Saurav Panwar v. State of Uttarakhand and others

and Assistant Teacher (Vayayam/Kala/PT). One Mr. Main Singh was working as Assistant Teacher LT (Vyayam), who was to retire on

29.02.2016, therefore, the Management Committee on 03.01.2016 2 initiated the selection process and the interview was conducted on

28.01.2016. On 20.02.2016, the petitioner was offered an appointment on a fixed honorarium of Rs. 2000/-. The petitioner joined the position on 01.03.2016. Thereafter, the Government collected the details of the PTA Teachers, a category to which the petitioner belongs. On 06.05.2017, the respondent no.3, the Chief Education Officer, Haridwar forwarded a list of the PTA Teachers and at Serial No.4, the petitioner’s name finds place in it. Subsequent to it, by an order dated 23.05.2018 of the respondent no.3, the Chief Education Officer, Haridwar, it was directed that the petitioner shall get Rs.10,000/- per month honorarium for working as PTA Assistant Teacher LT (Vyayam). This sanction was withdrawn on 08.05.2019 by the respondent no.3, the Chief Education Officer, Haridwar on the ground that the said approval was sought by concealment of fact that another Teacher, Sushil Kumar had been working on the position when the petitioner was appointed.

4. It is a case of the petitioner that thereafter, he filed a writ petition, but meanwhile, Sushil Kumar was terminated from the services. Therefore, on 13.06.2022, this Court in Writ Petition (S/S) No. 1870 of 2019 (“the first petition”), gave a liberty to the petitioner to make a representation to the Director, Secondary Education. The petitioner did make a representation, which has been rejected by the impugned order dated 01.09.2022. One of the grounds for rejecting the representation is that, the recruitment of the PTA Teacher was done in violation of the Government Order dated 21.12.2016.

5. The respondent no.4, the College as well as the State has filed counter affidavits. 3

6. According to the counter affidavit of the State, the approval for payment of honorarium to the petitioner had already been cancelled on 08.05.2019. Thereafter, if any work is taken from him, for that purpose the Management Committee is liable for payment of honorarium. In fact, as such, nothing has been stated as to why impugned order is correct.

7. Learned counsel for the petitioner would submit that there were two positions of Teachers available in the College. On one post Main Singh was working, who retired on 29.02.2016 and against this vacancy, the process was initiated and the petitioner was appointed. He would submit that on another position, one person Sushil Kumar was working. He would submit that the continuation of Sushil Kumar on another post had no effect on the selection of the petitioner because there were two positions of the Assistant Teacher LT (Vyayam) and Assistant Teacher (Vayayam/Kala/PT) in the college. It is argued that the petitioner was paid honorarium by order dated

23.05.2018, but it was suddenly withdrawn by an order dated

08.05.2019 on the ground that one Sushil Kumar’s regularization was under process and this fact was concealed at the time when approval was accorded for payment of honorarium to the petitioner. He would submit that it is factually wrong. Both the positions are different. Even otherwise, it is argued that now Sushil Kumar has already been terminated and when pursuant to the first petition, the petitioner made a representation, it has now been rejected on the ground that an advertisement for the recruitment was made on 03.01.2016 which is not proper because as per Government Order dated 21.12.2016, the 4 appointment has to be made in a transparent manner by giving an opportunity to one and all.

8. Learned State counsel would submit that one Sushil Kumar had already been working in the College and his regularization process was underway when the recruitment of the petitioner was made as PTA Teacher. It is submitted that before grant of approval, this fact was not brought to the notice of the approving authority. It is also submitted that an advertisement in the matter was issued prior to existence of vacancy.

9. The Court, at this stage, wanted to know from learned State counsel as to which provision bars the advertisement of vacancy before the actual existence?

10. He would submit that an advertisement for recruitment may only be published once there are clear vacancies.

11. In paras 7 and 8 of his petition, the petitioner has categorically stated that there were another Assistant Teacher (Vayayam/Kala/PT), Sushil Kumar who was working in the same college. In para 4 of his petition, the petitioner categorically writes that he was appointed against the vacancy that was created by virtue of superannuation of one Main Singh. These facts are not denied in their counter affidavits either by the respondent no.4, the College or by the State. 5

12. Admittedly, the petitioner was recommended for grant of honorarium of Rs.10,000/- by the respondent no.3, the Chief Education Officer, Haridwar on 06.05.2017 and admittedly, on

23.05.2018, the respondent no.3, the Chief Education Officer, Haridwar conveyed the approval of payment of Rs.10,000/- per month honorarium to the petitioner. This has been subsequently, cancelled by order dated 08.05.2019 of the respondent no.3, the Chief Education Officer, Haridwar on the ground that the factum of regularization process of Sushil Kumar was not brought to the notice of the competent authority at the relevant time.

13. If there were two positions of the Assistant Teacher (Vyayam), how does it matter that if one Sushil Kumar is working in another position of Assistant Teacher (Vayayam/Kala/PT)? The petitioner was appointed as PTA Assistant Teacher (Vyayam) only. Therefore, this rejection, it appears was not on the valid grounds.

14. The things had since been changed. Sushil Kumar has been terminated from service, a fact which has not been disputed before this Court. When the petitioner makes a representation, it has been rejected on the ground as stated in para 6 of the rejection order dated 01.09.2022. According to it, the advertisement was not proper. Why it is not proper? Even if, the process of recruitment was initiated quite in advance, it cannot be said improper? It is, in fact, more proper that before the vacancy occurs, the recruitment process is completed so that as soon as the vacancy occurs, there may be a placement. It is not a case that there was no advertisement. The petitioner was appointed. He was recommended for the honorarium which was so done by the respondent no.3, the Chief Education 6 Officer, Haridwar. Therefore, the cancellation of the approval for grant of honorarium of Rs.10,000/- per month to the petitioner which was made by the respondent no.3, the Chief Education Officer, Haridwar by virtue of order dated 08.05.2019 is not in accordance with law. Accordingly, the petition deserves to be allowed and impugned order deserves to be set aside.

15. The writ petition is allowed.

16. The impugned orders dated 01.09.2022 and 08.05.2019 are set aside. Jitendra (Ravindra Maithani, J.)

27.03.2025