RAM NARESH Vs. STATE OF U.P.

JUDGEMENT

(1.) It appears that the petitioner was engaged as daily wager from July, 1994 to May, 1995. It appears that the Principal of Handia Polytechnic, Allahabad wrote letters dated 08.03.1995 to the Commissioner, Allahabad Region, Allahabad and President Managing Committee, Handia Polytechnic, Allahabad recommending, for the promotion of Sri K.D.Tiwari on the post of Chief Clerk and Sri S.N.Pandey on the post of Senior Clerk. The name of the petitioner has also been recommended for the post of clerk. It appears that in pursuance of the letter of the Commissioner, Allahabad Region, Allahabad dated 12.05.1995 the benefit of the promotion has been given to Sri K.D.Tiwari on the post of Chief Clerk and Sri S.N.Pandey on the post of Senior Clerk. The appointment has been given for a period of one year on probation and the said appointment was made temporary and in this regard the Principal has issued the Office Memo dated 18.05.1995, annexure-1 to the writ petition. The office memo has also been issued by the Principal in respect of the appointment of the petitioner on 18.05.1995 stating therein that in pursuance of the letter dated 12.05.1995 of the President of the Managing Committee, Ram Naresh is being appointed as Junior Clerk only on temporary basis. The appointment shall be for one year on probation. The said letter is annexed as annexure-2 to the writ petition. By the letter dated 13.11.1995 the Principal of the college has informed the Director, Technical Education, U.P., Kanpur about the appointment of the petitioner. The Principal of the college has wrote a letter dated 11.12.1995 to the Joint Director Technical Education, Eastern Region, Varanasi giving the reference of the letter dated 13.11.1995 written to the Director, Technical Education stating therein that verbally it has been informed that the action in the matter of class III and IV employees are being taken from the stage of Joint Director and from his stage only approval with regard to the appointment of the Assistant Teacher and Teacher is being granted. It was also requested to take the necessary action and further granting the approval for the salary. The principal by letter dated 04.06.1996 has informed the petitioner that by letter dated 18.03.1996 of Director, Technical Education, U.P., Kanpur it has been informed that your appointment has been made without proper selection and since the appointment has not been made in accordance to law, therefore, it is not possible to grant the approval of the salary. The petitioner has been asked to inform that whether for the appointment the approval has been taken from the Director, Technical Education; whether for the vacant post any advertisement was made and the name has been sought from the employment exchange. It is informed that relating to the appointment documents are not available and in the absence of the approval by the Director relating to your appointment and the salary, no action can be taken. At this stage the petitioner filed the present writ petition for mandamus to the respondents not to interfere in the working of the petitioner as the clerk and to pay salary regularly No interim order has been passed. On 21.06.1996 the Court has asked the learned Standing Counsel to file counter affidavit.

(2.) In the counter affidavit filed on behalf of the respondent no.5 it is stated that the appointment of the petitioner has not been made in accordance to law. It is stated that as per the provisions of The Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 the post was to be compulsory notified to the employment exchange before any appointment is made, and the approval of the Director of the Technical Education for appointment was necessary. In the case of the petitioner neither the vacancy has been notified to the employment exchange nor any publication was made and the approval has also not been taken from the Director, Technical Education as per circular issued by the State Government on 19.07.1988. By the order dated 18.03.1996 the financial approval has been rejected as the appointment of the petitioner was not in accordance to law.

(3.) The petitioner filed the rejoinder affidavit. In the rejoinder affidavit it is stated that in several cases, appointments have been made without asking the name from the employment exchange to which the financial approval for the salary has been granted. It is further stated that several persons have been appointed after making the publication in the newspaper. It is further stated that as per bye-laws no financial approval is required from the Director.