Shripal Yadav vs State Of U.P. Thru. Secretary ...
2017 Latest Caselaw 2485 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 1
 

 
Civil Misc. Application No.68477 of 2017
 
[Application for Condonation of Delay in filing Special Appeal]
 
In re
 
Case :- SPECIAL APPEAL DEFECTIVE No. - 291 of 2017
 
Appellant :- Shripal Yadav
 
Respondent :- State Of U.P. Thru. Secretary Education (Basic) & 5 Others
 
Counsel for Appellant :- Ashok Kumar Maurya,Anil Kumar Maurya
 
Counsel for Respondent :- C.S.C.,Shivam Sharma
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Daya Shankar Tripathi,J.

Heard learned counsel for the appellant. No serious objection has been taken to oppose the application by the respondents.

Cause shown in the affidavit supporting the application for condonation of delay in filing of the special appeal is sufficient.

The condonation application is allowed. Delay is condoned. The appeal shall be treated to be within time.

Order Date :- 18.7.2017

RajneeshDrPs)

[Daya Shankar Tripathi,J.]       [Amreshwar Pratap Sahi,J.]

[A.F.R.]

Case :- SPECIAL APPEAL DEFECTIVE No. - 291 of 2017

Appellant :- Shripal Yadav

Respondent :- State Of U.P. Thru. Secretary Education (Basic) & 5 Others

Counsel for Appellant :- Ashok Kumar Maurya,Anil Kumar Maurya

Counsel for Respondent :- C.S.C.,Shivam Sharma

Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Daya Shankar Tripathi,J.

Heard learned counsel for the appellant, learned standing counsel for the respondent No.1, 2 and 3, Sri Shivam Sharma learned counsel for the respondent No.4 and 5. This appeal assails the judgment of a learned Single Judge dated 20.04.2017.

The respondent No.6 is a proforma party and even otherwise, the disposal of this appeal would be only relevant for the purpose of processing the documents of the appellant who has already attained the age of superannuation, in order to execute the relief accorded hereinunder. As such, it is not necessary to issue notice to the respondent No.6.

The appellant was appointed as a Class-III employee (Clerk) in Jharkhandeshwar Vidya Peeth, Matka, Salon, district Rae Bareli. The letter of appointment dated 20.10.1983 issued by the Manager recites that the appellant had been appointed after a selection and interview held on 07.10.1983. A copy of the said appointment letter was forwarded to the District Basic Education Officer for appropriate action and approval. The District Basic Education Officer, who is the competent authority granted approval to the appointment of the appellant on 11.11.1986.

It may be mentioned at this stage that the Institution on 17.03.1980 was granted temporary recognition under the U.P. Basic Education Act, 1972 and was granted permanent recognition on 24.05.1986. In between the Uttar Pradesh Recognized Basic Schools (High Schools) (Recruitment & Conditions of Services of Ministerial Staff & Group-D Employees), Rules, 1984 came into force. The said documents are on record. At the time of grant of permanent recognition, the Manager's Return had to be tendered along with the details of all employees existing for the purpose of grant of sanction and creation of posts. This appears to have been done and the Assistant Director Education Basic, 6th Region, Lucknow vide his order dated 02.06.1987 created the posts in the Institution which till then was not on the grand-in-aid list of the State Government. The said creation of posts and sanction by the Assistant Director is undisputed and a copy of the order has been placed on record which indicates that one post of Head Master, six posts of Assistant Teachers, one post of Clerk and three posts of Class-IV employees were created. Thus, there is a statutory document on record demonstrating that the post of Clerk was duly created by the State Government through its authorities.

The Institution was brought on the grant-in-aid list through the Government order dated 02.12.2006. The Government order was followed by other orders including circulars and directions issued by the Director of Education Basic wherein the process for including the names of employees for payment of salary was detailed therein. The circular of the Director of Education Basic dated 04.01.2007 which is already on record, recites that while bringing the Institution on the grant-in-aid list the names of the such employees should be included who are working against sanctioned posts and have been appointed in terms of the relevant Rules applicable, namely the 1984 Rules.

It is clear that these Rules of 1984 were enforced much after the appointment of the appellant in the year 1983. The post had already been sanctioned and created in the year 1987. However under the circular aforesaid, there was a direction of following the norms for appointment which provided only one post of Clerk in the Institution. The said norms also stood satisfied inasmuch as the appellant was the only Clerk in the Institution appointed in 1983 prior to the enforcement of the 1984 Rules. The department was well aware of situations where appointments prior to the 1984 Rules had been made and approved by the competent authority and therefore a clarification, specifically in this regard was contained in the circular dated 04.01.2007 to the effect, that those teachers and members of the non-teaching staff who were employed prior to the enforcement of the Rules, should have been appointed under the Rules that were prevalent at that time and holding qualifications together with the approval of the District Basic Education Officer.

It is now the admitted position that there were no Rules prevalent prior to the 1984 Rules for appointment of Class-III and Class-IV employees. Accordingly, the appointment had been carried out as per the usual procedure of holding a selection and  interview as is recited in the letter of appointment of the appellant. It is also on record that said appointment was forwarded to the District Basic Education Officer for approval and the District Basic Education Officer granted approval on 11.11.1986. Thus, the appellant's appointment had valid approval of the District Basic Education Officer against a post that stood sanctioned which is not denied in the counter affidavit. However the counter affidavit to the writ petition stated that such approval related to the fact of appointment of the appellant prior to the enforcement of the 1984 Rules, and therefore such approval would not be attracted on the facts of the present case.

We do not agree with the aforesaid stand taken in the counter affidavit inasmuch as the circular dated 04.01.2007 clearly authorizes the processing of such appointment provided the appointment has been made and has been approved by the District Basic Education Officer. Consequently, the approval of the District Basic Education Officer being of 11.11.1986 clearly demonstrates that the appellant having been appointed and approved against the said post which was against a created sanctioned post, was continuing in the Institution which is further fortified by the Manager's Return that was forwarded at the time when the Institution was taken under the grant-in-aid list.

What appears is that when the Institution was taken under the grant-in-aid list the Assistant Director of Education Basic vide letter dated 21.02.2007 specified the names of the employees entitled to receive salary which included only six of the Assistant Teachers, and not the appellant who had been appointed as a Clerk. This was for the reason that the said order of Assistant Director of Education Basic refers to the condition that the names of only such employees have to be included who have been appointed under the Rules and who have faced the selection committee coupled with approval. What we find is that the circular dated 04.01.2007 also finds mention in the said order but unfortunately the clause relating to such appointment that have been made prior to the enforcement of the Rules has gone unnoticed and consequently for the said reason the name of the appellant did not find place in the list of grant-in-aid as per the order dated 21.02.2007. It is therefore now necessary at this stage to extract the aforesaid part of the circular which authorizes the inclusion of any such name and employee having been appointed prior to the enforcement of the Rules. The same, which is a part of Clause-3 of the circular dated 04.01.2007 is extracted hereinunder:-

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In the aforesaid background when the name of the appellant did not find place, he filed Writ Petition No.1618 (S/S) of 2010 giving rise to the present appeal and by an interim order dated 23.03.2010 the respondents were directed to make payment of salary to him.

Since the aforesaid interim order was not complied with, a contempt application being Civil Misc. Case No.1187 (C) of 2010 was filed, whereafter in compliance of the direction and the pendency of the contempt petition the respondents paid salary by issuing a letter dated 04.05.2013 a copy whereof has been filed along with the rejoinder affidavit. However the said payment of salary was made subject to the outcome of the writ petition giving rise to the present appeal.

Before the learned Single Judge the aforesaid argument and facts were placed but the same did not find favour and the learned Single Judge has dismissed the writ petition on the ground that there is no approval of the District Basic Education Officer and secondly that the appointment of the appellant is not in accordance with the 1984 Rules.

We have heard learned counsel for the appellant and the learned counsel for the respondents, and as observed hereinabove the approval to the appointment of the appellant had been granted by the District Basic Education Officer and he was working against a post that came to be created and sanctioned upon permanent recognition. The appointment of the appellant was admittedly prior to the enforcement of the 1984 Rules. There is therefore no occasion to apply the Rules which do not have retrospective application. A valid appointment made prior to the Rules does not get invalidated after its enforcement. The Rules do not create any embargo. Thus the conclusion drawn by the learned Single Judge that the appointment was not in conformity with the 1984 Rules is erroneous. The fact that the appointment was not approved by the District Basic Education Officer, also appears to have been incorrectly recorded in the judgment and is against record inasmuch as the approval order dated 11.11.1986 has not been denied. The third count is that the appellant's name being omitted from the grant-in-aid list also appears to be an incorrect exercise on the part of the respondents inasmuch as, as noted above the circular of the Director of Education Basic dated 04.01.2007 categorically authorizes the inclusion of such names if the appointment is approved by the District Basic Education Officer. The learned Single Judge has not noticed the same.

For all the aforesaid reasons, we find that the appeal deserves to be allowed and consequently we allow the appeal and set aside the judgment dated 20.04.2017. The writ petition also stands allowed.

The appellant shall be treated to have been validly appointed as a Class-III employee (Clerk) in the Institution against the created and sanctioned post as observed hereinabove and shall be entitled to full salary as well as other emoluments including post retiral benefits and other pecuniary benefits in accordance with law which shall be released by the respondents within a period of three months from the date of production of a certified copy of this order after adjusting the amount already released and paid to the appellant. The entitlement of payment of salary will however be with effect from the date the Institution was brought under the grant-in-aid list.

Order Date :- 18.7.2017

RajneeshDrPs)

[Daya Shankar Tripathi,J.]       [Amreshwar Pratap Sahi,J.]