DHANESHWAR PATHAK Vs. D I O S

JUDGEMENT

(1.) PRESENT writ petition has been filed by the petitioner requesting therein to issue writ of mandamus commanding the respondents to pay salary to the petitioner w.e.f. 29.7.1991 till date. Brief background of the case as mentioned in the writ petition is that in the district of Ballia there is an institution known as Uchchatar Madhyamik Vidyalaya, Jawahi Diar, Ballia. It has been stated that said institution in question is duly recognised institution under the provision of U.P. Act No. 2 of 1921 and by virtue of being in grant-in-aid list of the State Government, the provision of U.P. Act No. 24 of 1971 are fully applicable to the said institution. It has also been stated that provision of U.P. Act No. 5 of 1982 are also applicable to the said institution. Petitioner claims that he was appointed by appointment letter dated 28.7.1991 and his appointment was approved on 27.10.1994. Petitioner has come up with a case that he is entitled for salary. Sri Arvind Kumar Srivastava, learned counsel for the petitioner contended with vehemence that in the present case petitioner is entitled for his salary, as his appointment has validly been made and approved, and as such writ petition deserves to be allowed. Learned standing counsel on the other hand contended that from the own showing of the petitioner, his appointment is void and as such no relief can be accorded to the petitioner. After respective arguments have been advanced, undisputed factual position, which is emerging in the present case is that selection proceedings have been undertaken by the Managing Committee, as is clearly reflected from the Annexure-5 to the writ petition that permission was accorded by the District Inspector of Schools for running additional classes, and as per standard and guidelines fixed, presumption has been drawn that post is there, and thereafter proceedings for selection have been undertaken. Thus it is clear that no post whatsoever has been sanctioned as is envisaged under the provision of U.P. Act No. 24 of 1971, and merely on the ground that permission had been accorded, presumption has been drawn of there being vacancies, and against the same selection proceedings have been undertaken. Selection proceedings in the present case appears to be totally manipulated, inasmuch as, from the own showing of the petitioner advertisement has been made in some weekly news paper, whereas vacancy in question has to be advertised in well known two news paper. Coupled with this in the present case, there is no evidence on record to show and substantiate as to when vacancy in question had been notified to U.P. Secondary Education Service Selection Board and then U.P. Secondary Education Service Selection Board had failed to make any selection, then in term of section 18 of U.P. Act No. 5 of 1982 selection proceedings had been undertaken. Fact of the matter is that there is existed no sanctioned post, and at no point of time, vacancy in question had ever been notified and Managing Committee on its own level proceeded to make selection and appointment. Division Bench of this court in the case of Charu Chandra Tiwari Versus D.I.O.S. 1990 UPLBEC 160, has held that, even if, selection proceeding is undertaken, in exercise of authority under Section 18 of U.P. Act V of 1982 procedure provided for under paragraph 5 of the First Removal Order has to be adverted to. Here no such procedure has been followed and straight way appointments have been made. Once this is factual scenario, and it is writ apparent that District Inspector of Schools has proceeded to pass order of approval even without adverting to all these aspect of the matter, then in this background appointment on the face of it being void and State Government cannot be fastened with the liability to pay salary from the State exchequer. Coupled with this in the present once class permission had been accorded, then certainly it is "Vitta Vihin" permission and therein management is to make arrangement for payment in term of Section 7- AA of U.P. Act No. 2 of 1921 and teachers appointed are to be paid their salary from private resource of the Management. In the present case thus one thing is clear that appointment of petitioner has no credibility and based on the same no directive can be issued for ensuring salary. Consequently, writ petition, as it has been framed and drawn is dismissed. However, it is made clear that in case Management at its own risk has chosen to appoint petitioner and chosen to take work, then it is always open to the petitioner to realize his salary from the Management, but State Government cannot be fastened with the liability to pay salary to the petitioner.