1. Heard learned counsel for the petitioner, Sri Anurag Kumar Maurya, learned Standing Counsel for the respondent nos.1 and 2 and Sri Neeraj Chaurasia, learned counsel for the respondent no.3.
2. By means of the present writ petition, the petitioner has prayed for issuance of a writ in the nature of Mandamus commanding the respondents to make payment of salary to the petitioner for the post of Clerk and continue to pay the same regularly each and every month. The petitioner has also prayed for issuance of a writ in the nature of Mandamus commanding the respondents to pay the arrears of salary w.e.f. 17.9.2007 with 12 % interest..
3. Grievance of the petitioner is that there is an institution in the name of Girija Laghu Madhyamik Vidyalaya, Tanda, District Ambedkar Nagar which is recognized under the provisions of U.P. Basic Education Act, 1972 and the provisions of U.P. Junior High Schools (Payment of Salaries of Teachers and Other Employees) Act, 1978 are applicable. Vacancy came into existence on the post of Clerk due to resignation of Sri Vishal Kumar Srivastava on 22.1.2007. The Committee of Management, in accordance with U.P. Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group 'D' Employees) Rules, 1984 (hereafter referred to as '1984 Rules'), issued advertisement inviting applications to make appointment on said post. The petitioner applied for and the Selection Committee constituted selected the petitioner on the post of Clerk. Papers were submitted before the District Basic Education Officer for the grant of approval to the selection and appointment of the petitioner, but no order was passed by the District Basic Education Officer in regard to approval or disapproval to the selection and appointment of the petitioner within 30 days as required under Rule 15 of the 1984 Rules. Thereafter, the petitioner was issued an appointment letter on 16.9.2007 and since then, he is working in the institution, but no salary has been paid to him.
4. Learned counsel for the petitioner submits that appointment of the petitioner has been made against the vacancy which came into existence due to resignation of Sri Vishal Kumar Srivastava on 22.1.2007. He next submits that by following the procedure prescribed under law, the petitioner was selected and appointed and papers in this regard were submitted before the District Basic Education Officer who did not approve or disapprove the proposal of the Committee of Management and in view of the deeming clause under Rule 15 of 1984 Rules, the selection and appointment of the petitioner has been deem approved and he is entitled for the payment of salary.
5. Per contra, Sri Neeraj Chaurasia, learned counsel for the respondent submits that the order of dismissal, removal or reduction in rank including resignation also requires prior approval of the District Basic Education Officer and then, the Committee of Management can proceed to accept the same and it is specific case and statement of fact in this regard has been made in paragraphs 3 and 5 of the supplementary counter affidavit that the order of resignation tendered by the Vishal Kumar Srivastava was not granted approval, thus his submission is that before approval of the order of resignation, the Committee of Management by accepting the resignation cannot proceed to make selection and appointment on the post which was not in existence.
6. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.
7. On perusal of the record, it is evident that there is no material evidence to establish that the order of resignation tendered by Sri Vishal Kumar Srivastava was approved by the District Basic Education Officer as required under Rule 21 of the 1984 Rules, therefore the action of the Committee of Management in making selection on the post of Clerk cannot be termed to be valid one. In absence of vacancy, the proceeding initiated for selection vitiates in law.
8. Considering the entire facts and circumstances of the case, this Court has no hesitation to hold that in absence of approval, there was no vacancy in existence in the institution as claimed by the petitioners, therefore no direction can be issued for the payment of salary from the State Exchequer. The selection and appointment of the petitioners has been made by the Committee of Management, thus the petitioners can claim payment of salary from the Committee of Management from the resources available to him.
9. In the result, this writ petition being misconceived is hereby dismissed.
Order Date :- 25.1.2021 GK Sinha