M.L.Bhat - (1.) ON 12-7-1990, the respondents were directed to file a counter within a period of three weeks. The Court bad expected that no further time would be sought. The case came up for consideration on 20-8- 1990. The counter was not filed even on that day. Therefore, learned counsel for the parties were heard on merits without counter.
(2.) THE petitioner's case is that Sri Gandhi Smarak Inter College Ram Nagar Bidhamhuwa, Jaunpur (hereinafter called as the College) is a recognised institution and is receiving grant in aid from the State Government through respondent no. 1. THE provisions of payment of Salary Act 1971 (hereinafter called as the Act) are applicable to the said College. A permanent class IV employee, namely Jagannath Kanhar had retired from the service in the year 1987. A vacancy had occurred due to his retirement. Respondent No. 2 who is appointing authority of class IV employees appointed the petitioner by a letter dated 31-12-1987, copy whereof is Annexure-1 to the writ petition. The petitioner, in pursuance of the said letter is said to have joined on the post on 1-1-1988. Copy of the joining report is Annexure-2 to (he writ petition. In the College, sanctioned strength of class IV employees is eleven which includes one post of Paniwala. At present seven class IV employees are appointed and working. Copy of the certificate issued by respondent no. 2 is this regard is Annexure-3 to the writ petition. After making appointment of the petitioner the papers were sent to respondent no 1 for information and payment of salary. No approval Under law was required from respondent No. 1 in relation to the petitioner's appointment because respondent no. 2 alone is competent to make such an appointment. Respondent no. 1 seems to have disapproved the appointment of the petitioner by an order dated 2-5-1989 on the ground that there are excess number of class IV employees as against the prescribed standard. Copy of the order dated 2-5-1989 is annexed as Annexure 4 to the writ petition. The petitioner's grievance is that he was not heard before issuance of the order dated 2-5-1989. When the order dated 2-5-1989 was conveyed to respondents Nos. 2 and 3, they are said to have filed a petition before respondent no. 1 against his disapproval. The petitioner was appointed in place of a permanent class IV employee as waterman who had retired and a substantive vacancy had occurred against which was the petitioner was selected. The said application was dismissed by respondent no. 1 on 17-1-1990 without hearing respondents nos. 2 and 3 and the petitioner. Copy of this order is Annexure-5 to the writ petition. The said order is said to be cryptic and against the principle of natural justice. The petitioner's case is that he has validly appointed as a waterman against a clear vacancy. He has completed one year probation period and has acquired permanency, but due to arbitrary action of respondent no. 1 he has not been paid salary and he is facing hardship in these hard days. Accordingly orders dated 2-5-1989 and 17-1-1990 are prayed to be quashed and the management issued a direction to pay the salary of the petitioner and not to interfere with his functionings.
(3.) THE petitioner's appointment is not controverted. His case is that he was appointed against a permanent vacancy in place of one Jagannath Kanhar by a competent authority i.e. respondent no. 2. THEse facts have not been rebutted on record. Admittedly, the petitioner is class IV employee whose appointing authority is respondent no. 2. Under law the appointment of the petitioner is not required to be approved by respondent no. 1. It was sufficient that he was informed so that he could arrange payment of salary for the petitioner. Respondent no. 1 could not disapprove the appointment of the petitioner. Respondent nos. 2 and 3 seem to have represented to respondent no. 1 that the appointment of the petitioner was valid and it was against class IV post, therefore, he was entitled to get the salary. This representation was also rejected by respondent no. 1 without giving any reason. The petitioner's appointment is valid and respondent no. 1's disapproval of his appointment is invalid. Therefore, the petitioner is entitled to be paid salary from the date of his appointment;