Ashwani Kumar Vs State of U.P.Thur.Secy.Basic Education Lucknow and Ors.

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Neutral Citation No. - 2024:AHC-LKO:39298-DB

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Chief Justice's Court

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Case :- SPECIAL APPEAL No. - 77 of 2021

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Appellant :- Ashwani Kumar Respondent :- State Of U.P.Thur.Secy.Basic Education Lucknow And Ors. Counsel for Appellant :- Krishna Madhav Shukla Counsel for Respondent :- C.S.C.,Neeraj Chaurasiya

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Hon'ble Arun Bhansali,Chief Justice Hon'ble Jaspreet Singh,J.

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This appeal is against the order dated 25.01.2021 passed by learned Single Judge in Writ Petition No.875 (S/S) of 2008, whereby the writ petition filed by the petitioner had been dismissed. The petitioner filed the writ petition seeking direction for the respondents to make payment of salary for the post of clerk and continue to pay the same regularly each month. Further direction was sought for payment of salary w.e.f. 12.09.2007 with interest.

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The submissions made in the petition are that a vacancy came into existence on the post of clerk due to resignation of one Vishal Kumar Srivastava at Girija Laghy Madhyamik Vidyalaya, Tanda, District Ambedkar Nagar. The school issued advertisement inviting applications to make appointment on the said post. The petitioner applied and was selected. The papers were submitted before the District Basic Education Officer for grant of approval to the said selection and appointment, but no order was passed by the District Basic Education Officer with regard to approval or disapproval and, thereafter order of appointment was issued on 16.09.2007. Though the petitioner continued to work with the Institution but salary was not paid to him. Based on the said submissions, the prayer was made to make payment of salary.

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Response was filed by the State, inter-alia , indicating that as the appointment of the petitioner was not valid on account of the fact that resignation purportedly tendered by Vishal Kumar Srivastava was not approved by the District Basic Education Officer, thus there was no vacancy and once there was no vacancy, the petitioner could not have been appointed and consequently the petitioner was not entitled to any salary.

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Learned Single Judge by the order impugned came to the conclusion that in absence of approval by the District Basic Education Officer, there was no vacancy in existence in the Institution and, therefore, no direction can be

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issued for payment of salary from the State Exchequer. It was further observed that the petitioner can seek payment from the Committee of Management from the resources available to them and consequently dismissed the petition.

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Learned counsel for the appellant made submissions that the petition has been dismissed with reference to provisions of Rule 21 of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group 'D' Employees) Rules, 1984 (for short, the Rules of 1984), which provision has no applicability to a case where resignation has been given and, therefore, the determination made based on the said Rules deserves to be set aside.

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Learned counsel for the respondents attempted to support the order impugned with submissions that there is no approval granted by the District Basic Education Officer and as such the order impugned passed by the learned Single Judge does not call for any interference.

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We have considered the submissions made by learned counsel for the parties and have also perused the material available on record.

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The facts are not disputed wherein one Vishal Kumar Srivastava had tendered his resignation. This aspect is reflected from the minutes of the Committee of Management filed as Annexure No.1 to the writ petition which was accepted by the Committee of Management which admittedly is the appointing authority of Vishal Kumar Srivastava.

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So far as the requirement of seeking approval of the District Basic Education Officer is concerned, the relevant provisions in this regard, interalia, reads as under:-

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" 21. Termination of service. -No Clerk or Group 'D' employee of a recognised school may be discharged or removed or dismissed from service or reduced in rank or subjected to any diminution in emoluments or served with notice of termination of service except with the prior approval in writing of the District Basic Education Officer."

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A bare perusal of the said Rule would reveal that the same relates to discharge, removal and dismissal or reduction in rank in service and it has nothing to do with the resignation by an employee.

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In that view of the matter, the reliance placed on the said Rule for the purpose of coming to the conclusion that there was no vacancy for which the

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appellant could be regularly appointed and consequently was not entitled to salary cannot be countenanced.

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Consequently, the appeal is allowed . The order dated 25.01.2021 passed by the learned Single Judge is set aside. The writ petition filed by the petitioner is allowed.

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The State-respondent No.3 is directed to accord approval for appointment of the petitioner with effect from the date he was appointed and make payment of the salary to the appellant. The above payment, would be subject to the fact that the petitioner is still continuing in employment of the respondent No.4 and a certificate is produced by the petitioner from the said Institution regarding non-payment of salary for all this period. In case, the Institution has paid the salary to the petitioner, the same shall be reimbursed to the Institution by the respondent No.3. Needful would be done within a period of six weeks from the date of this order.

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Order Date :- 23.05.2024 Rakesh/-

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(Jaspreet Singh, J.) (Arun Bhansali, CJ.)

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Digitally signed by :- RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench

Ashwani Kumar v. State of U.P.Thur.Secy.Basic Education Lucknow and Ors.

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Ashwani Kumar v. State of U.P.Thur.Secy.Basic Education Lucknow and Ors.

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