Special Appeal allowed. Single Judge order dismissing writ petition reappointment dispute set aside to be remitted for fresh consideration after inviting counter affidavit.
Order dated 01.03.2012 set aside; Writ-A No.11522 of 2012 restored and listed for fresh consideration.
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Court No. - 29
Case :- SPECIAL APPEAL No. - 838 of 2012
Appellant :- Dheeraj Kumar Gautam Class Iv Chowkidar Respondent :- State of U.P. and Others Counsel for Appellant :- Vijay Gautam,Rohit Singh,Suresh Chandra Yadav,Vivek Mishra Counsel for Respondent :- C.S.C.
Hon'ble Manoj Misra,J. Hon'ble Vikas Budhwar,J.
We have heard Sri C.K. Parikh, assisted by Sri Vivek Mishra, for the appellant; learned Standing Counsel for the respondents 1 to 4; and have perused the record.
Considering the nature of the order that we propose to pass, we do not deem it necessary to issue notice to the fifth respondent.
This intra court appeal is against the judgment and order of the learned Single Judge dated 01.03.2012 by which Writ-A No.11522 of 2012 filed by the appellant has been dismissed, at the fresh stage itself.
The appellant in Writ-A No.11522 of 2012 had pleaded that on 30.10.2006 he was appointed as a Class-IV employee by the Principal of the Institution, which was governed by the provisions of U.P. Intermediate Education Act, 1921 (1921 Act) and the Regulations framed thereunder. The appointment was made subject to the approval of the District Inspector of Schools as required by Regulation 101 of Chapter III of the Regulations under the 1921 Act. It was pleaded that the papers concerning selection and appointment were forwarded to the District Inspector of Schools who, vide letter dated 11.12.2006, accorded approval to the appointment.
The grievance of the writ petitioner (i.e. appellant herein) was that after approval he had been continuously serving the institution but no salary was paid. Consequently, the writ petition i.e. Writ-A No.11522 of 2012 was filed for a direction upon the respondents to permit the writ petitioner to work as a Class-IV employee in the institution and pay salary regularly as payable to a Class-IV employee as also the arrears payable since the date of the appointment.
The learned Single Judge dismissed the writ petition on the ground that since the appointment letter was issued prior to the approval of the Inspector, the said appointment was void as approval is required prior to issuance of letter of appointment as
per Regulation 101 of Chapter III of the Regulations under 1921 Act. The learned Single Judge placed reliance on a Division Bench decision in Jagdish Singh Vs. State of U.P. and others, (2006) 3 ESC 2055 (All) (DB) .
The contention of the learned counsel for the appellant is that assuming that under the then existing provisions of Regulation 101 of Chapter III of the Regulations framed under the 1921 Act a prior approval was required but in any case once approval was granted the earlier appointment which was subject to approval, upon grant of approval, stood validated and thereafter, the Principal, who is the appointing authority, by taking work from the appellant ratified the appointment. In such a case the appointment would be from the date of the approval.
To address the above submission, the facts pleaded in the petition need to be verified on the basis of the response of the respondents in their counter affidavit. But, here, we notice that the writ petition was dismissed in limine without even inviting counter affidavit and the stand of the management or of the Principal including the State is not before us. In such circumstances, the matter would have to be remitted back to the Single Judge Bench to decide it afresh by giving opportunity to the opposite parties to submit their response.
For the reasons above, without expressing any opinion that the appointment claimed by the writ petitioner was accorded approval by the District Inspector of Schools, we deem it appropriate to set aside the order of the learned Single Judge dated 01.03.2012. The order dated 01.03.2012 is set aside. WritA No.11522 of 2012 shall be restored to its original number and listed on 05th December, 2022 before appropriate Single Judge Bench for fresh consideration.
The appeal stands allowed to the extent indicated above.
Order Date :- 18.11.2022 AKShukla/-
Digitally signed by ANIL KUMAR SHUKLA Date: 2022.11.19 16:44:08 IST Reason: Location: High Court of Judicature at Allahabad
1 issue framed by the court
Whether the appointment is void and needs to be set aside in absence of counter affidavit against the writ petition.
Colour shows how this judgement treated each authority
Jagdish Singh Vs. State of U.P.Explained¶11
Jagdish Singh Vs. State of U.P. and others, (2006) 3 ESC 2055 (All) (DB)
1 provisions across 1 enactments
Dheeraj Kumar Gautam
State of U.P.
Manoj Misra
Vikas Budhwar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
