Vijay Kumar Mishra vs District Inspector of Schools and Others

Shailendra Saksena, J.—Both these writ petitions filed under Article 226 of the Constitution of India, have been filed by Vijay Kumar Mishra who has sought his appointment on the post of Assistant Teacher under the Dying in Harness Rules and for payment of salary alongwith arrears and to accord the approval of appointment of the petitioner subject to the condition that the petitioner would acquire requisite training qualification within a period of three years.

The father of the petitioner late Shri Keshav Prasad Mishra was a confirmed teacher and was teaching in Maharaja Agrasen Vidyalaya, Basic Vibhag, which is being run by opposite party No.2, of which opposite party No.3 is the Manager and opposite party No.4 is the Principal. After the death of his father the petitioner moved an application before the opposite parties praying for his appointment under Dying in Harness Rules. After repeated reminders on 14.9.2000 the opposite parties issued appointment letter to the petitioner and petitioner joined his duties on 19.9.2000 as Assistant Teacher in the Primary Section attached to the Intermediate Institution and was continuing, as such the petitioner was not being paid salary, hence he moved writ petition No.6781 (S/S) of 2000, in which he prayed that the opposite party No.1 be directed to grant approval for making payment of salary and accord approval of the petitioner for the appointment on this post subject to the condition that the petitioner acquires requisite qualification within a period of three years.

In the above said writ petition No.6781 (S/S) of 2000 a direction was given by this Court on 24.11.2000, in which it was directed that the opposite party No.1 will take a decision on the question of appointment of the petitioner on the post of Assistant Teacher in the Primary Section and for payment of salary on this post.

Opposite party No.1 vide its order dated 4.5.2001 rejected the prayer of the petitioner for appointment the post of Assistant Teacher on Dying in Harness Rules, mainly on the ground that petitioner was not a trained teacher and hence he could not have been appointed on teaching post, nor salary on this post can be given to him. The Government Order dated 6th September, 1990 will not apply in the case of the petitioner. He is not entitled to get the benefit of this Government order.

After the rejection of the representation by the opposite party No.1 vide orders dated 4.5.2001 petitioner filed fresh this writ petition No.1568 (S/S) of 2000, in which quashing of above order has been prayed and it has been prayed that the opposite parties may be directed to appoint the petitioner on the post of untrained Assistant Teacher with a direction of giving opportunity to complete the training. The prayer which was made in Writ Petition No.6781 (S/S) of 2000 had also not been amended after above said representation of the petitioner was decided by the opposite party No.1.

The record of the case bears out the fact that the petitioner who at the time of the death of his father was B. Com., his father was working as Assistant Teacher in the Primary Section attached to Maharaja Agarsen Inter College.

The Primary section which is being run by Maharaja Agarsen Inter College, is a part of Institution within the meaning of definition of the Institution as contained in Section 2(b) of the Intermediate Education Act, 1921. Regulations 101 to 107 of the Act are fully applicable to an institution which includes the part of the Institution.

In this writ petition the petitioner has claimed parity with the other petitions who were similarly placed and had been given the benefit of appointment. Reliance on the judgments passed in their cases have been placed by the learned counsel for the petitioner. One of such judgments was delivered on 4.4.1995 in Writ Petition No.13184 of 1992 Ahmad Mustafa Khan v. District Inspector of Schools, Allahabad and others, it has been annexed as Annexure No.9 to this writ petition. In this judgment this Court had directed that if the candidate is claiming the appointment as a dependent of the deceased employee, is not possessing the training qualification prescribed under the Intermediate Education Act, 1921, may be appointed subject to his/her acquiring requisite qualification within the prescribed period. It was further held in this case that the person who does not possess the training qualifications can be appointed with a direction to him to acquire the training qualifications in accordance with the Government Order dated 6th September, 1990. Similar orders were passed in another case writ petition No.Nil of 1993 Naveen Kumar Upadhyaya v. Director of Education in Writ Petition No.5329 (S/S) of 1999 Jai Shankar Mishra v. State of U.P. in Writ Petition No.5817 (S/S) of 1994. Besides the above, in these cases, it was also provided that the petitioner may be adjusted on the vacancies which may arise afterwards, if it is not possible to adjust then he may be allowed to continue in the supernumerary capacity till the post falls vacant. The absorption will be subject to the availability of the vacancy according to the seniority.

In the writ petition No.1846 (S/S) of 1996 decided on December 11, 2001 Sudhakar Srivastava v. Deputy Director of Education and others. It was further laid down that if under compelling circumstances a person has opted for a post which was offered to him that will not deprive him from his legal rights. If the petitioner possesses the requisite qualification for appointment of post of Assistant Teacher, he would be eligible for appointment on the same post.

In view of the above facts, both these petitions deserve to be allowed and is accordingly allowed.

Let a writ/order/direction in the nature of certiorari be issued quashing the impugned order dated 16.2.2002 passed by the opposite party No.1 as contained in Annexure No.1 of this writ petition.

The opposite parties will appoint the petitioner on the post of untrained Assistant Teacher and will give him opportunity to complete the training on the basis of which Assistant Teacher can be appointed within reasonable specified time. The petitioner will also be paid salary on the post he has worked from 19.9.2000 with future and consequential benefits.

(Petition allowed)