Allahabad High Court
Phool Chandra Gupta vs State Of Up And 3 Others on 1 July, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:106353
Court No. - 9
Case :- WRIT - A No. - 9017 of 2024
Petitioner :- Phool Chandra Gupta
Respondent :- State Of Up And 3 Others
Counsel for Petitioner :- Santosh Kr. Singh Paliwal
Counsel for Respondent :- C.S.C.
Hon'ble Subhash Vidyarthi,J.
1. Heard Shri Santosh Kumar Singh Paliwal, learned counsel for the petitioner and learned Standing Counsel for respondent nos. 1 and 2.
2. By means of the instant writ petition filed under Article 226 of the Constitution of India, the petitioner has sought issuance of a writ of mandamus commanding the District Inspector of School, Azamgarh to pay salary to the petitioner regularly w.e.f. 20.05.2017.
3. The petitioner claims to have been appointed on the post of Peon by means of an order dated 15.05.2017 passed by the Principal, Adarsh Inter College Hadia, Mittupur, District-Azamgarh. He joined his duties in furtherance of the appointment letter on 20.05.2017.
4. As per the averments made in the writ petition, Principal of the college has given letters to the District Inspector of School, Azamgarh for according approval to the petitioner's appointment, but the District Inspector of School, Azamgarh has not passed any order in this regard.
5. Learned counsel for the petitioner has submitted that a Government Order was issued on 04.09.2013, whereby Regulation 101 of Chapter III of the Intermediate Education Act, 1921 was amended so as to provide that Class IV post can only be filled by outsourcing.
6. The aforesaid amendments made in the Regulations was challenged before this Court by filling numerous writ petitions which was allowed by means of order and judgement dated 19.11.2018 passed by the Division Bench of this Court in Writ-C No. 45060 of 2015, Principal, Abhay Nandan Inter College, Vishnu Mandir & another versus State of U.P. and 3 others.
7. While opposing the aforesaid submission, learned Standing Counsel has submitted before this Court that the judgment relied upon by the learned counsel for the petitioner has already been set aside by the Hon'ble, Supreme Court by means of judgement and order dated 27.09.2021 passed in Civil Appeal No. 865 of 2021 (The State of U.P. and Others versus Principal Abhay Nandan Inter College & Others). Therefore, the legal position as is settled by the Hon'ble Supreme Court is that Regulation 101 of the U.P. Intermediate Education Act, 1921 continues to hold the filed. As per the provisions contained in Regulation 101 in Chapter III aforesaid, the appointing authority cannot fill any non teaching vacancy (Clerk Grade) in any aided Institution except with prior approval of the Inspector. District Inspector of Schools shall provide information regarding the number of vacancies to the Director of Education (Secondary Education) and after obtaining orders in this regard from the Director of Education (Secondary Education), the District Inspector of School will accord sanction to the appointing authority for filling up the vacancies and the vacancies will be filled keeping in view the provisions of law regarding reservation etc. The aforesaid Regulation further provides that Class IV vacancy can be filled only through outsourcing. However, this restriction will not apply to appointment made on compassionate basis.
8. Undisputedly, the District Inspector of School, Azamgarh had not accorded any sanction or approval prior to appointment of the petitioner.
9. Therefore, in view of the aforesaid discussion, the petitioner's appointment has been made in violation of the provisions contained in Regulation 101 framed under the Intermediate Education Act, 1921. He cannot claim any rights on the basis of appointment made in violation of the provisions of Regulation 101 framed under the Intermediate Education Act, 1921 and as such in absence of the petitioner having any legally enforceable right the petitioner seeking issuance of a writ of mandamus is not maintainable.
10. Accordingly, the writ petition is dismissed.
Order Date :- 1.7.2024
SY
