GAJENDRA SINGH Vs. JOINT DIRECTOR OF EDUCATION AGRA

JUDGEMENT

(1.) The petitioner claims to have been appointed on 14th September. 1995, in the post of Chowkidar in the Mahatma Gandhi Sniarak Inter College, Sonkh, district Mathura. According to him, instead of paying salary to him, one Kali Charan, respondent Ho. 6 has been purported to have been appointed and paid salary. There is a dispute with regard to the appointment of two persons. Mr. Ajay Bahnot. learned counsel for the petitioner, holding brief of Mr. Ashok Khare contends that only by a letter dated 25th September, 1995, the District Inspector of Schools, Mathura, had directed the Committee of Management to appoint Kali Charan under the Dying-in-Hamess Rules on account of death of Ramesh Chandra, Laboratory Assistant on 4th December, 1994, being father of Kali Charan. Therefore, there having been no vacancy and the vacancy having been filled up on 14th September, 1995. Kali Charan could not have been appointed pursuant to the letter dated 25th September, 1995. According to him. by the letter dated 20th October. 1995, the Deputy Director, Agra, had directed the District. Inspector of Schools to cancel the appointment of Kali Charan in Mahatma Gandhi Smarak Inter College. Mathura and adjust him in Janta Vidyalaya Inter College, Magora, Mathura and to appoint the petitioner in the Mahatma Gandhi Smarak Inter College and pay him salary. According to him, the letter of appointment was issued to Kali Charan on 27th October, 1995, namely, after the receipt of the said direction from the Deputy Director. According to him. the District Inspector of Schools being sub- ordlnate to Deputy Director, could not have issued the order of appointment. Therefore, this writ petition should be allowed.

(2.) Mr. R. K. Saxena, learned standing counsel on the other hand contends that the question of appointment of Kali Charan under the Dying-in-Harness Rules was initiated long before the advertisement was Issued by the Principal for appointment of the petitioner. Inasmuch as the death of Ramesh Chandra had occurred on 4th December. 1994. Smt. Kiran Devi. the widow had submitted an affidavit before the District Inspector of Schools on 15th April, 1995. indicating that Kali Charan the only son of the deceased Ramesh Chandra be given appointment under the Dying-in-Harness Rules, which is Annexure-CA-2 filed on behalf of respondent No. 6. The Principal had Issued the advertisement for appointment on 22nd June. 1995. namely, after the initiation of the process for appointment of Kali Charan under the Dying-in-Harness Rules. Such appointment can be made In Class IV post only with the approval of the District Inspector of Schools. The Principal could not have issued the advertisement without waiting for the approval of the District Inspector of Schools in the matter of Dying-in-Harness Rules since under process. It is the Principal who had created the deadlock, which he ought not have done. It seems that just 11 days before the order of appointment of Kail Charan was Issued by the District Inspector of Schools, the appointment of petitioner was given by the Principal without obtaining the approval of the District Inspector of Schools. Mr. Saxena, however, contends that such appointment has to be made with prior approval of the District Inspector of Schools. According to him alternatively even if prior approval was not obtained by the District Inspector of Schools for the appointment of the petitioner, when the question of appointment under Dylng-in-Harness Rules was under consideration, the Principal could not have appointed the petitioner during continuance of consideration of such appointment. Therefore, according to him, the writ petition should be dismissed.

(3.) 1 have heard both the learned counsel at length.