Allahabad High Court: Approval Granted 30 Years Ago Cannot Be Withdrawn On Ground Of Post Not Being Created By Competent Authority

The Allahabad High Court while granting relief to an Assistant Teacher held that approval granted 30 years ago, cannot be withdrawn on the ground that the post was not created by the Competent Authority.

The Court was considering a Writ-Petition seeking direction to the Respondents to continue to pay month to month salary to Petitioner for the post of Assistant Teacher.

The single-bench of Justice Prakash Padia observed, "For last about 30 years, there was no dispute or any allegation that the petitioner was paid salary against non-sanctioned post. It was open to the Competent Authority, who granted financial approval and started making payment of salary to the petitioner from the State exchequer to deny the financial approval or payment of salary to the petitioner in the year 1996 itself. The authorities being fully satisfied that the appointment of the petitioner is against the sanctioned post, he had been continuously getting his salary. Thus, the petitioner was not at all in fault. There is no mention of fraud or malpractice against the petitioner, who had served for about 30 years."

The Petitioner was represented by Advocate Gaurav Gautam while the Respondent was represented by C.S.C.

Facts of the Case

The Petitioner was working in the Institution in question on the post of Assistant Teacher Tahtania since 1988 and after the posts were sanctioned, he started getting his salary from the State Exchequer on the post of Assistant Teacher Tahtania with effect from 1995. The Deputy Director, when directed the Basic Education Officer to do the needful for payment of salary of 13 teachers of Tahtania, it included the name of the petitioner as well. It was stated that though the Petitioner was performing teaching work in the Madarsa as Assistant Teacher in Tahtania with effect from 1998 but he started getting his salary from the State Exchequer in December, 1995. Later, the Committee of Management promoted the Petitioner on the post of Assistant Teacher Faukania and the Petitioner joined his promoted post in 2021.

Counsel for the Petitioner contended that in spite of the financial approval order, the petitioner was not paid his salary for the post of Assistant Teacher Faukania. Later, the Respondent, by way of impugned order held that the appointment of the Petitioner as Assistant Teacher Tahtania was not against the sanctioned post, as such, the financial approval granted to the Petitioner for the post of Assistant Teacher Tahtania was withdrawn with immediate effect. It was further ordered that the initial appointment of the Petitioner as Assistant Teacher Tahtania was against the rules, as such, the financial approval granted to the petitioner for the post of Assistant Teacher Fauquania is also withdrawn.

He relied upon a judgment of the Apex Court passed in the case of Radhey Shyam Yadav & another Vs. State U.P. & others, 2024 to submit that as the appointment of the Petitioner was approved and he was getting salary from December 1996 till February 2024 and financial approval to the appointment of the petitioner was granted, as such, after working for more than 30 years, the State is stopped in law from withdrawing the approval of appointment of the Petitioner.

Reasoning By Court

The Court at the outset noted that there is no allegation that either the Petitioner or the Committee of Management has played any fraud and has appointed the Petitioner against a non-sanctioned post and the only basis for passing the impugned order is that the post was not created with prior permission of the State Government.

"In the impugned order, the only conclusion has been recorded by the Registrar, respondent no. 2 that the appointment of the petitioner as Assistant Teacher Tahtania was not against the post created by the State Government. There is no whisper regarding any fraud or misrepresentation being made either by the petitioner or by the Committee of Management in creation of post," the Court observed.

The Court re-iterated the dictum of the Apex Court in case of Radhey Shyam (supra) which has affirmed the judgment of Shivanandan C.T. & others Vs. High Court Kerala & others (2023), wherein it was held that even if the appointment of more than advertised vacancy, after lapse of two decades, the same should be protected.

"......in view of the facts stated above, the order impugned dated 28.3.2024 is illegal. The approval granted 30 years ago, cannot be withdrawn on the ground that the post was not created by the Competent Authority," the Court observed.

The Petition was thus allowed.

Cause Title: Shafique Ahmad vs. State Of U.P. And 3 Others (2025:AHC:34893)

Appearances:

Petitioner- Advocate Gaurav Gautam, Advocate Krishna Kant Vishwakarma, Advocate Rajesh Kumar Singh

Respondent- C.S.C., Advocate Pranav Mishra

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