Allahabad High Court
Smt. Anjani Kumari Kharwar vs State Of U.P. Thru. Prin. Secy. ... on 11 January, 2023
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Case :- WRIT - A No. - 25037 of 2018
Petitioner :- Smt. Anjani Kumari Kharwar
Respondent :- State Of U.P. Thru. Prin. Secy. Secondary Education And Ors.
Counsel for Petitioner :- Kaushlendra Yadav,Virendra Kumar Dubey
Counsel for Respondent :- C.S.C.,Shambhoo Sharan Lal Sriva
Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the State.
Present petition has been filed alleging that the college known as 'Moti Lal Nehru Memorial Girls Inter College, Lucknow', is a recognized college and is under grant-in-aid. It is stated that on 18.1.2003 a vacancy occurred in Class - IV post on account of promotion of one Sri Rajendra and as such, the principal of the college wrote a letter to the DIOS on 31.1.2005 seeking permission to fill up the said post. The DIOS through communication dated 1.3.2007 required certain further information from the college which was given by the principal on 28.3.2007, however, when no response was received from the DIOS, letters were again sent on 15.10.2007 and 20.3.2008. It is stated that as no orders were being passed, steps were taken to publish the vacancy by advertisement in the daily newspaper 'Amrit Vichar' on 12.4.2008 and in pursuance to the said advertisement, the petitioner was appointed on Class - IV post. The said appointment was referred to the DIOS on 25.4.2008 seeking approval of the appointment.
It is claimed that although the petitioner continued to work, his salary was not paid, as such, Writ Petition No.1417 (SS) of 2010 was filed wherein interim order was passed directing payment of salary. Subsequent thereto, three posts fell vacant in Class - IV for which the then principal wrote a letter dated 9.2.2010 to the DIOS for filling the said post; once again, as no permission was granted, the principal advertised the vacancy in two daily newspapers namely Swatantra Chetana and Amrit Vichar on 27.8.2011 inviting applications. In the said, as many as 33 candidates applied. The petitioner once again applied in pursuance to the second advertisement dated 27.8.2011 and after the interview of as many as 33 candidates, name of the petitioner was shown at Serial No.1. Once again the principal through letter dated 28.9.2011 requested the DIOS for granting approval to the appointment. The petitioner once again filed Writ Petition No.9216 (SS) of 2011 for payment of salary in which the petitioner was granted permission to move a representation before DIOS through an interim order dated 28.5.2012. The DIOS thereafter passed an order dated 28.6.2012 wherein the appointment of the petitioner was found to be valid; the said order was, however, subject to outcome of Writ Petition No.9216 (SS) of 2011.
Subsequently, it is argued that the principal who was bearing a grudge against the petitioner moved a representation before the DIOS stating that the appointment of the petitioner is not legal, which request of the principal was rejected vide letter dated 10.5.2016. The principal of the college filed Writ Petition No.28226 (SS) of 2016; in the said writ petition, an interim order came to be passed on 29.11.2016 observing that the pendency of the writ petition would not come in the way to the payment of salary to the incumbent.
It appears that during the pendency of the writ petition, a fresh notice was issued to the petitioner on 17.7.2017 by the DIOS which led to passing of the order dated 10.8.2017 holding that the appointment of the petitioner was not approved and consequent order for withholding the salary was also passed. The said order dated 10.8.2017 was challenged by the petitioner.
It is also on record that one Mohd. Saleem also preferred a petition being Writ Petition No.1548 (SS) of 2014 challenging the appointment of the petitioner. The writ petition filed by Mohd. Saleem as well as one filed by the petitioner being Writ Petition No.23834 (SS) of 2017 were disposed off vide order dated 5.12.2017 directing the DIOS to take a decision. The said order led to passing of the impugned order dated 24.7.2018 (Annexure - 1) wherein it was held that the approval granted to the appointment of the petitioner was bad as there was no publication in the newspaper 'Swatantra Chetana' on 27.8.2011. It was also observed that in view of the Government Order dated 6.1.2011, the appointment on Class - IV post can be made only through outsourcing and thus, the approval granted to the petitioner was withdrawn and the representation was disposed off.
Learned counsel for the petitioner argues that both the grounds on which the approval has been recalled are perverse inasmuch the vacancy was duly notified in the newspaper 'Swatantra Chetana' on 27.8.2011, a copy whereof has been filed and as contained on Page No.79 of the writ petition.
As regard the second ground, learned counsel for the petitioner argues that the Government Order dated 6.1.2011 came up for consideration before this Court in Writ - C No.11760 of 2011 and the same was quashed by this Court by means of the judgment dated 21.3.2012.
In the light of the said, he argues that both the grounds are perverse and contrary to law. He further argues that the fact that the Government Order dated 6.1.2011 had been quashed was in public domain, however, the respondents chose to ignore the same.
Learned counsel for the petitioner contends that in the impugned order, there is a reference of Regulation 101 as was amended on 4th September, 2013. The said reference to the regulation is also bad in law inasmuch as the amendment itself was incorporated on 4th September, 2013 i.e. subsequent to the date of appointment of the petitioner.
Considering the said submission made at the Bar and from perusal of the order it is clear that the approval granted to the appointment of the petitioner was withdrawn only on the two grounds as enumerated above; the first ground being non-publication of the advertisement is clearly perverse inasmuch as the advertisement has been annexed, and second ground is equally untenable as the Government Order dated 6.1.2011 has been quashed by this Court in Writ - C No.11760 of 2011, as such, placing reliance on the said Government Order was wholly arbitrary and illegal.
Accordingly, the impugned order dated 24.7.2018 as contained in Annexure - 1 is quashed.
As the impugned order dated 24.7.2018 has been quashed, the consequential order dated 10.8.2017 as contained in Annexure - 2 is also quashed.
As the appointment of the petitioner had already been approved and there is no order for disapproving the appointment granted to the petitioner, the petitioner would be entitled to salary and would be entitled to work on the post for which he was appointed.
The arrears of salary shall also be paid to the petitioner after its computation within a period of three months.
The writ petition is allowed in above terms.
Order Date :- 11.1.2023
nishant
