RAM NIWAS Vs. STATE OF U P

JUDGEMENT

(1.) THE petitioner by means of the present petition has sought the quashing of the order dated 20th of March, 2006 passed by the District Inspector of Schools, Basti/Sant Kabir Nagar whereby and whereunder it has rejected the representation of the petitioner for his appointment on the post of peon in the institution known as Sri Ram Shankar Sachchidanand Pal Krishak Uchchatar Madhyamik Vidyalaya, Sikari, District Sant Kabir Nagar. THE facts of the case may be noticed in brief. THE petitioner claims that he was appointed as class IV employee in the institution by means of the appointment letter dated 30th June, 1990. At that time, the institution in question was not in the grant- in-aid list. THE said institution is a recognised High School and is subject to the provisions of the Intermediate Education Act, 1921 and the Regulations framed thereunder. It came within the purview of the Payment of Salaries Act w.e.f. 1.4.1991. When the salary was not paid to the petitioner after the institution came under the provisions of the Payment of Salaries Act, the petitioner filed a writ petition No.10007 of 1993 in this Court. THE said writ petition was dismissed on the ground that there was no post of class IV employee on which the petitioner could have been appointed. In other words, the appointment of the petitioner was done on a non-existent post. While dismissing the writ petition, it was provided that in case any vacancy in class IV occurs in future, it will be open to the petitioner to apply for the same and if such application is made, the same shall be considered sympathetically in accordance with law. Due to the retirement of one Shyam Lal on 31.12.1998, a vacancy of class IV post arose in the institution. THE petitioner applied for his appointment on the said post but was not selected and appointed, instead Teeju son of Shri Shiv Shankar, respondent no.5 herein, was appointed and selected. However, the said appointment of Shri Teeju was not approved by the District Inspector of Schools as he was appointed without prior approval. Consequently, the appointment of Shri Teeju stood cancelled for want of prior approval. THEreafter, the post was advertised in the month of January, 2005. In pursuance thereof, again the respondent no.5 was selected and was appointed. THE said appointment has been approved by the authority concerned and since then he is working on the said post continuously. It appears that the petitioner filed a second writ petition No.4636 of 2005 in this Court and claimed that his case was not considered and he should be appointed on the vacancy which arose on account of retirement of Shri Shyam Lal. THE said writ petition was disposed off by the Court directing the authority concerned to decide the representation of the petitioner. In pursuance thereof the representation of the petitioner has been decided against him by the impugned order. It has been found that the petitioner, as he claimed that he was appointed on 22.10.2001, was never appointed. It has been further found that a post which fell vacant on account of retirement of Shri Shyam Lal, has been filled up by the Principal of the institution with the approval of the Education Authorities and presently no post is lying vacant. Challenging the said order the present writ petition has been filed. THE learned counsel for the petitioner submits that the respondent no.5 has been wrongly appointed on the post in question, ignoring the claim of the petitioner. He submits that this Court in its judgment dated 20th January, 1994 has provided that in case any vacancy in class IV occurs in future, the petitioner shall be accommodated on the said post. Having not done so, the appointment of the respondent no.5 is bad. THE further submission is that the appointment of the respondent no.5 has been made without issuing any advertisement etc. THE learned counsel for the contesting respondents No.3,4 and 5 submits that the appointment of the respondent no.5 is not subject matter of the present writ petition, therefore, the question of validity of the said appointment cannot be gone into in the present writ petition. Further, he submits that the petitioner has no locus in the matter as his representation has already been dismissed and the respondent no.5 is working on the post in question since the year 2001. Considered the respective submissions of the learned counsel for the parties and perused the record. THE writ petition filed by the petitioner being writ petition No.10007 of 1993 was dismissed by this Court on 20th January, 1994. However, strong reliance was placed by the learned counsel for the petitioner on the following observations made therein:- "In case any vacancy in class IV occurs in future it will be open to the petitioner to apply for the same and if such an application is made the same shall be considered sympathetically in accordance with law." THE said observations should be read along with the attending facts and circumstances of the case. It is no longer in dispute that on the earlier occasion the appointment of the respondent no.5,Teeju, was found to be illegal for non compliance of the statutory provisions. A prior approval from the authority concerned was not obtained before offering the appointment to the respondent no.5. THEreafter, the vacancy was advertised in the month of January, 2005. THE petitioner did not apply in pursuance of the said advertisement and his case is that no such advertisement was issued. However, the authorities have came out with the case that the vacancy was advertised in the newspaper and the petitioner did not apply for the same. It is not necessary to dwell upon this issue any further as this Court is of the opinion that the observations made by this Court way back in the year 1994 already reproduced above does not confer any absolute right on the petitioner to claim appointment. Only this much was provided that if such an application is made by the petitioner, it shall be considered sympathetically in accordance with law. THE petitioner did not apply for any reason, after the post was advertised. Significantly, it may be noted that the respondent no.5 has been appointed on the post which fell vacant on account of retirement of Shri Shyam Lal, but till date the petitioner has not taken any steps to challenge the said appointment. THE respondent no.5 having been duly appointed and working on the said post for the last about eight years, the said appointment being not subject matter of the present writ petition, its legality cannot be examined. THE District Inspector of Schools in the impugned order has found that presently no class IV post is lying vacant in the institution. This being so, there is no merit in the present writ petition. THE petitioner throughout claimed that he was appointed in the institution in question. However, no such appointment was offered to the petitioner at any point of time as is evident from the letter issued by the Principal of the Institution, as such the District Inspector of Schools has done no wrong by passing the impugned order. At this distance of time, it would not be in the interest of justice to disturb the respondent no.5 who has been validly appointed in accordance with law with prior approval of the authority concerned. In the result, I find no merit in the writ petition. THE writ petition is dismissed. No order as to costs.