Rakesh Babu Yadav vs State of U.P. and others

Rakesh Tiwari, J.—Heard learned Counsel for the parties and perused the record.

The Nagar Nigam Inter College Tajganj, District-Agra is a recognized institution under the U.P. Intermediate Education Act, 1921.

The claim of the petitioner is that by advertisement dated 6.7.1994 applications were invited for filling up the post of English Lecturer in the vacancy caused due to the death of Sri Badri Vishal Shrotriya working as English lecturer. The petitioner alleges to have been selected and appointed for short till filled up by a regularly selected candidate from the service Selection Board on the aforesaid post and joined his services on 6.8.1994.

Thereafter, the respondent No. 4/Principal of the college is said to have been sent a requisite paper and all the documents of the petitioner to the District Inspector of Schools, Agra on 20.8.1994 for filling up the substantive vacancy on which the petitioner claims to have been appointed, by duly selected candidate from the Commission.

The grievance of the petitioner is that though he is working continuously in the said institution but he is not being paid his salary and in this context he has prayed for the following relief;

issue a writ order or direction in the nature of mandamus commanding the respondent No. 2 to pay the salary to the petitioner regularly from the date of his joining in the institution as lecturer in English

Learned Standing Counsel as well as Sri Saheb Tiwari, appearing for the respondents No. 1, 2 and 3 respectively have filed counter affidavits in this case.

In the counter affidavit filed by learned Standing Counsel it has been stated that the petitioner was appointed against for a short period till regular selection is made by the Selection Board. In paragraph 6 of the said counter affidavit it has been stated that at the relevant point of time Badri Vishal Chhatriya lecturer in English was working as ad-hoc principal in the institution, but after his death, a substantive vacancy occurred in the institution. The Committee of Management was not empowered to make any appointment against the substantive vacancy. In as much as the power to the selection against substantive vacancy is vested with the Selection Board.

It is further stated that on occurrence of the substantive vacancy, a requisition was sent to the Selection Board and in pursuance thereof, the Board after selection sent the name of one Deepak Kumar in S.C. category for appointment as lecturer in English in the institution. After receiving the panel from the Selection Board, the DIOS vide his letter dated 31.5.2006 directed the Manager/Principal of the institution to allow the joining of the selected candidate namely Deepak Kumar on the substantive capacity on the aforesaid vacant post.

It is further stated in paragraph 6 of the counter affidavit that asper financial survey report, four post in lecturer grade were sanctioned, against which, three lecturers were working and the forth lecturer, namely, Ashok Kumar Verma was officiating as principal and had not been regularized on the said post; that as such he has a lien on the post of lecturer and for this reason there is no vacancy in the institution on which Deepak Kumar could be appointed.

The Standing Counsel has further relied upon averments made in paragraph 9 of the said counter affidavit wherein it has been stated that as the dispute of appointment of the petitioner is pending before the Court in the present writ petition, hence it is not possible to provide appointment to the selected candidate.

Sri Saheb Tiwari, appearing for the respondent No. 3 states that the petitioner was not appointed against short term vacancy, but he was being paid honorarium by the college for teaching the students and as such his claim for appointment and arrears of salary for working against a substantive vacancy is misconceived.

From the record it appears that there is no ad interim order in favour of the petitioner. It also appears from the record that appointment of the petitioner had not been approved as such any question of payment of salary for the post in question may be decided by the DIOS on a fresh representation made by the petitioner. In so far as appointment of Deepak Kumar is concerned, admittedly the appointment of the petitioner on honorarium was restricted till regular selection made by the Selection Board. Sri Deepak Kumar has already been selected and reported for joining on the substantive vacancy in which the petitioner claims to be working. Rights of Deepak Kumar as candidate selected by the Service Selection Board not disputed by the petitioner who only claims for payment of salary on a substantive vacancy are for work performed by him.

In the circumstances, Deepak Kumar who has been appointed in the substantive vacancy is entitled to get appointment and corresponding salary of the post of lecturer in English. As stated earlier the claim of the petitioner regarding his salary may be decided by the District Inspector of Schools on the representation already made taking into consideration whether such appointment of the petitioner on the post of lecturer in English had been approved or not and is he entitled any salary or only honorarium in the facts and circumstances of the case. The decision shall be taken by the DIOS on the fresh representation of the petitioner within a period of four months from the date of production of a certified copy of this order provided the petitioner submits a fresh representation to the DIOS within a period of one month from today.

The writ petition is disposed of as above.

No order as to costs.