V.K.Shukla, J. - (1.)Present writ petition has been filed questioning the validity of the order dated 28.8.1999 passed by Joint Director of Education, Deoria wherein claim of the petitioner has been rejected and further prayer has been made to issue writ of mandamus commanding the respondent to treat the petitioner as a clerk and pay his salary with arrears and other benefits. By means of amendment application, prayer has been made for quashing the order dated 8.2.1982 and further declaring the adjustment on the post of assistant clerk of Ram Ram Nayan singh as illegal.
(2.)Brief background of the case is that in the district of Deoria there has been recognised Junior High School. Petitioner claims that in the said Junior High School, he was appointed as "Daftri" Class IV employee by the Managing Committee of the institution on 1.7.1976 pursuant to letter dated 20.6.1976. Petitioner has claimed that permanent recognition was accorded to the said Junior High School in the year 1976 and thereafter said institution was upgraded to High School in the year 1981-82 and the provisions of U.P. Act No. 24 of 1971 were made applicable to the said institution. Petitioner has stated that after up-gradation of the institution in question, Deputy Director of Education, Deoria created various posts for High School, which was inclusive of five Class IV posts, including post of a Daftri, and a Sweeper and one post of assistant clerk. Petitioner has stated that Ram Nayan Singh, who was working as clerk in the Junior High School was not appointed as clerk in the High School and thereafter, District Inspector of Schools vide order dated 8.2.1982 has adjusted him on the post of clerk. Petitioner has come out with specific case that by resolution of the Managing Committee of the institution dated 25.10.1983 he was promoted as clerk in the High School and started working as clerk. Petitioner has stated that subsequent to the same, again on 7.11.1990 five class posts and one class III posts was created. It has been further stated that he was on medical leave from 5.9.1991 to 7.9.1991 and he moved an application for continuation of the sanctioned leave, but same was not accepted and order of dispensation of service was passed on 10.9.1991. Petitioner filed Civil Misc. Writ Petition No. 28735 of 1991. Apart from this petitioner alongwith other member of teaching and non-teaching staff of the institution had filed Civil Misc. Writ Petition No. 16902 of 1992 for payment of their salary and further quashing of the order of Deputy Director of Education dated 10.9.1991 wherein claim for payment of salary has been rejected. Civil Misc. Writ Petition No. 28735 of 1991 was allowed vide judgment and order dated 11.12.1995. In the said judgment which was passed it was mentioned that order passed therein shall be subject to result of Civil Misc. Writ Petition No. 16902 of 1992. Against both the orders dated 7.12.1995 and 11.12.1995 Special Appeal Nos. 162 of 1996 and 172 of 1996 had been filed and thereafter vide judgment dated 16.10.1998 Deputy Director of Eduction, Deoria was asked to decide the claim of petitioner regarding appointment as 'Daftri' and his promotion as clerk. Petitioner filed representation and same was rejected by Joint Director of Education. Against the said order, passed by the Joint Director of Education, present writ petition has been filed and said writ petition was allowed on 2.7.2007. Against the same Ram Nayan Singh, respondent No. 3 clerk preferred Special Appeal No. 1265 of 2007 and said appeal had been allowed on 27.9.2007 and order passed in Civil Misc. Writ Petition No. 41371 of 1999 was set aside and matter was directed to be restored and re-heard and in this background present writ petition has been taken up for final hearing and disposal after pleadings inter- se parties have been exchanged.
(3.)Sri Rahul Jain, Advocate, learned counsel for the petitioner contended with vehemence that in the present case Deputy Director of Education, Deoria has clearly erred in law and misdirected itself by contending that petitioner's appointment had not been made by the competent authority and there was no post of 'Daftri' and further promotion, which have been accorded at the said point of time, there was no post of assistant clerk, as Ram Nayan Singh, respondent No. 3 has already been absorbed against the said post and as such order passed by the Deputy Director of Education, Deoria is vitiated in law. Further submission has been made that under U.P. Act No. 2 of 1921 and U.P. Act No. 24 of 1971 there is no power of adjustment and as such adjustment made on 8.2.1982 is unsustainable, in this background writ petition deserves to be allowed.