Dhananjay Kumar Tiwari vs State Of U.P. And 3 Others
2023 Latest Caselaw 24090 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


						Neutral Citation No. - 2023:AHC:175550
 
Court No. - 35
 

 
Case :- WRIT - A No. - 10944 of 2023
 

 
Petitioner :- Dhananjay Kumar Tiwari
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Grijesh Tiwari
 
Counsel for Respondent :- CSC,Prathamesh Upadhyay
 

 
Hon'ble Vikas Budhwar,J.

1. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Girjesh Tiwari, learned counsel for the petitioner, Sri H.K. Shukla, learned Standing Counsel for respondents 1, 2 & 3, Sri K.N. Mishra, for the fourth respondent and Sri Pratimesh Upadhyay who appears for the intervener (Jai Ram Kushwaha) Officiating Principal of the fourth respondent institution.

2. Since affidavits have been exchanged between the parties and counsel for the rival parties have made a statement at bar that they do not propose to file any further response thus with their consent the writ petition is being decided at the fresh stage.

3. The case of the writ petitioner is that the fourth respondent, Shri Gandhi Adarsh Intermediate College, Rewali, District Deoria is an institution recognised under the provisions of U.P. Intermediate Education Act, 1921, the provisions of U.P. Act No. 5 of 1982 and U.P. Act No. 24 of 1971 stands applicable.

4. As per the writ petitioner one post of Assistant Teacher L.T. Grade fell vacant consequent to the retirement of one Ram Raksha Mishra on 30.6.1992, the Committee of Management of the institution in question intimated the said vacancy to the District Inspector of Schools, Deoria for being further forwarded to the Board for filling up the said vacancy.

5. In para-9 of the writ petition further averment has been made that the writ petitioner was selected against a short term vacancy but later on it stood converted to subsistence vacancy. Since as per the writ petitioner no incumbent regularly selected by the Board came for joining thus a resolution is stated to have been passed on 5.1.1992 to fill up the said vacancy through direct recruitment.

6. Accordingly, vacancy in question as per the writ petitioner stood advertised in two widely circulated news papers on 20.1.1992 and the writ petitioner claims to have participated in the selections being armed with the necessary qualifications and thereafter he being selected on the basis of the quality point marks was issued an appointment order on 25.6.1992 appointing him on the post of Assistant Teacher L.T. Grade on ad hoc basis and the writ petitioner further claims to have joined the post in question on 8.7.1992. The papers with regard to according financial approval seems to have been sent to the District Inspector of Schools, Deoria however the same was not accorded approval which constrained the writ petitioner to file Writ Petition No.40484 of 1993, Dhananjay Kumar Tiwari vs. State of U.P. & others in which on 11.11.93 the following order was passed:-

"Standing counsel is granted six weeks time to file a counter affidavit. List this writ petition for admission on 7th January 1994. Petitioner is directed to serve the respondent no.2 by registered post and to take necessary steps in that behalf within 9 days. The notices meant to be served upon the said respondent shall indicate that the writ petition shall be listed for admission on 7th January, 1994.

Meanwhile the respondents are directed to pay salary to the petitioner which is due to them in law or to show cause on or before the next date of hearing. A certified copy of this order shall be served by the petitioners upon the respondents."

7. Since the order of the writ court was not complied with thus on 13.4.1994 this court passed the following order:-

"Counsel for the petitioner states that the District Inspector of Schools, Deoria, has not complied with the orders of this court dated 11.11.93 although copy of the order has been served upon him through registered post. I District Inspector of Schools is directed to comply with the orders before 15th May 1994 failing which he shall personally present himself in this court on 16th May 1994, for explaining his conduct. A copy of this order shall be served upon the District Inspector of Schools by the petitioner.

List this petition on 16th May, 1994."

8. Finally the writ petition stood disposed of on 18.5.2007 order whereof is being quoted :-

"Heard counsel for the parties and perused the record.

It is claimed that the petitioners were appointed as L.T. Grade teachers vide letters of appointment dated 25.6.1992 in Gandhi Adarsh Uchchattar Madhyamik Vidyalaya, Rewali, district Deoria (for short 'college').

It appears from the letter dated 1.11.1991 of. Manager of the college to the District Inspector of Schools (for short 'DIOS') appended as Annexure 5 to the writ petition that appointment of the petitioners was made in vacancy caused due to retirement of permanent teachers.

It is claimed that as the studies of the students were suffering due to retirement of teachers, the Committee of Management vide its resolutions dated 5.1.92 and 5.12.92 resolved that the vacancies be filled up by making regular appointments. Consequently, a Selection Committee was constituted in which 32 candidates appeared for interview. The petitioners were selected and *appointment orders were accordingly issued to them.

When the petitioners were not paid their salaries, they moved repeated representation to the DIOS in this regard.

The Committee of Management of the College. also requested the DIOS to accord approval to the appointment of the petitioners vide letter dated 7.9.1993 but no order was passed by the DIOS.

Aggrieved by the inaction on the part of the DIOS, the petitioners have the instant writ petition praying for a mandamus commanding the respondents to pay the salary of the petitioners from the date of joining together with their arrears of salary at the time of admission, the following ad interim order was passed by this Hon'ble Court.

Hon. Vijay Bahuguna, J

Standing counsel is granted six weeks time to file a counter affidavit. List this writ petition for admission on 7th January, 1994. Petitioner is directed to serve the respondent no. serve 2 by registered post and to take necessary steps in that behalf within 9 days. The notices meant to be served upon the said respondent shal! indicate that the writ petition shall be listed for admission on 7th January, 1994.

Meanwhile, the respondents are directed to pay salary to the petitioners which is due to them in law or to show cause on or before the next day of hearing. A certified copy of this order shall be served by the petitioners upon the respondents.

Dated 11.11.1993				Sd/- Vijay Bahuguna.
 

 
Counter affidavit was filed by the respondents with the averment that no post of L.T. Grade teacher is vacant in the college is available, as such, the petitioners cannot be absorbed in the College.
 

 
Today, when the case was taken up, counsel for the petitioners prayed that the representations of the petitioners dated 20.8.92 (Annexure 12 to the writ petition) and dated 13.10.92 (Annexure-13 to the writ petition) be directed to be decided by the respondent no. 1 within some time frame.
 

 

Standing counsel has no objection to this prayer of counsel for the petitioner. The writ petition in the circumstances is accordingly disposed of with the direction to the DIOS, Deoria respondent no.1 to decide the representations of the petitioners dated 20.8.92 (Annexure 12 to the writ petition) and dated 13.10.92 (Annexure 13 to the writ petition) by a reasoned and speaking order in accordance with law within a period of six weeks from the date of production of a certified copy of this order before him. The certified copy of this order shall be submitted by the petitioners before the DIOS. Deoria-respondent no. 1 not later than a month from today.

No order as to costs."

9. The writ petitioner armed with the order of the writ court as referred to above preferred an application on 6.6.2007 before the third respondent, District Inspector of Schools, Deoria for granting approval from the date of the initial appointment. However, on 16.5.2008 the fourth respondent, District Inspector of Schools, Deoria proceeded to accord approval to the appointment of the writ petitioner from the date of the issuance of the order i.e. 16.5.2008. The writ petitioner thereafter approached the respondents for consideration of his claim for being accorded regularisation in terms of Section 33(C) of the U.P. Secondary Education Service Selection Board Act, 1982. However, when the request was not acceded to, the writ petitioner claims to have preferred Writ-A No.8859 of 2023, Dhananjay Kumar Tiwari vs. State of U.P. & others which came to be disposed of on 22.5.2023 while passing the following order:-

"Heard Sri Girijesh Tiwari, learned counsel for the petitioner and Sri Prathmesh Upadhyay, learned counsel for the Caveator, learned Standing Counsel for respondent nos. 1,2 and 3.

The petitioner seeks a direction in the nature of writ of mandamus to command Regional Level Committee to decide the claim of the petitioner for regularization under Section 33-C of the Uttar Pradesh Secondary Education Services Selection Boards Act, 1982.

Learned counsel for the caveator has argued that petitioner has played total fraud in the matter of selection and appointment and has clearly taken a different stand in the present petition to what was taken in earlier petition filed before this court being Writ A No. 40484 of 1993, which was disposed of.

In the considered view of the Court, the matter should be examined in the first instance by the Regional Level Committee where it is pending. It will be open for the caveator also to file his objection as it is stated that there is single hand operation of account operating in the institution.

Accordingly, this petition is disposed of with direction to the Regional Level Committee to look into and consider the claim of the petitioner strictly in accordance with law after giving full opportunity of hearing to the petitioner and caveator, who is Principal of the institution and also getting report from the District Inspector of Schools in the above regard. Appropriate decision shall be taken expeditiously as possible preferably within a period of three months from the date of production of certified copy of this order. Needless to add that opportunity of hearing be provided to the all the concerned parties and order to be passed shall be reasoned and speaking one."

10. Now the claim of the writ petitioner for being accorded regularisation in terms of Section 33(C) of the U.P. Act No.5 of 1982 has been turned down by the Regional Level Committee headed by the Joint Director of Education, second respondent by order dated 20.5.2023 on the premise that since the payment of salary had been accorded to the writ petitioner by virtue of the order dated 16.5.2008, (w.e.f. 16.5.2008) thus the starting point for placing the writ petitioner in service for the purposes of regularisation would be 16.5.2008 and in view of the said factual position the writ petitioner's case does not within four corners of Section 33(C) of the U.P. Act No. 5 of 1982.

11. Questioning the order dated 20.5.2023 the writ petitioner has filed the present writ petition with a further direction to the second respondent, Regional Level Committee headed by Joint Director of Education 7th Region Gorakhpur to regularise the services of the writ petitioner and pay arrears of salary to the petitioner for the period from 8.7.1992 to 16.5.2008.

12. This Court entertained the writ petitioner on 13.7.2023 while passing the following order:-

Sri Ashok Khare, learned Senior Counsel assisted by Sri Girijesh Tiwari, learned counsel for the petitioner submits that the writ petitioner was appointed as LT Grade Teacher on 25.06.1992 and when he was not being paid salary, the petitioner preferred Writ Petition No.40484 of 1993 in which certain orders were passed. Relevant extract wherein is being quoted hereunder:-

"Meanwhile the respondents are directed to pay salary to the petitioner, which is due to them in law or to show cause on or before the next date of hearing. A certified copy of the order shall be served upon the respondent."

It is further the case of the writ petitioner that the said order was not complied with and subsequently, the said writ petition came to be disposed off by this Court after exchange of affidavits in the following manner: -

"Today, when the case was taken up, counsel for the petitioners prayed that the representations of the petitioners dated 20.8.92 (Annexure_12 to the writ petition) and dated 13.10.92 (Annexure-13 to the writ petition) be directed to be decided by the respondent no. 1 within some time frame.

Standing counsel has no objection to this prayer of counsel for the petitioner. The writ petition in the the circumstances is accordingly disposed of with the direction to the DIOS, Deoria respondent no.1 to decide the representations of the petitioners dated 20.8.92 (Annexure 12 to the writ petition) and dated 13.10.92 (Annexure 13 to the writ petition) by a reasoned and speaking order in accordance with law within a period of six weeks from the date of production of a certified copy of this order before him. The certified copy of this order shall be submitted by the petitioners before the DIOS, Deoria-respondent no. 1 not later than a month from today. No order as to costs."

It is further the case of the writ petitioner that thereafter the third respondent, District Inspector of Schools, Deoria proceeded to pass an order, whereby it accorded approval for the payment of salary to the petitioner from the date of passing of the order, i.e. 16.05.2008. It is further the case of the petitioner that pursuant to the resolution of the fourth respondent, Committee of Management, the claim of the writ petitioner for being considered for regularization was also put to motion under Section 33C of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 and the writ petitioner, thereafter, preferred Writ-A No.8859 of 2023, which came to be disposed off on 22.05.2023 with a direction to Regional Level Committee to accord consideration to the claim of the writ petitioner for regularization. On 20.05.2023, the second respondent has proceeded to negate the claim of the writ petitioner on the premise that the approval with regard to the payment of salary has been accorded on 16.05.2008 and in view of the cut off date mentioned under Section 33-C, the claim of the writ petitioner cannot be acceded to.

Learned counsel for the petitioner has relied upon the judgment in Writ-A No.8234 of 2020, Pramod Kumar vs. State of U.P. and other judgments annexed with the writ petition so as to contend that for the purposes of consideration of claim for regularization, the issue with regard to payment of salary on a particular date is totally irrelevant and once an approval order is issued, then it relates back from the date of initial appointment in question.

Sri Prathamesh Upadhyay, who though claims to have filed a caveat application on behalf of the officiating principal submits that the writ petitioner is not entitled to any relief whatsoever as his payment of salary has been accorded from a particular date, which even in fact disentitled him to be covered under Section 33-C of the 1982 Act in question.

Learned Standing Counsel on the other hand submits that the date from which the request for payment of salary has been made is a crucial date, and once the writ petitioner does not come within the zone of consideration for being granted regularization and according to him, there is no such provision of law applicable in the present fact so as to invoke the doctrine of relation back and deemed approval in this regard.

Learned Standing Counsel has accepted notice on behalf of Respondents 1 to 3. Issue notice to the fourth respondent. Steps be taken by both ways within one week.

Since the issue is legal, all the respondents shall file their response within two weeks.

Sri Prathamesh Upadhyay who appears for officiating Principal, though has not file any legal application, however, he may be permitted to argue as intervener.

Affidavit of service be filed before the next date.

Put up as fresh on 24.08.2023."

13. A counter affidavit has been filed by learned Standing Counsel for the respondents 1 to 3 sworn by Associate District Inspector of Schools, Deoria dated 17.8.2023 to which a rejoinder affidavit has been filed by the writ petitioner. Committee of Management, fourth respondent has also filed a counter affidavit sworn on 5.9.2023, however the learned counsel for the writ petitioner submits that since counter affidavit of the fourth respondent support his case thus he does not propose to file any rejoinder to the said affidavit.

14. Sri Prathamesh Upadhyay has filed an intervention application bringing on record certain facts which according to him a germane to the controversy in question to which a rejoinder affidavit has been filed by the writ petitioner.

15. As already noticed that the counsel for the rival parties do not propose to file any further response can they seek disposal of the writ petition on the basis of the affidavits available on record thus this Court with the consent of the parties is proceeding with the matter at the fresh stage.

16. Sri Ashok Khare, learned Senior Counsel assisted by Sri Girjesh Tiwari, learned counsel for the petitioner submits that there are two documents which would be material and have relevance for deciding the controversy in question firstly, the order dated 16.5.2008 of the third respondent, District Inspector of Schools, Deoria according approval to the appointment of the writ petitioner and secondly the order impugned dated 20.5.2023 of the second respondent.

17. According to Sri Khare, it is not in dispute that the writ petitioner was appointed as Assistant Teacher L.T. grade may be on ad hoc basis by virtue of the order dated 25.6.1992 and he assumed the charge on 8.7.1992. He further submits that initially he was not accorded payment of salary which compelled him to file Writ Petition No.40484 of 1993 in which series of orders were passed commencing from the first order dated 11.11.1993 which even in fact was a conditional order either to pay the salary or to show cause and the said order stood transformed into another order dated 13.4.1994 wherein this Court depreciated the stand of the District Inspector of Schools in failing to comply with the earlier order and ultimately the writ petition stood disposed of on 18.5.2007 directing the respondent to decide the representation of the writ petitioner.

18. According to Sri Khare, the writ petitioner since the date of his initial appointment/joining is working on the post in question that too without any umbrella of any interim protection accorded by this court and even in fact the documents even otherwise so produced by the fourth respondent, Committee of Management of the institution in question shows that the writ petitioner was accorded joining and he is working in post in question. Further submission has been sought to be made that though wisdom prevailed upon the District Inspector of Schools, Deoria while according approval to the appointment of the writ petitioner on 16.5.2008 however the said approval would not take away the ad hoc services rendered by the writ petitioner as obviously the ad hoc services are to be regularised once the payment of salary has been accorded by the mode of an approval order passed by the District Inspector of Schools. He thus submits that the order of the approval with regard to the payment of salary just implies working of the writ petitioner and further he is entitled to be accorded regularisation in terms of Section 33(C) of the U.P. Act No. 5 of 1982.

19. Reliance has also been placed upon the judgement in the case of Ravindra Kumar vs. State of U.P. reported in 2010 (6) AWC 6130 so as to buttress the submission that once the appointment has been made in accordance with law then the statute cast a duty upon the competent authority to approve or disapprove the same and delay in performance of the duty cannot be a ground for refusal to pay salary to the writ petitioner. Further reliance has been placed upon in the recent decision in the case of Pramod Kumar vs. State of U.P. and three others, Writ-A No.8234 of 2020, 1981 of 2021 so as to buttress the submission that there is no such provision with regard to regularisation being denied on the pretext that the salary was not paid for a particular period.

20. Sri H.K. Shukla, learned Standing Counsel who appears for respondents 1, 2 & 3 submits that the order of the Regional Level Committee does not suffer from any manifest error so as to accord interference by this court particularly in view of the fact that according to learned Standing Counsel pursuant to the order dated 16.5.2008 of the District Inspector of Schools, Deoria the writ petitioner for the very first time joined the institution in question w.e.f. 1.7.2008 and thus the period with reckon for the purposes of consideration for regularisation w.e.f. 1.7.2008 and not prior to it. He has invited the attention of the Court towards paragraph 6 and 7 of the counter affidavit filed by the Associate District Inspector of Schools so as to further contend that on 13.3.1991 Director of Education U.P. Shiksha (Samanya) Second Anubhag Allahabad had sanctioned several posts up to High School level comprising of Principal one post, Assistant Teacher L.T. Grade seven posts, Assistant Teacher C.T. Grade four posts, Clerk one post, Daftari one post, Class IV six posts totaling twenty posts and post issuance of the Government Order dated 22.2.2013 after determining the sanctioned strength vis-a-vis the students the total post so determined and sanctioned was Principal/Head Master one post, Assistant Teacher L.T. Grade 11 posts, Assistant Clerk one post and Class-IV seven posts. He thus seeks to argue on the basis of the counter affidavit that when the vacancy stood arisen the writ petitioner has been accorded financial approval and while referring to para-16 of the counter affidavit it is being further sought to be contended that the District Inspector of Schools, Deoria, third respondent vide letter dated 19.7.2023 directed the Principal of the institution to submit report regarding working of the petitioner on Ad hoc Assistant Teacher during 8.7.1992 to 15.5.2008, however while referring to para 17 it is being further sought to be contended that the Principal of the institution in question on 26.7.2023 informed the petitioner had not worked in the institution during the period 8.7.1992 to 15.5.2008.

21. Thus, it is being sought to be contended on behalf of the learned Standing Counsel that since the writ petitioner had not worked prior to 1.7.2008 thus there is no question of considering the claim of the writ petitioner for regularisation.

22. Sri Prathamesh Upadhyay, who appears for the intervener has sought to question the eligibility and the suitability of the writ petitioner while coming up with a stand that the writ petitioner is not entitled to be considered for being accorded the relief as sought in herein. He further submits that the crucial date is post 1.7.2008 that is the joining of the writ petitioner and period prior to it it cannot be considered for regularisation.

23. In rejoinder Sri Khare, learned Senior Counsel appearing for the writ petitioner submits that the intervener has no right to intervene in the present proceedings and join as a respondent particularly in view of the fact that he claims to be the Officiating Principal of the institution in question and he has no say in the matter as virtually he is trying to play a calculated game so as to create obstacles and hindrances in the induction of the writ petitioner as the intervener is conscious about the fact that in case the writ petitioner is accorded benefit of regularization then ultimately the writ petitioner would stake his claim for being appointed as Officiating Principal.

24. I have heard learned counsel for the parties and perused the record carefully.

25. Undisputedly, the fourth respondent institution is recognized under the provisions of U.P. Intermediate Education Act, 1921, U.P. Act No. 5 of 1982 and provisions of U.P. Act No. 24 of 1971 are applicable. It is not in dispute between the parties that a post of Assistant Teacher, L.T. Grade stood vacant on 30.06.1992 consequent to the retirement of Ram Raksha Mishra.

26. The bone of contention between the parties is with regard to the appointment and the joining of the writ petitioner as Assistant Teacher L.T. Grade on ad hoc basis. Though on one hand, the writ petitioner claims to have been appointed as Assistant Teacher on 25.06.1992 and accorded joining on 08.07.1992, however, the stand of the respondents is otherwise. It is also not in dispute that the writ petitioner had preferred Writ Petition No. 40484 of 1993 for payment of salary and for according financial approval in which on 11.11.1993 an order was passed either to pay the salary or to show cause and thereafter when the order was not being complied with, the District Inspector of Schools was directed to appear on a particular date for explaining his conduct and thereafter on 18.05.2007 the writ petition stood disposed of granting liberty to the writ petitioner for disposal of his representation. Thus, it is clear that this Court in the earlier spell of litigation had not addressed the issue on merits, however, left it open to the District Inspector of Schools, Deoria to address the claim of the writ petitioner. It is further not in dispute that on 16.05.2008 the District Inspector of Schools, Deoria proceeded to approve the appointment of the writ petitioner and directed for payment of salary from the date of passing of the order dated 16.05.2008. Though in the said order as apparent from page 69 Annexure 10 of the writ petition the Principal of the institution in question had forwarded documents showing the appointment of the writ petitioners which are 11 in number, however, in the heading under the "parameters of the evidences" the reference has been given to the number of post but there is no categorical finding returned in the said order as to whether the writ petitioner had worked for the period in question or not prior to 16.05.2008.

27. Now comes the order impugned in the writ petition which is dated 20.05.2023 passed by the second respondent, Regional Level Committee headed by Joint Director of Education 7th Region, Gorakhpur wherein in the first page of the order third paragraph it has been recited that the writ petitioner was appointed on ad hoc basis as an Assistant Teacher L.T. grade against a vacancy which fell vacant on 30.06.1992 and he assumed period on the said post on 8.7.1992 but in the last paragraph of the first page of the order impugned it is further sought to be demonstrated that an exercise was undertaken at the level of the educational authorities for considering the claim of the writ petitioner for regularisation, since the writ petitioner was accorded approval of his appointment and payment of salary from the date of the passing of the order dated 16.5.2008, thus the claim of the writ petitioner for regularisation reckoning from the date of his joining i.e. 8.7.1992 was declined.

28. This Court finds from the perusal of the counter affidavit filed on behalf of the Associate District Inspector of Schools, Deoria dated 17.08.2023 filed on behalf of respondents No. 1 to 3 that in para 11 it has been sought to be stated that the writ petitioner joined the post in question on 01.07.2008 pursuant to the passing of the order dated 16.05.2008 of the District Inspector of Schools and further while relying upon paragraph Nos 16 and 17 it is being sought to be further demonstrated that the District Inspector of Schools, Deoria made queries from the institution in question on 19.07.2023 regarding the working of the writ petitioner from 08.07.1992 to 15.02.2008 and the Principal of the institution informed the District Inspector of Schools, Deoria on 26.07.2023 that the writ petitioner did not work from 08.07.1992 to 15.05.2008, however, the said exercise seems to have been taken post passing of the order dated 20.05.2023. Reference may also be made to the rejoinder affidavit filed by the writ petitioner to the counter affidavit filed on behalf of respondents No. 1 to 3 wherein the writ petitioner in reply to paras 16 and 17 of the counter a/ffidavit of the Associate District Inspector of Schools, Ballia has made a statement that a separate attendance register was prepared wherein the signature of the writ petitioner finds place e and there are certificates issued regarding the working of the writ petitioner that too by the Management as well as Principal of the institution in question.

29. This Court in normal circumstances, would have undertaken the task of deciding the controversy on merits, however, Sri H.K. Shukla, learned Standing Counsel has made a statement at bar that the matter be remitted back to the competent authority to pass a fresh order strictly in accordance with law considering the issue in entirety as according to him it was incumbent upon the competent authority to undertake the task of dealing with the issues in question while returning finding on the fundamental and core issues.

30. This Court has bestowed its serious consideration over the arguments of the rival parties and find that there are shortcomings in the order impugned in the writ petition as the same does not address to fundamental and core issues which are necessary for adjudication of the disputes in question. Post passing of the order dated 20.5.2023 by the second respondent as apparent from the counter affidavit an exercise was undertaken by the District Inspector of Schools, Deoria while seeking inputs on 19.7.2023 from the Principal of the institution in question regarding the claim of the writ petitioner that he had worked for the period from 8.7.1992 to 15.2.2008 which in turn was replied by the Principal of the institution on 26.7.2023 that the writ petition did not function as a teacher in the institution in question for the said period. Since the said aspect of the matter which goes to the root of the case has not been addressed thus the matter needs to be given re-look.

31. Further on following issues finding ought to have been returned by the second respondent namely : (a) the approval order dated 16.05.2008 of the District Inspector of Schools, Deoria approving the appointment of the writ petitioner though talks about the number of the sanctioned strength and the vacancy and approves the salary of the writ petitioner from passing of the order (16.05.2008) but does not record any specific finding as to whether the writ petitioner virtually worked in any capacity prior to 16.05.2008 consequent to the appointment order dated 25.06.1992 and the claim of joining in the institution in question 08.07.1992; (b) the order dated 20.5.2023 negating the claim of the writ petitioner for regularization in paragraph 3 though records appointment of the writ petitioner and joining on 08.07.1992 on ad hoc basis, however, it whittles down the claim of the writ petitioner on the basis that salary was not paid to the writ petitioner for the said period; (c) the order impugned in the writ petition does not take into account and the import and impact of the order passed in Writ Petition No. 40484 of 1993; (d) non-challenge on behalf of the writ petitioner to the part of the order dated 16.05.2008 denying salary to the writ petitioner prior to the passing of the order in question.

32. Since a stand has already been taken by the learned Standing Counsel that the matter remitted back, thus, this Court is deciding the writ petition in the following terms; (a) the order dated 20.05.2023 passed by the second respondent, Regional Level Committee headed by Joint Director of Education 7th Region, Gorakhpur is set aside; (b) the matter stands remitted back to the second respondent, Regional Level Committee headed by Joint Director of Education 7th Region, Gorakhpur to decide the matter afresh regarding the entitlement of the writ petitioner for arrears of salary and for regularization in terms of Section 33C of the U.P. Act No. 5 of 1982; (c) since the matter had been remitted back and the parties are before this Court though their counsel thus, the second respondent shall fix 25.09.2023 as the date fixed in the matter for hearing; (d) on the said date the writ petitioner and the fourth respondent shall appear before the second respondent, Regional Level Committee headed by Joint Director of Education 7th Region, Gorakhpur along with their versions; (e) on that date the versions shall be exchanged between the parties and in case any of the parties as referred to above seek furnishing of the documents then the same shall be furnished; (f) a date shall be fixed in the first week of October, 2023 for hearing; (g) hearing be done on that date; (h) orders be passed by 19th October, 2023.

33. The second respondent shall decide the matter bearing in mind the following fundamental and core issues; (i) the issue regarding the claim of working of the writ petitioner from 08.07.1992 onwards till the passing of the approval order dated 16.05.2008 pursuant to the appointment order dated 25.06.1992; (ii) the issue regarding the entitlement of the writ petitioner for the payment of salary as well as regularization in terms of Section 33C of the U.P. Act No. 5 of 1982; (iii) the applicability of the judgment in the case of Ravindra Kumar Vs. State of U.P. 2010 (6) AWC 6130 and Writ A No. 8234 of 2020 (Pramod Kumar Vs. State of U.P.) along with Writ A No. 1981 of 2021 decided on 14.07.2021; (iv) Import and the impact of the approval; (v) the issue with regard to the existence of vacanies vis-a-vis the sanctioned strength so as to accord entitlement of the regularisation to the writ petitioner (vi) any other ancillary and incidental issue going into the root of the matter.

34. Since the writ petition has been decided on the basis of technical shortcomings and the procedure adopted by the second respondent, Regional Level Committee headed by Joint Director of Education 7th Region, Gorakhpur thus, passing of this order may not be construed to be an expression that this Court has adjudicated the matter on merits and the second respondent shall pass an order strictly in accordance with law after giving opportunity of hearing to the parties which includes the writ petitioner and the Committee of Management. The said exercise shall be undertaken within a period of three months from the date of production of the certified copy of this order.

35. With the aforesaid observations, the writ petition is partly allowed.

36. All the pending applications stands disposed off.

Order Date :- 6.9.2023

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