Mohd. Ayub vs State of U.P. and others

V. K. Shukla, J.—In the District of Moradabad there is an institution known as Muslim Inter College, Thakurdwara. Said institution is duly recognized institution under the provision as contained in U.P. Act No. II of 1921 and the institution being in grant in aid list of the State of Government provision of U.P. Act No. 24 of 1971 are also fully applicable to the said institution. In the said institution one Budha Ali retired on 30.6.1998 from the post of Assistant Teacher (Urdu) C.T. Grade. As C.T. Grade declared as dying cadre, said post in question was treated as post of L.T. Grade in view of the Government Order issued in the year 1989. Managing Committee of the institution of 13.7.1998 sought permission from the District Inspector of Schools, Moradabad for making selection and appointment against the vacancy which came into existence due to retirement of Budha Ali and thereafter selection proceedings were undertaken and papers were transmitted to District Inspector of Schools for the purpose of according approval. Petitioner was issued appointment letter on 7.7.1999 and petitioner claims to have joined in the institution on 10.7.1999. Petitioner further claims that since then he has been continuously performing and discharging duties on the post of Assistant Teacher (Urdu) in the institution. As on the papers which has been submitted no action has been taken, petitioner filed Civil Misc. Writ Petition No. 5018 of 2000 wherein this Court on 4.2.2000 asked the authorities concerned that in case petitioner is duly selected and is working he shall be paid his salary. Thereafter petitioner filed contempt petition being Civil Misc. Contempt Petition No. 2287 of 2000 for compliance of the said order. Thereafter on other Civil Misc. Writ Petition No. 26977 of 2003 has been filed questioning the validity of selection proceedings undertaken qua other post. Both writ petitions have been heard finally and thereafter matter was finally decided on 13.1.2005 directing the District Inspector of Schools to consider the claim of the petitioner in regard to grant of approval within one month from the date of presentation of certified copy of this order. Thereafter order dated 6.7.2005 has been passed by the District Inspector of Schools holding therein that appointment of the petitioner is valid and directing payment of salary to the petitioner from the date of issuance of order i.e., 6.7.2005. Qua this part of the order petitioner has filed present writ petition.

Counteraffidavit has been filed contending therein that appointment of the petitioner has been made against nonsanctioned post as such view which has been taken is justifiable view.

Rejoinder affidavit has been filed disputing the averments mentioned in the counteraffidavit by contending that issue which has been sought to be collaterally raised has already been answered on earlier occasion as such view taken is unsustainable.

After pleadings mentioned above been exchanged, present writ petition has been taken up with the consent of the parties for final hearing and disposal.

Learned Counsel for the petitioner Sri Irshad Ali, contended with vehemence that once petitioner''s appointment has been held to be validly made against duly sanctioned post then there is no justification on the part of the District Inspector of Schools to deprive salary for he period for which petitioner has admittedly worked, as such order which directs payment of salary to the petitioner from the date of issuance of order is unsustainable.

Learned Standing Counsel on the other hand contended that payment of salary has been made form the date on which approval has been accorded as such no interference is required.

After respective arguments have been advanced factual position which is emerging in the present case is that one Budh Ali, Assistant Teacher (Urdu) retired on 30.6.1998. Against the said vacancy which Occurred petitioner''s appointment has been made. Earlier matter qua the petitioner traveled up to this Court and directives were given by the judgment and order passed by this Court reported in (2005) 1 UPLBEC 763, Mohd. Ayub v. District Inspector of Schools and others, concluding that appointment of the petitioner has been made against the vacancy which has fallen vacant on account of attaining the age of superannuation of Budh Ali and further it has been held that presumption which has been sought to be dawn was incorrect presumption. District Inspector of Schools on reconsideration of the matter found appointment of the petitioner valid. Once appointment of the petitioner has been found valid having been made strictly in accordance with law and this is not disputed that petitioner has been functioning then there is occasion for the District Inspector of Schools to direct payment of salary to the petitioner from the date of issuance of order.

In these circumstances order dated 6.7.2005 to the extent it directs payment of salary to the petitioner from the date of passing of the order i.e., 6.7.2005 is hereby modified to the extent that payment of salary to the petitioner is admissible from the date of discharging of duty by the petitioner as Assistant Teacher in L.T. Grade. Requisite steps be undertaken in this respect within next four months from the date of presentation of certified copy of this order.

With the above direction present writ petition is disposed of.