Court No. - 58
Case :- WRIT - A No. - 10061 of 2016 Petitioner :- Vijay Bahadur Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Adarsh Bhushan,Amit Kumar Srivastava Counsel for Respondent :- C.S.C.,Neelabh Srivastava
Hon'ble Ashwani Kumar Mishra,J.
This writ petition is directed against an order dated 5.1.2016 passed by the Director of Education (Secondary), U.P., Lucknow, whereby petitioner's representation made pursuant to a direction issued by this Court in Writ Petition No.64650 of 2011 has been rejected.
Basic facts giving rise to filing of the writ petition are that there exists an institution, known as Chhotey Lal Intermediate College, Nagla Vishnu, Firozabad, which is recognized under the provisions of the U.P. Intermediate Education Act, 1921. The institution was initially a Junior High School and was subsequently upgraded to High School, and thereafter Intermediate level. Financial aid, however, was granted only upto the High School level. The District Inspector of Schools is alleged to have granted permission to run classes in the institution, vide his order dated 17.10.1985. Petitioner claims to have been appointed in the institution, when it was upto the High School level, on 5th December, 1991. It is then stated that petitioner's appointment was approved by the District Inspector of Schools, Agra, on 19.2.1994. The institution was taken on aid pursuant to an order dated 23.2.1996. The strength of teachers was determined and those, who were working within the sanctioned strength, were also extended benefit of salary out of the State Coffers. Petitioner, however, was found to be in excess of the sanctioned strength, and therefore, the order contains a stipulation that his claim would be considered against vacancies, which would arise in future. It appears that petitioner raised a claim for being absorbed in terms of the order dated 23.2.1996, after a vacancy is said to have been caused. Such claim of the petitioner was directed to be considered.
The Director has proceeded to pass the order impugned holding that petitioner's appointment since was in excess of sanctioned strength, therefore, he has no right to receive salary from the State funds. It is also stated that subsequent vacancy, which has arisen in the institution, would have to be filled, in accordance with the provisions of the U.P. Secondary Education Services Selection Board Act, 1982, and in the absence of any enabling provision in the relevant statute, the services of petitioner cannot be absorbed.
Learned Senior Counsel appearing for the petitioner contends that petitioner has been allowed to continue pursuant to the assurance extended by the competent authority vide order dated 23.2.1996, and therefore, his claim for being paid salary out of State funds ought not to be rejected by the Director, as has been done.
Learned Standing Counsel submits that appointment of the petitioner since was in excess of the sanctioned strength, therefore, he has not acquired any right of being considered for absorption. Submission is that the order impugned suffers from no illegality.
Facts giving rise to the controversy raised have already been noticed above. It is not in issue that petitioner's appointment was not against any vacant post. At the time when the institution was taken on aid also, the continuance of petitioner was found to be in excess of the sanctioned strength. Once there was no vacancy against which petitioner could be allowed to continue, the Regional Joint Director of Education could not have allowed the petitioner to continue even in the absence of post, by observing that against future vacancy, his claim would be considered. No provision of law has been shown, wherein such an arrangement could have been made. The Director has, therefore, rightly observed that the continuance of petitioner, in the absence of any vacancy, would not confer any right upon him. The subsequent vacancies, which are said to have been created in the institution, would have to be filled in accordance with the provisions of the Act of 1982, and recruitment by any other means would have to be treated as void, by virtue of Section 16(2) of the Act of 1982. The vacancies, which have subsequently come into existence, would have to be filled in accordance with the Act of 1982. No provision is otherwise shown, whereunder petitioner could be allowed to continue in excess of sanctioned strength or held entitled to be absorbed against a future vacancy. The order of the Director, therefore, is in consonance with the statutory scheme.
Writ petition, accordingly, fails and is dismissed.
Dismissal of this writ petition, however, would not prevent the petitioner from claiming salary from the Committee of Management, in case petitioner can substantiate that he has actually worked, and he has been denied salary.
Order Date :- 27.11.2018 Anil