STATE OF U P Vs. SURENDRA NATH MISHRA

JUDGEMENT

(1.) This is the Defendants' second appeal arising out of a suit, filed by the Plaintiff/Respondent, for permanent injunction restraining the Defendants not to interfere in the functioning of the Plaintiff as C.T. Grade Teacher, appointed against a short term vacancy, and further restraining them from withholding his salary and other allowances and directed to be paid monthly salary and allowances.

(2.) On behalf of the Respondents/Defendant Nos. 2 to 4 No. written statement was filed, but on behalf of the Appellants/Defendant Nos. 4, 5 and 6, written statement was filed denying the allegations made in the plaint with a specific averment that there was No. short term vacancy and the Plaintiff/Respondent's appointment was not in accordance with law. After exchange of the pleadings and after considering the claim of the Plaintiff, the trial Court has dismissed the suit against the Appellants/Defendant Nos. 4, 5 and 6 and decreed the suit against the Defendants/Respondent Nos. 2, 3 and 4 by order dated 31.1.2001. The Plaintiff/ Respondent No. 1 has filed an appeal. The appeal was allowed without setting aside the findings recorded by the trial Court.

(3.) The trial Court has recorded a finding that the alleged promotion of Sri Indra Dev Chaubey in L.T. Grade against the vacancy which has occurred after the retirement of one Sri Shiv Shankar Dubey, L.T. Grade Teacher, on 30.6.1993 was not in accordance with law as No. intimation was given to the District Inspector of Schools for sending it to U.P. Secondary Education Service Commission. The lower appellate Court without setting aside the aforesaid finding has held that the said promotion was ad hoc and it was subject to the approval of the Commission and unless the Commission approves the vacancy occurred due to promotion of Sri Indra Dev Chaubey will be deemed to be a short term vacancy. The finding recorded to that effect is totally illegal and against the provisions of Rules 4 and 9 of the U.P. Secondary Education Service Commission Rules, 1983. It is further submitted that if the alleged promotion of Sri Indra Dev Chaubey in L.T. Grade itself was illegal, then there could be No. short term vacancy against which the Plaintiff could be appointed. The trial Court has also recorded a finding that the papers relating to the alleged appointment of the Plaintiff was never sent to the Office of District Inspector of Schools and the Plaintiff/Respondent has failed to prove the same that when the papers were sent, but the lower appellate Court without setting aside the aforesaid finding came to the conclusion that the Plaintiff's appointment was in accordance with law and in accordance with U.P. Secondary Education Service Commission (Removal of Difficulties-ll) Order, 1982. Such finding recorded by the lower appellate Court is illegal and without consideration of the relevant provisions of Removal of Difficulties-ll Order. Even the Plaintiff has accepted that the alleged appointment was made on 20.8.1993 and the appointment letter was issued on 21.8.1993 and the papers were received in the Office of District Inspector of Schools on 2.9.1993. If this fact is taken to be true, even then, alleged appointment is void ab initio in view of Clause 3(i)(ii) of the U.P Secondary Education Service Commission (Removal of Difficulties-ll) Order, 1981, which requires prior approval of District Inspector of Schools before issuing the appointment letter to the alleged appointee or in any case after one week from the date of receipt of the papers sent by the Committee of Management to the District inspector of Schools. The lower appellate Court without considering the same has held the alleged appointment of Plaintiff valid and has directed to pay the salary and granted injunction not to interfere in service of the Plaintiff.