Santosh Kumar Tripathi v. D.I.O.S. and others). Considering the materials placed on record, this Cou
Case Details
Neutral Citation No. - 2025:AHC:89659 Court No. - 38 Case :- WRIT - A No. - 24337 of 2016 Petitioner :- Santosh Kumar Tripathi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Rahul Sahai Counsel for Respondent :- C.S.C. Hon'ble Donadi Ramesh,J. 1. Heard Sri Saumitra Anand, holding brief of Sri Rahul Sahai, learned counsel for the petitioner and learned Standing Counsel for the State respondents. 2. Present writ petition has been filed for quashing the impugned order dated 10.11.2015 passed by D.I.O.S. Kanpur Nagar. Further prayer has been made for direction to the respondents to pass fresh orders in pursuance to the recommendation dated 20.7.1999 and in terms of the order of this Court dated 5.12.2024. 3. Petitioner was appointed in the fourth respondent's school way back in 1978 as a Clerk as he has obtained qualifications to consider his case for promotion to the post of L.T. Grade Teacher.
Legal Reasoning
When one Sri Prakash Chand Dixit was promoted to the post of Lecturer, one vacancy arose in the fourth respondent's institution. Accordingly, the respondent-committee of management has recommended the case of the petitioner to fill up the said short term vacancy vide proposal dated 26.12.1990 and based on the said proposal, the committee of management has sent the selection of the petitioner to the third respondent vide letter dated
Decision
21.01.1991. Subsequently, the petitioner has joined in the resultant vacancy on 23.01.1991. Since then, he is continuing in the said post. 4. When salaries were not paid to the petitioner, he approached this Court by filing C.M.W.P. No. 37579 of 1991 (Santosh Kumar Tripathi Vs. D.I.O.S. and others). Considering the materials placed on record, this Court has passed the interim directions on 20.02.1992 directing the respondents to pay salaries to the petitioner every month regularly and also arrears from the date when petitioner started teaching. Based on the abovesaid interim directions, petitioner's services were continued and salaries were released. Finally, this Court has considered the matter on merits and dismiss the writ petition vide order dated 9.10.2012. Against the said order, petitioner has filed Special Appeal No. 1937 of 2012. During pendency of the special appeal, the fourth respondent has sent proposals to the third respondent for regularization of services of the petitioner under Section 33-B and 33-F of U.P. Act No. 5 of 1982. Taking the said facts into consideration, the special appeal was disposed of vide order dated 5.12.2014 with the following directions: "It is contended that during the pendency of the writ petition, the papers regarding the regularization of the appellant under Sections 33-B and F of the Act No. 5 of 1982 had been forwarded to the District Inspector of Schools on 21.1.1991, which has not yet been decided. Without entering into into the merits of the claim of the appellant and with the consent of learned counsel for the appellant, we dispose of this appeal with the direction that the recommendation dated 20.7.99 for regularization of the appellant-petitioner under Section 33-B and F of the Act No. 5 of 1982 shall be considered and decided in accordance with law by the competent authority without being influenced by any observation or finding recorded in the judgement and order dated 9.10.2012 passed by the learned Single Judge." 5. When the said order was not complied by the respondents, left with no option, the petitioner has pressed the provisions of Contempt of Court Act. Hence, the respondents have rejected the claim of the petitioner vide order dated 10.11.2015. Mainly the rejection order was based on two grounds, first is the institution has initiated the process for selection much prior to occurrence of the actual vacancy and the second ground is the process for promotion was not in accordance with the Rules. 6. Learned counsel for the petitioner has submitted that in fact the procedure for effecting promotion was initiated on 26.12.1990. The said vacancy has arisen from 01.01.1991 i.e. four days before the actual vacancy. In fact, the committee of management has initiated the process for promotion which is few days before the actual arising of the vacancy. It is admitted fact that vacancy is going to arise on 01.01.1991, hence, the management has initiated the process on 26.12.1990, but actual appointment was given to the petitioner only from 21.01.1991 and the petitioner has joined on 21.03.1991. In such circumstances, respondents cannot reject the case for regularization under Section 33-B only on the ground that the process has been initiated prior to the actual vacancy. 7. To support his contention, learned counsel for the petitioner has relied on the decision of this Court in Amit Kumar Pandey Vs. D.I.O.S. Ghazipur and others, 1997 (3) E.S.C. 1828 (All), whereby identical question arisen. The said writ petition was disposed of with the following directions: "6. Even, if, for the sake of argument, it may be taken that the vacancy had, in fact, arisen on 20.7.1993, on which date, the approval was accorded to the appointment of Sri Shiv Murat Singh, the petitioner was appointed on 31.12.1993 on which date admittedly the vacancy was in existence even according to the stand taken by the DIOS. Learned counsel for the petitioner made a reference to Prabhu Dayal and others v. Distt. Inspector of Schools, Firozbad and others, 1995 AWC-71 in which it was held that management is not debarred from taking steps in advance by advertising the post, inviting the application and holding the interview etc., to fill up a vacancy, which is likely to case is applicable on all fours to the facts of case is the present case also. 7. In the light of above discussion, the impugned order dated 1.3.1994, which is based on an entirely illegal premise has to be set aside and in view of the provisions of paragraph 2 (3) (iv) of the Second Removal of Difficulties Order, 1981, the petitioner shall be deemed to have been duly approved for appointment in the short term vacancy on account of promotion of Sri Shiv Murat Singh." 8. Learned counsel for the petitioner further submitted that while deciding the special appeal, this Court has clearly remanded the matter to the authorities to consider the proposals sent by the respondents dated 20.07.1999 without relying on the observations made by the learned Single Judge in Writ A No. 37579 of 1991 dated 9.10.2012. Despite the same, the respondents, once again, relied on the observations made by the learned Single Judge and rejected the case of the petitioner for regularization. Learned counsel for the petitioner has further submitted that as per Section 33-B (iii) of U.P. Act No. 5 of 1982 the teachers who are promoted or promoted after 31st July, 1988, not later than 14th May, 1991 on ad hoc basis against substantive vacancy are entitled for regularization. In the instant case, the petitioner was promoted to the post of L.T. Grade Teacher vide proposals dated 21.01.1991 i.e. prior to 14th May, 1991. Hence, he is entitled for regularization as per Section 33-B. In fact, the fourth respondent has initiated proceedings only ten days before the actual vacancy and in anyway the promotion order was issued only on 21.01.1991 i.e. subsequent to arising to the actual vacancy i.e. 01.01.1991. In such circumstances, the respondents cannot reject the claim of the petitioner for regularization under Section 33-B. 9. In reply to the said contentions, learned Standing Counsel has submitted that as the fourth respondent has not intimated the vacancy before the initiation of the proposal and even as per the recommendation sent by the fourth respondent dated 20.07.1999, the proposal for effecting promotion was initiated much prior to the actual vacancy, which is not permissible and irregular. Hence, once the appointment of the petitioner is irregular, he is not entitled for regularization under Section 33-B. Accordingly, the respondents have rightly rejected the claim of the petitioner. 10. Learned Standing Counsel has further submitted that the management can appoint teachers as per Sub-section 1 of Section 10 of the U.P. Intermediate Education Act, 1921 after expiry of two months of the vacancy, but in the instant case, the respondents have appointed immediately after occurrence of the vacancy, hence, it is contrary to Section 18 of the U.P. Intermediate Education Act, 1921. 11. I have considered the rival submissions and perused the record. 12. Admittedly, the petitioner was appointed/promoted to the post of Lecturer vide order dated 21.01.1991 in a substantive vacancy arose after promotion of one Prakash Chand Dixit to the post of Lecturer and by virtue of the interim order passed by this Court on 22.02.1992, the petitioner has continued to work as LT Grade Teacher and salaries have also been paid and subsequently, was retired on 30.6.2013. By virtue of the interim order passed by this Court on 20.02.1992 and also the order of the Division Bench in the special appeal, the petitioner has continued and retired. Taking the said facts into consideration, technical objection raised by the respondents might be with regard to irregularity committed by the fourth respondent while filling up of the post. For that reason, the respondents cannot deny the regularization of the appointment of the petitioner. But undoubtedly, the irregularity can be rectified at any point of time if the respondents find any irregularity done by respondent no.4. For that reason, they may not penalize the petitioner as he has served in the institution more than 30 years by virtue of the interim orders passed by this Court. 13. In the said circumstances, reasons mentioned in the rejection order, are not sustained. Accordingly, the impugned order dated 10.11.2015 passed by D.I.O.S. Kanpur Nagar is set aside and the matter is remitted back to the District Inspector of Schools, Kanpur Nagar to consider the case of the petitioner under Section 33-B, once again, condoning the irregularities, if any, found in the appointment of the petitioner and pass appropriate orders, within a period of two months from the date of receipt of certified copy of this order. 14. The writ petition is, accordingly, disposed of. Order Date :- 26.5.2025 Noman (Donadi Ramesh, J.) Digitally signed by :- NOMAN AHMAD High Court of Judicature at Allahabad