Allowed

Suresh Kumar Yadav v. State of U.P. and 2 Others

Allahabad HC16 Mar 2018WRIA/7604/2018

Case brief

AI extract

What is this about?

This court allowed a writ petition where the petitioner challenged the disapproving order regarding his short-term appointment as an Assistant Teacher. The court held that a Government Order restricting such appointments to retired teachers was prospective only, not retrospective given the selection timeline.

What did the court decide?

Impugned order set aside; matter remitted to DIOS to pass appropriate order within three weeks.

Suresh Kumar Yadav Vs State of U.P. and 2… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 18

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Case :- WRIT - A No. - 7604 of 2018

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Petitioner :- Suresh Kumar Yadav Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- R. K. Singh Kaosik Counsel for Respondent :- C.S.C.

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Hon'ble Mahesh Chandra Tripathi,J.

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Heard Shri R.K. Singh Kaosik, learned counsel for the petitioner and learned Addl. Chief Standing Counsel for State respondents.

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In view of the order proposed to be passed, notices need not go to third respondent.

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The petitioner is before this Court assailing the order dated 09.02.2018 passed by second respondent i.e. District Inspector of Schools, Jaunpur (DIOS, Jaunpur), whereby the appointment of the petitioner under Section 16-E (11) of the U.P. Intermediate Education Act has been disapproved; and for a direction to second respondent to grant financial approval to the appointment of the petitioner on the post of Assistant Teacher in Subhash Inter College, Katwar, Jaunpur (in short "institution in question").

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This much is reflected from the record that four posts of Assistant Teachers were vacant in the institution in question. Once no selected candidates were sent by the U.P. Secondary Education Service Selection Board against the requisition sent by the Committee of Management, the Management has decided to exercise his powers under Section 16-E (11) of the Intermediate Education Act, 1921 (in short "the Act of 1921") to make short term appointment on the posts in question. The advertisement were made in two daily newspapers on 4.10.2017 and interview was held on 20.10.2017. The petitioner being qualified and having requisite qualification has been selected on the post of Assistant Teacher (Science). He was issued appointment letter on 23.10.2017 and he has joined his duties on 30.10.2017. The relevant papers were forwarded for financial approval to the DIOS, Jaunpur on 06.11.2017. Once no action has been taken, the petitioner had preferred Writ Petition No.59984 of 2017, which was disposed of along with connected matters on 12.01.2018 with following observations:-

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"............Pursuant to the aforesaid direction, Shri Vivek Rai, learned Addl. Chief Standing Counsel on the basis of instructions dated 09.01.2018 sent by the District Inspector of Schools, Jaunpur submits that in view of the notification/ Government Order dated 23rd October, 2017 only retired

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teachers can be appointed under Section 16-E (11), therefore, the reliance placed by the petitioner in Sushil Kumar Yadav & Anr. v. State of U.P. & Ors., Writ-A No.48244 of 2017 decided on 31st October, 2017 would not be applicable in the case of the petitioner and as such the claim of the petitioner cannot be considered.

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In response to the objections so raised by learned Addl. Chief Standing Counsel, Shri Prabhakar Awasthi, learned counsel for the petitioner states that the entire selection of the petitioner has been made strictly adhering to the provisions contained under Section 16E (11) of the Intermediate Education Act and the process has completed much prior to the issuance of the Government Order dated 23rd October, 2017. Even in case the said Government Order would be applicable, the same would be applicable with prospective date and as such the rightful claim of the petitioner cannot be negated and the direction is liable to be issued to the competent authority to redress the grievance of the petitioner as per law. It is further contended that entire selection is being made under the statutory provisions and the said provisions cannot be given go bye by way of Government Order.

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In the facts and circumstances of the case, all the writ petitions stand disposed of asking the District Inspector of Schools, Jaunpur to pass appropriate order in accordance with law but certainly after taking comment from the concerned Committee of Management. In case any clarification is required, he may very well ask from the Director of Education, Secondary, State of U.P. Lucknow. The entire exercise is to be done within two months from the date of production of certified copy of this order."

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Pursuant to the aforesaid direction, the claim of the petitioner has been considered and turned down by the impugned order.

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In this backdrop, learned counsel for the petitioner submits that in the aforementioned writ petition an objection has been raised by learned Addl. Chief Standing Counsel that in view of the notification/Government Order dated 26.10.2017 only retired teachers can be appointed under Section 16-E (11) of the Act of 1921 and as such the claim set up by the petitioner under Section 16-E (11) and in the light of the judgment dated 31.10.2017 in Sushil Kumar Yadav & Anr. v. State of U.P. & Ors., Writ-A No.48244 of 2017 would not be sustainable. Once the said objection has been made on the basis of instructions so received from the DIOS, Jaunpur dated 09.01.2018, the Court had proceeded to consider such objection and did not approve the objection that the Government Order dated 26.10.2017 has retrospective effect.

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In this backdrop, it is contended that in the present matter admittedly the management has proceeded to advertise the post in question on 04.10.2017. In response thereof the petitioner had applied and finally candidature of the petitioner had been found appropriate by the Selection Committee in its meeting held on 20.10.2017. The appointment letter was issued on

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23.10.2017 and he joined the institution on 30.10.2017. The relevant papers have also been sent to the DIOS for financial approval. Considering the entire facts and circumstances of the case the objection raised by learned Addl. Chief Standing Counsel has not been approved in the aforesaid writ petition and the matter was remitted back to DIOS to consider the matter and pass appropriate order in accordance with law.

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In this backdrop, learned counsel for the petitioner submits that once the aforesaid objection raised by learned Addl. Chief Standing Counsel has been disapproved, the impugned order passed by DIOS again relying on the Government Order dated 26.10.2017 and holding that the Government Order dated 26.10.2017 would be applicable in the case of the petitioner is unsustainable.

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Considering the facts and circumstances of the case, the Court finds that once the objection raised by learned Addl. Chief Standing Counsel has not been approved by this Court, the impugned order passed by the DIOS again relying on the Government Order dated 26.10.2017 is not sustainable. The Court is of the considered opinion that the Government Order dated 26.10.2017 has only prospective effect. In view of this, the order impugned cannot sustain and the same is accordingly set aside. The matter is remitted back to the DIOS concerned to look into the grievance of the petitioner and pass appropriate order in view of the observations made hereinabove within three weeks from the date of production of certified copy of this order.

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The writ petition is allowed accordingly.

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Order Date :- 16.3.2018 RKP

Suresh Kumar Yadav v. State of U.P. and 2 Others

Case brief

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Suresh Kumar Yadav v. State of U.P. and 2 Others

Case brief

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