Sri Hari Kishan Sharma vs DIOS and Others

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

Cause shown is sufficient. The restoration/recall application No. 62156 of 1999 is allowed. The order dated 9.8.1999 dismissing the writ petition in default is recalled. The writ petition is restored to its original number.

The adhoc appointment of the petitioner as Assistant Teacher in L.T. Grade was made on 6.11.1991 which was not approved by the District Inspector of Schools and hence the salary was not paid to the petitioner.

The Accounts Officer vide his order dated 27.5.1992 was of the view that since the appointment of the petitioner as adhoc assistant teacher in L.T. Grade was not approved by the District Inspector of Schools, therefore, he is not entitled for payment of salary.

Aggrieved by the said order dated 27.5.1992, the petitioner approached this Court under Article 226 of the Constitution of India by filing the present writ petition in which on 21.9.1997 the following ad interim order was passed:

One of the questions involved in this case is as to what is the effect of ban imposed by State Government regarding appointment of teachers and lecturers in the secondary schools. There is a decision of a learned Single Judge and the matter has now been referred to a Division Bench. Although counter and rejoinder affidavits have been exchanged but so long the Division Bench judgment does not come, this writ petition cannot be disposed of finally.

However, since the petitioner is working on the post in question, he is entitled to pay and allowances admissible to the post.

The respondents are accordingly directed to pay salary and allowances, as per rules, to the petitioner with effect from 1.9.1993 and onwards, however, the same shall be subject to the decision in this case. Arrears of salary will be payable after decision in this writ petition.

As regards other point that the appointment of petitioner is illegal in view of the fact that the same was made within two months from the date of sending requisition to the DIOS, the same is being left for consideration at the time of final hearing. It is made clear that the petitioner will not be entitled to raise the plea that since he has been paid salary, his appointment is valid.

List this case for final disposal after judgment by the Division Bench is delivered.

Pursuant to the aforesaid interim order dated 21.9.1993 the DIOS directed for payment of salary and accordingly the same was paid to the petitioner. Thereafter, the writ petition was dismissed as in fructuous by order dated 9.8.1999.

In the meantime Govt. Order was issued with regard to regularization of adhoc employees working on the post of Assistant Teacher in L.T. Grade whose appointments were made prior to 6.8.1993.

The contention of the learned Counsel for the petitioner is that since the petitioner was appointed prior to 6.8.1993 i.e. cut of date, therefore, he is entitled for regularization, but the case of the petitioner and similarly situated employees who were appointed on adhoc basis and had filed writ petition is not being considered by the authorities concerned.

Admittedly, more than ten years have passed since dismissal of the writ petition as in fructuous. It has come up for restoration after long period. The Court does not know what happened in between. In the circumstances, the amendment application filed by the petitioner for the relief to issue a writ of mandamus directing the respondents to consider the claim of the petitioner for regularization as Assistant Teacher L.T. Grade in accordance with the provisions of Section 33-C as added by U.P. Act No. 25 of 1998 forthwith with all the consequential benefits, is allowed.

Learned Standing Counsel submits that the petitioner has now remedy before the Committee of Management by filing representation under the provision of Section 33-C of the U.P. Act No. 25 of 1998 bringing all relevant facts with regard to his grievance of regularization.

For all the reasons stated above, without entering into the merits of the case, this petition is disposed of finally with the direction that if such representation is made by the petitioner through the Committee of Management to the DIOS, he shall decide the said representation by a reasoned order within a period of three months from the date of production of a certified copy of this order. It is further provided that in case the DIOS is of the opinion that services of the petitioner cannot be regularized in that event the Service Selection Board, shall initiate proceedings forthwith for filling up the post by duly selected candidates within a period of further three months.

The writ petition is disposed of as above.