- (1.) V. M. Sahai, J. The father of the petitioner Syed Nazir Hasan Rizvi who was in service of the Institute and was head clerk died in harness on 20-8-90. The petitioner his son who was dependent on him claimed appointment under Dying in Harness Rules in Class III post. The Direc tor of Higher Education, U. P. , Allahabad by order dated 19-4-91 directed the Prin cipal/manager, Allahabad Agriculture In stitute, 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 20-4-91. The petitioner joined the duties on same day. After nearly eight months the Assistant Director of Education issued a letter on 10- 12-9l|to the Principal of the Institute on the subject of promotion and pay fixation of the employees. In this latter 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 10-12-91 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 In stitute is not in a position to state as to why the order dated 10112-91 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 Dis trict Inspector of Schools and he released the salary of library Parichar only.
(2.) I have heard Shri C. B. Yadav Coun sel of the petitioner and Shri J. Nagar appearing for respondent Nos. 2 and 4 and Shri S. N. Srivastava Standing Counsel ap pearing for the respondent Nos. land 3. Petitioner's father was senior clerk. His post was filled by promotion by promoting another clerk. A clear vacancy of clerk fell vacahi on which under the orders of Direct of the petitioner was ap pointed under the. Harness Rules. It is not disputed that he was eligible to be ap pointed on a Class III post. The Director of Higher Education by his order dated 19-4-91 directed the Institute to appoint the petitioner was junior clerk. The petitioner was appointed by the Institute on 20-4-91 and he joined on the same day. In Civil Misc. Wirt Petition No. 39127 of 1994, Ravi Kiran Singh v. state of U. P. and others, decided ton 12-2-98 a Division Bench of this Court has held that appoint ment 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 am valid reason the appointment of petitioner which was in accordance with rules could not have been interfered by another of ficer. 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 10-12-91. 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 con trary to the rules and in complete violation of principles of natural justice. The order passed by respondent No. 3 dated 10-12- 91 which has been filed as Annexure 4 to the writ petition cannot be upheld. Counsel for the petitioner further argues that respondent No. 1 is only releasing salary of Class IV employee to the petitioner inspite of stay order dated 21-5-92 passed by this Court therefore, the action of Assistant Director of Education so highly contemptuous. However, inter est of justice will be served if the Assistant Director of Education (Higher Educa tion), Degree Education (Anubhag), U. P. Allahabad is directed to release the dif ference of salary between Class III and Class IV employee along with 12% inter est from the date the stay order was granted by this Court.
(3.) IN the result the writ petition suc ceeds and allowed. The order dated 10-12-1991 passed by respondent No. 1 An nexure IV to the writ petition is quashed so far as the petitioner is concerned. The respondents are directed to continue the petitioner as junior clerk on a Class III post and pay his salary and the petitioner shall also be paid the difference of arrears of salary alongwith 12% interest which shall be released by the respondent No. 1 for payment to the petitioner with in a period of two months from the date of production of a certified copy of this order before him. The petitioner shall be en titled to his costs. Petition allowed. .;