Allahabad High Court
Ashok Kumar vs State Of U.P. Through Prin. Secy. ... on 13 February, 2023
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Case :- WRIT - A No. - 2096 of 2014
Petitioner :- Ashok Kumar
Respondent :- State Of U.P. Through Prin. Secy. Secondary Edu. Lko. And Ors.
Counsel for Petitioner :- Ravi Pratap Singh,Ambrish Kumar Pandey,Manoj Kumar Tripathi
Counsel for Respondent :- C.S.C.,Ran Vijay Singh
Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the petitioner and learned counsel for the State-Respondents.
The present petition has been filed by the petitioner, claiming direction to be issued to the respondents to pay salary to the petitioner with effect from 03.08.2004.
Learned counsel for the petitioner argues that the petitioner is being paid the salary with effect from 25.09.2005, thus, the claim in the present petition is confined to the salary for the period 03.08.2004 upto 24.09.2005.
The contention of the learned counsel for the petitioner is that on account of a vacancy arising in the S.A.V. Inter College, Anchalganj, District-Unnao, a requisition was sent by the Committee of Management saying that on account of the vacancy that has arisen on 31.05.2004, the petitioner has been appointed on 03.08.2004 and thus, steps to be taken for approval and payment of salary. It is further argued that the appointment of the petitioner was approved with effect from 25.09.2005. He further argues that as the petitioner was not being paid salary for the period 14.08.2004 to 23.09.2005, the petitioner preferred a Writ Petition No.1626 (S/S) of 2013, which was disposed of by this Court, directing the respondents to consider the case of the petitioner. In terms of the said direction issued by this Court, an order came to be passed on 09.07.2012 (it appears that the date was wrongly transcribed) by District Inspector of Schools, District-Unnao. By the said order the claim of the petitioner was rejected on the ground that the approval to the appointment of the petitioner was granted on 22.09.2005 with the stipulation that the petitioner would be treated to be appointed from the date when he assumes charge. The order further records that the petitioner assumed the charge on 25.09.2005 and from the said date the petitioner is being granted salary to which he is entitled.
Learned counsel for the petitioner further argues that the appointment process for appointment of the Class IV post is governed by U.P. Recognized Basic Schools (Junior High Schools)(Recruitment And Conditions of Services of Ministerial Staff And Group 'D' Employees) Rules, 1984(hereinafter referred to as 'the 1984, Rules'). Rule 15 of the 1984, Rules, provides for the procedure to be adopted by the Committee of Management and Rule 15(5)(iii) prescribes that in the event no approval is granted for a period of 30 days, the same would be deemed to have been approved. Rule 16 of the 1984, Rules provides that the appointment letter can be issued only after the expiry of 30 days as prescribed under Rule 15(5)(iii) of the 1984, Rules.
In the present case, from perusal of the approval request by the Committee of Management as contained in Annexure No.1 to this Writ Petition, it is clear that the appointment of the petitioner was done prior to seeking approval on 03.08.2004 and an information was sent. It is clear that in terms of the mandate of Rule 15 of the 1984, Rules, the appointment letter could not have been issued prior to the approval or atleast till expiry of 30 days as prescribed under Rule 15(5)(iii) of the 1984, Rules.
Learned counsel for the petitioner places reliance on the Judgment of this Court reported in (2011) 2 UPLBEC 987 in the case of Firangi Prasad vs. State of U.P. and Others and lays emphasis on paragraph-19, which is quoted herein below:-
"19. The respondents cannot by their inaction, therefore, deprive a candidate of his or her legitimate right to claim continuance in service. It is, therefore, clear that there was a deliberate delay on the part of the Management in issuing the letter of appointment in the present case and accordingly, the right of the appellant to claim continuance under the selection order dated 18.1.1993 cannot be denied. The appellant will, therefore, be entitled to the benefits flowing out of the order dated 18.1.1993 and in such a situation, the letter of appointment will relate back prior to the cut-off date i.e. 6.8.1993."
The said Judgment, I am afraid that will have no applicability to the facts of the present case, as there was no deliberate inaction on the part of the Management or the Office of the B.S.A. and in any case, I have already held that the Committee of Management, could not have issued the appointment letter prior to approval or any time prior to passing of 30 days, as prescribed under Rule 15(5)(iii) of the 1984, Rules.
Thus, the claim of the petitioner for salary from the State Exchequer cannot be granted. The present Writ Petition is accordingly, disposed of.
However, if the Committee of Management have taken work from the petitioner, he can raise a claim against the Committee of Management, which shall be decided in accordance with law.
Order Date :- 13.2.2023
Piyush/-
