BHEEM SEN SINGH Vs. STATE OF U.P.

JUDGEMENT

(1.) Bhim Sen Singh presently posted as Principal of Moti Lal Nehru Smarak Inter College, Ram Nagar Baijabari, District Azamgarh, is before this Court assailing the validity of the order dated 11th Feb., 2015 passed in writ petition no. 4046/2015 (Bheem Sen Singh Vs. State of U.P. and 5 others) wherein the learned Single Judge has proceeded to dismiss the Writ Petition in question. on presentation of the Special Appeal in question, this Court on 20-03- 2015 proceeded to pass following order :

(2.) Brief background of the case is that in the District of Azamgarh, there is a recognised institution known as Moti Lal Nehru Smarak Inter College, Ram Nagar, Baijabari, District Azamgarh. The said institution in question is to be run as per the provisions of U.P. Act No. 2 of 1921, 24 of 1971 and 5 of 198

(3.) In the said institution concerned, a short-term vacancy in the institution was caused due to proceeding on leave by Sri Nageshwar Lal Srivastava, a lecturer for the subject of Geography and against the said short term vacancy, one Satish Rai was appointed as per the provisions contained under U.P. Secondary Education Service Commission (Second) (Removal of Difficulties) Order, 1981. He left the institution on 7.4.1987 for joining at other institution. Respondent No. 6-Havbaldar Singh claims to have been appointed as lecturer in Geography against the short term vacancy on 12th April, 1987 and this is accepted position that Nageshwar Lal Srivastava proceeded to tender his resignation in the year 1987, Havaldar Singh filed writ petition before this Court, and this Court on 5th May, 1988, proceeded to dispose of the said writ petition in question by directing that respondent no. 6 shall be paid his salary from the date of his appointment till either Nageshwar Lal Srivastava comes back from his leave and joins the post or someone recommended by U.P. Secondary Education Services Commission for appointment as lecturer in Geography in the institution. Havaldar Singh succeeded in getting order from this Court, without disclosing this fact that on the date of filing of writ petition, short term vacancy stood converted into substantive vacancy and by operation of law Havaldar Singh would cease to exist as Paragraph 3 of Second Removal Order, ad-hoc appointment made on account of grant of leave would come to an end when the teacher who was on leave would join or when the short term vacancy ceases to exist. Havaldar Singh has not been fair to this Court at the point of time when order has been passed in his favour by not disclosing this fact that short term vacancy has been converted into substantive vacancy and by operation of law his functioning stood ceased. Moreover in the matter of filling short term vacancies, procedure prescribed under Second Removal of Difficulties Order Paragraph 2, is to be adhered to and therein selection has to be made based on quality points marks and thereafter as per paragraph 2(3)(ii) prior approval is required to be taken by District Inspector of Schools and if there is failure on the part of District Inspector of Schools to communicate approval within seven days of particulars being send, it would be presumed that District Inspector of Schools has deemed to be given his approval. It is the duty of counsels also to apprise the Court of statutory provisions holding the field of selection/appointment. In the order dated 5.5.1988, mention has been made by the Bench that in the matter of ad-hoc appointment in leave vacancy there is no legal requirement that the District Inspector of Schools may accord approval whereas as already mentioned above, there is requirement of prior approval. We are not sitting in appeal over the judgement dated 5.5.1998 but we are consciously mentioning all these facts to show and demonstrate that Havaldar Singh has not at all been truthful before this Court. One Om Prakash joined the institution in question on 22.04.1996 and the net effect of the same was that service of respondent no. 6 once again came to an end once a regularly selected candidate posted there. This much is reflected that Havaldar Singh succeeded in getting said recommendation cancelled. This much is also reflected from the record that District Inspector of Schools, Azamgarh on being apprised of the aforesaid facts passed an order dated 2nd May, 2009 for stopping payment of salary of respondent no. 6 and it appears that against the aforesaid order of District Inspector of Schools, Azamgarh, Regional Joint Director of Education, Azamgarh Region was approached and he directed for payment of salary. The order dated 1st July, 2009 has been subjected to challenge in writ petition no. 45065 of 2009, wherein a detailed interim order dated 27th Aug., 2009 was passed. The interim order is as follows :