- (1.) J. C. Gupta, J. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing of the order dated 15-6-86 passed by the Basic Shiksba Adhikari, Allahabad respondent No. 1 copy of which has been annexed aa Annexure-V to the petition, by which the respondent No. 1 has rejected the petitioner's representation which he had made to the Basic Shiksha Adhikari to accord sanction for payment of his salary.
(2.) THE petitioner was appointed as a Peon by the Headmaster of the institution, respondent No. 2 by his order dated 20-6-82. THE petitioner assumed charge of his office and since then he has been working on the said post. THE papers relating to his appointment wore forwarded by the Headmaster to the respondent No, 1 on 2-7-83 for according sanction re garding payment of salary and for giving approval to the appointment made by him. No decision was taken by the respondent No. 1 hence petitioner filed writ petition before this court in the year 1987 which was disposed of at the admission stage by the order dated 24-11-87 with the observation that the Basic Shiksha Adhikari would dispose of the petitioner's representation within a period of six weeks. By the impugned order the respondent No. 1 has rejected the representation of the petitioner holding that his initial appointment was against law as no prior approval or sanction of Basic Shiksha Adhikari was obtained and the Headmaster was informed by letter dated 12-10-33 that the post of Peon was a reserved post. According to Basic Shiksha Adhikari instead of cancelling the appointment of the petitioner the Headmaster allowed the petitioner to continue in service and therefore he withheld the sanction for payment of the salary to trf8 petitioner. Despite several opportunities and a stop order, no counter affidavit has been filed on behalf of the respondents. On the basis of uncontroverted facts stated in the writ petition, the position which emerges out is that the petitioner was appointed on the post of Peon of the institution by the Headmaster by his order dated 2-7-83 and since then he has been uninterruptedly working on the said post. Learned counsel for the petitioner argued that the respondent No 1 fell in error of law in coming to the conclusion that it was necessary for the Headmaster to have obtained prior approval or sanction of the Basic Shiksha Adhikari before giving effect to the appointment of the petitioner, He argued that the rules relating to the service conditions of Class III employees of Uttar Pradesh Recognised Basic School (Junior High School) were framed in the year 1984 and came into force from 2nd March, 1985. It is only under these rules that the appointments in Class IV services could be made on the recommendation of Selection Committee after prior approval of the Basic Shiksha Adhikari. Before the enforce ment of this rules no such provision was there and the Headmaster was competent to make appointment of Class IV employees. The fact that the appointing authority of such employees at that time was the Head master, is admitted by the Basic Shiksha Adhikari in his own order which is impugned in this writ petition. I thus find force in the submission of the learned counsel. Since there were no rules, regulation or other statu tory provision prohibiting the Headmaster to make appointment of Class" IV employees without prior approval or sanction of the Basic Shiksha Adhikari, the appointment of the petitioner on the post of Peon could not be said to be illegal or nullity. Atleast no such provision of law could be placed before me by the standing Counsel.
(3.) IN view of the fact that the petitioner has continued in service on the post on which he was appointed in the year 1982 till today it may be just and proper and appropriate to cancel his appointment suggested by the B. S. A. in his order. ; In the circumstances, this writ petition succeeds. The impugned order of the respondent No. 1 dated 15-6-88 Annexure V to this writ petition is set aside. The petitioner has been getting salary under the interim order of this Court. It is directed that the petitioner shall continue to get salary as admissible to him on the post on which he is working. There shall be no order as to costs. Petition allowed. .;