Court No. - 58
Case :- WRIT - A No. - 31415 of 2016 Petitioner :- Lal Bahadur Prasad Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Harish Chandra Singh,Anand Pal Singh Counsel for Respondent :- C.S.C.,Mukesh Kumar Singh
Hon'ble Ashwani Kumar Mishra,J.
Heard learned counsel for the petitioner, learned State Counsel for the State authorities and Sri Mukesh Kumar, learned counsel for the respondent no.5 Committee of Management.
This petition has been filed for a direction upon the respondents to regularize services of petitioner as he is working on the post of adhoc Lecturer since 26.8.1998.
At the very outset, a question was posed to the learned counsel for the petitioner as to where is the order of approval. Learned counsel for the petitioner states that petitioner's appointment has not been approved. The Court then proceeded to ask the learned counsel as to why petitioner has approached this Court after a long period when he claimed his appointment to be made in 1998. It is, at this stage, that learned counsel for the petitioner has placed before the Court an order of this Court dated 4.12.2002, passed in Writ Petition No.15768 of 2000 filed by the present petitioner. Order dated 4.12.2002 reads as under:-
"Heard Shri H.C. Singh, learned counsel for the petitioner and standing counsel for the respondents.
In Udit Narain Intermediate College, Padrauna, Kushingar one permanent post of Lecturer in Mathematics fell vacant. The Management recommended to the Commission/Board for making appointment. But it is claimed that after one year since no appointment was made by the Commission/Board the management appointed the petitioner on adhoc basis, after publishing an advertisement on 19.8.1998. In pursuance of the appointment letter dated 26.8.1998 the petitioner joined on 28.8.1998. The papers were sent by the management on 25.9.1998 for grant of financial approval but no order has been passed by the District Inspctor of Schools granting financial approval. It is well settled that against a permanent vacancy the management has no right to make short term appointment. Therefore, the management could not appoint the petitioner as Lecturer in Mathematics. Therefore, no direction can be issued to District Inspector of Schools to consider the matter for grant of financial approval to the petitioner's appointment.
However, since the committee of management has appointed the petitioner as Lecturer in Mathematics, therefore, it is open to the petitioner to file a suit for recovery of his salary from the committee of management, except from Goverment funds or from grant-in-aid.
Subject to the aforesaid observations made above, the writ petition is dismissed."
It is unfortunate to note that while filing this petition learned counsel for the petitioner has not cared to annex the order passed by this Court earlier. The appointment itself is claimed to have been made in favour of the petitioner after the post was advertised in daily newspaper Chetna Janadesh. However, in view of the law laid down by the Full Bench of this Court in Radha Raizada and others v. Committee of Management, Vidyawati Darbari Girls Inter College and others, 1994 (3) UPLBEC 1551, vacancy itself was otherwise required to have been published in newspapers having wide circulation. This requirement is clearly not satisfied. This Court vide order dated 4.12.2002 has otherwise observed that petitioner's appointment against a regular vacant post was impermissible. The only directed issued was that petitioner could file a suit against the Committee of Management to recover salary from the institution, if he was working.
Filing of this petition suppressing the fact with regard to dismissal of earlier writ petition cannot be approved of. No direction can be issued to regularize petitioner's services. Writ petition is accordingly dismissed with cost assessed at Rs.10,000/- and petitioner is warned to be careful in future in filing of such petition. District Magistrate concerned is directed to recover the amount from the petitioner and deposit it with the District Legal Services Authority of the district concerned.
Order Date :- 27.4.2018 Ashok Kr.