Allahabad High Court
Gajraj vs The Deputy Director Education U.P. Lko. ... on 4 January, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:982-DB
Court No. - 1
Case :- SPECIAL APPEAL No. - 421 of 2023
Appellant :- Gajraj
Respondent :- The Deputy Director Education U.P. Lko. And Others
Counsel for Appellant :- Rakesh Kumar Srivastava,Smt. Seema Srivastava
Counsel for Respondent :- C.S.C.
Hon'ble Attau Rahman Masoodi,J.
Hon'ble Brij Raj Singh,J.
Heard Shri Rakesh Kumar Srivastava, learned counsel for the petitioner and Shri V. P. Nag, learned Standing Counsel representing the State.
The appellant was a candidate in the selection process for appointment on class-IV post advertised by the institution way back in the year 1992. In the selection proceedings so held, the name of the appellant figured at serial no.15 whereas the candidate belonging to Other Backward Classes figured at serial no.1 in the merit list and he was thus appointed.
The appellant feeling aggrieved approached this Court by filing Writ Petition No.1817 (S/S) of 1992 and the same was disposed of on 10.03.1999 in terms of the following order:
"In view of the statement given by the learned counsel for the respondents that the case of the petitioner shall be considered for appointment on class IV post in the institution. The writ petition is disposed of finally with the direction that the respondents shall take a decision within one month from the date of production of a certified copy of this order on the application of the petitioner for appointment on class IV post which is reserved for scheduled caste candidate."
The facts of the case are that a vacancy had fallen vacant during the pendency of writ petition on 01.05.1997 due to retirement of one Shri Vijayanand Chaukidar. In terms of the order passed by this Court, as extracted above, it appears that the appellant applied for appointment on the said post for consideration. The Committee of Management without adopting any advertisement appears to have passed a resolution on the mere application of the appellant and an order of appointment on that post was issued on 05.04.1999. This order of appointment clearly recites that the appointment so made is in pursuance of an order passed in Writ Petition No.1817 (S/S) of 1992 on 10.03.1999. When the proposal for approval was forwarded to the District Inspector of Schools on the basis of appointment order issued on 05.04.1999, the same was not approved by the District Inspector of Schools vide order dated 22.04.1999. The order refusing approval passed by the District Inspector of Schools came to be challenged in Writ-A No.3963 of 1999. At the initial stage, this Court proceeded to pass an order on 05.08.1999 which is extracted as udder:
"Notices on behalf of opposite parties 1 & 2 have been accepted by learned standing counsel. Issue notice to opposite parties 3 & 4 returnable within 3 weeks requiring them to show cause as to why petition be not admitted.
List immediately thereafter.
In the meantime, the petitioner shall be allowed to work and shall be paid salary."
It is in pursuance of interim order passed by this Court in Writ-A No.3963 of 1999 that the appellant was allowed to work and had been paid salary ever since 1999. The appellant, thus, has worked on a class-IV post since the date of his appointment made by means of the order dated 05.04.1999. The later writ petition filed by the appellant as per the factual background stated therein mentions that out of 17 posts of class-IV employees, three posts were meant for SC candidates which were not duly filled up and the appellant was appointed against one of them. It is in the aforesaid background that the appellant has continued to work and has been paid salary since April, 1999 pursuant to the interim order passed by this Court. The interim order passed by this Court has operated throughout and luckily with no serious protest for its vacation by the respondents. The appellant in this manner has served on a class-IV post for about 23 years.
In the year 2023 when the writ petition came up for hearing, the same on being heard has been dismissed on the ground that the post on which the appellant was allowed to work was never advertised and was not filled up in accordance with law. The view taken by the writ Court, in our considered opinion remains unshakable in so far as the position of law is concerned. However, looking to the fact that the appellant has worked for about 23 years on a class-IV post and there is no complaint regarding his work and conduct, dismissal of the writ petition, at this juncture, has certainly caused a serious consequence as regards the very life and livelihood of the appellant when he may not be eligible to seek job or employment elsewhere.
Learned counsel for the appellant in order to buttress the submission put forth on the strength of long years of service rendered by such an employee has placed reliance upon a judgment of Hon'ble Supreme Court in the case of Vivek Kaisth and another vs. State of Himachal Pradesh, reported in 2023 SCC OnLine SC 1485.
On the other hand, learned Standing Counsel has submitted that as there is no illegality or infirmity in the order passed by the Writ Court, the Special Appeal filed by the appellant is liable to be dismissed.
Considered the submissions made by the learned counsel for the parties and perused the material available on record. Admittedly, the appellant has worked for 23 years without any complaint from any corner. It is true that no advertisement was made in the case of the appellant, but the case law cited by the learned Counsel for the appellant lends some support to the case of the appellant in view of his long satisfactory service. Further, it has been held in the said case that unseating a person after such a long time would not be in public interest. Considering this vital aspect of the matter and exercising powers conferred under Article 142 of the Constitution of India, the Apex Court quashed the order of the High Court so far as it had set aside the selection and appointment of the appellants in that case. Here in the instant case, since the appellant is on similar footing, the case law applies on an equitable consideration.
In view of what has been stated above, the Special Appeal is allowed and the judgment and order passed by the Writ Court dated 27.7.2023 in writ-A No. 3963 of 1999 is set aside and the impugned orders dated 22.4.1999 and 19.07.1999 passed by the District Inspector of Schools, Hardoi/respondent No.2 are quashed. The writ petition is allowed in terms of the interim order and shall not be a precedent.
No order as to costs.
.
[Brij Raj Singh, J.] [Attau Rahman Masoodi, J.]
Order Date :- 4.1.2024
akhilesh/
