HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 10 Case :- MISC. SINGLE No. - 4222 of 2015 Petitioner :- C/M Shri Krishan Bhusan Ved Vedang Vidyalaya Thru Its Manage Respondent :- State Of U.P.Thru Its Prin.Higher Edu.Deptt.Lucknow & Ors. Counsel for Petitioner :- Dharmendra Kumar Mishra Counsel for Respondent :- C.S.C. Hon'ble Rajan Roy,J.
Heard learned counsel for the petitioner and learned Additional Chief Standing Counsel.
Sri S. P. Singh learned counsel appeared during the course of hearing and stated that he has filed a caveat in the matter. He submitted that his client's rights with respect to the post in question which is said to have been illegally filled up, is pending consideration in Writ Petition No. 3256 (SS) of 2015 wherein advertisement had been stayed and inspite of it the papers were sent by the petitioner to the DIOS for approval whereupon the impugned order has been passed. In this regard it is provided that this order shall not affect the rights of the caveator in pending writ petition, but beyond this he is not entitled to be heard in this writ petition.
The petitioner herein is a Committee of Management of an Intermediate College governed by the provisions of the U.P. Intermediate Education Act, 1921 and the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971.
It appears that the petitioner had made some selection and appointment on a Class IV post which according to DIOS is contrary to the provisions of Regulation 101 made under the U.P. Intermediate Education Act, 1921, which the petitioner was bound to follow. On account of this alleged illegality the DIOS has ordered single hand operation of the account of the College by means of the impugned order dated 23.06.2015 in purported exercise of his powers under Section 5(2).
From a bare reading of Section 5 (2) it appears that the same is not applicable for exercise of such powers, but, in fact it is the second proviso to Section 5(1) which is applicable and it provides that in the case referred to in the proviso to sub-section (2) or where a difficulty arises in disbursement of salary due to any default of the management, the Inspector may instruct the Bank that the account shall be operated only by himself or by such other officer as may be authorized by him in that behalf.
In the present case none of the eventualities mentioned in second proviso to Section 5 (1) of the Act, 1971 exist. The fact that the petitioner has made an illegal appointment is not a contingency mentioned in Section 5 of the Act, 1971 for ordering single hand operation. If any arrangement has been made de-horse Regulation 101 the State authorities are not under an obligation to approve the same nor to pay salary in respect thereof but an order of single hand operation could not have been passed under Section 5 of Act 1971.
In view of the aforesaid apparent illegality based on admitted facts there is no need to call for counter affidavit.
In view of the above the the writ petition is allowed. The impugned order dated 23.06.2015 cannot be sustained and is hereby quashed. Consequences to follow.
Order Date :- 23.7.2015 Shaakir (Rajan Roy,J.)