Dismissed

Krishna Gopal v. State of U.P.through Secy.Education and 3 Ors.

Allahabad HC7 Aug 2023WRIA/126/2001

Case brief

AI extract

What is this about?

The court dismissed a writ petition filed by an Assistant Teacher seeking salary payment and regularization. The appointment was made de hors the Act and Rules by the Committee of Management, which lacked jurisdiction after removal of difficulties orders were rescinded.

What did the court decide?

Writ petition dismissed; petitioner not entitled to salary or regularization.

Krishna Gopal Vs State of U.P.through… — Service and Employment | Allahabad HC (2023)

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Court No. - 5

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Case :- WRIT - A No. - 126 of 2001

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Petitioner :- Krishna Gopal Respondent :- State Of U.P.Through Secy.Education And 3 Ors.

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Counsel for Petitioner :- H.G.S.Parihar,Ajay Upadhyaya,Ashutosh Shahi,Pawan Kumar Pandey,Pradeep Kumar Singh,Ravindra Kumar Singh Counsel for Respondent :- C.S.C.

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Hon'ble Irshad Ali,J.

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Heard Shri Pawan Kumar Pandey, learned counsel for the petitioner and R.S. Tomar, learned Standing Counsel for the respondents-State.

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By means of the present writ petition, the petitioner has prayed for the following reliefs:

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(i) issue a writ, order or direction in the nature of mandamus commanding the respondents to make payment of salary to the petitioner regularly each and every month to the post of Assistant Teacher in L.T. Grade including arrears with effect from 21.11.2000;

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(ii) issue a writ, order or direction in the nature of mandamus commanding the respondents not to interfere in functioning of petitioner till regularly selected candidate by the selection board is made available.

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(iii) issue a writ, order or direction in the appropriate nature and manner declaring the section 18 and section 33 E of the U.P. Secondary Education Service Selection Board Act, 1982 as ultra virus;

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(iv) issue any other writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case; and;

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(v) costs of the petition be awarded to the petitioner.

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Factual matrix of the case is that the vacancy came into existence on 11.6.1999 due to death of Sri Bhagauti Prasad Tripathi, Assistant Teacher in L.T. Grade. A requisition was sent to U.P. Secondary Education Service Selection Board Act for making regular selection. When no selection was made, the Committee of Management sent a letter to the District Inspector

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of Schools, Gonda seeking prior approval for appointment on the said post.

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Again, a letter was sent to D.I.O.S. on 9.11.2000 seeking approval for the appointment and a reminder letter was sent on 12.11.2000 in this regard. Appointment letter was issued to the petitioner appointing him on the said post on 18.11.2000 and in pursuance thereof, the petitioner joined the post on 21.11.2000. The papers were sent to the District Inspector of Schools for the grant of approval for disbursement of salary to the petitioner, but no order of approval or disapproval was passed by the District Inspector of Schools. The petitioner continued to discharge his duties on the post of Assistant Teacher, L.T. grade, but the salary was not paid.

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The petitioner met personally to the District Inspector of Schools regarding financial concurrence, but on the ground that since removal of difficulties orders have been rescinded and further Section 18 of the Act has been amended, the Management has no power to make appointment and salary to the petitioner cannot be paid.

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Learned counsel for the petitioner has submitted that the appointment of the petitioner has been made by the Committee of Management in exercise of power under Sction 18 of the Act of 1982. The appointment of the petitioner was made by following the procedure prescribed under law. When payment of salary was not paid to the petitioner, the present writ petition was filed and vide order dated 10.1.2001, direction was issued to pay salary to the petitioner from January, 2001 till a regularly selected candidate joins the said post. Therefore, the submission of the learned counsel is that the petitioner is entitled for consideration of his regularization in exercise of power under 33-G.

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Learned counsel for the petitioner has submitted that the Committee of Management has been empowered to make ad hoc appointment in exercise of power under Section 18 of the Act, 1982, therefore, the petitioner is entitled for the payment of salary and for consideration of his claim for the regularization in exercise of power under Section 33-G.

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Learned counsel for the petitioner has next submitted that the District Inspector of Schools has forwarded the papers to the Chairman, Regional Level Selection Committee for consideration of claim of the petitioner for regularization/ for substantive appointment and the same is lying pending consideration, therefore, he submits that in case by disposing of the writ petition in terms of interim order a direction is issued to

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the Chairman, Regional Level Selection committee to pass appropriate order, justice would be met.

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Learned counsel for the petitioner has invited attention of this Court on the Division Bench's judgment rendered in the case of Dinesh Kumar Dwivedi v. State of U.P. and others (Writ Petition No.655 (SS) of 1999) connected along with other writ petitions and Special Leave to Appeal No.13023 of 2023 (State of U.P. and others v. Raghvendra Prasad Pandey and others) and on the said basis , he submits that his claim is liable to be considered in exercise of power under Section 33-G.

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On the other hand, Shri R.S. Tomari, learned Standing Counsel has submitted that the appointment of the petitioner has been made de hors the Rules. On 18.11.2000, the Committee of Management was not empowered to make ad hoc appointment in exercise of power under Section 18 of the Act, 1982. The copy of the advertisement and resolution of the Committee of Management have been annexed as Annexures 3 and 4 to the writ petition which do not disclose that under which provisions of law the Committee of Management proceeded to make appointment.

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Learned Standing Counsel has invited attention of this Court on the averments made in the writ petition and pointed out that outrightly, the petitioner was granted appointment on the post of Assistant Teacher, L.T. Grade and only four candidates appeared in the selection proceedings and the petitioner being placed at serial no.1 was granted appointment.

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Learned Standing Counsel has next submitted that in the entire writ petition, there is no whisper in regard to appointment that under which provisions of law, the appointment of the petitioner was made against substantive vacancy.

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Learned Standing Counsel has lastly submitted that the appointment of the petitioner has been made de hors the Act and Rules and there was no provision empowering the Committee of Management to make appointment in exercise of power under Section 18 of the Act.

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Having heard the rival submissions of learned counsel for the parties, I have perused the material on record.

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On its perusal, it is evident that the argument advanced by the learned counsel for the petitioner is that the appointment of the petitioner was made in absence of any provision to make ad hoc appointment on the post of Assistant Teacher in L.T. Grade. It has also been submitted that the removal of difficulties orders

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were rescinded on 25.1.1999 and the Committee of Management was ceased with the powers to make appointment, but meet out the hardship of the students the appointments were made. In this regard, it is stated that in case the appointment has been made de hors the Act and Rules, the petitioner is not entitled to get salary from the State Exchequer. It is the Committee of Management who is responsible for making appointment in exercise of no power, is responsible to ensure payment of salary to the petitioner.

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The judgment relied upon by the learned counsel for the petitioner Dinesh Kumar Dwivedi (supra) and Special Leave to Appeal No.13023 of 2023 (State of U.P. and others v. Raghvendra Prasad Pandey and others) are not attracted to the facts and circumstances of the case as the appointment of the petitioner has been made de hors the Act and Rules and no power of the Committee of Management was lying.

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As the appointment of the petitioner has been made by the authority who was having no jurisdiction to make appointment, therefore the writ petition fails and is accordingly dismissed .

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Order Date :- 7.8.2023 GK Sinha

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Digitally signed by :- GAUTAM KUMAR SINHA High Court of Judicature at Allahabad, Lucknow Bench

Krishna Gopal v. State of U.P.through Secy.Education and 3 Ors.

Case brief

What is this about?

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Krishna Gopal v. State of U.P.through Secy.Education and 3 Ors.

Case brief

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