Gur Prasad vs Distt.Inspector of Schools, Lucknow and another

K.L. Sharma, J.—This writ petition has been filed by the petitioner under Article 226 of the Constitution of India for issue of a writ of mandamus commanding the opposite parties to make the payment of his salary regularly with effect from 2181990 on which date he joined the post of Orderly Peon appointed by the opposite party No. 2.

According to the averments in the writ petition, one Sri Ram Bharosey Kumhar, the father of the petitioner retired from service on 171990 as Orderly Peon of the opposite party No. 2, who intimated the vacancy to the District Inspector of Schools, Lucknow, the opposite party No. 2, on 781990 and issued notice for inviting the applications. The petitioner also applied for the post and appeared in the interview held on 2081990. He was appointed on the said post and he joined his service on 2181990 and started performing his duties. But the District Inspector of Schools did not accord approval to his appointment and directed the Principal to appoint one Sri Krishna Misra, a dependent of a deceased employee of another institution. The opposite party No. 2 did not agree to appoint Sri Krishna Misra as directed by the District Inspector of Schools. The petitioner has not been paid his salary with effect from 2181990 on which date he joined the duty. The management of the College has been regularly submitting salary Bill of the petitioner also along with the salary Bills of other employees of the institution but the District Inspector of Schools has not passed the salary bill of the petitioner for payment which caused financial hardships to the petitioner. Hence, this writ petition has been filed.

A counter affidavit has been filed by the opposite party No. 1. It has been stated that the appointment of the petitioner has been made illegally and irregularly without proper advertisement in news papers and selection and, therefore, the petitioner is not entitled to continue on the post and receive salary as Orderly Peon. It has been further stated that the Principal of the College was directed to appoint Sri Krishna Misra, a dependent of a deceased employee by letter dated 2381990 but instead of appointing the dependent Sri Krishna Misra, the Principal has made an irregular and illegal appointment of the petitioner and, therefore, the approval for disbursement of salary has been withheld. It has also been stated that the opposite party No. 2 has contravened the Government Order relating to the appointment of dependent of the deceased employee and has not obtained approval of the opposite party No. 1 for the appointment of the petitioner.

The opposite party No. 2 has also filed his counter affidavit stating that the power to make appointment to classIV post in the College is vested in the Principal and, there is no provision for publishing the notice in the newspapers but by issuing a notice he invited applications from eligible candidates and fixed the date of interview on which date the candidates have appeared and as a result of selection, the petitioner was appointed on the post of Orderly Peon by the Principal. It has also been stated that the vacancy caused by the retirement of the father of the petitioner, was duly intimated to the District Inspector of Schools on 781990 and the procedure for appointment was started but before the appointment was made and the petitioner joined his post, no instruction was received from the District Inspector of Schools and it was only subsequent to the appointment having been made that he received the direction of the District Inspector of Schools for appointment of Sri Krishna, a dependent of a deceased employee of another institution, and as such, a reply was sent to the District Inspector of Schools that the appointment of Sri Krishna, was not possible. It has been stated that the District Inspector of Schools is bound to approve the salary bill of the employees duly appointed against sanctioned post and no approval is necessary in the matter of appointment of a classIV employee but the District Inspector of Schools has illegally withheld the approval of the salary bills of the petitioner for the period of duty with effect from 2181990.

I have heard the learned counsel for the petitioner, Sri Harguru Charan and the learned standing counsel, for the opposite parties and perused the record.

The learned counsel for the petitioner has submitted that the power of the Principal of the Intermediate College to make appointment to a classIV post duly sanctioned and substantively falling vacant, is vested in the Principal of the Intermediate College and the appointment so made, does not require prior approval of the District Inspector of Schools. The learned counsel for the opposite parties has not disputed this proposition but has pointed out that the principal has not acted in accordance with the Government Order dated 2391981, whereby a provision for appointment of a dependent of a deceased employee has been made. According to him, the District Inspector of Schools, on receiving an intimation of the vacancy of Orderly Peon in the College of the opposite party No. 2, sent a letter on 23890 directing the Principal to appoint one Sri Krisnna, a dependent of a deceased employee but instead of complying with the Government Order and the direction of the District Inspector of Schools, the Principal hurriedly made the appointment of the petitioner on the back date in irregular manner without proper advertisement in the newspapers and without following the procedure of selection.

The learned counsel for the petitioner submitted that under the U.P. Intermediate Education Act, rules and regulations framed thereunder, no procedure for recruitment to classIV post has been prescribed. It is, therefore, not correct to say that the advertisement of the post was required to be published in the newspapers. However, the Principal put up a notice on the notice board of the college on 181990 inviting the general public to apply for the vacancy of the peon fixing the last date for submitting applications as 1881990 and 2081990 as the date for interview. A photocopy of the notice duly signed by the Principal, has been filed as annexure1 to the writ petition. This notice pasted on the notice board of the college, is sufficient information to the public. The interviews were held on the fixed date 2081990. The petitioner was selected. He was given appointment on 2181990 which was received by the petitioner on 2181990 at 9:00 a.m. vide annexure2 to the writ petition. The petitioner has asserted in the writ petition that he joined his duties on 2181990. This fact has been certified by the Principal of the College in his counter affidavit filed before this Court and by the contents of the letter dated 2481990 sent by the Principal to the District Inspector of Schools vide annexure3 as well as by the Manager in his letter dated 2791990 to the District Inspector of Schools vide annexure4 to the writ petition. Therefore, it can not be disputed that the petitioner actually joined his appointment on 2181990 at 9:00 a.m. It has been asserted that he has been discharging his duties since then. This fact has not been disputed by the District Inspector of Schools in the counter affidavit filed on his behalf.

The District Inspector of Schools admittedly received the intimation of vacancy sent by the Principal of the College on 781990. The District Inspector of Schools issued direction 10 the Principal on 2281990 vide annexureC1 to the counter affidavit directing the Principal to appoint one Sri Krishna Misra, son of Smt. Shivkali, classIV employee in Krishna Devi Inter College, Lucknow, who died in harness. In reply to this letter of the opposite party No. 1, the Principal sent a letter on 3,81990 vide annexureC2 to the counter affidavit that the appointment has been made by following the procedure and it was not possible to appoint one Sri Krishna, a dependent of a deceased employee in the post of Sri Ram Bharosey, the Orderly Peon, who superannuated. It is thus, obvious that the appointment of the petitioner had been made prior to the receipt of the direction of the District Inspector of Schools and the petitioner had also started working on the post of Orderly Peon to the Principal. The Direction given by the District Inspector of Schools subsequent to the appointment of the petitioner, becomes inoperative and it was not necessary for the Principal to follow the same after he had become functus officio as the vacancy did not exist any longer.

The learned counsel for the opposite party No. 1 has strenuously argued that the Government Order dated 2391981 vide AnnexureC3 to the counter affidavit has made mandatory provision for appointment of the dependent of a deceased employee and the Principal of the Intermediate College was bound to follow the Government Order. I do not find substance in this contention as it appears on perusal of the said Government Order that it is obligatory for the Principal to appoint a dependent of the deceased employee of the same institution who dies in harness but is not obligatory for him to appoint the dependent of a deceased employee of another institution. The Government Order itself conceives of such a situation and provides that if it is not possible for want of vacancy to appoint the dependent of a deceased employee in the same institution, then the appointment can be made in the vacancy available in any other institution. The District Inspector of Schools could ask the Principal of another institution to make the appointment of a dependent of a deceased employee of another institution but such a direction could not be complied with when the vacancy had already been filled up before receiving the direction. In such a situation, the Principal, the opposite party No. 2 has not committed breach either of the Government Order or of the direction of the District Inspector of Schools. Therefore, the appointment of the petitioner by the Principal can not be questioned by the District Inspector of Schools.

The learned counsel for the petitioner further submitted that the appointment of classIV employee made by the Principal, does not require any approval of the District Inspector of Schools either under the U.P. Intermediate Education Act or under the Salary Disbursement Act No.24 of 1971. This question has already been considered and answered in the cases of Om Prakash v. District Inspector of Schools 1982 UPLBEC 232 and Mool Chand Maurya v. District Inspector of Schools 1990 Allahabad Civil Judgment 747. He further submitted that if an appointment of an employee or teacher has been made in accordance with the provisions of Law by the Competent Authority on a duly sanctioned post in which a substantive vacancy has occurred, the District Inspector of Schools can not have any objection to the disbursement of the salary to the appointee. But in the present case, the District Inspector of Schools got annoyed with the Principal who did not oblige him by making the appointment of one Sri Krishna Misra, and has illegally withheld the payment of the salary of the petitioner for more than three years without feeling pinch of the agony which the petitioner has suffered for no fault of his own. I find substance in the submission of the learned counsel for the petitioner.

However, the learned standing counsel, for the opposite parties urged that under the U.P. Act No. 24 of 1971 relating to the disbursement of salaries, the approval of the District Inspector of Schools was necessary. This does not carry conviction. What is necessary is that the salary bills of the regular appointees against the sanctioned strength, will require approval of the District Inspector of Schools before the disbursement of salary. In the present case, the petitioner had been regularly appointed by the Competent Authority on a sanctioned post in a substantive vacancy. There was nothing else requiring the District Inspector of Schools to see for according his approval for the payment of salary to the petitioner. The withholding of the approval for the salary bills by the District Inspector of Schools is wholly illegal and unjustified. The District Inspector of Schools does not have unbridled power to withhold approval for passing the salary bills of the regularly appointed teachers and employees against the sanctioned posts. He can only see that the provisions relating to the disbursement of salary are complied with before these bills are passed actually by him. Nothing else has been pointed out in the counter affidavit filed on behalf of the District Inspector of Schools that the salary bills of the petitioner contained any mistake or other infirmity. I, therefore, do not find any substance in the arguments raised by the learned counsel for the opposite party No. 1.

In the result, I come to the conclusion that the petitioner''s appointment has been legally made by the Competent Authority namely, the opposite party No. 2 and the appointment did not require prior approval of the District Inspector of Schools and there is no contravention of Government Order relating to the appointment of the dependent of a deceased employee dying in harness. In the circumstances of this case, the withholding of approval of the salary bills of the petitioner by the opposite party No. 1 was wholly illegal and unjustified. The petitioner has been performing his duties on the post of Orderly Peon to the Principal with effect from 2181990 as certified by the Principal. He is entitled to the arrears of salary up to date and also monthly salary regularly in future on due dates. There has not been any default on the part of the petitioner whereas, the whole fault for the grievance of the petitioner lies with the opposite party No. 1. Therefore, it is a fit case in which cost of Rs. 2,500/ should be awarded against the opposite party No. 1. I Further hold that the petitioner is also entitled to interest at the rate of 12% per annum on the arrears of salary from the due dates till the date of actual payment for the reason that the salary payable under Law to the petitioner has been illegally withheld by the opposite party No. 1. However, it is open to the Government to fix up the liability of the opposite party No. 1 for the payment of costs and interest or bear it itself.

For the aforesaid reasons and findings, the writ petition is hereby allowed with costs assessed at Rs. 2,500/ payable by the opposite party No. 1 to the petitioner. A writ of mandamus is hereby issued commanding the opposite party No. 1 to disburse the arrears of salary due to the petitioner with effect from 2181990 on the post of Orderly Peon to the Principal along with interest calculated at the rate of 12% per annum with effect from the due date of actual payment and to pay him in future the monthly salary regularly on due date on receipt of necessary salary bills from the opposite party No. 2. The opposite party No. 1 is further directed to pay the amount of costs, arrears of salary up to October, 1993 along with interest to the petitioner within six weeks from the date of receipt of the certified copy of this judgment.