Court No. - 40
Case :- SPECIAL APPEAL No. - 879 of 2018 Appellant :- Chandra Prakash Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Sanjay Kumar Dubey,Sri Radha Kant Ojha Counsel for Respondent :- C.S.C.,Rajeev Kumar Upadhyay
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Bachchoo Lal,J.
Heard Sri R.K. Ojha learned senior counsel for the appellant and Sri Rajeev Kumar Upadhaya learned counsel for the fifth respondent and learned Standing counsel for the respondent Nos.1, 2 and 3.
It is not necessary to issue notice to the respondent No.4 at this stage inasmuch as the impugned interim order under challenge has been passed in a writ petition where the respondent No.5 has been favoured with an order that stays the order of the DIOS dated 06.07.2018.
The controversy raised in short is that the learned Single Judge has virtually granted final relief at the interim stage itself and the passing of the interim order virtually negates the entire statutory provision which has not been taken into consideration while exercising discretion inasmuch as there is no concept of a short term vacancy to be filled up and approved by the educational authorities for payment of salary as against a class III post. Learned counsel for the appellant submits that the learned Single Judge has prima facie accepted the arguments on behalf of the respondent No.5 as if a short term vacancy is contemplated in law that can be made against a class three post in an Intermediate College governed by the provisions of the U.P. Intermediate Education Act, 1921, which does not appear to be correct. It is the submission of the learned counsel for the appellant that even assuming for the sake of arguments that such an appointment could have been made the same could have survived only up to the date of retirement of the permanent incumbent who was no one else than father of the respondent petitioner. It is urged that he retired on 31st August 2000 and consequently if the appointment of the respondent was to be saved, a fresh appointment could have been made after the retirement of Sri Ram Swaroop Sharma but not prior to that.
Learned counsel for the respondent submits that such an appointment could not be challenged after 18 years that too even by a person who himself has been promoted as an assistant clerk in the year 2012 from a Class IV employee. He, therefore, does not have any right to question the said appointment of the respondent petitioner, and now the respondent petitioner has been promoted as a head clerk of the Institution which post cannot be occupied or claimed by the appellant. It is submitted that in this background and on account of passage of time, there is no occasion for the appellant to have raised this plea or complaint before the Educational Authorities and consequently the order dated 06.07.2018 passed by the District Inspector of Schools was an authority exercised not in accordance with law. Learned counsel for the respondent therefore submits that the learned Single Judge has rightly intervened and passed the interim order against which the filing of the special appeal is impermissible.
It is correct that ordinarily, special appeals under Chapter VIII Rule 5 of the Allahabad High Court Rules 1952 are not entertained against interim orders and the matter is left to the discretion of the learned Single Judge to proceed with the matter in accordance with law. However in the present case the interim order runs in three pages and it also records prima facie findings in relation to the legal issues that have been advanced namely the nature of vacancy against which the respondent petitioner could have been appointed or could have been continued and his appointment could have been approved. The nature of the approval order also was required to be examined coupled with the plea of the respondent petitioner about laches.
In the present case what we find is that the recovery of salary has also been ordered by the District Inspector of Schools under his order dated 6th July, 2018. In the given circumstances and in order to adjust the equities on the principle of prima facie case, balance of convenience and irreparable injury we find that the learned Single Judge ought to have confined the interim order to the recovery of the salary which was sought to be made from the respondent petitioner. We therefore modify the interim order dated 13th August 2018 to the effect that no recovery shall be made from the respondent petitioner until further orders or final disposal of the writ petition.
The question of continuance and receiving salary by the respondent No.5 shall be subject to any further order to be passed by the learned Single Judge in this regard and we request the learned Single Judge to dispose of the writ petition if possible at the earliest expeditiously.
Disposed off subject to the above.
Order Date :- 18.9.2018 / saqlain