- (1.) PANKAJ Mithal, J. Heard Sri M. B. Saxena, learned Counsel for the petitioner and learned Standing Counsel for the respondent No. 2.
(2.) THE petitioner was appointed as peon in Ishwar Sharan Intermediate College, Allahabad. THE appointment letter was issued by the Principal (respondent No. 2) on 17-5-1989 (Annexure 1 to the writ petition ). THE petitioner joined his duties in pursuance of the said appointment letter on 18-5-1989. THE said appointment of the petitioner is said to be against a clear substantive vacancy. THE DIOS vide letter dated 4-7-1989 raised certain objections against the aforesaid appointment of the petitioner. THE objections so raised by the DIOS were duly replied by the Principal and proper clarification was given. However, the DIOS insisted that the post be offered to one Shiv Lochan the dependent of an employee of K. P. Inter College who had died-in-harness. Accordingly, the salary bills of the petitioner submitted by the college along with the other staff members were not cleared and no payment of salary was made to the petitioner. In the above background the petitioner filed the present writ petition commanding the DIOS to pay salary to the petitioner from the date of his appointment i. e. 17-5-1989. The Hon'ble Court vide interim order dated 20-3-1991 directed the DIOS to pay the salary to the petitioner in accordance with law subject to the final decision of the writ petition. Accordingly the petitioner started receiving salary. The petitioner in the writ petition has also contended that the objection on which his salary was withheld by the DIOS was not tenable and had ceased to exist when the petitioner was appointed. The dependent of Khandan Lal who died-in-harness while in service in K. P. Intermediate College i. e. Shive Lochan had already been appointed in K. P. Intermediate College itself on 12-2-1987 and his appointment had also been approved by the DIOS vide letter dated 7-2-1987. He had even joined his duties. The petitioner further contents that the time of his appointment the provisions of Regulations 101-107 of the Regulations were not in existence. It has also been contended there was no provision under the U. P. Intermediate Education Act or the regulations framed therein for seeking any formal approval of the DIOS to the appointment of class IV employees at the relevant time.
(3.) LEARNED Standing Counsel has placed reliance upon Paragraphs 3, 6 and 9 of the counter-affidavit filed on behalf of the DIOS by Sri H. S. Dubey, Assistant Supervisor in the office of DIOS, Allahabad. It has been stated therein that the petitioner was appointed by the resolution of the Committee of Management dated 12-5-1989 and since the appointing authority of the class IV employee is the principal of the college, the resolution of the Committee of Management is without jurisdiction and, therefore, the petitioner cannot be said to have been validly appointed. No other defence has been taken in the counter-affidavit. If is admitted on record that the appointment of the petitioner dated 17-5-1989 has been made by the principal of the college and not by the Committee of Management. This appointment has not been disapproved by any specific order of the DIOS. The petitioner has been appointed by the Principal and, therefore, even if the Committee of Management has passed a resolution in support thereof it would not affect the appointment of the petitioner. Therefore, the defence taken by the DIOS in the counter- affidavit has no substance and is not acceptable.;