IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 766 of 2010 (S/S) Guru Prasad Awasthi ……Petitioner Versus State and others …….Respondents Mr. Sharad Sharma, Senior Advocate assisted by Mr. J.S. Bisht, counsel for the petitioner. Mr. N.P. Sah, Standing Counsel for respondents. Dated:-23-09-2010 Hon’ble B.S.Verma, J. Heard learned counsel for the parties. By means of this petition, the petitioner has sought following reliefs:- “1. issue a writ order or direction in the nature of mandamus commanding the respondents to permit the petitioner’s joining on the post of Assistant Teacher (Physical), Government Higher Secondary School, Rampura (Rudrapur) District Udham Singh Nagar in compliance of the order dated 21.07.2010, passed by respondent No. 3. 2. Issue a writ, order or direction in the nature of mandamus commanding the respondents to pay to the petitioner his salary wrongfully withheld by them w.e.f. Dec, 2009. 3. Issue a writ, order or direction which this Hon’ble Court may deem fit and proper under the circumstances of the case. 4. Award the cost of the petition.” Brief facts, as narrated in the writ petition are that petitioner was appointed as an Assistant Teacher (Physical Education) in the year 1989. It is further stated in the writ petition that later on the request of the petitioner, vide order dated 21.07.2010 (Annexure-12 to the writ petition) he was transferred to Government Higher Secondary School, Rampura, District Udham Singh Nagar on the post of Assistant Teacher (Physical) against the vacant post. Thereafter, pursuant to letter 2 dated 26.07.2010 of District Education Officer addressed to Principal of Government Higher Secondary School, Rampura, District Udham Singh Nagar, the petitioner was not given joining in the institute. Hence this petition. In the counter affidavit, filed on behalf of respondent No. 4, it is stated in para-4 as under :- “that at the time of issuance of letter dated 30th July 2010 addressed to the Principal, Govt. Higher Secondary School, Rampura; on the basis of work load chart issued by the Directorate of School Education, Uttarakhand, Dehradun, in which the details of the subjectwise sanctioned posts, working and vacant posts of Assistant Teacher (Art) and one post of Assistant Teacher (Physical Education) are sanctioned in the School and both the posts are still vacant. It is submitted that against the total 07 sanctioned posts of Assistant Teacher, 06 Assistant Teachers are working out of which 01 Assistant Teacher (Math) is surplus in the said Institution.” It is further stated in said para that as per letter dated 16th September 2010 of Directorate, School Education, Uttarakhand, a copy of which is addressed to the deponent, at last para of the said letter it is specifically mentioned that “Thus, at present against the post of Assistant Teacher (Physical Education) and Assistant Teacher (Art) none of the teacher is working. In future, on adjustment of surplus Assistant Teacher (Math) in other scholl, the posts of Assistant Teachers (Art) and (Physical Education) will be vacant. ” Learned counsel for respondents, drew attention of this Court to letter dated 16.09.2010, which is annexed as annexure- 1 to the counter affidavit. On perusal of letter dated 16.09.2010, it is disclosed that one post is sanctioned for Assistant Teacher (Physical Education) and as per averment made in para-4 of the counter affidavit, this fact is not disputed that one post of Assistant Teacher (Physical Education) is still lying vacant. It is pertinent to mention here that vide letter of District Education Officer dated 23.07.2010, it is clarified that the two posts of Assistant Teacher- Art and Physical Education, which were sanctioned are still lying vacant at present but because of lack of adjustment, only one post is vacant, therefore, either teacher of 3 Art or Physical Education may be given joining according to the rules. The fact that petitioner is Assistant Teacher (Physical Education) is not disputed. The petitioner has been transferred as Assistant Teacher (Physical Education) in the Government Higher Secondary School, Rampura, District Udham Singh Nagar. In view of the averment made in para-4 of the counter affidavit as well as that of the contents of letter dated 23.07.2010, one post of Assistant Teacher (Physical Education) is vacant in the institution and against the sanctioned posts, six persons are working and as on today there appears to be no hurdle in giving joining to the petitioner as Assistant Teacher (Physical Education). Therefore, in view of the discussion in foregoing paragraphs, the writ petition deserves to be allowed. Having heard learned counsel for the parties, this Court is of the view that writ petition is allowed directing the respondent No. 5 to permit the petitioner to join on the post of Assistant Teacher (Physical), Government Higher Secondary School, Rampura, District Udham Singh Nagar, within a period of two weeks from the date of certified copy of this order. As far as relief No. 2 is concerned, the petitioner is given liberty to make representation before the appropriate authority for redressal of his grievance. If the representation is filed before the appropriate authority, the same shall be decided in accordance with law by a reasoned and speaking order within a period of four weeks from the date of production of certified copy of this order. (B.S.Verma, J.) 23-09-2010 S 4