Allahabad High Court
Atul Tripathi vs State Of U.P.Thru Prin.Secy. ... on 17 April, 2023
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Case :- WRIT - A No. - 11600 of 2019
Petitioner :- Atul Tripathi
Respondent :- State Of U.P.Thru Prin.Secy. Secondary Edu. Lucknow And Ors.
Counsel for Petitioner :- Sanjay Kumar Singh
Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
Heard the counsel for the petitioner and the learned Standing Counsel.
The present petition has been filed by the petitioner challenging the order dated 17.09.2018 whereby the approval sought in respect of the appointment granted to the petitioner has been rejected.
The facts, in brief, are that in the institution in question namely Shri Shiv Bhajan Lal Janhit Inter College, Raipur, Majhigaon, District Rae Bareli, which is a non government aided inter college, there is one post of Head Clerk and one sanctioned post of Assistant Clerk. In the said institution in question, one Sri Ram Naresh Yadav who was occupying the post of Head Clerk was due to retire on 31.07.2015, as such with a view to fill the vacancy due to arise on 31.07.2015, the Manager of the institution sought the permission from the DIOS to fill up the vacant post vide letter dated 27.04.2015. As no order was passed on the said request dated 27.04.2015, the Management issued an advertisement for the appointment to the post of Assistant Clerk, which was notified in the newspapers on 13.05.2015. The petitioner claims to have applied in terms of the said advertisement. In the interview held on 25.06.2015 in pursuance to the said advertisement dated 13.5.2015, the petitioner also participated and was selected.
It is on record that in terms of the directions passed by this Court in Writ Petition No.4300 (SS) of 2011 (Baikunth Kumar Tripathi vs. State of U.P. and others), a resolution was passed on 30.06.2015 granting promotion to Sri Baikunth Kumar Tripathi to the post of Head Clerk, which was due to vacant on 31.07.2015 on account of superannuation of the then Head Clerk Sri Ram Naresh Yadav. Subsequently in view of the petitioner being placed at serial no.1 in the selection list dated 05.06.2015, the Committee of Management passed a resolution on 12.07.2015 regarding the joining of the petitioner on the post of Assistant Clerk, which was due to become vacant on 31.07.2015 on account of promotion of the then Assistant Clerk to the post of Head Clerk. On 30.07.2015, the appointment letter was issued to the petitioner in furtherance of the resolution dated 12.07.2015 and a copy thereof was also sent to the DIOS by registered post on 07.08.2015. On 31.07.2015 Sri Ram Naresh Yadav was to superannuate, Sri Baikunth Kumar Tripathi was promoted to the post of Head Clerk and on the same date, the petitioner was permitted to join on the post of Assistant Clerk which had become vacant.
On 12.08.2015, the Manager of the institution sent the file of the petitioner for payment of salary, however, no orders were passed on the said request. The petitioner also made a representation for grant of salary since 01.08.2015, however, no orders were passed. Thereafter on 09.03.2017 after about one and a half years, a show cause notice was issued to the Manager and the Principal in respect of the appointment of the petitioner to which a reply was submitted. As the petitioner was not being granted the salary, the petitioner filed a writ petition no.25135 of 2017 wherein directions were issued for deciding the representation of the petitioner. In terms of the directions issued by this Court, the petitioner, the Principal and the Management issued their written explanation which ultimately led to the passing of the order dated 17.09.2018, which is impugned herein.
It is argued by the counsel for the petitioner that admittedly two posts, one post of Head Clerk and one post of Assistant Clerk were sanctioned for the institution and thus, the sole ground that the vacancy would deem to accrue on the date when the approval was granted to the promotion of Sri Ram Naresh Yadav to the post of Head Clerk is fallacious.
The Standing Counsel has filed a counter affidavit justifying the order. In the counter affidavit, it is admitted that the institution is affiliated and two posts, one post of Head Clerk and one post of Assistant Clerk had sanctioned/created by the State Government in respect of the institution in question. It is also admitted that Sri Ram Naresh Yaday, Head Clerk retired on 31.07.2015, however, it is stated that the appointment granted to the petitioner by issuing an appointment letter dated 30.07.2015 and the joining of the petitioner granted to him on 01.08.2015 were on the dates on which no vacancy existed and thus, the approval has rightly been rejected.
The counsel for the petitioner argues that prior approval is required in terms of Rule 101 of Chapter III of the Regulations framed under the U.P. Intermediate Education Act. However, the said prior approval has been interpreted by this court to mean approval granted before the actual appointment is made and not for making the appointment. He places reliance on the judgment of this Court in the case of Gomti Prasad vs. State of U.P. and others; 2016 (34) LCD 2697 as well in the case of Arun Kumar Pandey vs. State of U.P. and others; 2016 (34) LCD 1282.
From the perusal of the record, it is undisputed that two posts, one of Head Clerk and one of Assistant Clerk were created in respect of the institution in question. It is also not disputed that the Head Clerk, who was occupying the post in question retired on 31.07.2015 and the post stood vacant.
As the Assistant Clerk working with the institution was promoted by means of the resolution dated 30.06.2015, with effect from the said date, the post of Assistant Clerk fell vacant on the said date. Merely because the approval to the promotion was granted on 13.12.2016, it cannot be said that the post of Assistant Clerk fell vacant on the date of approval as the stand taken in the impugned order dated 17.09.2018.
Considering the mandate of Regulations 101 and 102 of Chapter III of the Regulations framed under the U.P. Intermediate Education Act, it was incumbent upon the DIOS to see whether the procedure prescribed for appointment has been complied with or not, which has not been done by means of the impugned order, as such, the order dated 17.09.2018 is quashed. The matter is remanded to the DIOS Rae Bareli to consider the validity of the appointment order granted to the petitioner in the light of the requirements of the law. However, while doing so, the respondent no.3 shall consider whether one post of Assistant Clerk actually fell vacant on 30.06.2015 as the then Assistant Clerk was promoted to the post of Head Clerk.
To further clarify, the respondent no.3 shall not be swayed by the date of approval as it is date of vacancy that is relevant and not the date of approval to appointment.
The order, as directed above, shall be passed within a period of three months from the date of production of a copy of this order.
The writ petition stands disposed off with the said observations.
Order Date :- 17.4.2023
VNP/-
