SURENDRA KUMAR SRIVASTAVA Vs. STATE OF U P

JUDGEMENT

(1.) THIS intra Court appeal, under the Rules of the Court, arises from the judgment/order of the Hon'ble Single Judge of this Court dated 28-5-2004 dismissing Civil Misc. Writ Petition No. 21664 of 2004 of the petitioner-appellant.

(2.) WE have heard Mr. Anil Bhushan, learned Counsel for the appellant and learned Standing Counsel for the State-respondents.

(3.) IT is contended that the vacancy was advertised in two newspapers besides being pasted on the notice board of the College and also informed to the Employment Exchange. After considering all the applications, on the basis of the quality point marks, the petitioner-appellant was selected and proposal for his appointment was forwarded to the District Inspector of Schools, Varanasi (in short, 'dios') seeking his prior approval. IT is claimed that the DIOS granted financial sanction initially for one year, i. e. , 1-7-1994 to 30-6-1995, which was extended upto 30-6-1997. The management thereafter served a notice dated 27-3-1997 informing the petitioner-appellant about cessation of his service on 30-6-1997, since the DIOS has granted financial sanction only upto 30-6-1997. The petitioner-appellant challenged the said notice in Civil Misc. Writ Petition No. 14307 of 1997 claiming right to continue till a candidate regularly selected by the Commission is available. The said writ petition was finally disposed of vide judgment dated 17th September, 1997 directing the petitioner-appellant to submit a representation to the DIOS, Varanasi, who shall examine as to whether Sri Daya Ram was entitled for grant of leave in accordance with rules and if the management has no objection for extension of service of the petitioner- appellant, the DIOS may consider to grant financial sanction for appointment of the petitioner-appellant for the period of leave vacancy of Sri Daya Ram. The petitioner-appellant preferred representation dated 17-11-1997 alongwith judgment dated 17th September, 1997 whereupon the DIOS passed a detailed order on 3/4-4-1998 observing that pursuant to sanction of 2 years 8 months leave (from 1-11- 1993 to 30-6-1996) to Sri Daya Ram, an Art Teacher of the College, the short term appointment of the petitioner-appellant was approved by the then DIOS vide order dated 16th September, 1995 granting financial sanction from 1-7-1994 to 30-6-1996. Sri Daya Ram further sought extension of his leave upto 30-6-1997 and the appointment of the petitioner-appellant was also approved and extended for a period of one year, i. e. upto 30-6-1997 by the then DIOS vide order dated 5-10-1996. He also noted that Sri Daya Ram, who had proceeded on leave, was actually appointed in Government Service as Block Development Officer vide appointment letter dated 11-11-1993 and under Chapter III Regulation 29 (3) and 26 of the Regulation framed under the U. P. Intermediate Education Act, a teacher of a non- Government aided institution, if appointed in Government Service, has to resign from the post of teacher, thus leave without pay to such a teacher is impermissible under the Rules and is also contrary to fundamental and subsidiary Rules of the State Government. Consequently, DIOS not only rejected the application of Sri Daya Ram seeking further extension of leave from 1-7-1997 to 30-6-1998 but also rejected representation of the petitioner-appellant for sanctioning extension of his appointment since it was not in accordance with law. He further issued another order dated 9-10- 1998 directing management of the College to treat the aforesaid vacancy substantive and take steps in accordance with 1982 Act for making regular appointment on the said post. He also informed the management that under 1982 Act for ad hoc/temporary appointment, power of selection is vested in the Selection Committee presided by the Regional Joint Director of Education and Management has no right to make any selection and in case any appointment is permitted to continue contrary to the aforesaid statutory provisions, the management shall be responsible for the same.