Court No. - 58
Case :- WRIT - A No. - 15908 of 2018 Petitioner :- Bhupesh Narayan Srivastava Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Chandra Bhan Gupta,Anand Srivastava Counsel for Respondent :- C.S.C.,Arun Kumar,Ashok Kumar Yadav
Hon'ble Ashwani Kumar Mishra,J.
This writ petition is directed against an order dated 3rd July, 2018, whereby petitioner has been repatriated to his substantive post of Assistant Teacher in Senior Basic School Purefaujshah, Block Bahariya, District Allahabad. The order records that petitioner was substantively appointed as an Assistant Teacher and was working as such. It appears that in the office of Basic Shiksha Parishad, Allahabad, two posts of Clerk were abolished and a temporary post of Computer Programmer was created for a fixed period i.e. upto 28.2.2012. Petitioner applied against such newly created post and was selected. Petitioner's engagement has been extended from time to time, although there was no specific order passed extending the post created vide Government Order dated 19th September, 2011. It appears that in an audit report certain objections have been raised questioning the petitioner's appointment, on the ground that petitioner was not possessing requisite qualification for the post. Petitioner appears to have submitted a reply, whereafter the order impugned has been passed. The order essentially is in two parts. It observes that petitioner was not possessing requisite qualification in terms of the advertisement for appointment, and secondly it observes that since the post of Computer Programmer has not been extended, therefore, it is not possible to extend the petitioner's continuance. Treating the petitioner's lien on the post of Assistant Teacher to be subsisting, he has been repatriated by the order impugned.
Sri P.N. Saxena, learned Senior Counsel assisted by Sri C.B. Gupta for the petitioner, submits that two substantive posts of clerk were abolished for creating the post of Computer Programmer and the authorities are not justified in holding that post of a Computer Programmer is no longer available. It is contended that recommendations had already been made to the State Government for extension of post, upon which no decision has been taken. It is also stated that petitioner possesses requisite qualification for appointment to the post and the authorities have not correctly examined the response of the petitioner. It is also stated that recommendations of selection committee could not have been adversely commented upon after such long lapse of time, particularly as the officer concerned was not an appellate authority, who could sit over the recommendation of the selection committee. It is also stated that no opportunity of hearing have been afforded to the petitioner.
The petition is opposed by learned Standing Counsel, Sri Arun Kumar and Sri A.K. Yadav for the respondents, by contending that the post created was itself temporary and the petitioner could not be allowed to continue in its absence. The order has been passed by the competent authority, who is also the appointing authority of the petitioner. Submission is that appointing authority can always take an independent decision with regard to qualification possessed by the petitioner in terms of the advertisement.
I have heard learned counsel for the parties and have perused the materials brought on record.
From the materials placed on record, this Court finds that the post of Computer Programmer has been created by Government Order dated 19th September, 2011, which clearly provides that newly created post is temporary, in the specified scale of pay, which is to continue upto 28.2.2012. It is admitted on record that such post has not been extended after 28.2.2012. Once the post itself is not in existence, the petitioner cannot be allowed to continue against a non-existent post. The question of petitioner possessing qualification etc. need not be commented upon, as it would be at best an academic issue. Since in the absence of post, no direction can otherwise be issued by a writ court to allow the petitioner to continue. The submission of denial of opportunity of hearing is also not liable to be sustained, inasmuch as the fact is not in issue that post for Computer Programmer has not been extended beyond 28.2.2012. The principles of useless formality theory enunciated by the Apex Court in Aligarh Muslim University Vs. Mansoor Ali, reported in (2000) 7 SCC 529, would clearly be attracted, in the facts of the present case. Petitioner is otherwise not prejudiced, inasmuch as his lien has been maintained, and he has been repatriated to his parent position. In such circumstances, no interference with the order impugned is called for.
Writ petition, accordingly, is dismissed.
Order Date :- 31.7.2018 Anil