High Court · 2025

Subsequently, after exchange of pleadings, the aforesaid interim order was confirmed by a detailed order dated 03.08.2009, which is mentioned hereinafter in its entirety :- "Heard counsel for the petitioner, standing counsel for respondent no. 1 & 2, Sri Jagdish Shukla for respondent no. 3 to 6 and Sri S.N. Dubey for respondent no. 7. It is claimed by the petitioner that he was appointed on substantive post of assistant clerk on 6.4.2000 and he joined his post on 10.4.2000 in Khair Industrial Higher Secondary School, Basti. Thereafter, entire papers regarding his appointment were forwarded by the Manager of the institution to respondent no. 1- Deputy Inspector of Schools for approval and payment of salary to the petitioner. On the basis of paragraph no. 6 of the writ petition, it is contended that the respondents did not take any action in the matter regarding approval of appointment of the petitioner and respondent no. 5 & 6 were appointed as assistant clerks on 24.4.2002 and 18.5.2002 respectively subsequently in the year 2002 under Dying in Harness Rules. Respondent no. 7 was also appointed as class IV employee in the institution and as such has prayed for the following relief :

1. Issue a writ, order of direction in the nature of mandamus directing to the respondent no. 1(DIOS, Basti) to grarit approval for payment of salary to the petitioner and the petitioner be paid salary regularly from 10.4.2000 for his post of assistant clerk.

2. Issue a writ, order or direction to the respondents that they should not interfere in the peaceful working of the petitioner on his post and the petitioner be treated as regular employee and the petitioner be permitted to work as Assistant clerk and be permitted to sign his attendance.

3. Issue a writ order or direction in the nature of quo warranto restraining the respondent no. 5,6 & 7 from functioning of their posts appointed illegally under the dying in harness rules and their appointment may be declared illegal and void.

4. Issue a writ order or direction in the nature of certiorari quashing the impugned order dated 12.12.02 (annexure no. 12 to the writ petition) issued by DIOS, Basti. The standing counsel has placed reliance upon averments made in paragraph no. 3 & 5 of the counter affidavit. In paragraph no. 3 of the counter affidavit, it has been averred that Khair Industrial Inter College, Basti is a recognized institution by Madhyamik Shiksha Parishad, U.P. and is a minority institution; tha: salary to the teachers and other staff of the institution is paid under Payment of Salary Act, 1971: that there were five posts of clerks, against which Sri Nurul Hauda, Najmuddin Sri Rupesh Chand Srivastava, Sri Asad Raza and Sri Intejarul Haq. were appointed. No other point has been argued. I have considered the arguments advanced by the counsel for the parties and perused the record. Reply of paragraph no. 6 of the writ petition has been given by the State in paragraph no. 5 of the counter affidavit inter alia that DIOS claims that he had no knowledge prior to passing of the order dated 13.5.2002 in the writ petition and vide his order dated 12.12.2002 has rejected representation of the petitioner cancelling his appointment. From the averments made in the counter affidavit, it is clear that petitioner was appointed on 6.4.2000 i.e. much prior to appointment of respondent no. 5 & 6 under the Dying in Harness Rules. There is no specific denial that papers regarding appointment of the petitioner were sent by the management to the DIOS for approval and as such it cannot be claimed by the DIOS that he had no knowledge regarding appointment of the petitioner. Rather it appears that DIOS has rejected the same vide order dated 12.12.2002 whereas appointment of respondent no. 5 & 6 was made on 24.4.2002 & 18.5.2002. In the circumstances, it appears that representation of the petitioner has been rejected to accommodate the respondent no. 5 & 6 appointed subsequently to the petitioner. The Court vide interim order dated 29.10.2002 had permitted the petitioner to work as assistant clerk in the institution of respondent no. 3 and had made appointment of respondent no. 5 to 7 subject to the decision of the writ petition. After hearing counsel for the parties, the writ petition is admitted. Interim order dated 29.10.2002 is confirmed. The petitioner shall be paid his salary regularly month to month till further orders. Connected Writ Petition No. 49002 Of 2002 In the connected writ petition, petitioner Mustaq Ahmad was appointed on a class IV post on 1.9.2001. The fact that Management sent papers regarding appointment of the petitioner to DIOS for approval on 4.9.2001, has not been denied. The petitioner in the connected writ petition is also continuing. In view of the fact that respondent no. 3 is represented in Writ Petition No. 46229 of 2002, steps need not be taken as they are adequately represented by Sri S.D. Shukla. After hearing counsel for the parties, the writ petition is admitted for the same reasons as given in Writ Petition No. 46229 of 2002 above. Interim order dated 25.11.2002 is confirmed. The petitioner shall be paid his salary regularly month to month till further orders." Sri P.K. Singh, learned Senior Counsel assisted by Sri Krishna Chandra Pandey, learned counsel for petitioner submits that original petitioner has worked till he expired on 09.06.2017 i.e. when he was about 49 to 50 years. Learned Senior Counsel further submits that since all arguments has already been considered and nothing more has been brought on record, therefore, the writ petition may be disposed of in terms of interim order and with further direction that other benefits be given to substitute legal heirs. Learned counsel for respondent has referred the counter affidavit, however, the fact as mentioned in order dated 03.08.2009 specifically that appointment of petitioner was prior to appointment of respondent Nos.5 and 6 was erroneously ignored by DIOS, could not be disputed. Therefore, this writ petition is disposed of in terms of order dated 03.08.2009. So far as appointment of respondent Nos.5 and 6 is concerned, since now there is no ground to challenge their appointment remains, therefore, it is directed that their appointments are protected. Accordingly, this writ petition is disposed of with a direction that original petitioner be considered in service till he expired while working on post of Assistant Clerk and, therefore, death benefits as well as other benefits if applicable be granted to substituted petitioner. Order Date :- 13.2.2025 P. Pandey PUSHPENDRA PANDEY High Court of Judicature at Allahabad

Subsequently, after exchange of pleadings, the aforesaid interim order was confirmed by a detailed order dated 03.08.2009, which is mentioned hereinafter in its entirety :- "Heard counsel for the petitioner, standing counsel for respondent no. 1 & 2, Sri Jagdish Shukla for respondent no. 3 to 6 and Sri S.N. Dubey for respondent no. 7. It is claimed by the petitioner that he was appointed on substantive post of assistant clerk on 6.4.2000 and he joined his post on 10.4.2000 in Khair Industrial Higher Secondary School, Basti. Thereafter, entire papers regarding his appointment were forwarded by the Manager of the institution to respondent no. 1- Deputy Inspector of Schools for approval and payment of salary to the petitioner. On the basis of paragraph no. 6 of the writ petition, it is contended that the respondents did not take any action in the matter regarding approval of appointment of the petitioner and respondent no. 5 & 6 were appointed as assistant clerks on 24.4.2002 and 18.5.2002 respectively subsequently in the year 2002 under Dying in Harness Rules. Respondent no. 7 was also appointed as class IV employee in the institution and as such has prayed for the following relief :

1. Issue a writ, order of direction in the nature of mandamus directing to the respondent no. 1(DIOS, Basti) to grarit approval for payment of salary to the petitioner and the petitioner be paid salary regularly from 10.4.2000 for his post of assistant clerk.

2. Issue a writ, order or direction to the respondents that they should not interfere in the peaceful working of the petitioner on his post and the petitioner be treated as regular employee and the petitioner be permitted to work as Assistant clerk and be permitted to sign his attendance.

3. Issue a writ order or direction in the nature of quo warranto restraining the respondent no. 5,6 & 7 from functioning of their posts appointed illegally under the dying in harness rules and their appointment may be declared illegal and void.

4. Issue a writ order or direction in the nature of certiorari quashing the impugned order dated 12.12.02 (annexure no. 12 to the writ petition) issued by DIOS, Basti. The standing counsel has placed reliance upon averments made in paragraph no. 3 & 5 of the counter affidavit. In paragraph no. 3 of the counter affidavit, it has been averred that Khair Industrial Inter College, Basti is a recognized institution by Madhyamik Shiksha Parishad, U.P. and is a minority institution; tha: salary to the teachers and other staff of the institution is paid under Payment of Salary Act, 1971: that there were five posts of clerks, against which Sri Nurul Hauda, Najmuddin Sri Rupesh Chand Srivastava, Sri Asad Raza and Sri Intejarul Haq. were appointed. No other point has been argued. I have considered the arguments advanced by the counsel for the parties and perused the record. Reply of paragraph no. 6 of the writ petition has been given by the State in paragraph no. 5 of the counter affidavit inter alia that DIOS claims that he had no knowledge prior to passing of the order dated 13.5.2002 in the writ petition and vide his order dated 12.12.2002 has rejected representation of the petitioner cancelling his appointment. From the averments made in the counter affidavit, it is clear that petitioner was appointed on 6.4.2000 i.e. much prior to appointment of respondent no. 5 & 6 under the Dying in Harness Rules. There is no specific denial that papers regarding appointment of the petitioner were sent by the management to the DIOS for approval and as such it cannot be claimed by the DIOS that he had no knowledge regarding appointment of the petitioner. Rather it appears that DIOS has rejected the same vide order dated 12.12.2002 whereas appointment of respondent no. 5 & 6 was made on 24.4.2002 & 18.5.2002. In the circumstances, it appears that representation of the petitioner has been rejected to accommodate the respondent no. 5 & 6 appointed subsequently to the petitioner. The Court vide interim order dated 29.10.2002 had permitted the petitioner to work as assistant clerk in the institution of respondent no. 3 and had made appointment of respondent no. 5 to 7 subject to the decision of the writ petition. After hearing counsel for the parties, the writ petition is admitted. Interim order dated 29.10.2002 is confirmed. The petitioner shall be paid his salary regularly month to month till further orders. Connected Writ Petition No. 49002 Of 2002 In the connected writ petition, petitioner Mustaq Ahmad was appointed on a class IV post on 1.9.2001. The fact that Management sent papers regarding appointment of the petitioner to DIOS for approval on 4.9.2001, has not been denied. The petitioner in the connected writ petition is also continuing. In view of the fact that respondent no. 3 is represented in Writ Petition No. 46229 of 2002, steps need not be taken as they are adequately represented by Sri S.D. Shukla. After hearing counsel for the parties, the writ petition is admitted for the same reasons as given in Writ Petition No. 46229 of 2002 above. Interim order dated 25.11.2002 is confirmed. The petitioner shall be paid his salary regularly month to month till further orders." Sri P.K. Singh, learned Senior Counsel assisted by Sri Krishna Chandra Pandey, learned counsel for petitioner submits that original petitioner has worked till he expired on 09.06.2017 i.e. when he was about 49 to 50 years. Learned Senior Counsel further submits that since all arguments has already been considered and nothing more has been brought on record, therefore, the writ petition may be disposed of in terms of interim order and with further direction that other benefits be given to substitute legal heirs. Learned counsel for respondent has referred the counter affidavit, however, the fact as mentioned in order dated 03.08.2009 specifically that appointment of petitioner was prior to appointment of respondent Nos.5 and 6 was erroneously ignored by DIOS, could not be disputed. Therefore, this writ petition is disposed of in terms of order dated 03.08.2009. So far as appointment of respondent Nos.5 and 6 is concerned, since now there is no ground to challenge their appointment remains, therefore, it is directed that their appointments are protected. Accordingly, this writ petition is disposed of with a direction that original petitioner be considered in service till he expired while working on post of Assistant Clerk and, therefore, death benefits as well as other benefits if applicable be granted to substituted petitioner. Order Date :- 13.2.2025 P. Pandey PUSHPENDRA PANDEY High Court of Judicature at Allahabad