Hon'ble Krishna Murari, J. - (1.) HEARD Shri A.K. Singh for the petitioner, learned Standing Counsel for State respondents and Shri J.P. Singh for respondent No. 5.
(2.) PETITIONER herein is aggrieved by the order dated 14.3.2011 passed by Joint Director of Education, Azamgarh Region holding his appointment on Class III post in the institution illegal and in violation of provisions of Regulation 101 to 107 of Chapter III of the Regulations framed under U.P. Intermediate Education Act, 1921. Facts giving rise to the dispute are as under : Shri Ganga Prasad Inter College, Jagdishpur, Azamgarh is a recognised and aided Intermediate college. One post of senior clerk and one post of junior clerk were sanctioned in the institution by the Director of Education vide order dated 7.7.2006. It is alleged in the petition that Committee of Management vide resolution dated 25.7.2006 resolved to fill the said post and accordingly an application dated 26.7.2006 seeking prior approval for initiating proceedings of appointment was moved before District Inspector of Schools. However, when District Inspector of Schools did not respond to the request, the committee advertised the vacancies in Hindi Daily 'Aaj' and 'Amar Ujala' in its issue dated 29.9.2006. Petitioner alongwith respondent No. 5 and others were applicant for the post of senior clerk. Selection committee after interview recommended a list in order of merit wherein respondent No. 5 was placed at serial No. 1 and petitioner was placed at serial No. 2. Committee of Management approved the recommendation of the selection committee in its meeting dated 17.12.2006. Without seeking any approval from District Inspector of Schools, respondent No. 5 was issued appointment order dated 29.1.2007. It is alleged that vide letter dated 5.2.2007, respondent No. 5 expressed his inability to join. Thereafter, Committee of Management issued appointment letter dated 8.2.2007 in favour of the petitioner who joined the institution on 12.2.2007. It is alleged that papers pertaining to appointment of the petitioner were forwarded to District Inspector of Schools on 8.2.2007 for grant of approval. However, when District Inspector of Schools did not pass any order, petitioner approached this Court by filing Writ Petition No. 23922 of 2007 which was disposed of with a direction to District Inspector of Schools to examine the claim and pass appropriate order. In compliance of the order, petitioner represented before District Inspector of Schools, who passed an order dated 23.9.2008 according approval to the appointment of the petitioner and payment of salary w.e.f. the actual date of joining the post. According to the own case set up by the petitioner, he joined on 5.2.2007, thus, approval by the District Inspector of Schools was post facto. Aggrieved by the approval granted to appointment of petitioner, respondent No. 5 Arun Kumar Singh filed Writ Petition No. 70694 of 2009 alleging that he never waived his right to be appointed nor offered resignation and the petitioner obtained the appointment by misrepresentation vide order dated 23.12.2009, this Court disposed of the writ petition giving liberty to approach Regional Joint Director for redressal of grievances, who in turn, was directed to resolve the controversy after notice to the Committee of Management and the present petitioner.
(3.) HOWEVER before Regional Joint Director could decide the issue, the order of District Inspector of Schools approving appointment of the petitioner, was also challenged by Deputy Manager of the institution by filing Writ Petition No. 21957 of 2010. The said writ petition was also disposed of on 22.4.2010 relegating the parties to Regional Joint Director of Education. In pursuance to the aforesaid two orders passed by this Court, Joint Director of Education after considering the representations of the petitioner, respondent No. 5, Manager and Deputy Manager and the documents produced in support of their claim, disapproved the appointment of the petitioner vide order dated 8.9.2010 on the ground that post of senior clerk is promotional post and was to be filled up by promotion and not by direct recruitment, hence, the entire process of direct recruitment was illegal. He further held that since the appointment of petitioner was made without prior approval, hence, it was illegal and District Inspector of Schools wrongly granted approval without considering that no prior approval was obtained. With respect to respondent No. 5, it was held that since the very procedure adopted for making selection and appointment was illegal, the question whether he declined the appointment or resigned, loses its significance.;