A.P. Singh, J. - (1.) Manoj Kumar, petitioner of writ petition No. 2672 of 1992, hereafter the petitioner, and Dori Lal, petitioner of writ petition No. 1442 of 1992, hereafter called the opposite party, both stake their respective claims for appointment on the post of clerk in Khair Inter College, Khair, District Aligarh, hereafter the college, in the vacancy which first arose on account of the permanent incumbent (Sri Niranjan Prasad Govil) going on medical leave on 3-9-1991 till 3-9-1992 which got converted into substantive vacancy with the death of Sri Govil on 5-10-1991, petitioner was appointed on 3-9-1991 for the period of Govil's medical leave i.e. from 3-9-1991 to 31-3-1992 on temporary basis for fixed tenure; his tenure appointment, however, was converted into substantive appointment by the Managing Committee of the college on 7-10-1991 which sent information of petitioner's appointment both on short tenure and substantive basis on one year's probation to the District Inspector of Schools, Aligarh, hereafter the Inspector, for seeking financial approval for the purposes of payment of his salary under the provisions of U. P. Act No. 24 of 1971 hereafter called the Salary Payment Act (Whereas petitioner and the Manager of the college maintain that the approval was given but letter for its communication was not issued on the other hand the Inspector and opposite party maintain that approval was not given, petitioner his duties as clerk on 3-9-1991 and since then he is working but his salary was not paid under the salary payment Act hence he filed the writ petition after his request for payment was not headed to by the Inspector Dori Lal, opposite party is a permanent employee of class IV category in the college, he is at serial No. 3 in this order of seniority, according to him two class IV employees above him, are not qualified for holding the post of clerk, therefore, notwithstanding his number in the seniority being 3rd amongst class IV employees, he was the person who was entitled for appointment on the post of clerk by way of promotion in the allotted quota of 50 per cent which is earmarked for promotion of class IV employees for appointment on classes III post in the Colleges as per the regulations framed under U P. Intermediate Education Act, hereinafter called the Regulations and the Act, respectively.
(2.) Opposite party, thus, challenged appointment of petitioner on the ground that (i) that post is reserved for promotion of class IV employees, therefore, petitioner's appointment by way of direct recruitment is bed (ii) no procedure was followed for making petitioner's appointment, therefore, it is against Rules, (iii) petitioner's appointment jan compassionate ground after 13 years of the death of his father is Illegal which is not warranted by the Government order of 1981 as compassionate appointment of ward of deceased employee can be made within a reasonable time and not after 13 years (iv) end that 1981 Government Order having not been given retrospective operation petitioner's appointment on compassionate ground on account of his father's death which occurred in 1978 is not permissible.
(3.) Petitioner's writ petition was allowed by order dated 1-4-1992, opposite party filed appeal being special Appeal No. 137 of 1992. Dori Lal v. D.I.O.S. Aligarh and others, A Division Bench of this Court allowed opposite parties appeal vide judgment and order dated 20-7-1994 and directed the single Judge to decide both the writ petitions of petitioner and opposite party together, however, while allowing the appeal the Division Bench also made observations on merits with reflection on the validity of the appointment of the petitioner. But, for the following observations of the Division Bench, in my opinion, there was nothing left for being decided in petitioner's writ petition the observations are as under: "For the reasons given above, the special Appeal is allowed. The impugned judgment of the learned Single Judge is set aside. In view of the fact a and circumstances of the case, It is expedient that both the writ petition) being Writ petition No. 2672 of 1992, Dori Lal v. District Inspector of Schools and others end Writ petition No. 1444 of 1992, Manoj Kumar Mittal v. District Inspector of Schools, should be heard and decided together.";