Court No. - 18 Case :- WRIT - A No. - 1482 of 1992 Petitioner :- Kushal Pal Singh Respondent :- D.I.O.S & Others Petitioner Counsel :- Pradeep Chandra,B.N.Singh Respondent Counsel :- S.C. Hon'ble Sudhir Agarwal,J.
Heard Sri H.N.Singh, counsel for the petitioner and perused the record.
The petitioner seeks a writ of mandamus commanding the respondents for
paying salary to the petitioner to the post of lecturer in Sheodan Singh Inter
College, Iglas, Aligarh (hereinafter referred to as the ‘College’).
From the record it appears that one Kishan Singh Verma lecturer proceeded
on long leave from 14.8.88 to 13.8.89 and in the said leave vacancy the
petitioner was appointed by the respondent no.2 vide order dated 26.4.1989.
The said appointment is said to have been approved by the District Inspector
of Schools for the period up to 20.5.1989. In the meantime Kishan Singh
Verma resigned on 12.5.1989 and the said vacancy became substantive. There
is nothing on record to show that after the vacancy became substantive the
petitioner’s appointment in the college from 1989 was made validly. Instead
of making adhoc appointment in accordance with First Removal of
Difficulties Order, 1981 (hereinafter referred to as the ‘First Order’) the
Management allowed the petitioner to continue. Since the salary was not paid
the present writ petition was filed .
A Division Bench of this Court in the case of Surendra Kumar Srivastava
Vs. State of U.P. and others, Special Appeal No. 825 of 2004 decided on
25.8.2006, has already considered the question as to whether an adhoc
appointee appointed against the short term vacancy can be allowed to
continue after the vacancy become substantive. When the vacancy become
substantive, the procedure laid down under the First Order has to be followed
and the incumbent who has not been appointed in accordance with the said
procedure laid down has no right either to continue or to hold the post or to
get salary. In the case in hand there is nothing on record to show that on the
vacancy becoming substantive, appointment of the petitioner was made in
accordance with the procedure laid down under First Order. Even earlier the
procedure for adhoc appointment against short term vacancy as laid down in
Uttar Pradesh Secondary Education Services Commission (Removal of
Difficulties) (Second) Order, 1981 (hereinafter referred to as “Second Order”
has not been followed and nothing is on record to fortify it. The D.I.O.S.
granted approval without looking into this aspect of the matter. It appears that
the Management on its own appointed the petitioner on 4.8.1988 itself and
thereafter informed the D.I.O.S. on 12.11.88 about the said appointment. The
then D.I.O.S. without considering the question as to whether the said
appointment was made in accordance with the procedure laid down under the
relevant Removal of Difficulties Order, passed order dated 17.8.89 permitting
payment of salary to the petitioner for the period from 14.8.88 to 20.5.89. At
no point of time the question of validity of the appointment of the petitioner
has been examined by the Educational Authorities and it appears that in
collusion with the educational authorities, the petitioner was allowed to
continue taking advantage of the illegal appointment order of the
management. The D.I.O.S. was directed by the order dated 10.1.1992 for
making payment of salary by this Court or show cause but the respondents
educational authorities instead of showing cause as directed by this Court
started payment of salary to the petitioner and thereafter filed counter affidavit
wherein it is said that the appointment was not made in accordance with law.
This also shows nexus between the petitioner and the then D.I.O.S. Where an
appointment has been made without following the procedure prescribed under
the Removal of Difficulties, the Apex Court in Prabhat Kumar Sharma and
others Vs. State of U.P. and others, A.I.R. 1996 S.C. 2638 has held that such
incumbent has no right to hold the post or receive salary since the very
appointment is void abinitio. I, therefore, do not find any merit in the writ
petition. Dismissed.
Interim order, if any, stands vacated.
Order Date :- 6.1.2010
Sh