RAMESH CHANDRA JAIN Vs. STATE OF U P

JUDGEMENT

(1.) Undisputed facts of this case are that the petitioner was appointed on the post of Instructor in the subject of Refrigeration and Air-Conditioning in Murli Gajanand Polytechnic, Hathras which is an institution aided by the State Government. The matter relating to regularisation of the petitioner was pending with the respondents. It is also not disputed that the minimum qualification for appointment as Instructor in a Polytechnic was that the candidate should have secured 65% marks in the diploma course. It was also provided that preference was to be given to those candidates, who had done Post-diploma course. The petitioner had secured 63.12% marks in the diploma course and has also done Post-diploma course. The petitioner has retired from service in the year 2008. It is not disputed that the payment of his salary, right from his appointment till his retirement, was paid from the State exchequer as the respondent-polytechnic is a Government aided institution. After his retirement, when the petitioner claimed his post retiral dues and the same were not paid, he filed Writ Petition No. 60965 of 2009 which was disposed of by judgment and order dated 13.11.2009 with the direction that the claim of the petitioner be examined by the Director, Technical Education, U.P. in accordance with law, keeping in view the relevant Government orders as well as the decision of the Division Bench of this Court rendered in Writ Petition No. 6664 of 1999. Pursuant thereto the Director, Technical Education decided the matter on 23.3.2010 and after considering the resolution of the Board meeting held on 24.12.2009 in which it had been recommended that the petitioner may be granted relaxation of 2% marks in the minimum qualification as provided under Section 22(E) of the U.P. Pravidhik Shiksha Adhiniyam, 1962 and also considering the ratio of the judgment of this Court in Writ Petition No. 6664 of 1999, it was decided that the relaxation be granted in favour of the petitioner with the condition that such relaxation may not be treated as a precedent. In pursuance of such order of Director, Technical Education the papers relating to payment of post retiral dues of the petitioner were prepared but in the meantime the Director, Technical Education passed yet another order on 17.8.2010, recalling its earlier order dated 23.3.2010 and refused to grant relaxation on the basis of communication dated 24.7.2009 of the State Government. Challenging the aforesaid order dated 17.8.2010 passed by the Director, Technical Education and order dated 24.7.2009 passed by the State Government this writ petition has been filed. A further prayer has been made that a direction be issued to the respondents to release the post retiral benefits of the petitioner in the light of relevant Government orders and the decision of the Division Bench of this Court in Writ Petition No. 6664 of 1999 "Hari Prasad Shukla v. State of U.P. and others"

(2.) We have heard Sri Kshitij Shailendra, learned counsel for the petitioner as well as learned Standing Counsel appearing for the State-respondents and Sri Dinesh Kumar Mishra, Advocate holding brief of Ms. Sarita Dubey, learned counsel for respondent Nos. 4 and 5 and perused the record.

(3.) The submission of learned counsel for the petitioner is that the appointment of the petitioner was made after considering his qualification and on the basis of preference which was to be given to candidates who had done Post-diploma course. It is contended that the power to relax the minimum qualification was available with the respondent authorities under Section 22 (E) of the Act of 1962 and such application remained pending with the respondent authorities for more than 30 years and a decision was taken only after the retirement of the petitioner and during his service period, the petitioner was paid salary from the state exchequer. It is contended that the order dated 23.3.2010 was passed by the Director, Technical Education in pursuance of the directions issued by this Court in Writ Petition No. 60965 of 2009 and the same was a well reasoned order which has taken into consideration the resolution of the Board, which was in favour of the petitioner and as such there was no occasion for recalling such order.