Vikas Tiwari vs State Of U.P.Thru ...
2023 Latest Caselaw 16691 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Neutral Citation No. - 2023:AHC-LKO:37506
 
Court No. - 17
 

 
Case :- WRIT - A No. - 11288 of 2019
 

 
Petitioner :- Vikas Tiwari
 
Respondent :- State Of U.P.Thru Prin.Secy.Secondary Edu. Lucknow And Ors.
 
Counsel for Petitioner :- Manjeet Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pankaj Bhatia,J.

1. Heard learned Counsel for the petitioner and learned Standing Counsel.

2. The present petition has been filed challenging the order dated 24.01.2019 whereby the District Inspector of Schools passed an order refusing to grant approval to the appointment of the petitioner.

3. The contention of the Counsel for the petitioner is that in the institution in question, one post of Head Clerk and two posts of Assistant Clerk are existed. It is stated that Ram Bodh Gupta, the Assistant Clerk retired on 31.12.2009, as such, the petitioner was appointed on the consequent vacant post of Assistant Clerk. It is argued that the said appointment was made after due advertisement in the newspapers and when the papers were forwarded for approval, the approval has been rejected vide order dated 24.01.2019.

4. A perusal of the order impugned reveals that the approval was refused mainly on the ground that while making the appointment, the quota of 50% through promotion and 50% through direct recruitment was not followed. The appointment was made without any prior approval and the Rules of reservation has not been allowed. It further records that the petitioner did not appear at the time of hearing.

5. The contention of the Counsel for the petitioner is that the order impugned is clearly bad in law. He argues that the issue with regard to the prior approval has been decided by this Court in the case of Preet Kumar Srivastava vs State of U.P. and others; [2011 (9) ADJ 591]. He further argues that the issue with regard to the reservation, where less than five posts are vacant, has been also crystallized by this Court in the case of Heera Lal vs State of U.P. and others; [2010 (6) ADJ 1 (FB)]. He argues that the petitioner was not served any notice, as such, he could not appear.

6. Considering the said submissions and the facts that the law with regard to the appointment has prima facie not been considered, the order dated 24.01.2019 is set aside.

7. The matter is remanded to the District Inspector of Schools, Pratapgarh to pass a fresh order after considering the law laid down by this Court in the case of Preet Kumar Srivastava (supra) and in the case of Heera Lal (Supra) and after affording opportunity of hearing to the petitioner. The fresh order shall be passed by the District inspector of Schools within a period of three months from the date the petitioner approaches for passing a fresh order,

8. While considering the said issue, it will be open to the DIOS to consider any other law that may be placed before this Court including the judgment rendered in the case of Jagdish Singh vs The State of U.P. and others; (2006) 3 UPLBEC 2765.

9. The writ petition is allowed.

Order Date :- 25.5.2023

akverma