LAXMI NARAIN MISHRA Vs. STATE OF U.P.

JUDGEMENT

(1.) COUNTER and rejoinder affidavits have been exchanged. This writ petition is, therefore, being disposed of finally with the consent of the learned counsel for the parties. Heard Sri H.N. Tripathi, learned counsel for the petitioner as well as the learned standing counsel.

(2.) ONE Shiv Shanker Mishra a confirmed Lecturer in Hindi in Krishak Inter College Cariya Jari, Allahabad proceeded an leave with effect from 14.3.1994. His leave was duly sanctioned and in the short term leave vacancy the present petitioner Laxmi Narain Mishra was appointed. Admittedly, the appointment of the petitioner is governed by the U.P. Secondary Education Service Commission (Removal of Difficulties) (Second) Order, 1981 for short called 'the order 1981'. The vacancy was notified and papers were submitted to the District Inspector of Schools for approval which was never accorded. The petitioner was not paid the salary for the post on which he joined on 15.7.1994 in pursuance of the order of appointment issued by the Committee of Management. The petitioner filed a writ petition No. 5413 of 1995 in which an order was passed on 1.3.1995 directing the District Inspector of Schools, respondent No. 2, to decide the representation of the petitioner. In compliance of the order of this Court, respondent No. 2 disposed of the representation of the petitioner and rejected the same by order dated 20th July, 1995, which is annexure 5 to this writ petition. It is this order, which has been challenged in the present writ petition on the ground that the District Inspector of Schools has rejected the representation in an arbitrary manner without taking into consideration the relevant record. In the counter affidavit filed by Sri B.N. Lal, Associate District Inspector of Schools, it has been pleaded that as a matter of fact there was no short term vacancy on which the petitioner could be appointed as the previous incumbent Shiv Shanker Mishra was granted leave for one year in an illegal manner by the Committee of Management for one simple reason that he was not entitled to leave being a temporary employee; that the due procedure prescribed under the law for appointment in the short term vacancy was not followed and no prior approval was obtained by the Management to appoint the petitioner. The learned counsel for the petitioner repelled the various submissions made by the learned standing counsel who by and large founded his arguments on the pleas raised in the counter affidavit.

(3.) THE order of 1981 provided for the procedure for fining up the short term vacancy. In the instant case the vacancy was notified and the appointment of the petitioner was made consequent upon the recommendations of the Selection Committee. In paragraph -3 (iii) of the Order 1981 it has been specifically provided that the District Inspector of Schools shall communicate his decision within seven days of the date of receipt of particulars by him failing which the District Inspector of Schools will be deemed to have given his approval. In paragraph -3 (iv) it is further provided that on the receipt of the approval of the D.I.O.S. or as the case may be, on his failure, to communicate his decision within seven days of the receipt of papers by him from the Manager, the management shall appoint the selected candidate and an order of appointment shall be issued under the signature of the Manager. In the instant case, the District Inspector of Schools did not communicate his decision to the Committee of Management and consequently on the expiry of seven days from the date relevant papers were received by the District Inspector of Schools, it shall be deemed that due approval to the appointment of the petitioner was granted. The impugned order has been passed on the representation of the petitioner in the light of the direction of this Court. Prior to the impugned order there was no objection whatsoever to the appointment of the petitioner. Since the District Inspector of Schools did not pass any order within the stipulated period it shall be deemed that the approval to the appointment of the petitioner was granted and consequently, the petitioner shall be entitled to salary right from the date he joined the post of the Lecturer in Hindi in the leave vacancy of Shiv Shanker Mishra. In the result, the petition succeeds. The impugned order dated 18.7.1995, Annexure -S to the writ petition, passed by respondent No. 2, District Inspector of Schools, Allahabad is hereby quashed. The petitioner shall be deemed to have been duly appointed as Lecturer in the institution aforesaid in the leave vacancy of Shiv Shanker Mishra and shall be paid salary right from 16th July, 1994 onwards if he has actually worked on the said post throughout. The appointment of the petitioner in the short term vacancy shall expire on joining of Shiv Shanker Mishra after the expiry of his leave or on the regular appointment of a duly selected candidate by the Commission.