Amreshwar Pratap Sahi, J.@mdashHeard Sri Ashok Khare learned senior counsel, for the petitioner and the learned standing counsel for the
respondent No. 1 to 4. The petitioner claims to have been appointed by the then Authorized Controller/Prabandh Sanchalak of the Institution in
the year 1987 in the clerical cadre of the Institution known as Vadik Inter College, Somai, District Jalaun. His services are now sought to be
dispensed with after the present Management was put to a show cause notice by the District Inspector of Schools with regard to the disputed
status of employment of the petitioner.
2. The District Inspector of Schools by the impugned order dated 17th January, 2013 has found that the appointment of the petitioner on 11th
September, 1987 on the post of Assistant Clerk was made by the District Inspector of Schools for which no sanctional post was available in the
institution at that point of time. It has been further clarified that there were only two sanctioned posts of assistant clerk available which were already
occupied and, therefore, the appointment of the petitioner was against a non-existent post.
3. The said order is being challenged on three grounds and Sri Khare submits that this action is being taken after 26 years of service and as such
delay in action violates Article 14 of the Constitution of India. He further submits that according to the norms prescribed the petitioners
appointment according to the student strength fell within the said norms and therefore, the appointment may be irregular but the same cannot be
invalidated for want of post. The other fact for consideration is that as on date one of the Assistant Clerk has already died and, therefore, even
otherwise the petitioners continuance as on today falls within the sanctioned and approved strength of Class-Ill cadre in the institution. In short the
initial irregularity can be condoned as it stands cured by passage of time and subsequent events.
4. The learned standing counsel on the other hand contends that so far as the petitioner is concerned, it is not disputed that he had not been
appointed against a sanctioned and approved post. The claim of regularization or curing of any irregularity, therefore, does not arise, the
appointment being void. The finding recorded by the District Inspector of Schools, therefore, cannot be disturbed. Learned standing counsel
further contends that in the absence of any appropriate sanction from the Director of Education, as per the provisions of the U.P. Act No. 24 of
1971, the claim of the petitioner to continue on the post and receive salary does not arise.
5. Having heard learned counsel for the parties, it is correct that the action has been taken after 26 years but that action, in my opinion, was
necessary in order to remove the perpetuation of an illegality and not a merely irregularity. Salary from State funds has to be paid against a
sanctioned post. The petitioner was admittedly not appointed against any sanctioned post, as is required for Section 9 of U.P. Act No. 24 of
1971. The petitioner was, therefore, appointed against a non-existent post and, as such, he was not entitled for payment of salary nor does he have
any right to claim continuance on such a non-existent post. The question of necessity of sanction of post has already been dealt with by this Court
in the case of Gopal Dubey v. District Inspector of Schools. Maharajganj, 1991 (1) UPLBEC 1 (FB).
6. This, therefore, does not violate Article 14 at all and the argument advanced does not advance the cause of the petitioner any further.
7. The question of the post falling within the norms is entirely different inasmuch as unless the post is sanctioned, as explained hereinabove, merely
because it is within the norms would not entitle the petitioner to claim continuance or salary as a matter of right. Even otherwise if the petitioner is
working within the sanctioned strength as on date, the same would not validate a patently illegal continuance on the post in question. None of the
pleas raised has any force. The writ petition lacks merit, accordingly, the same is dismissed.