Allahabad High Court
State Of U P And 2 Others vs Harsh Vardhan Dubey And Another on 16 December, 2023
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:238927-DB
Court No. - 46
Case :- SPECIAL APPEAL DEFECTIVE No. - 805 of 2023
Appellant :- State Of U P And 2 Others
Respondent :- Harsh Vardhan Dubey And Another
Counsel for Appellant :- C.S.C.,Ratan Deep Mishra
Counsel for Respondent :- Grijesh Tiwari
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Syed Aftab Husain Rizvi,J.
(Ref: Civil Misc. Delay Condonation Application)
Heard.
Cause shown for delay in filing the special appeal is to the satisfaction of the Court. The delay in filing the special appeal is condoned.
Delay condonation application is, accordingly, allowed.
(Order on Appeal)
This appeal is directed against an order dated 23.9.2022, passed by the learned Single Judge in Writ Petition No. 6656 of 2020 whereby the order passed by the District Basic Education Officer, dated 15.2.2020, has been set aside on the ground that the government decision taken on 15.1.2019 cannot be given a retrospective application.
Swami Ram Krishna Paramhans Laghu Madhyamik Vidyalaya, Bakhra, Bhagwanpur, District Gorakhpur situated in District Gorakhpur is a recognized Junior High School and the teaching and non-teaching staff are receiving salary in accordance with the provisions of the U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978. Solitary post of class III has fallen vacant in the institution. The Committee of Management has proceeded to make recruitment in accordance with the provisions of Rules 13 & 14 of the Uttar Pradesh Recognized Basic Schools (Junior High School) (Recruitment and Conditions of Service of Ministerial Staff and Group D Employees) Rules, 1984. The procedure stipulated in the rules for recruitment apparently has been followed and the papers were submitted to the educational authorities for grant of approval. No approval was granted. The Committee of Management relying upon the deeming clause contained in Rule 15(5)(iii) of the Rules of 1984 proceeded to make appointment and papers were submitted for release of salary. The claim in that regard has been rejected by the District Basic Education Officer relying upon a Government Order, dated 15.1.2019, as per which, the appointment on class III and IV posts of such category of institutions have been kept in abeyance. Learned Single Judge has taken the view that the Government Order, dated 15.1.2019, has come into existence much later and that the recruitment otherwise was concluded with appointment letter issued to the respondent-petitioner on 10.9.2016. Learned Single Judge, therefore, has held that the Government Order dated 15.1.2019 cannot be given a retrospective application.
The judgment of learned Single Judge is challenged by the State on the ground that a decision had already been taken not to fill up such post as the State had taken a decision to declare the post as dying cadre. The decision in that regard has been taken only on 15.1.2019.
It is not in dispute that the class III and IV posts in the cadre were already sanctioned vide Government Order dated 2nd July, 1990. Procedure for recruitment to such post had already been specified in the Rules of 1984. Recruitment has been made by the Institution in accordance with the Rules of 1984 in the year 2016. We find no illegality in the view taken by learned Single Judge that the decision taken subsequently to declare the cadre of Class III and IV employees a dead cadre cannot be given a retrospective application.
The appeal lacks merit and is, accordingly, dismissed.
Order Date :- 16.12.2023
Ranjeet Sahu
