V.M.Sahai, J. - (1.) The father of the petitioner Syed Nazir Hasan Rizvi who was in service of the Institute and was head clerk died in harness on 20.8.1990. The petitioner his son who was dependent on him claimed appointment under Dying-in-Harness Rules in Class III post. The Director of Higher Education, U. P., Allahabad by order dated 19.4.1991 directed the Principal/Manager, Allahabad Agriculture Institute, Allahabad (in brief institute) to appoint the petitioner as junior clerk in the vacancy caused due to promotion of another clerk as head clerk on the post which fell vacant due to death of his father. In compliance to the order of the Director, an appointment letter was issued on 20.4.1991. The petitioner joined the duties on same day. After nearly eight months, the Assistant Director of Education issued a letter on 10.12.1991 to the Principal of the Institute on the subject of promotion and pay fixation of the employees. In this letter, it was mentioned at item number 15 that the petitioner be appointed as Library Parichar in the vacancy of Sri S.D. Welton. The post of Library Parichar is a Class IV post, This order dated 10.12.1991 passed by respondent No. 1 is under challenge in the instant writ petition. No counter-affidavit has been filed by the respondent Nos. 1 and 3. In the counter-affidavit filed by the Institute, it is not denied that the petitioner was entitled and eligible to be appointed as junior clerk. It is stated that the Institute is not in a position to state as to why the order dated 10.12.1991 was passed as the then Principal has retired. As regards salary, the affidavit states that the Institute was helpless since the salary of the employees is the responsibility of the District Inspector of Schools and he released the salary of Library Parichar only.
(2.) I have heard Shri C.B. Yadav counsel for the petitioner and Shri J. Nagar appearing for respondent Nos. 2 and 4 and Shri S.N. Srivastava standing counsel appearing for respondent Nos. 1 and 3.
(3.) Petitioner's father was senior clerk. His post was filled by promotion by promoting another clerk. A clear vacancy of clerk fell vacant on which under the orders of Director, the petitioner was appointed under the Harness Rules. It is not disputed that he was eligible to be appointed on a Class III post. The Director of Higher Education by his order dated 19.4.1991 directed the institute to appoint the petitioner as Junior clerk. The petitioner was appointed by the Institute on 20.4.1991 and he Joined on the same day. In Ravi Kiran Singh v. State of U. P. and others. Civil Misc. Writ Petition No. 39127 of 1994, decided on 12.2.1998, a Division Bench of this Court has held that appointments made under the Dying-in-Harness Rules are permanent appointment. In view of the law laid down by the Division Bench, once the petitioner was appointed as Junior clerk under the order of Director of Higher Education under the Harness Rules, his appointment could not be interfered with by respondent No. 1 and the petitioner could not be appointed/reverted on a lower post of Class IV except in accordance with law. In absence of any valid reason, the appointment of petitioner which was in accordance with rules could not have been interfered by another officer. The petitioner was working on a Class III post and no opportunity was given to him by the respondent No. 1 before passing the order dated 10.12.1991. Even in this Court, the respondent has not cared to explain the reason for passing a different order and interfering with the earlier order passed by the Director. The order of respondent No. 1 was thus contrary to the rules and in complete violation of principles of natural Justice. The order passed by respondent No. 3 dated 10.12.1991 which has been filed as Annexure-4 to the writ petition cannot be upheld.;