Allahabad High Court
State Of U.P. And 2 Others vs Smt. Sarita Gupta And Another on 3 April, 2023
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 39 Case :- SPECIAL APPEAL DEFECTIVE No. - 113 of 2023 Appellant :- State Of U.P. And 2 Others Respondent :- Smt. Sarita Gupta And Another Counsel for Appellant :- Ashish Mohan Srivastava Counsel for Respondent :- Abhishek Bhushan Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Vikas Budhwar,J.
Order on Delay Condonation Application No.4 of 2023:-
There is a delay of 163 days in filing the appeal.
Sri Abhishek Bhushan, learned counsel for the respondent submits that he has no objection to the delay condonation application. The explanation offered for delay in filing the appeal is to the satisfaction of the Court. The delay condonation application is allowed. Delay condoned. Office shall allot regular number to the appeal.
Order on Appeal:-
Heard Sri Ashish Mohan Srivastava, learned Standing Counsel for the State-appellants and Sri Anil Bhushan, learned Senior Advocate assisted by Sri Abhishek Bhushan, learned counsel for the respondent.
This intra-court appeal is directed against the interim order dated 03.08.2022 staying the order dated 10.06.2022 passed by the District Inspector of Schools, Firozabad withholding the salary of the writ petitioner/respondent No.1 herein and the consequential dated 15.06.2022 passed by the Committee of Management of the institution concerned.
It is argued by the Sri Ashish Mohan Srivastava, learned Standing Counsel appearing for the State-appellants that the appointment of the writ petitioner on the post of Assistant Teacher in subject 'Science' was an ad-hoc appointment to continue till a regularly selected candidate joins the institution concerned. This issue has been set at rest with the decision of the Special Appellate Court dated 18.03.2011 in Special Appeal Defective No.707 of 2005, appended at page no.'79' of the paper book. It is argued that the Committee of Management of the institution concerned had requisitioned the vacancy against which the writ petitioner was working as an Assistant Teacher vide requisition dated 08.08.2011, copy of which is appended at page no.'135' of the paper book. A perusal thereof indicates that the post of Assistant Teacher (Science), against which the writ petitioner/respondent herein was working, had been requisitioned by the Committee of Management for filing up the vacancy through the Commission. There is no dispute about the fact that the vacancy in question was a substantive vacancy.
A copy of the communication dated 03.07.2017 issued by the District Inspector of Schools, Firozabad addressed to the Manager of the institution concerned through Principal, indicates that one selected candidate namely Sushma w/o Sanjeev Kumar had been recommended for appointment to the post of Assistant Teacher in the subject 'Science' in the institution concerned. The contention of the learned counsel for the appellants that with the recommendation by the Commission and the letter issued by the District Inspector of Schools, Firozabad recommending the candidate, there was no option before the Committee of Management but to ensure the joining of the recommended candidate and with joining of such candidate, the ad-hoc appointment came to an end.
Contrary to this legal position, the Committee of Management, by concealment of relevant material facts, had recommended the name of the writ petitioner/ respondent No.1 herein for regularisation in the year 2018. The copy of the regularisation letter issued by the Joint Director of Education, Agra Division, Agra dated 25.09.2018 is appended at page no.'84' of the paper book wherein it is indicated that the writ petitioner had been regularised in accordance with the provisions of the Section 33-G of the U.P. Secondary Education Services Selection Board Amendment Act, 2016. It is argued that the regularisation of the writ petitioner on the post in question was a result of fraud/concealment of correct fact, by the Committee of Management of the institution concerned in collusion with the writ petitioner/respondent No.1 herein.
All these aspects of the fact are required to be looked into to ascertain the correctness of the order dated 10.06.2022 passed by the District Inspector of Schools, Firozabad. At the interim stage, no direction can be issued to grant salary to the writ petitioner for the regular post of Assistant Teacher in Science in the institution concerned.
Taking note of the above fact and the submission of the learned counsel for the parties that the affidavits have been exchanged between the parties in the the writ petition, noticing the stand of the respondent assailing the validity of the regularisation order dated 25.09.2018, we are of the considered opinion that this issue is required to be examined before issuing any direction to grant salary to the writ petitioner.
Staying of the order dated 10.08.2022 passed by the District Inspector of Schools, Firozabad by way of the interim order dated 03.08.2022 amounts to passing of the final order without adverting into the merits of the case.
We, therefore, modify the order dated 03.08.2022 to the extent the interim relief granted to the writ petitioner herein and provide that the matter be decided on merits by the writ Court.
The order passed by the District Inspector of Schools is made subject to the final decision of the Writ Court.
The Special appeal is, accordingly, disposed of.
We request the learned Single Judge to make an endeavour to decide the writ petitioner, as early as possible.
Order Date :- 3.4.2023 P Kesari