who shall examine the same after obtaining information from the Committee of Management and shall pass appropriate orders thereafter.

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