Court No. - 36
Case :- WRIT - A No. - 14883 of 2021 Petitioner :- Anar Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Lokesh Kumar Dwivedi Counsel for Respondent :- C.S.C.
Hon'ble Saral Srivastava,J. Order on Order Sheet
Learned counsel for the petitioner prays and is permitted to implead Regional Approval Committee, Meerut Region Meerut though its Chairman as respondent no.6 in the array of respondents during the course of the day.
Order on writ petition
1. Heard Sri Lokesh Kumar Dwivedi, learned counsel for the petitioner and Sri R.S.Umrao, learned Standing Counsel for the respondents.
2. The petitioner, by means of the present writ petition, has assailed the order dated 17.08.2021 passed by Regional Approval Committee, rejecting the claim of the petitioner for payment of salary under U.P. High School and Intermediate Education Rules, 1984.
3. The case of the petitioner is that Adarsh Kisan Junior High School, Zahidpur, District Bulandshahr (hereinafter referred to as 'the School') is a recognized Institution since 23.10.1986 and has been taken on grant-in-aid on 02.12.2006 under the U.P. Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978. The respondent no.3 granted permission to respondent no.5 to advertise Class-IV posts and to complete the process of selection by letter dated 24.06.1987.
4. Pursuant to the aforesaid letter, an advertisement was notified in the newspaper on 09.06.1989 inviting application for Class- IV posts as well as other posts. The petitioner being eligible, submitted application for being considered for appointment on Class IV employee in the School, and the interview was held on 25.01.1991. The selection Committee found the petitioner suitable and, accordingly, recommended his name for appointment on the post of Chaukidar. The approval to the appointment of the petitioner was granted by the B.S.A., Bulandshahr by order dated 08.02.1991.
5. When the School was brought on grant-in-aid , the Manager of the School submitted return containing the names of all the employees of the School working on different posts, which included the name of the petitioner as Class-IV employee, but the salary of the petitioner was not released by the respondent no.2.
6. It appears that the claim of the petitioner was considered by the Assistant Director, Basic Education, Meerut Region, who vide order dated 13.12.2007 rejected the claim of the petitioner on the ground that as the petitioner was not appointed on a sanctioned post in view of Government Order dated 14.09.1990, the approval to his appointment could not have been granted, accordingly, his claim for payment of salary was rejected.
7. The petitioner challenging the order dated 13.12.2007, preferred a Writ-A No.6175 of 2011, which was allowed by this Court vide judgement and order dated 04.03.2020 holding that the reason for rejecting the claim of the petitioner is not sustainable and the Court remanded the matter to the competent authority to consider the claim of the petitioner afresh.
8. Pursuant to the judgement of this Court dated 04.03.2020, the Regional Approval Committee considered the claim of the petitioner and rejected his claim on 17.08.2021 on the sole ground that on the date of advertisement the petitioner had not completed 18 years of age and, thus, he was not eligible to be considered for appointment on the date of advertisement and as his appointment was not as per law, he is not entitled to get salary.
9. Challenging the aforesaid order, learned counsel for the petitioner has contended that it is evident from the order dated 13.12.2007 that the facts in the present case are undisputed that the advertisement was notified on 09.06.1989, interview was held on 25.01.1991 and approval to the appointment of the petitioner was granted 08.02.1991. He submits that the date of birth of the petitioner is 30.06.1972, therefore, on the date of interview, the petitioner had completed 18 years and thus, was eligible to appear in interview.
10. He further submits that the date of approval to the appointment of the petitioner is 08.02.1991, on which date also he had completed 18 years of age and, thus, the finding returned by the Regional Approval Committee that the petitioner on the date of advertisement was not 18 years of age, therefore, he was eligible for appointment, is illegal. He further submits that there is no allegation against the petitioner that he has obtained the appointment or approval to his appointment by fraud or misrepresentation and therefore, the objection taken by the Regional Approval Committee after lapse of 28 years from the date of approval to the appointment of the petitioner is misconceived and not sustainable in law.
11. He further contends that even otherwise the said objection by the Regional Approval Committee is frivolous and not sustainable in law, inasmuch as this fact was on record before the Assistant Director, Basic Education, Meerut Region while the order dated dated 13.12.2007, and he did not take any such objection and, therefore, the objection of the Regional Approval Committee on 17.08.2021 is misplaced and not sustainable in law.
12. The Court has proceeded to hear and decide the matter as the record reveals, more particularly, the order dated 13.12.2007 that the facts in the instant case are not disputed.
13. Learned Standing Counsel would contend that it is not in dispute that on the date of advertisement the petitioner had not completed 18 years of age and, therefore, he could not have applied for the appointment as Class-IV employee. He submits that, if on the date of advertisement, the petitioner was not eligible and did not possess the minimum eligibility criteria, he could not have submitted application for consideration for appointment, and accordingly, any proceeding based on the said application is non-est and has no legal sanctity in law.
14. Be that as it may, it is not in dispute that the advertisement was published on 09.06.1989 and interview was held on 25.01.1991 and approval to the appointment of the petitioner was granted on 08.02.1991. Since, the date of approval the petitioner is continuously working, the claim of the petitioner for salary was rejected by the order dated 13.12.2007 on the ground that the petitioner's appointment could not have been recognized as there was no vacancy, the said order was challenged by the petitioner in Writ-A No.6175 of 2011 which was allowed by the order dated 04.03.2020 and the matter was remanded to the competent authority to consider afresh.
15. The ground which has been taken by the Regional Approval Committee in its order dated 17.08.2021 for rejecting the claim of the petitioner was on record and was in existence on the date when the order dated 13.12.2007 was passed by the Assistant Director, Basic Education, Meerut Region, but no such ground was taken by him for rejecting the claim of the petitioner.
16. The order dated 13.12.2007 was set aside by this Court, and now the claim of the petitioner has been rejected only on the ground that on the date of advertisement the petitioner had not completed the 18 years of age, therefore, he could not submit application for being considered for appointment. This Court is of the opinion that the said objection would have been justified if it had been taken at the time of grant of approval to the appointment of the petitioner. There is no averments in the earlier order dated 13.12.2007 or in the impugned order dated 17.08.2021 that the approval to the appointment of the petitioner was obtained by him by fraud or misrepresentation.
17. As per the record, the petitioner is working since the date of his approval, and taking such an objection after about 28 years from the date of approval is not justified for the reason that t he petitioner on the basis of approval has joined the service and has continued since then, therefore, applying the principle of acquiescence, this ground is not open to the respondents to reject the claim of the petitioner, moreso, when there is no allegation that the approval was obtained by fraud or misrepresentation.
18. The matter can be viewed from another angle also that on the date of interview and approval, the petitioner was having the minimum age. Therefore, if on the date of advertisement, the petitioner did not complete the minimum age, the same can be treated as mere irregularity in the peculiar facts of the present case, and therefore, the reason assigned by the Regional Approval Committee is not sustainable for this reason also.
19. So far as the contentions of the learned counsel for the respondents are concerned, the same are not sustainable in law for the reason given in the impugned order.
20. Thus, for the reasons given above, the impugned order 17.08.2021 passed by Regional Approval Committee, is not sustainable in law and is set aside.
21. Since, the petitioner is contesting his claim of salary for the last about 16 years, therefore, considering this fact this Court is not inclined to remand the matter and accordingly, issue a writ of mandamus to the newly added respondent i.e., respondent no.6-Regional Approval Committee, Meerut Region Meerut to grant financial approval to the appointment of the petitioner and release the arrears as well as current salary of the petitioner within a period of four months from the date of production of a certified copy of this order.
22. However, respondents are at liberty to file a recall application, if this order has been obtained by the petitioner by concealing material facts.
Order Date :- 20.12.2021 NS Digitally signed by NITIN KUMAR Date: 2022.02.08 17:30:40 IST Reason:
Location: High Court of Judicature at Allahabad